Blogs > Cliopatria > NCH WASHINGTON UPDATE (Vol. 13, #9; March 16, 2007)

Mar 16, 2007 9:57 pm


NCH WASHINGTON UPDATE (Vol. 13, #9; March 16, 2007)



1. HOUSE OVERWHELMINGLY PASSES PRESIDENTIAL RECORDS ACT REFORM BILL
2. FOIA REFORM BILL PASSED BY THE HOUSE
3. PRESIDENTIAL LIBRARY FUNDING DISCLOSURE BILL PASSES HOUSE
4. ARCHIVIST TESTIFIES BEFORE HOUSE APPROPRIATIONS SUBCOMMITTEE ON FY ‘08 NARA BUDGET
5. OLIVER NORTH vs. THE SMITHSONIAN–ROUND II
6. BITS & BYTES: National Park Service Personnel Appointments
7. ARTICLES OF INTEREST: Two "Washington Post" editorials on March 12, 2007, endorsing H.R. 1255, the “Presidential Records Act Amendments of 2007,” and H.R. 1254, the “Presidential Donation Reform Act of 2007.”

Anyone who wondered if a Democratically-controlled Congress would make a difference for historians, archivists, and journalists need look no further than what transpired in the House of Representatives on March 14, 2007. On that day three bills mandating increased public disclosure by the federal government all passed the House by substantial margins.

1. HOUSE OVERWHELMINGLY PASSES PRESIDENTIAL RECORDS ACT REFORM BILL

The most important House action for the historical and archival communities was the passage of H.R. 1255, the “Presidential Records Act Amendments of 2007.” The National Coalition for History (NCH) issued a legislative alert to the historical and archival communities that generated nearly 1,700 letters to the House in support of the bill. I would like to thank everyone who responded to the alert!

H.R. 1255 passed the House on March 14, 2007, by a vote of 333-93. It is key to note that 104 Republicans voted for the bill with 93 opposed. Democrats unanimously supported the bill. This overwhelming level of support may prove to be critical down the road since it is well above the two-thirds total that would be required to override a possible presidential veto. On March 13, 2007, the Office of Management and Budget (OMB) issued a Statement of Administration Policy (SAP) threatening a presidential veto should the legislation pass the Congress. The SAP alleges that H.R. 1255 would cause a proliferation of lawsuits from those seeking access to presidential records. OMB also asserted that Congress was encroaching on the constitutionally-based prerogative of executive privilege.

The floor debate, and text of the bill, can be found in the Congressional Record beginning at:

http://frwebgate.access.gpo.gov

To see how your Member of the House voted on the bill, go to:

http://frwebgate.access.gpo.gov

To view a copy of the OMB’s Statement of Administration Policy in opposition to H.R. 1255, go to:

http://www.whitehouse.gov

The same day the legislation passed the House, Senator Jeff Bingaman (D-NM) and Senate Judiciary Committee Chairman Patrick Leahy (D-VT) introduced a companion bill (S. 886) in the Senate. The bill was referred to the Senate Committee on Homeland Security and Governmental Affairs.

Senator Bingaman’s floor speech on the introduction of the bill can be accessed at:

http://frwebgate.access.gpo.gov

As passed by the House, H.R. 1255 would require the following:

Overturn Bush Executive Order 13233. Under the Presidential Records Act, presidential records are supposed to be released to historians and the public 12 years after the end of a presidential administration. In November 2001, President George W. Bush issued Executive Order 13233, which overturned an executive order issued by President Reagan, and gave current and former presidents and vice presidents broad authority to withhold presidential records or delay their release indefinitely. The "Presidential Records Act Amendments of 2007" would nullify the Bush executive order and establish procedures to ensure the timely release of presidential records.

Establish a Deadline for Review of Records. Under the Bush executive order, the Archivist of the United States must wait for both the current and the relevant former president to approve the release of presidential records, meaning that the review process could continue indefinitely. Under the bill, the current and former president would have a set time period of no longer than 40 business days to raise objections to the release of these records by the archivist.

