CHAPTER I:

COMMITTEE RECORDS: A DEFINITION

A precise and comprehensive definition of congressional committee records is not to be found in statute or in the Senate Standing Rules. Congress, however, has provided the executive branch with a definition of records in the Federal Records Act, 44 USC 3301 (1982). In a chapter on the disposal of records of federal agencies, "records" are defined as "all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received . . . in connection with the transaction of public business and preserved . . . as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the government or because of the informational value of data in them.

Committee records, then, would include all documentary materials, regardless of physical format, made or received and maintained by committees in connection with the transaction of committee legislative and executive business. Such records document committee work on bills, oversight and investigations, consideration of nominations and treaties, and impeachment proceedings. They are considered appropriate for preservation either as evidence of the organization, functions, and operations of the committee or because of the informational value of the data and facts they contain. For disposition purposes, it is important to distinguish records of lasting value from those which have only short term administrative uses. Whenever possible, records of lasting value should be filed separately from those of transitory usefulness. (Detailed discussions of permanently valuable and transitory records are included in Chapter II, "Committee Functions and Their Records," and Chapter III, "Files Maintenance and Disposition Plan.")

There are three tests for "informational value" that should be applied in determining whether to preserve a specific group of records. They relate to the records' uniqueness, form, and importance. In this context, "uniqueness" means that the records cannot be found elsewhere in as complete or usable form. The test related to form concerns the degree

to which the information in the records is concentrated. It also relates to the physical condition of the records and the ease of access to the information contained therein. The research importance of a group of records is a somewhat subjective matter that can best be determined by use of similar bodies of records.

Although those who create the records are in a position to evaluate their relative immediate importance, their perspective can be limited by their “familiarity," with the result that they tend to underrate the material's longer range significance. Assistance with the identification and transfer of records of enduring value is available from the Senate Historical Office and Senate Archivist (224-6900).

OWNERSHIP AND DISPOSITION
AUTHORITY

The ownership and disposition of committee records is defined by statute and Senate rule. Section 202(d) of the Legislative Reorganization Act of 1946, 2 USC § 72a(d) (1982), and Senate Standing Rule XXVI(10)(a), make clear that the records of Senate committees are the property of the Senate. 2 USC § 72a(d) provides in part:

All committee hearings, records, data, charts, and files shall be kept separate and distinct from the congressional office records of the member serving as chairman of the committee; and such records shall be the property of the Congress and all members of the committee and the respective houses shall have access to such records.

Senate Standing Rule XXVI reiterates that "such records shall be the property of the Senate and all members of the committee and the Senate shall have access to such records."

Disposition of committee records also is governed by statute and Senate rule which state that the Secretary of the Senate is required to obtain noncurrent records from committees and to transfer those

records to the National Archives. The Senate Historical Office, which operates under the jurisdiction of the Secretary, is charged with the collection and administration of all Senate committee records. (See 44 USC § 2118 (West Supplement 1985), reproduced in Appendix C.) Senate Standing Rule XI states:

No memorial or other paper presented to the Senate, except original treaties finally acted upon, shall be withdrawn from its files except by order of the Senate.

The Secretary of the Senate shall obtain at the close of each Congress all the noncurrent records of the Senate and of each Senate committee and transfer them to the National Archives for preservation, subject to the orders of the Senate.

Further clarification is provided in a Senate Legal Counsel memorandum (reproduced in Appendix A). The Legal Counsel comments that 2 USC § 72a(d) applies to "all" records of a committee and 44 USCA § 2118 applies to "all" noncurrent records. "The 'all' in 2 USC § 72a(d) modifies every category of records which follows, including 'files'." Consequently, there is no tenable distinction between "committee files" and "staff files." All records created or received by Senate committee staff in connection with Senate committee business are the property of the Senate.

PERSONAL FILES

It is, of course, possible that committee staff also may keep purely personal papers in their office. (See Appendix A, Senate Legal Counsel memorandum concerning ownership of committee records.) For example, many Senate employees are interested in politics and they are not covered by the restrictions in political activity imposed by the Hatch Act on other federal employees. Unless specifically prohibited by individual committee rules, and as long as they comply with Senate Rule 37 on Conflict of Interest, and Rule 41 on Political Fund Activity, staff may engage in campaign activities during their free time or off-duty hours. Before engaging in campaign activity, however, it is advisable to contact the Senate Ethics Committee. (See Senate Select Committee on Ethics, Interpretative Rulings, Senate Print 99-193, Numbers 3, 5, 22, 59, 88, 154, 194, and 263.) The Ethics Committee specifically stated in Ruling Number 153 that the rulings concerning participation in campaigns "are applicable to employees of individual senators, staff of Senate committees, and employees working for officers of the Senate." Any records resulting from campaign activities would be personal papers, not committee records.

