Now we find ourselves in the position of the Department of State officially notifying the conference committee that they not only had no objection to the committees having access to them, but they had no objection to the representatives of the committees having access to these records. Now we have you coming in here and claiming Executive privilege to nullify the representations made at the time the act was passed-representations made by the executive branch.

Would you like to comment on the inconsistency, Mr. Becker? Mr. BECKER. I am merely stating the position of the Department at this time. I have no knowledge in 1946

Mr. HARDY. Is it your position that the Department can change its rules at any time it sees fit?

Mr. BECKER. My comment is the Department has deliberately made this decision.

Mr. HARDY. Would you want the committee to understand then that the Department has determined that there is matter in these records which it wants to withhold from the committee in order to conceal the action which has been taken, or the reasons for action which has been taken?

Mr. BECKER. Not at all. At any time we are prepared to inform the committee of action which has been taken.

Mr. HARDY. I say, the reasons for the actions.

Mr. BECKER. The deliberations. Yes.

Mr. REDDAN. Mr. Becker, section 601 of the Foreign Service Act, as you know, distinguishes between the efficiency reports and the efficiency records. Both you and Mr. Saccio have referred to efficiency records. Are you using that as an overall term, or are you using it in the language of the statute?

Mr. BECKER. I think that there are a number of papers that, as I understand it, have already been turned over which might come under the general category of efficiency records. The more general, as I understand it. I am talking about the specific efficiency reports that are so termed and are defined by regulation and required to be made. Mr. SACCIO. That is right.

Mr. REDDAN. Can you tell me what an efficiency report is? Will you describe it? Is it a single document?

Mr. BECKER. Yes. It consists of a report on the performance of an individual, and also approval of that report by a superior officer who is superior to the man who made this efficiency report.

Mr. REDDAN. Now, Mr. Saccio, is that what you have in mind when you refer to efficiency reports, or efficiency records, rather?

Mr. SACCIO. Yes. Something that is in the file where an official is required to give an evaluation of the work of somebody.

Mr. REDDAN. That could be a record, or that would be part of the efficiency records, as I understand it, and what Mr. Becker is talking about is the efficiency report, which is the analysis of the material which has been submitted.

Mr. SACCIO. I don't know that Mr.

Mr. HARDY. The statute separates those two things.

Mr. SACCIO. Yes. There are items in a personnel file which may be considered specifically in the light of evaluation. There may be something there where a man gives his view of another person and his work. What Mr. Becker and I, I believe, are referring to, are

those which officially must be made by an officer of the State Department, or somebody else who is required to make this judgment and put

it in the record.

You may have a letter which some fellow writes in and says, "This man did a wonderful job." But he was not required to say it and he could put that in any time he wants just by putting it in the mailbox. That is an evaluation in one respect, but it does not mean it is an efficiency report in the sense that he is making a judgment as part of carrying out his duties.

Mr. BECKER. Perhaps I may clarify it by indicating this: If a man writes a letter, the Director General may regard that letter in considering or evaluating the man. And since he regards that as pertinent, it would be an efficiency record, but it is not an efficiency report. And I believe that we have, or ICA has, turned over to the committee a number of letters, and so on, written by various members of the Department, and we concur in their handing over those papers, even though they could be termed efficiency records.

Mr. REDDAN. Do you know whether or not they have turned over to the committee all such documents?

Mr. BECKER. I have no personal knowledge of exactly what has been turned over.

Mr. REDDAN. Mr. Saccio, do you know whether or not all such documents referred to by Mr. Becker have been turned over to the committee?

Mr. SACCIO. I have been told that this committee has been given or offered everything in these files except for the efficiency reports. and the preemployment investigations.

Mr. HARDY. Efficiency reports as distinguished from efficiency

records?

Mr. SACCIO. That is right. We have made a distinction between those two.

Mr. REDDAN. And the efficiency report which you are referring to is a formal agency document?

Mr. SACCIO. It does not have to be in the formal shape I know of. I didn't say every one of these, but the distinction would be as to whether this is required.

Mr. REDDAN. Isn't there a regular printed established form for setting up efficiency records, Mr. Saccio?

