Court Reverses Bush on Archive Secrecy

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A federal judge on Monday tossed out part of a 2001 order by President George W. Bush that lets former presidents keep some of their presidential papers secret indefinitely.

U.S. District Judge Colleen Kollar-Kotelly ruled that the U.S. Archivist's reliance on the executive order to delay release of the papers of former presidents is "arbitrary, capricious, an abuse of discretion and not in accordance with law."

Criticized by historians, the November 2001 order allowed the White House or a former president to block release of a former president's papers and put the onus on researchers to show a "specific need" for many types of records.

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    Maarja Krusten - 10/2/2007

    judge's decision at
    for more on the judicial action taken yesterday in the 6-year old lawsuit brought by AHA regarding E.O. 13233 on the Presidential Records Act. The judge said that NARA could use its own discretion during the period while a former President is reviewing documents proposed for release to go ahead and open them. She noted that since the former President could string out the review indefinitely, NARA could decide to exercise its own judgment and open the materials.

    The Judge dodged some of the issues surrounding the executive order because she believes the issues are not ripe. But she agreed with the plaintiffs in part and in a narrow ruling overturned sections of the executive order, noting, "Simply put, Plaintiffs’ argument prevails. The Bush Order effectively eliminates the Archivist’s discretion to release a former president’s documents while such documents are pending a former president’s review, which can be extended–presumably indefinitely–upon the former president’s request."

    The decision mentions Public Citizen v. Burke, 843 F.2d 1473 (D.C. Cir. 1988), the ruling that I have previously mentioned which overturned the so-called Cooper memorandum (the DOJ/OLC opinion regarding NARA's lack of discretion in in accepting claims submitted by Richard Nixon.) The judge noted yesterday of Burke, "Because the Archivist had relied on a memorandum removing his own deference, which was not an agency interpretation of the law but rather the Office of Legal Counsel’s interpretation of the Constitution and its requirements, the D.C. Circuit held that reliance on said memorandum was not entitled to deference. Id. at 1478."

    However, I've also noted in my numerous postings that NARA did not release "the full truth" about Watergate while Nixon still was alive despite the 1974 PRMPA. (Nixon died in 1994.) I've also mentioned the Mortenson Declaration and Public Citizen's reference to the use by Nixon of litigation threats as bargaining chips to affect archival actions. All of this occurred behind the scenes and only came to light once Kutler v. Wilson was filed in 1992.

    Note also in the Berger case NARA's practice of negotiating some issues quietly with former Presidents' lawyers, a process which can work well or badly depending on a number of factors.

    It remains to be seen, practically speaking, what happens with the archival discretion that the court recognizes in the new ruling on the 1978 Presidential records statute. Always, I wish my former colleagues at NARA the very best of luck.

    Posted on personal time from home