Effective Date: November 01, 2001
|Responsible Office: Office of Management Systems|
|Subject: Further Implementation of the Presidential Records Act|
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:
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 constitutionally 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:
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.
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.
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 representative (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.
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.
/s/George W. Bush
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