As we discuss in this brief, each of these factors supports the granting of the injunction plaintiffs seek here.

In addition to showing that plaintiffs' are likely to succeed on the merits and that the balance of the equities favors plaintiffs, we shall describe the various public interests that will be served by the injunction requested here interests which justify the issuance of the injunction quite apart from the private concerns of the parties. Virginian Ry. v. System Federal No. 40, 300 U.S. 515, 552 (1937); Yakus v. United States, 321 U.S. 414, 441 (1944); Green v. Kennedy, supra, at 1133-40. These include: (i) the public's right to know the facts of a critical period of American history, (ii) its right to have its Government function smoothly without serious disruption due to a wholesale ravaging of its most important internal files, and (iii) its interest in insuring that no man can set himself above the law."

II. PLAINTIFFS HAVE STANDING TO PROSECUTE THIS ACTION

Plaintiffs are historians, journalists, political scientists and educators who presently desire to study, write about, and report on the Presidency of Richard M. Nixon, and who are professionally committeed to these pursuits. In order to do so, they wish to obtain access to the pertinent governmental records of the Nixon Administration. But for the barrier imposed by the Nixon-Sampson Agreement, plaintiffs could examine these materials through the voluntary consent of the Government, or, if necessary, through a lawsuit under the Freedom of Information Act, 5 U.S.C. § 552. The purpose of this action is to require defendants to maintain custody over the disputed records so that plaintiffs will be able to obtain access to them, as is possible with normal government records, to the extent permitted by the Freedom of Information Act. Plaintiffs clearly have standing to prosecute this action.

A. PLAINTIFFS HAVE DIRECT, IMMEDIATE, CONCRETE INTERESTS IN THE QUESTION WHETHER MR. NIXON IS ENTITLED TO SOLE CUSTODY AND CONTROL OF THE "PRESIDENTIAL MATERIALS."

There is no dispute that the "presidential materials," the subject matter of this litigation, include materials which "have historical value and importance." (See Answer of Intervenor-Defendant Richard M. Nixon in C.A. No. 74-1533, 124, p. 5.) Thus, as historians, journalists, political scientists and educators, plaintiffs have direct, immediate concrete interests in the question whether Richard Nixon is entitled to sole custody and control of the materials in a manner that permits him to limit or prohibit access in his sole discretion, and even to destroy them. E.g., United States v. SCRAP, 412 U.S. 669 (1973).

The following are some examples of plaintiffs' specific interests in and needs for the "presidential materials." Several other examples could also be identified:

Plaintiff Lukas is presently under contract with the Viking Press to research, write and publish a book on the Administration of Richard Nixon. In order to prepare an accurate, timely and scholarly work, he believes that it is essential to examine the Nixon presidential materials. (Affidavit of J. Anthony Lukas ¶ 6.)

Plaintiff Leuchtenburg is in the process of writing the final volume of the Oxford History of the United States, which will include the term of the Nixon Presidency. Plaintiff Leuchtenburg is also under contract to revise two other historical works to include the second term of former President Nixon. He alleges that the scholarly and financial value of his writings will be impaired if he is denied access to the presidential materials. (Affidavit ow William Leuchtenburg ¶¶ 4–7.)

Plaintiff James MacGregor Burns has been engaged for many years in the study of the Presidency, and he has written a number of books and articles on this subject. In order to continue his work, Professor Burns needs to obtain access to the Nixon presidential materials. (Affidavit of James MacGregor Burns ¶¶ 2-4.)

Plaintiff Clement E. Vose is the representative of the American Political Science Association to the Archives Advisory Board of the U.S. Archives and Records Service. Professor Vose has a special interest in preparing

Each of these interests is in turn dependent on the timely and efficient resolution of this litigation-a prospect which itself will be gravely threatened if the res in dispute is transported three thousand miles away, especially since, as noted above, the exact contents of the res is not yet clear.

and publishing materials on the availability of source materials in libraries and other depositories, and he desires to examine the presidential materials of Richard Nixon in the furtherance of this work. (Affidavit of Clement E. Vose ¶¶ 1-5.)

