Presidential Records Act of 1978, 44 USC ß2201-2207

Personal and Private versus Public?

Preserving and Accessing the U.S. Presidential Records

Dr. John Richardson Jr.,

UCLA Professor of Information Studies

Fall Term 2005

Historical Context and Concepts:

Question: Does the President of the United States have executive privilege?

What right, if any, does the public have to access US Presidential papers?

Executive privilege. Not based in the Constitution or early laws of evidence, but the concept dates from 1796, when President Washington refused a US House of Representatives’ request for correspondence related to John Jay’s Treaty of Amity, Commerce and Navigation with England (24 June 1795); he willingly gave the requested letters to the United States Senate--why? In June 1807, Court orders President Jefferson, who complied with Justice John Marshall’s order in the case of Aaron Burr, to produce letters; although scholars argue whether he did or not, how could Jefferson maintains that he did so willingly? Apparently, only an incumbent President has this privilege.
An observation: the papers of the Constitutional Convention were sealed for more than 30 years
"Act To Establish a National Archive of the United States Government, and for Other Purposes." 48 U.S. Statutes at Large 1122 (1934).

Prior to President Nixon, Presidential Papers were treated as personal and private, subject to disposal or donation by the former President

Nixon v. Administrator of General Services, 433 US 425 (1977)

Presidential Records Act of 1978, (Public Law 95-591; 44 USC ß2201-2207)

· PRA Definitions: “documentary material” and “Presidential records” “created or received” and category of “personal records”

· PRA Ownership: “The United States shall reserve and retain complete ownership”

· PRA Management and Custody: “current” versus archival—those “that no longer have administrative, historical, informational, or evidentiary value” reside with the U.S. Archivist of the United States, who has sole custody and control as well as responsibility for preservation and access; 5 years for arrangement and description. Role of retention and disposal schedules.

· PRA Restrictions: 12 year maximum restriction on access (hence, 44M Reagan Era documents should have become available on 20 January 2001, that date being the 12 year limit, but 68,000 “confidential communications”—although Archivist John W. Carlin admitted “keen interest” in these materials—only became available on July 2001…) with one major exception for those items classified in the “interest of national defense or foreign policy;” (see history of classification efforts via EO)

· Strong role of FOIA (5 USC 552(e)) in PRA, which allows delays in availability for up to 12 years for:

o Information “relating to appointments to Federal office”

o Information “specifically exempted from disclosure by statute

o “Trade secrets and commercial or financial information…”

o “Confidential communications requesting or submitting advice, between President and his advisers…” So, would you release documents about “Edwin Meese’s role in developing Reagan Administration policy on civil rights, affirmative action, and voting rights”? 257 pages; and

o “unwarranted invasion of personal privacy.” Nonetheless,

o 4M documents released by Reagan Library under FOIA requests

E.O. 12667 (Ronald Reagan), “Presidential Records“(16 or 8 January 1989) see

54 Fed. Reg. 3403 or http://www.fas.org/irp/offdocs/eo/eo-12667.html

·        Directs the Archivist [who in an independent agency within which branch of government?] to alert President to any potential issues which “may raise a substantial question of Executive privilege.”

·        Extends delay of release beyond 30 days.

E.O. 13233, (George W. Bush) “Further Implementation of the Presidential Records Act” (November 1, 2001) see http://www.archives.gov/presidential_libraries/presidential_records/executive_order_13233.txt

· Revokes Reagan’s EO 12667

· Does not appear on White House webpage “Executive Orders Issued by President Bush” for 1 November 2001

·         “By the authority…constitutionally based privileges”–say what?

·         Section 2, sets a standard of “demonstrated, specific need” for records

·         Section 3(d), an incumbent President can protect a former President’s “withholding” and allow such withholding even beyond the 12 year limit on such restrictions set by the PRA.  PRA/FOIA requests: President has “no longer than 90 days for [responding to] requests that are not unduly burdensome.”

·         Section 4, “compelling circumstances” allow sitting President to override the wishes of a former President who wants to allow Congress access

·         Section 5, incumbent President has right of access to former Presidents’ papers

·         Section 6, rejects mere judicial or congressional subpoenas, but will respond only to a “final, nonappealable court order” granting access.  Certain Courts have jurisdiction: 28 USC 1331, 1361.

·         Section 11 includes Vice Presidential papers, such as …. ?

·         Section 12, former President’s deceased family members become decision makers on access , because of “constitutionally based privileges”

·         Society of American Archivists maintains this EO as:

o        “being contrary to established archival principles and standards,

o        being inconsistent with existing statutory law, and, most important,

o       being at odds with the principles of open access to information upon which our country is founded.”  See http://www.archivists.org/news/actnow.asp

Latest use:  On 6 October 2003, White House suggests two-week delay in responding to DoJ probe of Executive Branch retaliatory leak to columnist Robert Novak naming a CIA covert operative—a federal crime—Valerie Plame, wife of US envoy Joseph C. Wilson IV who had criticized Presidential policies on Iraq. The previous week, WH Counsel Alberto R. Gonzales had asked WH staff to assemble any, and all, records.

A culture of secrecy versus the people’s right to know?  Is someone using the cloak of “terrorism”?

“American Historical Association v. National Archives and Records Administration” (US District Court for the District of Columbia)

Background Readings:

Sezzi, Peter.  Personal versus Private: A Bibliographic Exploration of Access, Ownership, and Control of Presidential Papers, Records, and Documents.  Lanham, MD: Scarecrow Press, in progress.  MLIS Thesis, UCLA, 2002; DIS 455 “Government Information” paper.

Theoharis, Athan G., ed. Culture of Secrecy: The Government Versus the People's Right To Know. Lawrence KS: University Press of Kansas, 1998

The Modified C/D Theory of Knowledge (Adapted from Max Boisot, Information Management, 1987, figure 3.9; reprinted in Richardson, Knowledge-Based Systems for General Reference Work (Academic Press, 1995):

↑

Proprietary

Public (Social, Explicit, Objective)

Personal (Private, Implicit, and Subjective)

Commonsense (Background, Practical, and Shared)

                                    D   I   F   F   U   S   E   D    - - >

Revised: 14 December 2004.