IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN HISTORICAL ASSOCIATION, et al.,
Plaintiffs,

v.

THE NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, et al.,
Defendants.

No. 1:01CV02447 (CKK)

PLAINTIFFS' STATEMENT OF UNDISPUTED FACTS IN
SUPPORT OF MOTION FOR SUMMARY JUDGMENT

1. President George W. Bush issued Executive Order 13,233, on November 1, 2001. Exhibit 1 hereto is a true and correct copy of Executive Order 13,233.

2. On March 23, 2001, June 6, 2001, and August 31, 2001, White House Counsel Alberto Gonzales wrote letters to Archivist of the United States John Carlin directing NARA not to release certain presidential and vice presidential materials under the Presidential Records Act (PRA) pending White House review of the PRA. Exhibits 2, 3, and 4 hereto are true and correct copies (except for added underlining) of those letters.

3. Exhibit 5 hereto is a true and correct copy of a statement issued by Archivist of the United States John Carlin, entitled "Opening the Reagan Records." As Exhibit 5 states:

So far, the Ronald Reagan Presidential Library in Simi Valley, CA, has released approximately 4.5 million pages out of the roughly 43.8 million pages at the library. Those 4.5 million pages were released during the past twelve years, mostly in response to FOIA requests from researchers. 113,200 pages have been withheld under the exemptions allowed by FOIA or the PRA.

Earlier this year, NARA provided thirty-day notifications to the White House and to the Office of President Reagan for some 68,000 pages of Reagan records that had been withheld during the first twelve years after the Reagan Presidency because they concerned confidential advice.

4. On November 13, 2001, plaintiff Hugh Davis Graham wrote to the National Archives and Records Administration (NARA) requesting access to certain Reagan presidential documents concerning Edwin Meese's role in civil rights policy, which had been withheld from Professor Graham in response to prior FOIA requests that he made during the 12-year restriction period for confidential advice documents under the PRA. On November 19, 2001, NARA responded to Professor Graham, informing him that these records remain unavailable because of ongoing review under Executive Order 13,233. On December 4, 2001, Professor Graham appealed NARA's denial of access to the materials. On January 4, 2002, NARA responded to the appeal in a letter to Professor Graham's attorney stating that NARA's action did not constitute a denial of his request for access but that access nonetheless would not be provided until "both the incumbent and former Presidents have agreed to the release," "because NARA is required to follow the provisions of Executive Order 13233." The letter further stated that the materials sought by Professor Graham were not among approximately 8,000 pages of records released by NARA on January 3, 2002. Exhibits 6, 7, 8, and 9 hereto are true and correct copies of the letter referred to in this paragraph.

5. On December 10, 2001, NARA denied a request by plaintiff National Security Archive for access to approximately 68,000 pages of Reagan presidential records, on the ground that those records are undergoing review under Executive Order 13,233. Exhibit 10 is a true and correct copy of NARA's letter denying access to the 68,000 pages of Reagan records. Also on December 10, 2001, NARA responded to a request by the National Security Archive for certain Bush vice presidential records. NARA's response stated that declassification review of some of those records was being postponed pending review of the records under Executive Order 13,233. Exhibit 11 hereto is a true and correct copy NARA's December 10, 2001, response regarding the Bush records.

6. On January 3, 2001, NARA released approximately 8,000 of the 68,000 pages of Reagan materials that had been withheld pending review under Executive Order 13,233. Exhibit 12 hereto is a true and correct copy of NARA's press release announcing the impending release of the 8,000 pages.

7. President Ronald Reagan and Vice President George H.W. Bush left office on January 20, 1989. President Reagan and Vice President Bush invoked the maximum 12-year restriction period under the Presidential Records Act for records containing confidential communications with their advisers. The Reagan presidential records comprise approximately 44 million pages of records and are maintained by NARA at the Ronald Reagan Presidential Library in Simi Valley, California. See Exhibit 5 hereto. The Bush vice presidential records are maintained by NARA at the George Bush Presidential Library in College Station, Texas. NARA will not release additional Reagan and Bush presidential and vice presidential records to the public except after compliance with the terms of Executive Order 13,233. See, e.g., Exhibits 7, 9, 10 & 11 hereto.

8. Since the issuance of Executive Order 13,233, Archivist Carlin and NARA have complied with the Order and intend to continue doing so indefinitely. See Exhibits 7, 9, 10 & 11 hereto.

Respectfully submitted,

Scott L. Nelson, D.C. Bar No. 413548
David C. Vladeck, D.C. Bar No. 945063
Michael Tankersley, D.C. Bar No. 411978
Public Citizen Litigation Group
1600 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000

Attorneys for Plaintiffs

February 8, 2002