Plaintiff American Historical Association was chartered by Congress in 1889 for the purpose of "the promotion of historical studies, the collection and preservation of historical manuscripts and for kindred purposes in the interest of American history . . ." The Constitution of the Association mandates that it "encourage the collection and preservation of historical documents" and "insure equal access to information." (Affidavit of Mack Thompson ¶ 2.)

Given the direct, concrete, scholarly and financial interests of these plaintiffs, there can be no serious dispute concerning their standing to sue. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). Compare United States v. SCRAP, supra, with Sierra Club v. Morton, 405 U.S. 727 (1972). Plaintiffs have a "direct stake in the controversy"; they desire to have access to and to preserve materials which "have historical value and importance." This direct stake distinguishes them from the mere interests of "concerned bystanders." United States v. SCRAP, supra, 412 U.S. at 687.

Their interest in this matter is not merely a generalized desire to require the Government to follow the law, and their injury from the challenged agreement is not abstract, speculative or remote. Cf. Schlesinger v. Reservists Committee to Stop the War, — U.S. 94 S. Ct. 2925 (1974); United States v. Richardson, U.S., 94 S. Ct. 2940 (1974).

Their interest is far more direct and significant than the "identifiable trifle” that is needed to confer standing. United States v. SCRAP, supra, 412 U.S. at 689 n.14; see Healy v. Edwards, 363 F. Supp. 1110, 1112-13 (E.D. La. 1973), probable jurisdiction noted, 94 S. Ct. 1405 (1974). Plaintiffs have a specific, definable and thoroughly respectable desire and need to examine the presidential materials in order to fulfill their obligations as scholars and authors.

B. PLAINTIFFS' CLAIMS ARE GROUNDED ON THE FREEDOM OF INFORMATION ACT, WHERE STANDING IS NEVER A LEGITIMATE ISSUE

12

10

The Freedom of Information Act entitles "any person" to file suit in federal district court if access to governmental records is denied. Under this statute, it is not necessary to demonstrate a particularized need for examination of desired materials.' Reporters, newspapers, public interest groups, educators." attorneys, and any other members of the public 13 have the right to inspect and copy government records, without any showing whatsoever that they would sustain any injury if the documents were withheld. Indeed, it has been held that a person requesting documents from the Government need not even reveal the identity of the person on whose behalf the records are sought. Benson v. General Services Administration, 289 F. Supp. 590 (W.D. Wash. 1968), aff'd, 415 F.2d 878 (9th Cir. 1969).

As Professor Davis has noted:

"The Act never provides for disclosure to some private parties and withholding from others. The main provision of section 3 says that information is to be made available to the public' and the central provision of subsec tion (c) requires availability of records to any person.'

"That required disclosure under the Act can never depend upon the interest or lack of interest of the party seeking disclosure is emphasized by the history. The previous section 3 provided for disclosure to persons

7 E.g., Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067. 1077 (1971) (“By directing disclosure to any person, the Act precludes consideration of the interests of the party seeking relief."). Accord American Mail Line, Ltd. v. Gulick, 133 U.S. U.S. App. D.C. 382. 411 F.2d 696 (1969); Skolnick v. Parsons, 397 F.2d 523, 524-25 (7th Cir. 1968); Wine Hobby, USA, Inc. v. United States Bureau of Alcohol, Tobacco & Firearms, 363 F. Supp. 231, 234 (E.D. Pa. 1973).

Stern v. Richardson, 367 F. Supp. 1316 (D.D.C. 1973).

Tennessean Newspapers, Inc. v. Federal Housing Administration, 465 F.2d 657 (6th Cir. 1972). 10 Robertson v. Butterfield, 498 F.2d 1031 (1974); Wellford v.

U.S. App. D.C.

Hardin, 444 F.2d 21 (4th Cir. 1971).

