[Federal Register Volume 66, Number 214 (Monday, November 5, 2001)]
[Presidential Documents]
[Pages 56025-56029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27917]
[[Page 56023]]
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Part IV
The President
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Executive Order 13233--Further Implementation of the Presidential
Records Act
Presidential Documents
Federal Register / Vol. 66, No. 214 / Monday, November 5, 2001 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 56025]]
Executive Order 13233 of November 1, 2001
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:
(a) ``Archivist'' refers to the Archivist of the
United States or his designee.
(b) ``Presidential records'' refers to those
documentary materials maintained by the National
Archives and Records Administration pursuant to the
Presidential Records Act, 44 U.S.C. 2201-2207.
(c) ``Former President'' refers to the former
President during whose term or terms of office
particular Presidential records were created.
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
[[Page 56026]]
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:
(a) At an appropriate time after the Archivist receives
a request for access to Presidential records under
section 2204(c)(1), the Archivist shall provide notice
to the former President and the incumbent President
and, as soon as practicable, shall provide the former
President and the incumbent President copies of any
records that the former President and the incumbent
President request to review.
(b) After receiving the records he requests, the former
President shall review those records as expeditiously
as possible, and for no longer than 90 days for
requests that are not unduly burdensome. The Archivist
shall not permit access to the records by a requester
during this period of review or when requested by the
former President to extend the time for review.
(c) After review of the records in question, or of any
other potentially privileged records reviewed by the
former President, the former President shall indicate
to the Archivist whether the former President requests
withholding of or authorizes access to any privileged
records.
(d) Concurrent with or after the former President's
review of the records, the incumbent President or his
designee may also review the records in question, or
may utilize whatever other procedures the incumbent
President deems appropriate to decide whether to concur
in the former President's decision to request
withholding of or authorize access to the records.
(1) When the former President has requested withholding
of the records:
(i)
If under the standard set forth in section 4 below, the incumbent
President concurs in the former President's decision to request withholding
of records as privileged, the incumbent President shall so inform the
former President and the Archivist. The Archivist shall not permit access
to those records by a requester unless and until the incumbent President
advises the Archivist that the former President and the incumbent President
agree to authorize access to the records or until so ordered by a final and
nonappealable court order.
[[Page 56027]]
(ii)
If under the standard set forth in section 4 below, the incumbent
President does not concur in the former President's decision to request
withholding of the records as privileged, the incumbent President shall so
inform the former President and the Archivist. Because the former President
independently retains the right to assert constitutionally based
privileges, the Archivist shall not permit access to the records by a
requester unless and until the incumbent President advises the Archivist
that the former President and the incumbent President agree to authorize
access to the records or until so ordered by a final and nonappealable
court order.
(2) When the former President has authorized access to
the records:
(i)
If under the standard set forth in section 4 below, the incumbent
President concurs in the former President's decision to authorize access to
the records, the Archivist shall permit access to the records by the
requester.
(ii)
If under the standard set forth in section 4 below, the incumbent
President does not concur in the former President's decision to authorize
access to the records, the incumbent President may independently order the
Archivist to withhold privileged records. In that instance, the Archivist
shall not permit access to the records by a requester unless and until the
incumbent President advises the Archivist that the former President and the
incumbent President agree to authorize access to the records or until so
ordered by a final and nonappealable court order.
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.
This order does not expand or limit the rights of a
court, House of Congress, or authorized committee or
subcommittee of Congress to obtain access to the
records of a former President pursuant to section
2205(2)(A) or section 2205(2)(C). With respect to such
requests, the former President shall review the records
in question and, within 21 days of receiving notice
from the Archivist, indicate to the Archivist his
decision with respect to any privilege. The incumbent
President shall indicate his decision with respect to
any privilege within 21 days after the former President
has indicated his decision. Those periods may be
extended by the former President or the incumbent
President for requests that are burdensome. The
Archivist shall not permit access to the records unless
and until the incumbent President advises the Archivist
that the former President and the incumbent President
agree to authorize access to the records or until so
ordered by a final and nonappealable court order.
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.
[[Page 56028]]
In the period not to exceed 12 years after the
conclusion of a Presidency during which section 2204(a)
and section 2204(b) of title 44 apply, a former
President or the incumbent President may request
withholding of any privileged records not already
protected from disclosure under section 2204. If the
former President or the incumbent President so
requests, the Archivist shall not permit access to any
such privileged records unless and until the incumbent
President advises the Archivist that the former
President and the incumbent President agree to
authorize access to the records or until so ordered by
a final and nonappealable court order.
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.
(a) Pursuant to section 2207 of title 44 of the United
States Code, the Presidential Records Act applies to
the executive records of the Vice President. Subject to
subsections (b) and (c), this order shall also apply
with respect to any such records that are subject to
any constitutionally based privilege that the former
Vice President may be entitled to invoke, but in the
administration of this order with respect to such
records, references in this order to a former President
shall be deemed also to be references to the relevant
former Vice President.
(b) Subsection (a) shall not be deemed to authorize a
Vice President or former Vice President to invoke any
constitutional privilege of a President or former
President except as authorized by that President or
former President.
(c) Nothing in this section shall be construed to
grant, limit, or otherwise affect any privilege of a
President, Vice President, former President, or former
Vice President.
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.
[[Page 56029]]
Sec. 13. Revocation.
Executive Order 12667 of January 18, 1989, is revoked.
(Presidential Sig.)B
THE WHITE HOUSE,
November 1, 2001.
[FR Doc. 01-27917
Filed 11-2-01; 11:23 am]
Billing code 3195-01-P