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March 6, 1987

Public Citizen, et al., Plaintiffs
Frank Burke, Acting Archivist, National Archives and Records Administration, et al., Defendants

The opinion of the court was delivered by: REVERCOMB

George H. Revercomb, Judge


 This matter is before the Court on the parties' cross motions for summary judgment. Oral argument was held February 2, 1987.

 This case concerns the disposition of the presidential papers and recordings of former President Richard Nixon. The judicial history of the disposition of those documents and tapes is germane to the issues presented by these motions.

 On December 19, 1974, the Presidential Recordings and Materials Preservation Act became law. *fn1" The Act directed the General Services Administration to take custody of all tape recordings and other Presidential materials accumulated during the Nixon Presidency and directed the Administrator to promulgate regulations governing public access to the materials. One day after the Act's passage former President Nixon brought suit in the District Court challenging the Act's constitutionality and seeking declaratory and injunctive relief against it. A three-judge District Court ruled that the Act on its face did not violate the Constitution, Nixon v. Administrator 408 F. Supp. 321 (D.D.C. 1976). The Supreme Court affirmed, Nixon v. Administrator, 433 U.S. 425, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977).

 The former president then challenged the constitutionality of two of the regulations promulgated to implement the Act. The constitutionality of those regulations was upheld in Nixon v. Freeman, 216 U.S. App. D.C. 188, 670 F.2d 346 (D.C. Cir. 1982). *fn2" The opinion in Freeman has a broader significance to the issues presented here.

 Plaintiffs, two public interest organizations and a free-lance journalist/author, brought this action seeking to nullify any impact of the DOJ/OLC memorandum on the orderly release of the Nixon papers under the statutory and regulatory scheme. Specifically, plaintiffs contend that the memorandum is contrary to the Act, the decided cases, and is not required by the Constitution.

 Prior to oral argument on these motions, all defendants contended that review of the issues before this Court was inappropriate in that plaintiffs lacked requisite standing to bring the action and that the issues were not ripe for review. At oral argument counsel for the federal defendants argued that three ingredients were required: 1) the OLC opinion must be in existence, 2) there must be a claim of executive privilege by former President Nixon, and 3) the Archivist must apply the advice in the OLC opinion and come up with a different result than he would have come up with if the OLC opinion had never been issued. (Transcript at 34). Federal defendants argued that at most, only one of the three ingredients was present -- the existence of the OLC opinion. Assertion of executive privilege by defendant Nixon is speculative, the federal defendants contend, as is what action the Archivist would take if executive privilege were asserted.

 Following the argument presented by government, counsel for defendant Nixon represented to the Court that there, indeed, will be claims of executive privilege asserted in the near future and that "the matter . . . is ripe at this particular time." (Transcript at 51). This Court must conclude that executive privilege claims are no longer speculative. When viewing this revelation in connection with testimony of the Archivist before Congress that, in his opinion, the OLC memorandum binds him to honor all claims of executive privilege asserted by former President Nixon, it is believed that the injury required by the justiciability doctrines of standing, Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975) and ripeness Regional Rail Reorganization Act Cases, 419 U.S. 102, 42 L. Ed. 2d 320, 95 S. Ct. 335 (1974) is present.

 In the Regional Rail Reorganization Act Cases the Court held that "where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect." 419 U.S. at 143. Quoting Pennsylvania v. West Virginia 262 U.S. 553, 593, 67 L. Ed. 1117, 43 S. Ct. 658 (1923) the Court added: "one does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough." Id.

 In the instant case, this Court finds it irrelevant that there will be a time delay before the DOJ/OLC memorandum is applied in the processing of assertions of executive privilege claims. The injury to plaintiffs is certainly impending and they need not wait for all three ingredients to be present, before review is appropriate. The statute directs immediate consideration and resolution of any legal or constitutional challenge to the law or any regulation issued pursuant to authority of the Act. 44 U.S.C. Sec. 2111, Subsect. 105(a) (1984).

  On the merits, this Court is compelled by the opinion of the D.C. Circuit in a previous case concerning the Nixon presidential papers and the regulatory scheme for their disclosure. In Nixon v. Freeman, supra, the former President challenged regulations as deficient in that they placed upon him the burden of coming forward to challenge any disclosure that he thought would violate the Presidential privilege of confidentiality. The appellate court rejected a proposal by Mr. Nixon which he contended would remedy that deficiency and respect what the Supreme Court in U.S. v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974) recognized as the "presumptive" nature of the privilege. *fn3" Disagreeing that the "presumptive" nature of the privilege required the adoption of any additional feature, the Court cited Nixon v. Administrator, 433 U.S. 425, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977) wherein the Supreme Court rejected an argument that archival screening "reversed" the presumptive privilege, noting that the Act required the Administrator to preserve Mr. Nixon's right to assert the privilege and declared the Act's guidelines to be on their face as broad as the privilege itself.

Thus, there is no basis for appellant's claim that the act "reverses" the presumption in favor of confidentiality of Presidential papers recognized in United States v. Nixon. Appellant's right to assert the privilege is specifically preserved by the Act. The guideline provisions on their face are as broad as the privilege itself. If the broadly written protections of the Act should nevertheless prove inadequate to safeguard appellant's rights or to ...

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