This case was a challenge brought on behalf of a number of individuals and groups, including Public Citizen, to President George W. Bush’s Executive Order 13233, which attempted to give former presidents and vice presidents new powers to prevent the National Archives from releasing historical records relating to their administrations. Public access to records of former presidents is governed by the Presidential Records Act, which restricts access to materials for a number of years after a president leaves office, but then generally provides for public access subject to a limited number of exceptions.
The Bush Executive Order allowed former presidents and vice presidents to veto release of their materials merely by making an assertion of “privilege.” It also resulted in lengthy delays in access to materials while former officeholders engaged in reviews of their materials to determine whether to assert a privilege to block release. When the Order was first promulgated, in the first year of President Bush’s term in office, it resulted in thousands of pages of Reagan presidential materials being held back from public release.
After Public Citizen filed this lawsuit seeking to block implementation of the Bush executive order, most of the Reagan records were eventually released. The district court eventually held that some of our challenges to the order were not “ripe” for judicial review because by the time the court ruled, no records were actually being withheld on account of a claim of privilege by a former president or vice president. The court did, however, rule in favor of our claim that the order resulted in delays in access to materials in violation of the Presidential Records Act and its implementing regulations, and it enjoined implementation of the provisions of the order that allowed former presidents and vice president to delay access to records indefinitely by conducting lengthy privilege “reviews.” During the course of the litigation, the court also ruled that 9 specific documents from the Reagan administration as to which President Bush had asserted executive privilege could not be released to the public because the claim of privilege was valid.
When the Obama administration took office, President Obama revoked the remaining provisions of Executive Order 13233.