Other examples of personal files which might be kept by staff in a committee office include papers accumulated before joining the committee, materials pertaining to outside business pursuits, family and personal relationships, teaching and educational programs, and diaries and personal notes which are not prepared for transacting committee business. Executive branch regulations implementing 44 USC 3301 exclude those "papers of a private or nonofficial character which pertain only to an individual's personal affairs," provided that they are clearly designated and kept separately from the records of the office (36 CFR § 1222.20(d)). (See also Appendix A, memorandum of Senate Legal Counsel.) Committee chief clerks should caution staff to follow this example and file any personal records separately from records documenting committee business. This will help to avoid inadvertent destruction or removal of official committee material and to facilitate the disposition of committee files.

POLITICAL FILES

Because many committee staff are designated as either majority or minority, there is sometimes a tendency for these staff to regard their files as "political" and, therefore, "private," or "personal." It is important to distinguish between committee "political" duties and purely private "political" activities.

Jack Maskell, a legislative attorney with the American Law Division of the Congressional Research Service comments on the somewhat confusing aspects of "political" activity in a March 16, 1981 report:

Although the distinction between "official" duties and “campaign" activities is a common one in congressional matters, because of the various public, political, and official roles which a member may assume in connection with his position in Congress, there may be instances where this distinction is less clear than in others, or where one area may intrude into the other. Some confusion may initially be caused by the labeling of some of the official representational duties of a Member of Congress as "political" in nature.1

For purposes of distinguishing between committee records and personal political records, staff should keep in mind that certain legitimate activities comprising committee work, such as developing majority and minority positions on legislation, may have "political" overtones or perspective. They, however, should not be confused with private political activities which are characterized in Senate rules governing

1Jack Maskell, "Use of Congressional Staff on Political Campaigns," American Law Division, Congressional Research Service Report, March 16, 1981, page 13.

conflict of interest and campaign activities. As listed in the CRS report, activities typically understood by congressional rule, statute, and practice to be "political" or "campaign" activities include the solicitation of political contributions, canvassing votes for a candidate in a primary or general election, organizing a political fund-raiser, coordinating campaign volunteer lists, etc. These records would indeed be personal records and not records of a committee.

On the other hand, committee staff do perform official committee duties that have political overtones but do not result in the creation of personal papers. These include preparing majority and minority drafts of legislation, individual staff memoranda to majority and minority committee members, correspondence with interested parties having a majority or minority perspective, drafting statements with a political pointof-view for the majority and minority members, or compiling majority and minority briefing materials. But, because these materials were either received or created and maintained as a result of performing committee business, and collectively serve to document all points of view within a committee, they are quite properly regarded as committee records. It is especially important that each committee retain as complete a record as possible of majority and minority consideration of bills, treaties, nominations, and of majority and minority oversight and investigative work.

RECORDS OF LEGISLATIVE ASSISTANTS FOR COMMITTEE WORK

Questions frequently arise concerning the ownership of records created and received by individuals that senators may designate to assist them in connection with the senator's membership on a committee. Public Law 95-94, Sec. 111(c)(2) states that such employees:

shall be accorded all privileges of a professional staff member (whether permanent or investigatory) of such committee including access to all committee sessions and files, except that any such committee may restrict access to its sessions to one staff member per senator at a time and require, if classified material is being handled or discussed, that any staff member possess the appropriate security clearance before being allowed access to such material or to discussion of it.

Because records maintained by this staff person would seem to fall within a standard definition of committee records, "records received or created and maintained as a result of performing committee business," it is helpful, in such instances, to consider the source of funding to determine records ownership. If the staff person's salary is funded from the senator's clerk-hire money, the records appropriately belong

with the member's collection of personal papers. If, on the other hand, an individual is on the committee payroll and is paid by committee funding, no matter how closely the person works with an individual member, the records received or created and maintained by this individual pursuant to his/her responsibilities as a committee employee, are records of the committee and belong to the Senate.

DOCUMENTS RECEIVED FROM EXECUTIVE AGENCIES

Committees routinely receive documents from executive agencies, both in the form of formal executive communications and reports required by law, and documents requested to facilitate the work of the committee in oversight or investigative matters. In addition, committees sometimes request and review quantities of agency documents for general informational purposes.