Mr. SACCIO. I am informed that the ones withheld are all formal efficiency reports.

Mr. REDDAN. And the testimony is that they are the only documents that have been withheld from the committee?

Mr. SACCIO. From those you requested. Yes, sir.

Mr. HARDY. So we can be sure what we are talking about, section 981 defines efficiency records in this manner:

Efficiency record is the term which describes those materials considered by the Director General to be pertinent to the preparation of, and evaluation of, the performance of an officer or an employee of the Service.

Now, you have not withheld those?

Mr. SACCIO. Some of the documents we have turned over could in all respects be considered pertinent

Mr. HARDY. I am not talking about some of the documents. I am asking you if you have withheld any of them.

Mr. SACCIO. We have withheld the formal efficiency reports that are in the files.

Mr. HARDY. Let me read you what the statute says the efficiency report is, and let us see if we are talking about the same thing:

No. 2. Efficiency report is the term which designates the analysis of the performance of an officer or employee made by his supervising officer or by a Foreign Service Inspector in accordance with such regulations as may be prescribed by the Secretary.

Is that the only thing that you have withheld?

Mr. SACCIO. Yes, sir.

Mr. HARDY. The formal report?

Mr. SACCIO. That is right.

To supplement my answer, as I indicated before, we also withheld the preemployment checks, which you did not ask for.

Mr. HARDY. I am not exercised about the preemployment checks. Mr. SACCIO. I just wanted to make my answer complete.

Mr. HARDY. We had a reason for feeling that we needed the efficiency records and reports.

Mr. SACCIO. Yes.

Mr. HARDY. I did not have any notion that we did need the preemployment checks.

Mr. REDDAN. Mr. Saccio, I would like to know if you are making any distinction in section 612 as to whether or not the committee may be entitled to efficiency records, but not efficiency reports. Are you making any such distinction as that?

Mr. SACCIO. I don't think so. As Mr. Becker has said, or perhaps I should let him speak in explanation of his own statement, we have waived the privilege in some of these and in others we haven't.

Mr. REDDAN. In other words, there is no question in your mind but what section 612 would cover the efficiency reports, but in this particular case you are exercising Executive privilege and denying

Mr. SACCIO. I would not give a legal opinion on that, Mr. Reddan. I haven't personally reviewed all the legal implications of this section, or the interpretation of it.

Mr. REDDAN. Perhaps Mr. Becker could answer that question.

Mr. BECKER. Well, as I pointed out previously, we are relying on Executive privilege. I think there is a reading of this section-and I am referring to 22 U.S.C. section 987, to the effect that the efficiency records that are referred to in that section do not include the efficiency reports that are defined in subsection 2 of section 981.

Mr. REDDAN. Excuse me. I do not have that before me.

Mr. BECKER. I say, efficiency records as used in 987 do not include efficiency reports that are defined in subsection 2 of section 981.

Mr. REDDAN. Yes. Now, if you will look down at the bottom there, it refers to the fact that, under the regulations the Secretary may prescribe,

and in the interest of efficient personnel administration, the whole or any portion of an efficiency record shall, upon written request, be divulged to the officer or employee to whom such record relates.

Do I understand you to say that you don't think efficiency record there refers to efficiency reports also?

Mr. BECKER. I haven't considered that question and I don't think it is pertinent to our present inquiry.

Mr. HARDY. The only basis on which it might be pertinent, Mr. Becker and there is one basis on which it might be pertinent-is this: Mr. Harkins specifically authorized the committee in his behalf to request the files.

Mr. BECKER. Well, this does not refer to anybody other than the person involved. It does not say

Mr. HARDY. He was the person involved in that case.

Mr. BECKER. Yes, he was the person involved there, but it does not say there that that person may authorize somebody else to look at it.

Mr. REDDAN. The reason I was asking you the question, Mr. Becker, is that efficiency records are referred to here at the bottom, and are also referred to at the top, where it says, "correspondence and records of the Department including efficiency records."

Mr. BECKER. That is correct.

Mr. REDDAN. My question was whether or not in your opinion efficiency records means the same or includes both the reports and records?

Mr. BECKER. As I said, there is a reading of the statute-I am not giving an opinion offhand, but there is a reading of the statute to the effect that it does not include an efficiency report as defined in the second subsection of section 981.

