For Immediate Release
Office of the Press Secretary
November 1, 2001
Presidential Records Act Executive Order
Further Implementation of the Presidential Records Act Executive Order
By the authority vested in me as President by the Constitution and
the laws of the United States of America, and in order to establish
policies and procedures implementing section 2204 of title 44 of the
United States Code with respect to constitutionally based privileges,
including those that apply to Presidential records reflecting military,
diplomatic, or national security secrets, Presidential communications,
legal advice, legal work, or the deliberative processes of the
President and the President's advisors, and to do so in a manner
consistent with the Supreme Court's decisions in Nixon v. Administrator
of General Services, 433 U.S. 425 (1977), and other cases, it is hereby
ordered as follows:
Section 1. Definitions.
For purposes of this order:
(a) "Archivist" refers to the Archivist of the United
States or his designee.
(b) "Presidential records" refers to those documentary
materials maintained by the National Archives and Records
Administration pursuant to the Presidential Records Act, 44 U.S.C.
2201-2207.
(c) "Former President" refers to the former President
during whose term or terms of office particular Presidential records
were created.
Sec. 2. Constitutional and Legal Background.
(a) For a period not to exceed 12 years after the
conclusion of a Presidency, the Archivist administers records in
accordance with the limitations on access imposed by section 2204 of
title 44. After expiration of that period, section 2204(c)
of title 44 directs that the Archivist administer Presidential records
in accordance with section 552 of title 5, the Freedom of Information
Act, including by withholding, as appropriate, records subject to
exemptions (b)(1), (b)(2), (b)(3), (b)(4), (b)(6), (b)(7), (b)(8), and
(b)(9) of section 552. Section 2204(c)(1) of title 44
provides that exemption (b)(5) of section 552 is not available to the
Archivist as a basis for withholding records, but section 2204(c)(2)
recognizes that the former President or the incumbent President may
assert any constitutionally based privileges, including those
ordinarily encompassed within exemption (b)(5) of section
552. The President's constitu-tionally based privileges
subsume privileges for records that reflect: military,
diplomatic, or national security secrets (the state secrets privilege);
communications of the President or his advisors (the presidential
communications privilege); legal advice or legal work (the
attorney-client or attorney work product privileges); and the
deliberative processes of the President or his advisors (the
deliberative process privilege).
(b) In Nixon v. Administrator of General Services, the
Supreme Court set forth the constitutional basis for the President's
privileges for confidential communications: "Unless [the
President] can give his advisers some assurance of confidentiality, a
President could not expect to receive the full and frank submissions of
facts and opinions upon which effective discharge of his duties
depends." 433 U.S. at 448-49. The Court cited the precedent
of the Constitutional Convention, the records of which were "sealed for
more than 30 years after the Convention." Id. at 447 n.11.
Based on those precedents and principles, the Court ruled that
constitutionally based privileges available to a President "survive[]
the individual President's tenure." Id. at
449. The Court also held that a former President, although
no longer a Government official, may assert constitutionally based
privileges with respect to his Administration's Presidential records,
and expressly rejected the argument that "only an incumbent President
can assert the privilege of the Presidency." Id. at 448.
(c) The Supreme Court has held that a party seeking to
overcome the constitutionally based privileges that apply to
Presidential records must establish at least a "demonstrated, specific
need" for particular records, a standard that turns on the nature of
the proceeding and the importance of the information to that
proceeding. See United States v. Nixon, 418 U.S. 683, 713
(1974). Notwithstanding the constitutionally based
privileges that apply to Presidential records, many former Presidents
have authorized access, after what they considered an appropriate
period of repose, to those records or categories of records (including
otherwise privileged records) to which the former Presidents or their
representatives in their discretion decided to authorize
access. See Nixon v. Administrator of General Services, 433
U.S. at 450-51.
Sec. 3. Procedure for Administering Privileged
Presidential Records.
Consistent with the requirements of the Constitution and the
Presidential Records Act, the Archivist shall administer Presidential
records under section 2204(c) of title 44 in the following manner:
(a) At an appropriate time after the Archivist receives
a request for access to Presidential records under section 2204(c)(1),
the Archivist shall provide notice to the former President and the
incumbent President and, as soon as practicable, shall provide the
former President and the incumbent President copies of any records that
the former President and the incumbent President request to review.
(b) After receiving the records he requests, the former
President shall review those records as expeditiously as possible, and
for no longer than 90 days for requests that are not unduly
burdensome. The Archivist shall not permit access to the
records by a requester during this period of review or when requested
by the former President to extend the time for review.
(c) After review of the records in question, or of any
other potentially privileged records reviewed by the former President,
the former President shall indicate to the Archivist whether the former
President requests withholding of or authorizes access to any
privileged records.
(d) Concurrent with or after the former President's
review of the records, the incumbent President or his designee may also
review the records in question, or may utilize whatever other
procedures the incumbent President deems appropriate to decide whether
to concur in the former President's decision to request withholding of
or authorize access to the records.
(1) When the former President has requested withholding
of the records:
(i) If under the standard set forth in section 4 below,
the incumbent President concurs in the former President's
decision to request withholding of records as privileged,
the incumbent President shall so inform the former President
and the Archivist. The Archivist shall not permit access
to those records by a requester unless and until the incumbent
President advises the Archivist that the former President
and the incumbent President agree to authorize access to the
records or until so ordered by a final and nonappealable
court order.