Limit the Authority of Former Presidents to Withhold Presidential Records. Under the Reagan executive order, a former president could request that the incumbent president assert a claim of executive privilege and thereby stop the release of the records. If the incumbent president decided not to assert executive privilege, however, the records would be released unless the former president could persuade a court to uphold the former president’s assertion of the privilege. The Bush executive order reversed this process and required the incumbent president to sustain the executive privilege claim of the former president unless a person seeking access could persuade a court to reject the claim. In effect, the Bush order gave former presidents virtually unlimited authority to withhold presidential records through assertions of executive privilege. The legislation would restore the Reagan approach, giving the incumbent president the discretion to reject ill-founded assertions of executive privilege by former presidents.

Require the President to Make Privilege Claims Personally. Under the Bush executive order, even designees of a former president could assert privilege claims after the death of the president, in effect making the right to assert executive privilege an asset of the former president’s estate. The bill would make clear that the right to claim executive privilege is personal to current and former presidents and cannot be bequeathed to designees, relatives, or descendants.

Eliminate Executive Privilege Claims for Vice Presidents. In an unprecedented step, the Bush executive order authorized former vice presidents to assert executive privilege claims over vice presidential records. The bill restores the long-standing understanding that the right to assert executive privilege over presidential records is held only by presidents.

The bill would also require the Archivist of the United States to deny access to original presidential records to any designated representative of a former president if the designee had been convicted of a crime relating to the review, retention, removal, or destruction of records of the archives. The amendment was inspired by the well-publicized theft of documents from the National Archives by President Clinton’s former National Security Advisor Samuel R. (Sandy) Berger. On April 1, 2005, Berger pleaded guilty to one misdemeanor count of unauthorized removal and retention of classified documents.

2. FREEDOM OF INFORMATION ACT REFORM BILL PASSED BY THE HOUSE

On March 14, 2007, the House of Representatives, by a vote of 308-117, approved H.R. 1309, the “Freedom of Information Act Amendments of 2007.” This legislation contains numerous provisions that will increase public access to government information by strengthening the Freedom of Information Act (FOIA).

The same day, the Office of Management and Budget (OMB) issued a SAP on H.R. 1309, expressing the Administration’s opposition to the bill.

The floor debate, and text of the bill, can be found in the Congressional Record beginning at:

http://frwebgate.access.gpo.gov

To see how your Member of the House voted on the bill, go to:

http://frwebgate.access.gpo.gov

To view a copy of the OMB’s Statement of Administration Policy in opposition to H.R. 1309, go to:

http://www.whitehouse.gov

The bill reaffirms the presumption that records should be released to the public if disclosure is allowable under law and the agency cannot reasonably foresee harm from such a disclosure. This was the standard that was in effect during the Clinton administration. This provision would effectively rescind the “Ashcroft Memorandum” which was issued on October 12, 2001, in response to the 9/11 attacks and restore the “foreseeable harm” standard. The Ashcroft FOIA Memorandum established a “sound legal basis” standard. Under this standard, agencies are required to reach the judgment that their use of a FOIA exemption is on sound footing, both factually and legally, whenever they withhold requested information. This provision was one of the major reasons the Administration opposed the bill.

A copy of the Ashcroft FOIA Memorandum can be accessed at:

http://www.usdoj.gov

The bill also puts teeth into the requirement that agencies respond to FOIA requests within 20 days. H.R. 1309 makes this deadline meaningful by ensuring that the 20-day statutory clock runs immediately upon an agency’s receipt of a request and by imposing consequences on federal agencies for missing the deadline. The bill also requires agencies to provide requesters with individualized tracking numbers for each request and access to a telephone or internet hotline with information about the status of requests.

The bill strengthens agency reporting requirements to identify excessive delays and requires each agency to make the raw data used to compile its annual reports publicly available. The bill also requires the Government Accountability Office to report annually on the Department of Homeland Security’s use of the broad disclosure exemption for “critical infrastructure information.”