11 NLRB v. Getman, 404 U.S. 1204 (1971); Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977 (1974).

12 Kreindler v. Department of Navy, 363 F. Supp. 611 (S.D.N.Y. 1973).

13 See Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067 (1971).

properly and directly concerned.' That was changed to 'any person'." Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 765 (1967).

In short, standing principles developed in other contexts are inapplicable here. "Access to material under the Freedom of Information Act is not limited to those with a particular reason for seeking disclosure. Instead, the material is available to any person." Hawkes v. Internal Revenue Service, 467 F.2d 787, 790 n.3 (6th Cir. 1972).

It is for this reason that the Tenth Circuit's decision in Nichols v. United States, 460 F.2d 671, 674 (10th Cir.), cert. denied, 409 U.S. 966 (1972), must be rejected as not controlling in this case. Its consideration of the standing issue is unsupported by any citations to authority. This is understandable in view of the fact that the court's opinion simply ignores the legislative purpose of the Freedom of Information Act as it has been consistently interpreted by the courts as not requiring the person seeking access to claim an "ownership" interest in the records he seeks.

In Nichols, plaintiff sought x-ray films and photographs made of the late President Kennedy at autopsy, as well as the shirt President Kennedy wore when he was assassinated, among other things. His stated purpose was to examine some of the materials under his own microscope and to submit certain exhibits, some of which had been placed in glass cases for preservation, to laboratory tests of his own.

In rejecting plaintiff's claim, one of the court's alternative holdings was that plaintiff lacked standing to challenge the agreement which placed restrictions on the availability of the exhibits, because he was not a party to the agreement and did not claim “ownership" of the materials to which he sought access. 460 F. 2d at 674-75. But under the Freedom of Information Act, it is not necessary for a person to claim "ownership." To the contrary, most persons who desire information under the Act will readily concede that the Government is the "owner" of the documents. Plaintiffs concede that here. The Government's duty to provide access to records in its possession exists under the statute regardless of whether the person who seeks disclosure claims any legal or equitable title to the records. The Answer of defendant Richard M. Nixon claims that the Court lacks jurisdiction because plaintiffs have not yet made a request under the Freedom of Information Act. This misses the point. Plaintiffs' lawsuit seeks to preserve the "presidential materials" in the custody of the Government without the restrictions on access and provisions for destruction that are inherent in the NixonSampson Agreement, so that requests for access made under the Freedom of Information Act, whether now or in the future, will be meaningful "i.c., so that the materials will still exist and will be in the custody of the Government and thereby subject to the Act.

The Supreme Court has recently held that the federal courts have broad equitable powers under the Freedom of Information Act to take such actions as are necessary and appropriate to effectuate the statute's broad objective of guaranteeing the public's access to government information. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1 (1974). Under the circumstances of this case, a lawsuit demanding access to a few particular records would not adequately protect plaintiffs' rights.

In sum, plaintiffs have standing because (a) they have a specific, immediate financial interest in the question whether the important government records in question can be transferred out of the Government's control, and (b) plaintiffs assert rights based on the Freedom of Information act, where no showing of "need" or "ownership" is required.

III. THE CONTEMPLATED TRANSFER OF THE "PRESIDENTIAL MATERIALS" TO THE EXCLUSIVE OWNERSHIP AND CONTROL OF RICHARD M. NIXON IS INCONSISTENT WITH FUNDAMENTAL LAWS AND PRINCIPLES GOVERNING THE CONDUCT OF THE U.s. GovERNMENT AND WITH VITAL PUBLIC INTERESTS

At the outset, it should be noted that Mr. Nixon's claim to ownership of the materials and records here in dispute is not based on any rule of contract or property law by which ownership is normally established. Instead, he appears to be claiming ownersip on the basis of the public processes of the United States

14 Plaintiffs do not seek blanket access to all the materials now. They seek preservation of the materials in the custody of the Government without any private citizen having a right to limit or prohibit access or to destroy any of the materials.

Government. Thus, his claim to ownership must be judged by examination of the constitutional and statutory principles that establish and regulate the governmental activities that produced the materials in question, and by examination of the public interests affected by the materials and their disposition.