(ii) If under the standard set forth in section 4 below, the
incumbent President does not concur in the former President's
decision to request withholding of the records as
privileged, the incumbent President shall so inform the
former President and the Archivist. Because the former
President independently retains the right to assert
constitutionally based privileges, the Archivist shall not
permit access to the records by a requester unless and until
the incumbent President advises the Archivist that the
former President and the incumbent President agree to
authorize access to the records or until so ordered by a
final and nonappealable court order.
(2) When the former President has authorized access to
the records:
(i) If under the standard set forth in section 4 below,
the incumbent President concurs in the former President's
decision to authorize access to the records, the Archivist
shall permit access to the records by the requester.
(ii) If under the standard set forth in section 4 below, the
incumbent President does not concur in the former President's
decision to authorize access to the records, the incumbent
President may independently order the Archivist to withhold
privileged records. In that instance, the Archivist
shall not permit access to the records by a requester unless and
until the incumbent President advises the Archivist that the
former President and the incumbent President agree to
authorize access to the records or until so ordered by a
final and nonappealable court order.
Sec. 4. Concurrence by Incumbent President.
Absent compelling circumstances, the incumbent President will
concur in the privilege decision of the former President in response to
a request for access under section 2204(c)(1). When the
incumbent President concurs in the decision of the
former President to request withholding of records within the scope
of a constitutionally based privilege, the incumbent President will
support that privilege claim in any forum in which the privilege claim
is challenged.
Sec. 5. Incumbent President's Right to Obtain Access.
This order does not expand or limit the incumbent President's right
to obtain access to the records of a former President pursuant to
section 2205(2)(B).
Sec. 6. Right of Congress and Courts to Obtain Access.
This order does not expand or limit the rights of a court, House of
Congress, or authorized committee or subcommittee of Congress to obtain
access to the records of a former President pursuant to section
2205(2)(A) or section 2205(2)(C). With respect to such
requests, the former President shall review the records in question
and, within 21 days of receiving notice from the Archivist, indicate to
the Archivist his decision with respect to any
privilege. The incumbent President shall indicate his
decision with respect to any privilege within 21 days after the former
President has indicated his decision. Those periods may be
extended by the former President or the incumbent President for
requests that are burdensome. The Archivist shall not permit
access to the records unless and until the incumbent President advises
the Archivist that the former President and the incumbent President
agree to authorize access to the records or until so ordered by a final
and nonappealable court order.
Sec. 7. No Effect on Right to Withhold Records.
This order does not limit the former President's or the incumbent
President's right to withhold records on any ground supplied by the
Constitution, statute, or regulation.
Sec. 8. Withholding of Privileged Records During 12-Year
Period.
In the period not to exceed 12 years after the conclusion of a
Presidency during which section 2204(a) and section 2204(b) of title 44
apply, a former President or the incumbent President may request
withholding of any privileged records not already protected from
disclosure under section 2204. If the former President or
the incumbent President so requests, the Archivist shall not permit
access to any such privileged records unless and until the incumbent
President advises the Archivist that the former President and the
incumbent President agree to authorize access to the records or until
so ordered by a final and nonappealable court order.
Sec. 9. Establishment of Procedures.
This order is not intended to indicate whether and under what
circumstances a former President should assert or waive any
privilege. The order is intended to establish procedures for
former and incumbent Presidents to make privilege determinations.
Sec. 10. Designation of Representative.
The former President may designate a represen-tative (or series or
group of alternative representatives, as the former President in his
discretion may determine) to act on his behalf for purposes of the
Presidential Records Act and this order. Upon the death or
disability of a former President, the former President's designated
representative shall act on his behalf for purposes of the Act and
this order, including with respect to the assertion of constitutionally
based privileges. In the absence of any designated
representative after the former President's death or disability, the
family of the former President may designate a representative (or
series or group of alternative representatives, as they in their
discre-tion may determine) to act on the former President's behalf for
purposes of the Act and this order, including with respect to the
assertion of constitutionally based privileges.
Sec. 11. Vice Presidential Records.
(a) Pursuant to section 2207 of title 44 of the United
States Code, the Presidential Records Act applies to the executive
records of the Vice President. Subject to subsections (b)
and (c), this order shall also apply with respect to any such records
that are subject to any constitutionally based privilege that the
former Vice President may be entitled to invoke, but in the
administration of this order with respect to such records, references
in this order to a former President shall be deemed also to be
references to the relevant former Vice President.
(b) Subsection (a) shall not be deemed to authorize a
Vice President or former Vice President to invoke any constitutional
privilege of a President or former President except as authorized by
that President or former President.
(c) Nothing in this section shall be construed to grant,
limit, or otherwise affect any privilege of a President, Vice
President, former President, or former Vice President.
Sec. 12. Judicial Review.
This order is intended to improve the internal management of the
executive branch and is not intended to create any right or benefit,
substantive or procedural, enforceable at law by a party, other than a
former President or his designated representative, against the United
States, its agencies, its officers, or any person.
Sec. 13. Revocation.
Executive Order 12667 of January 18, 1989, is revoked.
GEORGE W. BUSH
THE WHITE HOUSE,
November 1, 2001.
# # #
|