Mr. REDDAN. Who read the statute that way? What do you mean by "there is a reading of the statute"?

Mr. BECKER. We are relying on the principle of Executive privilege. Mr. REDDAN. Have you read the reports on this in connection with examination of the legislative history!

Mr. BECKER. No, I have not.

Mr. REDDAN. In volume 8 of the House Reports, at page 83, of the 79th Congress, 2d session, 1946, referring specifically to section 612 and to the phrase "efficiency records," it states this:

Section 612 will make it possible to divulge efficiency reports and records to the officers and employees who are the subject of such records.

Which makes it clear that the words "efficiency records" as used in section 612 include both the reports and the records.

Mr. BECKER. I make no comment on that.

Mr. REDDAN. Have you run the legislative history on this act before making the reply?

Mr. BECKER. No; because I am not relying on the act in any way. I am relying on the principle of Executive privilege.

Mr. HARDY. Then it would have to be your contention in order to rely on Executive privilege, that the act is unconstitutional.

Mr. BECKER. If the act applies, yes. I don't concede that the act applies.

Mr. REDDAN. It does not apply to whom or to what, sir?

Mr. BECKER. Is applicable to the particular papers we are talking about now, that is, the efficiency reports.

Mr. REDDAN. I am sorry, but you have lost me, Mr. Becker. I thought that is exactly what we were talking about.

Mr. BECKER. NO. I am not relying, as I indicated previously, on the act. I am relying on Executive privilege. If the act is applicable we would regard it as unconstitutional.

Mr. REDDAN. You mean if the act requires the State Department to give to this committee the efficiency reports and records of the Foreign Bervice personnel, you would consider it to be unconstitutional?

Mr. BECKER. Well, I confine that to reports at the present moment, because that is all that is pertinent to the present situation, because the efficiency reports are the only documents as to which the Secretary has determined they should not be disclosed to the committee.

Mr. REDDAN. You have made no determination as to the constitutionality of this section?

Mr. BECKER. Only to the extent that I would regard it as unconstitutional if it would require us to turn over these papers. My offhand reading of the section is that it does not require us to turn over these papers.

Mr. MEADER. If I may interrupt, Mr. Chairman, at that point, I noticed you said, "if it applies." I know that frequently Congress, and sometimes even the courts, and maybe even administrative agencies, are somewhat unskilled in the use of language, and we don't know what it means. But if I ever heard a statute that seemed pretty plain it was this one, and the meaning I get out of it is that the individual, concerning whom such records are kept, is entitled by this statute to have access to them. And, as I also read the language, it does not seem to have much other meaning possible, as far as I can see, except that committees of Congress are entitled to access to these records.

If you can get some other meaning out of that statute I wish you would explain it, because it does not seem to me to be susceptible to any other interpretation.

Mr. BECKER. Well, the language that Congress used in the act, regardless of what may have been said in some committee report, used two different terms in section 981.

Mr. HARDY. I think we ought to keep this in mind-and excuse me for interrupting. You must bear in mind that the report to which reference was made was the report which reported this particular language to the Congress.

Mr. BECKER. Yes. The courts are inclined at times to interpret language that was used in the act if the court feels that the reference is not clear. And in this case Congress used two terms in section 981, that is, efficiency records and efficiency reports. It used only one term in section 987, that is, efficiency record or efficiency records.

Mr. MEADER. I was referring particularly to section 612. You say that the ambiguity is written into 612 because it refers to efficiency reports or records.

Mr. HARDY. It refers to both. That is 612.

Mr. BECKER. May I point out one thing? It says the—

correspondence and records of the Department relating to the officers and employees of the Service, including efficiency records as defined in section 981 (1) of this title.

You will find that section 981 consists of two subsections, (1) and (2), and no reference is made to (2), and I would assume that that was deliberate.

I do not think there is an ambiguity requiring reference to legislative history.

Mr. MEADER. In other words, if the committee chairman in his letter had used the words "efficiency record" instead of "efficiency report," then you would say that section 612 is not susceptible to any interpretation except that the committee had requested something that it thought it was authorized to receive under section 612?