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AMERICAN HISTORICAL ASS'N v. NATIONAL ARCHIVES & RECORDS ADMIN.

March 28, 2004.

AMERICAN HISTORICAL ASSOCIATION, et al, Plaintiffs,
v.
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, et al, Defendants



The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge

MEMORANDUM OPINION

I. Introduction

The Court is presented with a dispute over the relationship between an executive order issued by the President of the United States and a statute passed by Congress. In particular, the Court is asked to determine whether the President has overstepped the limitations on his power by issuing an executive order that alters the terms of a statute. Plaintiffs, research organizations, individual researchers, and a public interest organization, all seek access to former President Ronald Reagan's presidential records, which they claim are being improperly withheld by the executive branch. At issue is Executive Order No. 13,233, signed by President George W. Bush on November 1, 2001, which purports to "further implement" the Presidential Records Act of 1978, 44 U.S.C. § 2201-2207 (1991). Plaintiffs would have this Court find Executive Order No. 13,233 an impermissible exercise of the executive power, necessarily enjoining its implementation. Plaintiffs originally requested injunctive relief requiring Defendants National Page 2 Archives and Records Administration and the Archivist to produce records that had not been released to the public under the terms of Executive Order. However, at this stage in the litigation, the only documents that remain unavailable are 74 pages over which constitutional privilege has been asserted.

  Pending before the Court are Defendants' motion to dismiss all counts of Plaintiffs' complaint, and Plaintiffs' motion for summary judgment on one count of their complaint. In addition to the briefing filed by the parties to this matter, the Court granted the Association of American Publishers, and several other interested groups, leave to collectively file an amicus brief. These documents, as well as several notices and responses that the parties filed during the ongoing privilege review, have been considered by the Court.

  After an examination of the parties' motions, the briefs, and the relevant law, the Court determines that Plaintiffs' suit is not justiciable at this juncture. Plaintiffs have not shown that they have standing to bring this suit, and the Court also finds that their claim is not ripe.

 II. Factual and Statutory Background

  A. Historical Context

  Prior to 1974, the wide array of materials generated during a presidency were generally considered the property of that President when his term ended, although those ownership rights might be limited somewhat by the public interest in them as records of government activity. See Nixon v. Administrator of General Services, 433 U.S. 425, 431 (1977); Nixon v. United States, 978 F.2d 1269, 1270 (D.C. Cir. 1992). In the midst of the Watergate investigation, however, Congress passed the Presidential Recordings and Materials Act ("PRMA"), which transferred control of President Richard Nixon's presidential records to the Administrator of General Page 3 Services (later changed to the "Archivist"), and directed the Administrator to develop regulations providing for public access to the materials. See 44 U.S.C. § 2111 note. The PRMA was upheld as constitutional in Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Although the Court in Nixon v. Administrator of General Services held that there is a legal foundation for a former president's claim to executive privilege surviving his tenure in office, the Court also held that the former president's interest in keeping the records private erodes over time. Id. at 449, 451.

  B. Presidential Records Act

  Several years later, Congress passed the Presidential Records Act of 1978 ("PRA"), which addressed this issue of public access to presidential papers in a broader context. In keeping with the view that presidential records are not personal property, the Act states that "[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with this chapter." 44 U.S.C. § 2202. The Act confers on the Archivist of the United States "responsibility for the custody, control, and preservation of, and access to, the Presidential records" generated during the outgoing President's term or terms. 44 U.S.C. § 2203(f)(1). It further directs that the "Archivist shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this Act." Id. In conjunction with this mandate, the PRA makes several provisions for the restriction of access to Presidential records.*fn1 Page 4

  First, prior to leaving office, a president can restrict access to certain categories of information for up to 12 years. Id. § 2204(a)(1)-(6).*fn2 In relevant part, the Act allows a president Page 5 to restrict access to "confidential communications requesting or submitting advice, between the President and his advisers, or between such advisors" for 12 years. Id. § 2204(a)(5).

  Records not restricted for the 12-year period, shall be made available by the Archivist to the public after five years, generally subject to the conditions of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552.*fn3 44 U.S.C. § 2204(b)(2)(A), 2204(c)(1). Each of these FOIA exemptions may apply to presidential records indefinitely.*fn4

  The one exception to this direction is that presidential records cannot be withheld from members of the public based on FOIA exemption (b)(5). 44 U.S.C. § 2204(c)(1). In the ordinary FOIA context, the public is not entitled to materials that fall under exemption (b)(5), "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). In the context of presidential records, however, the (b)(5) exemption is inapplicable, so such materials are considered records belonging to the National Archives, and must be "granted on Page 6 nondiscriminatory terms" to members of the public. 44 U.S.C. § 2204(c)(1).

  Third, the PRA states that "[n]othing in this Act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President." Id. § 2204(c)(2).

  Under the PRA, the Archivist must notify the former president "when the disclosure of particular documents may adversely affect any rights and privileges which the former President may have." Id. § 2206(3). The National Archives and Records Administration ("NARA") has implemented this requirement by promulgating a regulation providing that whenever the Archivist intends to make public any presidential record, he must provide 30 days' notice to the former president to allow him, or his designated representative, to assert any rights or privileges that would foreclose access to the materials. 36 C.F.R. § 1270.46(a), (b), (d). If the former president raises such a right or privilege intending to preclude disclosure, "and the Archivist nevertheless determines that the record in question should be disclosed in whole or in part, the Archivist shall notify the former President or his representative," and "shall not disclose [the records] for at least 30 calendar days . . ." Id. § 1270.46(c), (d). Copies of either notice to a former president of impending disclosure must be provided to the incumbent president as well. Id. § 1270.46(e).

  C. Executive Order 12,667 ("Reagan Order")

  President Ronald Reagan signed Executive Order 12,667 ("Reagan Order") on January 18, 1989, "in order to establish policies and procedures governing the assertion of Executive privilege by incumbent and former Presidents in connection with the release of Presidential records" by NARA under the PRA. Reagan Order, 54 Fed. Reg. 3403; see also 44 C.F.R. § 2204 Page 7 note. The Reagan Order specified three situations in which presidential records could be withheld: national security, law enforcement, and the executive deliberative process privilege, and gave the incumbent president the authority to assert privilege over the records of a former president. Id. §§ 1(g), 3.

  When the Archivist notified an incumbent and former president of his intent to open records, the Reagan Order required him to "identify any specific materials, the disclosure of which he believes may raise a substantial question of Executive privilege." Id. § 2(a). After 30 days, the Archivist would be free to disclose the records, "unless during that time period the Archivist [received] a claim of Executive privilege by the incumbent or former President or the Archivist has been instructed by the incumbent President or his designee to extend the time period." Id. § 2(b). The Reagan Order provided that both the incumbent and former presidents could assert executive privilege, but that the Archivist would only be bound to accept the privilege claim of an incumbent president. Id. §§ 3-4. The Reagan Order required the Archivist to abide by an incumbent president or his designee's direction as to whether to accept or deny a former president's claim of privilege, unless ordered otherwise by a court. Id. § 4.

  The Reagan Order was revoked by Executive Order 13,233, ...


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