Executive Order on Presidential Records

In a victory for historians, researchers and advocates of open government, the Obama Administration issued its first Executive Order entitled Presidential Records on January 21. It revokes Executive Order 13233 issued by George W. Bush in November of 2001 which gave ex-presidents and their families unprecedented powers to block public access to White House records. The effect of this latest Executive Order is to regulate the influence ex-presidents and their heirs can exert to block the release of sensitive documents pertaining to their time in the White House.

To understand what Executive Order 13233 did, some background is needed. As part of the reforms enacted after the Watergate scandal that led to the impeachment of Richard Nixon, the Presidential Records Act (PRA) of 1978 (codified at 44 U.S.C. 2201-2207) changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents must manage their records. The records of former President Ronald Reagan were the first Presidential records to be governed by the PRA.

When the presidential papers of Ronald Reagan were due to be made public, the Bush Administration instructed the Archivist to delay release of the Presidential records of former President Reagan. In November 2001, President George W. Bush issued EO 13233 giving current and former presidents, their heirs or designees, and former vice presidents broad authority to withhold presidential records or delay their release indefinitely. Less than a month after EO 13233 was issued, the American Historical Association brought suit against the federal government questioning the order’s legality. In October 2007, US District Court Judge Colleen Kollar-Kotelly issued an opinion that gave historians and researchers a partial victory striking the section of the EO that allows a former president to delay indefinitely the release of records. The opinion did not rule on the legality of the sections of the Executive Order allowing heirs and designees of former presidents, and former vice presidents, the authority to control the release of documents, calling them “unripe” since no records had yet been withheld under those provisions, leaving open challenges of these provisions in the future.

Section 5 of President Obama’s first Executive Order removes any question about such challenges for now by stating “Executive Order 13233 of November 1, 2001, is revoked.” Brooklyn Congressman Edolphus Towns has introduced the Presidential Records Act Amendments of 2009 (H.R. 35) that would make these new rules permanent law. The House has passed the bill and it is now pending action in the Senate.