111th Congress
1st Session SENATE Report
111-21
_______________________________________________________________________
Calendar No. 64
PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2009
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 35
TO AMEND CHAPTER 22 OF TITLE 44, UNITED STATES CODE, POPULARLY KNOWN AS
THE PRESIDENTIAL RECORDS ACT, TO ESTABLISH PROCEDURES FOR THE
CONSIDERATION OF CLAIMS OF CONSTITUTIONALLY BASED PRIVILEGE AGAINST
DISCLOSURE OF PRESIDENTIAL RECORDS
May 19, 2009.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri LINDSEY GRAHAM, South Carolina
JON TESTER, Montana
ROLAND W. BURRIS, Illinois
MICHAEL BENNET, Colorado
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Jonathan M. Kraden, Counsel
Adam R. Sedgewick, Professional Staff Member
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
John K. Grant, Minority Counsel
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 64
111th Congress
SENATE
Report
1st Session 111-21
======================================================================
PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2009
_______
May 19, 2009.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 35]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 35) to amend
chapter 22 of title 44, United States Code, popularly known as
the Presidential Records Act, to establish procedures for the
consideration of claims of constitutionally based privilege
against disclosure of Presidential records, having considered
the same, reports favorably thereon with an amendment and
recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
IV. Section-by-Section Analysis......................................4
V. Evaluation of Regulatory Impact..................................6
VI. Congressional Budget Office Cost Estimate........................6
VII. Changes in Existing Law..........................................7
I. Purpose and Summary
H.R. 35, the ``Presidential Records Act Amendments of
2009,'' was introduced on January 6, 2009. The legislation
amends the Presidential Records Act of 1978 to establish a
process by which incumbent and former Presidents can review
Presidential records whose release is regulated by the
Presidential Records Act in order to determine whether to
assert that executive privilege limits the release of those
records.\1\
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\1\Section 2201(2) of the Presidential Records Act of 1978 defines
Presidential records as ``documentary materials . . . created or
received by the President, his immediate staff, or a unit or individual
of the Executive Office of the President whose function is to advise
and assist the President, in the course of conducting activities which
relate to or have an effect upon the carrying out of the
constitutional, statutory, or other official or ceremonial duties of
the President. Such term (A) includes any documentary materials
relating to the political activities of the President or members of his
staff, but only if such activities relate to or have a direct effect
upon the carrying out of constitutional, statutory, or other official
or ceremonial duties of the President; but (B) does not include any
documentary materials that are (i) official records of an agency . . .
(ii) personal records; (iii) stocks of publications and stationery; or
(iv) extra copies of documents produced only for convenience of
reference, when such copies are clearly so identified.'' 44 U.S.C.
2201(2).
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II. Background and Need for the Legislation
Congress passed the Presidential Records Act of 1978
(``PRA'' or ``the Act'') in the wake of the Watergate scandal
and the resignation of President Richard M. Nixon. Concerned
about the possible destruction and loss of President Nixon's
records, Congress gave the Archivist of the United States
custody of former Presidents' records.\2\ The Act establishes a
presumption that most Presidential records should ultimately be
released to the public by imposing on the Archivist ``an
affirmative duty to make such records available to the public
as rapidly and completely as possible consistent with the
provisions of this Act.''\3\
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\2\Although signed into law by President Carter, the PRA only
applied to the records of Presidents who took office starting on
January 20, 1981 or later.
\3\44 U.S.C. 2203(f)(1).
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Under the Act, however, a President has discretion to
restrict access to his records for up to twelve years after
leaving office. Following that period, records are to be
released in accordance with the standards contained in the
Freedom of Information Act (``FOIA''), with two key exceptions.
First, FOIA's ``deliberative process'' exemption, pertaining to
inter-agency or intra-agency memorandums or letters (5 U.S.C.
552(b)(5)), does not apply. Second, the Act implicitly allows a
President to argue that executive privilege shields certain
records from public release, noting 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.''\4\
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\4\44 U.S.C. 2204(C)(2).
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Although the PRA provided guidelines for the management,
custody, and access to Presidential records, it did not
establish any procedures for the consideration of Presidential
privilege claims. As a result, sitting Presidents have taken
the matter into their own hands and issued Executive Orders
purporting to govern the issue.