H.R. 1309 creates a new FOIA ombudsman to help FOIA requesters resolve problems without having to resort to litigation. The FOIA ombudsman will be located at the National Archives and will help requesters by providing informal guidance and nonbinding opinions regarding rejected or delayed FOIA requests. The FOIA ombudsman will also review agency compliance with FOIA.

H.R. 1309 makes it more feasible for citizen groups to challenge the improper withholding of government information by expanding access to attorneys’ fees for FOIA requesters who successfully challenge an agency’s denial of information. The bill also holds agencies accountable for their decisions by enhancing the authority of the Office of Special Counsel to take disciplinary action against government officials who arbitrarily and capriciously deny disclosure.

The legislation also requires agencies to provide reasons for each redaction in documents that are released in response to a FOIA request.

3. PRESIDENTIAL LIBRARY FUNDING DISCLOSURE BILL PASSES HOUSE

On March 14, 2007, the House of Representatives approved H.R. 1254, the “Presidential Donation Reform Act of 2007,” by a vote of 390-34. Unlike the previous two bills, the administration did not express an opinion on this legislation.

The floor debate, and text of the bill, can be found in the Congressional Record beginning at:

http://frwebgate.access.gpo.gov

To see how your Member of the House voted on the bill, go to:

http://frwebgate.access.gpo.gov

Presidential libraries are built using private funds raised by an organization or foundation working on behalf of the president. Under current law, donations for the presidential library can be unlimited in size and are not required to be disclosed. The bill would require that all organizations established for the purpose of raising funds for presidential libraries or their related facilities report on a quarterly basis all contributions of $200 or more.

Organizations that raise funds for presidential libraries typically begin fundraising while the president remains in office. Before the library is turned over to the National Archives, these organizations must raise enough money to build the library and to provide the Archivist with an endowment for the maintenance of the facility. Under the legislation, organizations fundraising for presidential libraries would be required to disclose their donations while the president is in office and during the period before the federal government has taken possession of the library. The bill sets a minimum reporting period of four years after the end of a president’s term.

Under the bill, presidential library fund-raising organizations would be required to disclose to Congress and the Archivist the amount and date of each contribution, the name of the contributor, and if the contributor is an individual, the occupation of the contributor. The National Archives would be required to make the information available to the public through a free, searchable, and downloadable database on the internet.

One of the concerns the bill is designed to remedy is the fact that foreign nationals can make unlimited contributions to a sitting, or former, president’s library foundation. This is in contrast to federal election laws which prohibit contributions by foreign nationals.

4. ARCHIVIST TESTIFIES BEFORE HOUSE APPROPRIATIONS ON FY ‘08 NARA BUDGET

On March 15, 2007, Archivist of the United States Allen Weinstein testified on the fiscal year (FY) 2008 budget for the National Archives and Records Administration (NARA) before the House Appropriations’ Subcommittee on Financial Services and General Government.

In his prepared testimony, Dr. Weinstein said that under the President’s FY 2008 request, NARA would receive $312.8 million for operating expenses, an increase of $33.5 million over FY 2007. The Electronic Records Archive (ERA), an initiative to preserve and make accessible electronic records, would be funded at a level of $58 million, or an increase of $12.7 million from the current year.

Dr. Weinstein noted that the administration had requested no funding for the National Historical Publications and Records Commission (NHPRC).

He stated that the operating expenses budget also includes $5.5 million in funding for the Richard Nixon Presidential Library, which will become part of NARA’s presidential library system this year. The proposed budget also includes $5.8 million in funding to continue preparations for the George W. Bush Presidential Library.

Dr. Weinstein informed the subcommittee that in order to meet budgetary levels for FY 2007, NARA enacted a hiring freeze that resulted in a loss of seven percent of the agency’s staff. Budget restrictions also forced NARA to curtail research room and public visitation hours. He warned that without the requested additional $21 million in funding for NARA’s base programs that, “we will be forced to expand upon the cost cutting measures already implemented.”