Occasionally, a question arises concerning the ownership and disposition of such documents, especially if they are marked with a security classification or are regarded as "sensitive." In the case of executive communications and reports, it is clear that these records by statutory requirement belong to the committee and should be retained with permanent files because of their informational and legal value. To determine ownership of documents that a committee originally obtained from an executive agency in the course of conducting an investigation or oversight, the Senate Legal Counsel comments that "in general, copies of documents that were provided to a committee have, by virtue of their provision and use, become Senate committee records, which should be preserved along with the committee's other records." He points out that reference to case law under the Freedom of Information Act suggests that documents would fail to become committee records only if control over them has not passed from an agency to a committee and if they are not subject to the committee's free disposition. Accordingly, this standard would probably only be satisfied if an agency had merely loaned its documents to a committee, with an explicit contemporaneous understanding between the agency and the committee at the time the document was loaned, that the document was to be returned to the agency when the committee no longer needed it. The Legal Counsel goes on to say, however, that "it should not ordinarily be necessary for committees to enter into such agreements with agencies, since the applicable Senate rule and resolution provide adequate flexibility to accommodate agencies' confidentiality concerns in the course of preserving Senate records." (See memorandum of the Senate Legal Counsel, Appendix A.)

CHAPTER II:

COMMITTEE ORGANIZATION, FUNCTIONS, AND RECORDS

This chapter presents information on committee activities together with the kinds of records required to document them. Its purpose is to provide administrative staff with an overview of basic organizational structure and corresponding methods to rationalize office information resources. It should be read by all newly appointed staff charged with overseeing records management and systems administration or by staff who wish to modify existing procedures.

A major part of the chapter is devoted to outlining committee activities and describing the types of file series which can facilitate information retrieval. Committee chief clerks and minority administrative clerks, together with designated individuals in each subcommittee office, should review the accompanying charts to determine which files series to create.

The final decision to set up files should be a joint decision of professional and administrative staff. Specific file series may be established to meet individual needs, but all staff should have a basic understanding of what files exist and where they are located. Remember, many committee legislative and investigative documents have long-term research value. Maintaining them in carefully designated file series contributes immensely towards their continued usefulness.

BACKGROUND AND EVOLUTION OF
COMMITTEES

The Senate of the First Congress began its work on April 6, 1789 with only twelve members. Over the next three decades the body grew slowly, reaching thirty-six members in 1816. The Senate's small size facilitated informal discussion of legislative proposals and made unnecessary the creation of formal standing committees. Normally the full Senate would discuss a legislative matter until some consensus had been reached. At that point, the body would establish a temporary committee to draft a specific proposal that incorporated the points previously agreed upon. As soon as the committee completed its work, it ceased to exist. Occasionally select committees were given the authority to examine broad subject

areas, but they too had limited life spans. Only three standing committees had been appointed before 1816, including Enrolled Bills (1789), Engrossed Bills (1806), and Contingent Expenses (1807). All dealt with "housekeeping" rather than legislative matters. At the end of the War of 1812, the Senate began to consider establishing a system of standing committees to encourage senators to develop expertise in areas of particular interest and to promote stability and continuity in the legislative system. On December 5, 1816 Senator James Barbour of Virginia moved that the Senate create eleven standing committees. Five days later the Senate adopted Barbour's motion and created the following committees: Claims, Commerce and Manufactures, Finance, Foreign Relations, Judiciary, Military Affairs, Militia, Naval Affairs, Pensions, Post Office and Post Roads, and Public Lands.

In addition to regular legislative duties, the employment of standing committees permitted the Senate regularly to assign the task of long-term studies and investigations. As early as the 10th Congress (18071809) the Senate routinely had begun to refer nominations to the select committees. This function was transferred to the newly established standing committees.

The total number of standing committees within a Congress, their names, and respective jurisdictions have changed dramatically over the years. The number reached an all-time high of seventy-four in 1913. In 1921 the Senate consolidated its committee system into thirty-four separate panels and in 1946, through the Legislative Reorganization Act, the number of standing committees was reduced to fifteen. In response to continued growth of committees and especially subcommittees, the Temporary Select Committee to Study the Senate Committee System (Stevenson Committee), in 1976, recommended the merger of several committees. Currently there are sixteen standing committees, three select committees, one special committee, and four joint commit