Mr. Nixon's claim to ownership is blatantly inconsistent with the clear and fundamental legal principles regarding government records as well as common law rules governing ownership of the records and work product of employees or officials in nongovernment organizations. Moreover, a number of specific federal statutes dictate that these materials be maintained as government property. More specifically, the discussion below addresses the following principal points: (A) Established judicial precedents, as well as specific federal statutes, provide that documents prepared by public servants in the course of discharging their duties are the property of the Government;

(B) The Freedom of Information Act dictates that the "presidential materials" be retained by the Government;

(C) Mr. Nixon's claim is inconsistent with federal laws establishing strict government control over disclosure of various classes of information, such as national security and foreign policy matters, trade secrets, and personal information;

(D) The Government's continuing need for access to the "presidential materials" prohibits their surrender to Mr. Nixon; and

(E) Defendants' actions in attempting to transfer the materials to Mr. Nixon violate other constitutional and statutory mandates.

We now turn to a more thorough explanation of these statutes and policies, in the order set out above. Mr. Nixon's attempts to justify his assertion of ownership on the basis of the Presidential Libraries Act, practices of past Presidents, and "presidential privilege," will be discussed in Part IV below.

A. THE MATERIALS, AS PRODUCTS AND RECORDS OF THE WORK OF MR. NIXON AND OTHERS IN THE EMPLOY OF THE U.S. GOVERNMENT, ARE THE PROPERTY OF THE GOVERNMENT

Mr. Nixon admits that his claim of sole ownership and exclusive control covers documents and material that (i) were prepared for governmental purposes, on government time, by persons paid by the Government, (ii) pertain to acts, decisions and policies of the Government, (iii) pertain to matters of continuing concern to the United States, and (iv) relate to the conduct of the Office of the President. (Answer of Intervenor-Defendant Richard M. Nixon. C.A No. 741533, ¶¶ 20, 22, p. 4; plaintiff Nixon's Complaint in C.A. No. 74–1518, ¶¶ 10-12') As such, under well-established legal principles, they are government property, not Mr. Nixon's.

1. Mr. Nixon's claim of exclusive ownership and control is contrary to fundamental principles of common law and, specifically, to their application to government employees

Under the most elemental principles, an employer who supports the work product of his employees has a right to the fruits of their labor. This rule applies to intellectual as well as physical creations. For example, under both common law rules and federal copyright law an employer is presumed to have the exclusive right to a work created by his employees within the scope of their employment. Scherr v. Universal Match Corp., 417 F. 2d 497, 500 (2d Cir. 1969), cert. denied, 397 U.S. 936 (1970); Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F. 2d 565, 567-68 (2d Cir. 1966); Nelson v. Radio Corporation of America, Inc., 148 F. Supp. 1, 3 (S.D. Fla. 1957); Sawyer v. Crowell Publishing Co., 46 F. Supp. 471, 473 (S.D.N.Y. 1942), aff'd, 142 F. 2d 497 (2d Cir. 1944), cert. denied, 323 U.S. 735 (1944).15

This principle applies with equal or greater force to government employees. For example, in Coleman v. Commonwealth, 25 Grattan (66 Va.) 865, 881 (1874), the Virginia Supreme Court of Appeals held:

"Whenever a written record of the transactions of a public officer in his office, is a convenient and appropriate mode of discharging the duties of his office, it is not only his right but his duty to keep that memorial; whether ex

15 Similarly, under patent law an employer has an equal "shop right" to use an invention developed by a worker within the course of his employment. See United States v. Dubilier Condenser Corp., 289 U.S. 178, 188-89 (1933) Grip Nut Co. v. Sharp, 150 F.2d 192, 196-97 (7th Cir. 1945), cert. denied, 326 U.S. 742 (1945).

pressly required to do so or not; and when kept it becomes a public document-a public record belonging to the offie and not the officer; is the property of the state and not of the citizen; and is no sense a private memorandum.” (Emphasis added.)

