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What Happens to the Supercommittee’s Records?

This story by Richard Lardner of the Associated Press (“Debt-reduction ‘supercommittee’ hid in plain sight”) discusses how the “Supercommittee” has conducted its business largely behind closed doors. The article cites this blog’s view that the committee’s narrow interpretation of the term “meeting” as used in its open meeting rule enabled it to conduct virtually all of its deliberations out of public view.

Lardner also raises an interesting question regarding the disposition of the committee records. Rule III(3) of its rules provides that “[u]pon termination of the Joint Select Committee, the records of the Joint Select Committee shall be treated as Senate records under S. Res. 474, 96th Congress as directed by the Secretary of the Senate.” S. Res. 474, in turn, provides that committee records, once archived, are to be made available to the public after 20 years unless (1) the records were already public before being archived (in which case they can be made available to the public immediately), (2) the records contain information relating to the privacy of specific individuals, such as investigative or personnel files (in which case they are not available for 50 years) or (3) the committee prescribes a different time for public release of its records.

As a practical mater, the decision as to what committee records are to be archived will be made by Senate archivists working with committee staff. My understanding is that the Senate archivists consider notes, emails and similar documents to be committee records, at least to the extent that they document significant committee matters. This understanding is based in part on my experience with the Senate Homeland Security and Governmental Affairs Committee; following the enactment of the Intelligence Reform and Terrorism Prevention Act of 2004, the committee’s archivist asked staff to identify and collect emails, notes and drafts that would document the negotiating and deliberating process. (We grumbled, but made reasonable efforts to comply).

In the case of the Supercommittee, the fact that it has no permanent or clearly demarcated offices may make this process even more haphazard than usual. But one assumes that the Senate archivists, acting under the Secretary’s direction, will do their best to gather those records that would shed light on the committee’s work.

But who will see these records? Unless the committee adopts a resolution or order providing for earlier public release, all of these records (save those already public) will remain sealed at the National Archives until at least 2031.

Perhaps the Congressional Transparency Caucus would like to weigh in?

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