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Court Should Order National Archives to Open Presidential Records to the Public

Feb. 8, 2002

Court Should Order National Archives to Open Presidential Records to the Public

President Bush’s Executive Order Violates Law, Should Not Be Implemented, Public Citizen Says in Court Filing

WASHINGTON, D.C. – A federal court should order the National Archives to allow public access to presidential records and disregard President Bush’s executive order restricting access because the order plainly violates federal law, Public Citizen said in a motion for summary judgment filed in court today. The motion was filed in the United States District Court for the District of Columbia as part of a lawsuit initiated last November on behalf of several organizations and individuals seeking to overturn the executive order.

Public Citizen’s motion explains that because Bush’s order, issued early last November, violates the 1978 Presidential Records Act and has no constitutional basis, the court should declare that the Archivist of the United States and his agency, the National Archives and Records Administration (NARA), may not implement the order. Public Citizen’s motion also seeks a permanent injunction against the implementation of the order and requiring the prompt release of the Reagan and Bush presidential and vice presidential records.

The 1978 law opens most presidential records to the public 12 years after the president leaves office, but Bush’s order jeopardizes public access by providing that whenever a former president asserts a claim of “executive privilege,” the Archivist may not open the records, even if the claim is legally invalid. Today’s filing argues that because there are no disputed material facts as to the illegality of the order, the Archivist should not be implementing it at all.

Over a year ago, the 12-year restriction period for 68,000 pages of documents from the Reagan administration expired. The current Bush administration delayed their release, then promulgated the executive order, which has further delayed the release of the documents and may permanently bar access to some of them. To date, only 8,000 pages of the documents have been released to the public. The order has also blocked release of vice presidential records of George H.W. Bush at the Bush Presidential Library.

“The administration has stubbornly refused to recognize that the order violates not only the Presidential Records Act, but also clear judicial precedents,” said Scott Nelson, the Public Citizen attorney who filed the lawsuit. “The Archivist is obligated to follow the law, not this unauthorized and unlawful executive order.”

After the 12-year restriction period under the Presidential Records Act expires, Bush’s order grants both the sitting and former president an unlimited amount of time to review documents that the law requires to be released. If the former president objects to the release of any documents, the Archivist must keep those records secret, even if the incumbent president finds “compelling circumstances” that favor disclosure. This gives broad new powers to former presidents to cover up inconvenient documents.

A particularly troubling part of the order is that it creates a new vice presidential privilege that the Archivist is required to honor. This vice presidential power has no basis in constitutional law or practice, and George H.W. Bush will be the first to receive this vice presidential privilege. The order also unlawfully permits “representatives” of the families of former presidents to assert executive privilege long after the former president dies or becomes disabled.

The Presidential Records Act, which was passed in the wake of controversy over control of President Nixon’s records, makes records of presidents and vice presidents public property and broadly opens them to the public, making exceptions for classified materials that could damage national security if released. Because presidents have the ability to restrict access to some records for 12 years after they leave office, the act does not threaten the constitutional executive privilege.

“The role of the Archives is to provide citizens with information about their government, not to assist presidents in withholding inconvenient or embarrassing documents,” said Public Citizen President Joan Claybrook. “The right of the public to information about their own government is too important to be compromised.”