Similarly, the federal courts have recognized that the Federal Government is the sole owner of any written records or work created by government employees in the discharge of, or within the scope of, their public duties.16 Haas v. Henkel, 216 U.S. 462, 477-80 (1910); Scherr, supra, at 500; United States v. First Trust Co. of St. Paul, 251 F.2d 686, 688 (8th Cir. 1958); Sawyer, supra, at 473; United States v. Chadwick, 76 F. Supp. 919, 923 (N.D. Ala. 1948); Public Affairs Associates v. Rickover, 268 F. Supp. 444, 448 (D.D.C. 1967).1

The litigation in United States v. First Trust Co. of St. Paul, supra, concerned the ownership of rediscovered documents principally written by William Clark describing his exploratory expedition with Meriwether Lewis. The expedition had been commissioned by President Jefferson, and the court plainly stated that "[i]f Clark's notes are the written records of a government officer executed in the discharge of his official duties, they are public documents and ownership is in the United States." 251 F.2d at 688.

In United States v. Chadwick, supra, the defendant, who had been employed as an inspector by the Labor Department, attempted to retain certain materials after he left his government position. The court plainly stated that "[t]he notes, memoranda, statements and other material made and taken by him in the course of said employment, were and are, the property of the Government," 76 F. Supp. at 923, and ordered the defendant to return all such materials.

Only where the fruits of an official's labors are clearly produced outside the scope of his government duties may he assert ownership. In Public Affairs As80ciates, Inc. v. Rickover, 268 F. Supp. 444 (D.D.C. 1967), the ownership of certain speeches made by Vice Admiral Rickover was at issue. The court, noting that the speeches were written at the Admiral's home during his leisure time and that he was not on duty or acting in an official capacity when he delivered the speeches before private audiences, upheld Rickover's ownership and found that the speeches were not publications of the Government.

In these cases, the courts have articulated four general criteria to determine whether or not a work was, in fact, created within the scope of the employee's official duties:

1. Was the employee hired and compensated by the Government either for the express purpose of creating such a work or for some other purpose to which that work was directly related;

18

2. Was the work created on government time;

19

3. Was the employee aided by public resources-most notably government research materials" and support staff "-available to the employee by virtue of his official capacity; and

4. Was the content of the documents in question "government" as opposed to "private" or "personal" in nature? 23

16 Prior to this suit, the Justice Department had similarly taken the position that a Federal employee's records belong to the Government, not the employee. For example in its brief in United States v. First Trust Co. of St. Paul, supra, the Government argued that:

"The right of a government (state or federal) to written records of its employees produced in the performance of their official duties has been uniformly recognized by the decided cases. The doctrine adopted by the decisions is one that is, in large part. so self-evident that there has been relatively little litigation in this area.... rule is not merely an extension of normal principles governing a master-servant relationship. The peculiar status of public employment and the need for records bearing This on the carrying out of governmentally directed and financed tasks . . need for applicability where governmental employees and governmental records are involved.. In fact, we have been unable to find any case, nor has one been cited, intensifies the in which the records of a public employee produced in the discharge of his public duties have been held to be private property." Brief for the United States at 37-39 (citations omitted).

17 See also the two earlier decisions in Rickover, 177 F. Supp. 601. 603-04 (D.D.C. 1959), rev'd on other grounds, 284 F.2d 262, 269 (D.C. Cir. 1960), vacated, 369 U.S. 111 (1962).

18 Scherr v. Universal Match Corp., supra, at 501; Public Affairs Associates, Inc., supra, at 453; United States v. First Trust Co. of St. Paul, supra, at 688; Sawyer, supra, at 473. 19 Scherr, supra, at 501; Public Affairs Associates, supra, at 449; Sawyer, supra at 473. 20 Public Affairs Associates, supra, at 453; Sawyer, supra, at 473.

21 Public Affairs Associates, supra, at 449; Sawyer, supra, at 473.

22 Public Affairs Associates, supra, at 449, 453; United States v. First Trust Co. of St. Paul, supra, at 688, 690; Sawyer, supra, at 473.