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Executive Order 13233

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Administration of George W. Bush, 2001 / Nov. 1 1581 traveling public by strengthening security at chivist administers records in accordance America’s airports. I am pleased the bill in- with the limitations on access imposed by cludes many of the safety measures proposed section 2204 of title 44. After expiration of by my administration, including strong Fed- that period, section 2204(c) of title 44 directs eral oversight of airline security, an expanded that the Archivist administer Presidential Federal air marshals program, and important records in accordance with section 552 of aircraft security enhancements. title 5, the Freedom of Information Act, in- The American people deserve tough secu- cluding by withholding, as appropriate, rity standards, and the House plan delivers. records subject to exemptions (b)(1), (b)(2), I urge the House and Senate to quickly work (b)(3), (b)(4), (b)(6), (b)(7), (b)(8), and (b)(9) together to send a strong and effective bill of section 552. Section 2204(c)(1) of title 44 to my desk. provides that exemption (b)(5) of section 552 is not available to the Archivist as a basis for Executive Order 13233—Further withholding records, but section 2204(c)(2) recognizes that the former President or the Implementation of the Presidential incumbent President may assert any constitu- Records Act tionally based privileges, including those or- November 1, 2001 dinarily encompassed within exemption (b)(5) of section 552. The President’s con- By the authority vested in me as President stitutionally based privileges subsume privi- by the Constitution and the laws of the leges for records that reflect: military, diplo- United States of America, and in order to matic, or national security secrets (the state establish policies and procedures imple- secrets privilege); communications of the menting section 2204 of title 44 of the United President or his advisors (the presidential States Code with respect to constitutionally communications privilege); legal advice or based privileges, including those that apply legal work (the attorney-client or attorney to Presidential records reflecting military, work product privileges); and the delibera- diplomatic, or national security secrets, Presi- tive processes of the President or his advisors dential communications, legal advice, legal (the deliberative process privilege). work, or the deliberative processes of the President and the President’s advisors, and (b) In Nixon v. Administrator of General to do so in a manner consistent with the Su- Services, the Supreme Court set forth the preme Court’s decisions in Nixon v. Adminis- constitutional basis for the President’s privi- trator of General Services, 433 U.S. 425 leges for confidential communications: ‘‘Un- (1977), and other cases, it is hereby ordered less [the President] can give his advisers as follows: some assurance of confidentiality, a Presi- Section 1. Definitions. dent could not expect to receive the full and For purposes of this order: frank submissions of facts and opinions upon (a) ‘‘Archivist’’ refers to the Archivist of which effective discharge of his duties de- the United States or his designee. pends.’’ 433 U.S. at 448–49. The Court cited (b) ‘‘Presidential records’’ refers to those the precedent of the Constitutional Conven- documentary materials maintained by the tion, the records of which were ‘‘sealed for National Archives and Records Administra- more than 30 years after the Convention.’’ tion pursuant to the Presidential Records Id. at 447 n.11. Based on those precedents Act, 44 U.S.C. 2201–2207. and principles, the Court ruled that constitu- (c) ‘‘Former President’’ refers to the tionally based privileges available to a Presi- former President during whose term or dent ‘‘survive[] the individual President’s ten- terms of office particular Presidential records ure.’’ Id. at 449. The Court also held that were created. a former President, although no longer a Sec. 2. Constitutional and Legal Back- Government official, may assert constitu- ground. tionally based privileges with respect to his (a) For a period not to exceed 12 years Administration’s Presidential records, and ex- after the conclusion of a Presidency, the Ar- pressly rejected the argument that ‘‘only an VerDate 11-MAY-2000 07:56 Nov 06, 2001 Jkt 197250 PO 00000 Frm 00021 Fmt 1244 Sfmt 1244 E:\PRESDOCS\P44NOT4.002 pfrm07 PsN: P44NOT4 1582 Nov. 1 / Administration of George W. Bush, 2001 incumbent President can assert the privilege holding of or authorizes access to any privi- of the Presidency.’’ Id. at 448. leged records. (c) The Supreme Court has held that a (d) Concurrent with or after the former party seeking to overcome the constitu- President’s review of the records, the incum- tionally based privileges that apply to Presi- bent President or his designee may also re- dential records must establish at least a view the records in question, or may utilize ‘‘demonstrated, specific need’’ for particular whatever other procedures the incumbent records, a standard that turns on the nature President deems appropriate to decide of the proceeding and the importance of the whether to concur in the former President’s information to that proceeding. See United decision to request withholding of or author- States v. Nixon, 418 U.S. 683, 713 (1974). ize access to the records. Notwithstanding the constitutionally based (1) When the former President has re- privileges that apply to Presidential records, quested withholding of the records: many former Presidents have authorized ac- (i) If under the standard set forth in sec- cess, after what they considered an appro- tion 4 below, the incumbent Presi- priate period of repose, to those records or dent concurs in the former Presi- categories of records (including otherwise dent’s decision to request withholding privileged records) to which the former of records as privileged, the incum- Presidents or their representatives in their bent President shall so inform the discretion decided to authorize access. See former President and the Archivist. Nixon v. Administrator of General Services, The Archivist shall not permit access 433 U.S. at 450–51. to those records by a requester unless Sec. 3. Procedure for Administering Privi- and until the incumbent President ad- leged Presidential Records. vises the Archivist that the former Consistent with the requirements of the President and the incumbent Presi- Constitution and the Presidential Records dent agree to authorize access to the Act, the Archivist shall administer Presi- records or until so ordered by a final dential records under section 2204(c) of title and nonappealable court order. 44 in the following manner: (ii) If under the standard set forth in sec- (a) At an appropriate time after the Archi- tion 4 below, the incumbent Presi- vist receives a request for access to Presi- dent does not concur in the former dential records under section 2204(c)(1), the President’s decision to request with- Archivist shall provide notice to the former holding of the records as privileged, President and the incumbent President and, the incumbent President shall so in- as soon as practicable, shall provide the form the former President and the former President and the incumbent Presi- Archivist. Because the former Presi- dent copies of any records that the former dent independently retains the right President and the incumbent President re- to assert constitutionally based privi- quest to review. leges, the Archivist shall not permit (b) After receiving the records he requests, access to the records by a requester the former President shall review those unless and until the incumbent Presi- records as expeditiously as possible, and for dent advises the Archivist that the no longer than 90 days for requests that are former President and the incumbent not unduly burdensome. The Archivist shall President agree to authorize access to not permit access to the records by a re- the records or until so ordered by a quester during this period of review or when final and nonappealable court order. requested by the former President to extend the time for review. (2) When the former President has author- (c) After review of the records in question, ized access to the records: or of any other potentially privileged records (i) If under the standard set forth in sec- reviewed by the former President, the former tion 4 below, the incumbent Presi- President shall indicate to the Archivist dent concurs in the former Presi- whether the former President requests with- dent’s decision to authorize access to VerDate 11-MAY-2000 07:56 Nov 06, 2001 Jkt 197250 PO 00000 Frm 00022 Fmt 1244 Sfmt 1244 E:\PRESDOCS\P44NOT4.002 pfrm07 PsN: P44NOT4 Administration of George W. Bush, 2001 / Nov. 1 1583 the records, the Archivist shall permit decision. Those periods may be extended by access to the records by the requester. the former President or the incumbent Presi- (ii) If under the standard set forth in sec- dent for requests that are burdensome. The tion 4 below, the incumbent Presi- Archivist shall not permit access to the dent does not concur in the former records unless and until the incumbent Presi- President’s decision to authorize ac- dent advises the Archivist that the former cess to the records, the incumbent President and the incumbent President agree President may independently order to authorize access to the records or until the Archivist to withhold privileged so ordered by a final and nonappealable records. In that instance, the Archivist court order. shall not permit access to the records Sec. 7. No Effect on Right to Withhold by a requester unless and until the Records. incumbent President advises the Ar- This order does not limit the former Presi- chivist that the former President and dent’s or the incumbent President’s right to the incumbent President agree to au- withhold records on any ground supplied by thorize access to the records or until the Constitution, statute, or regulation.
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