Subcommittee Chairman Jose Serrano (D-NY) began the question-and-answer period by asking if NARA could restore the reductions it had made to the hours of operations of the research rooms if the Archives were to receive the budget it had requested. Dr. Weinstein stated that he had to give a “yes, but” reply. He regretted that NARA been forced to cut down on the hours, but that it would probably take significant multi-year funding increases to allow the Archives to restore the previous hours of operation. He stated that he would supply the subcommittee with a cost estimate of what it would cost to restore the hours.

Both Chairman Serrano and Representative James Moran (D-VA) questioned the Archivist about the elimination of funding for the NHPRC. When asked if he agreed with the zeroing out of NHPRC funding, Dr. Weinstein said that he opposed it. Representative Moran asked how much money should be put back into the program, Dr. Weinstein stated that ideally it would be the fully authorized amount of $10 million, or at least the $7.5 million that the program had received in FY 2007.

A number of subcommittee members raised concerns about last year’s controversy that arose when intelligence agencies within the government sought to reclassify documents that had already been declassified. Dr. Weinstein noted that he had acted swiftly to stop the practice once he had become aware of it. He noted his own personal commitment to making NARA, “an access agency.”

At the end of the hearing, Chairman Serrano expressed concerns that Bush Executive Order 13233 was slowing access for historians to presidential records. The chairman asked the Archivist what NARA’s position was on H.R. 1255, the “Presidential Records Reform Act.” Dr. Weinstein stated that he had given advice, and made his own views on the executive order clear to the Administration. However, he stated he was hesitant to comment publicly on what he had told administration officials in confidence.

5. OLIVER NORTH vs. THE SMITHSONIAN–ROUND II

This week, the Smithsonian Institution and conservative commentator and Fox News personality Oliver North were once again at odds over his use of the Smithsonian National Air and Space Museum’s Steven F. Udvar-Hazy Center to film a documentary.

North hosts the series “War Stories” on the Fox News Channel and is filming a documentary on the history of nuclear weapons. The show’s producers had requested the opportunity to film North speaking in front of the Enola Gay, the B-29 bomber which dropped the first atomic bomb on Hiroshima in August 1945. The Enola Gay is housed at the Udvar-Hazy Center.

An exclusive deal between the Smithsonian and the Showtime Networks, Inc. allows the joint venture to vet any requests for filming at Smithsonian facilities that go beyond “incidental usage.” The Smithsonian initially denied North’s request which provoked an angry public response by North. Apparently all of the bad publicity caused the Smithsonian to reconsider and they announced in February that North would be allowed to film at the Udvar-Hazy Center after all.

However, this week the Smithsonian sought to limit the use of the material that North would film at the Udvar-Hazy Center and he was denied access to the facility.

In an on-line column, North talked about filming for his series in Vietnam last summer. “As it turns out, it was easier to deal with Ho Chi Minh’s proteges than our own Smithsonian Institution. At least the commies kept their word. Not so with the Smithsonian.”

North’s full commentary can be accessed at:

http://www.creators.com/

A “Washington Post” article on the North versus Smithsonian fight can be accessed at:

http://www.washingtonpost.com

6. BITS & BYTES: National Park Service Personnel Appointments: The National Park Service (NPS) recently announced the appointment of Daniel N. Wenk as Deputy Director and Dr. Richard J. O’Connor as Chief of the Heritage Documentation Programs Division.

7. ARTICLES OF INTEREST: Two “Washington Post” editorials on March 12, 2007, endorsing H.R. 1255, the “Presidential Records Act Amendments of 2007,” and H.R. 1254, the “Presidential Donation Reform Act of 2007.”

Editorial endorsing H.R. 1255, the “Presidential Records Act Amendments of 2007”
http://www.washingtonpost.com

Editorial endorsing H.R. 1254, the “Presidential Donation Reform Act of 2007”
http://www.washingtonpost.com


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