Shortly after the November elections, the archivist of the United States sent a note to high-ranking officials of about 50 federal agencies, reminding them of the law concerning government records.
"Employes must be aware of the criminal penalties that are attached to unlawful removal or destruction of federal records," an attached set of stiffly worded rules added at one point. At another point, the rules emphasized:
"The definition of 'official records' involves materials made or received either under fedral law or in connection with the transaction of public business. . . . For example, correspondence designated 'personal,' 'confidential' or 'private,' etc., but relevant to the conduct of public business is an official record. Official records are public records and belong to the office rather than to the officer."
Former president Jimmy Carter doesn't see it quite that way, at least as far as the records of his four years at the White House are concerned. Millions of documents have just been trucked to Georgia under the traditional theory that they are all Carter's personal property.
Carter has never seen most of the documents. The records include staffers' telephone logs, appointment books, office diaries and personal notes on all sorts of subjects involving government business.
The stacked boxes of files on Billy Carter alone took up half of a high-ceiling room in the Old Executive Office Building before being carted off to Andrews Air Force Base to join a 19-truck caravan for the trip to Atlanta Tuesday morning.
The records, estimated by James E. O'Neill, assistant archivist for presidential libraries, as covering possibly 30 million pages, will be processed and stored in an old Post Office annex in downtown Atlanta until a Carter library can be built.
The convoy to Georgia, under military guard to protect all the top-secret documents affecting national security that Carter is taking with him, marked the end of an era. Under a law enacted in 1978, all presidential papers, from Ronald Reagan's on, will belong to the government and eventually will be subject to public scrutiny under uniform standars fixed by statute.
What is surprising about the passing of the era, however, is the vigor with which the outgoing president is asserting private custody and control of records that, in signing the 1978 law, he had acknowledged should in general be public property.
All White House staffers and officials of various segments of the executive office of the president (such as the Council of Economic Advisers) were even required to sign an unprecedented "departure agreement" acknowledging Carter's ownership of all "presidential papers," including any copies as well as the originals. A presidential paper, in turn, is any record "actually used or . . . created in the transaction of governmental operations."
Under the arrangement, set down last month in memos from White House then-chief of staff Jack Watson and White House then-counsel Lloyd Cutler, Carter's aides could not take copies of any presidential papers with them without signing the agreement, and they cannot quote from them in the future without obtaining the former president's specific approval. If they sign, he has promised them access to papers they originated or received.
Carter promised, during the course of obtaining an exemption from the 1978 law for his papers, to deed to the government all rights in "the official papers and other historical materials received and produced during my presidency."
The deed, however, has yet to be signed. Although no reservations were expressed in 1978, the president's lawyers say now that he will donate only "the bulk of his presidential papers," while keeping certain selected records in his personal files. It also seems likely that Carter will insist on more secrecy for some of his records than envisioned in the 1978 law.
That statute provides for public access to at least some of any future president's records after five years at most (a period archivists say they need for processing puposes). The law also requires that all records be subject to the provisions of the Freedom of Information Act after a 12-year period. After all, any continued secrecy can be contested in the courts.
Former White House deputy counsel Michael Cardozo indicated in an interview that Carter and his advisers want considerably more secrecy than that for various records, especially those that might prove embarrassing while they are still in public life.
Carter "is young, healthy and vigorous, and he's likely to be active politically and intellectually 12 years from now -- an active former president at the age of 68," Cardozo said.
Staffers such as Hamilton Jordan, Jody Powell and Watson are also quite young. They might be public figures 12 years from now, and "If they have written blunt, candid opinions, they might be embarrassed if particularly sensitive materials came out," Cardozo said.
In any case, the length and scope of the restrictions to be placed on Carter's papers have been the main issues holding up the deed of gift.
Cardozo bristled at the notion that Carter was continuing a double standard for presidential papers from other government records. He said there was a solid tradition of personal ownership for presidential papers, going back to George Washington.
Despite this, Cardozo said, the president will make it plain in a letter of transmittal to the archivist that he is "committed to assuring public ownership and permanent preservation of historical records documenting my presidency."
Cardozo acknowledged that the departure agreement required of Carter's aides and advisers might have produced a "sense of a double standard," but he defended the requirement as necessary to make sure that records don't disappear willy-nilly and to protect "the integrity of the presidential decision-making process."
At the same time, Cardozo insisted that Carter will prove to be far more "generous and open" than his predecessors about what can be disclosed and will not try to inhibit what his aides might say or write about his administration's policies or practices.
The record isn't so encouraging. At a Nov. 12 news conference, after his defeat, Carter misstated the new law he had signed in 1978, saying that even under that statute, the papers "are the property of the president." As for his papers, he said he intended to "husband" them carefully for future use and planned "to write more than one book, as a matter of fact."
Another double standard? The former president's cousin, Hugh Carter, who was in charge of some of the logistics, agreed that the president does not think public officials should make big profits on book contracts stemming from their public careers.
"The presiddent and the First Lady feel strongly about that," Hugh Carter said. "I think that any profits that would come to him, he would probably limit. But he's got to live." Ex-presidents, he said, are still public officals in a variety of ways.
"Quite frankly," Hugh Carter said, "they don't have enough remuneration."