President Ronald Reagan, the first President covered by the
Act's mandates, issued the first such order in the final days
of his administration. Executive Order 12667 required the
Archivist to give the incumbent President and the former
President whose White House created the record in question
thirty calendar days advance notice before releasing
Presidential records.\5\ The order authorized the Archivist to
release the records at the end of that period unless the
incumbent or former President claimed executive privilege, or
unless the incumbent President instructed the Archivist to
extend the period indefinitely. If the incumbent President
decided to invoke executive privilege, the Archivist would
withhold the records unless directed to release them by a final
court order. If the incumbent President decided not to support
a former President's claim of privilege, the Archivist would
decide whether or not to honor the claim.
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\5\Exec. Order No. 12,667, 54 Fed. Reg. 3,403 (Jan. 18, 1989).
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Around the same time that President Reagan issued Executive
Order 12667, he also exercised his right under the PRA to
restrict access to some of his records for 12 years. This
restriction period expired in January 2001.
In February 2001, the Archivist provided the 30-day notice
required by President Reagan's Executive Order of the
Archivist's intent to release nearly 70,000 pages of President
Reagan's records. In March, June, and August of 2001, Counsel
to then President George W. Bush requested that the Archivist
extend the time for claiming executive privilege. The third
extension request in August didn't provide a specific deadline
for compliance.
In November 2001, President George W. Bush issued Executive
Order 13233, entitled ``Further Implementation of the
Presidential Records Act.''\6\ The order superceded President
Reagan's Executive Order on the PRA and gave current and former
Presidents (as well as Vice-Presidents) broad authority to
withhold Presidential records or delay their release
indefinitely.
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\6\3 C.F.R. 2001 Comp., pp. 815-819.
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For example, the Bush Executive Order allowed a former
President to extend the document review period indefinitely
(something the Reagan order authorized only sitting Presidents
to do) and also provided an unlimited review period for the
current President. In addition, the order greatly expanded the
number of people who could assert executive privilege by
allowing former Presidents to designate individuals to raise
such claims after the former President's death, and by
providing a former Vice-President the authority to assert
executive privilege claims over their records.
The procedure established under the Bush Executive Order
also could have been used to undermine the PRA's presumption
that most Presidential records should ultimately be released.
Unlike the Reagan order, which authorized that the release of
records on a schedule unless a President affirmatively extended
the schedule or claimed privilege, the Bush order purported to
prohibit the release of any records until after both the former
and current President had affirmatively notified the Archvist.
Therefore, if either the current or former President simply did
not respond to the Archivist, the records would not be
released. Furthermore, the Bush order required the Archivist to
honor a former President's claim of executive privilege and
withhold records, even if the incumbent President disagreed
with the former President's claim.
On January 21, 2009, the day after his inauguration,
President Barack Obama issued Executive Order 13489. The Obama
order revoked the Bush order and established a process for
handling executive privilege claims similar to the one
articulated in President Reagan's 1989 Executive Order.
It has become clear to Congress that the PRA is not
sufficiently clear with respect to its disclosure mandates.
Without further Congressional action each successive President
likely will issue his own executive order interpreting the
original PRA, thus making the public's access to Presidential
records contingent upon the will of the executive--the
avoidence of which was the very goal of the original PRA.
H.R. 35 would end the uncertainty associated with the
handling of executive privilege claims over Presidential
records by legislatively establishing procedures to ensure the
timely release of such records.
First, H.R. 35 requires the Archivist to give the former
and incumbent Presidents notice that he intends to release a
former President's records. The bill entitles the Presidents to
a period of 60 days extendable for an additional 30 days upon
request to object to the records' release. This gives the
former and incumbent Presidents time to review the records and
decide whether to claim privilege. If neither President
objects, the Archivist shall release the records to the public.
Second, H.R. 35 establishes different procedures for
addressing privilege claims depending on whether the claimant
is the current or a former President. This two-track approach
reflects the Supreme Court's assessment that although former
Presidents may retain some level of privilege over their
documents after vactating the White House, such a claim
``carries much less weight than a claim asserted by the
incumbent himself.''\7\ Accordingly, under the bill, if an
incumbent President claims privilege over a former President's
records, the Archivist must withhold such records, and the
requester of the records then bears the burden of challenging
the incumbent President's claim of executive privilege in
court. In comparison, if the incumbent President declines to
support a former President's privilege claim, the Archivist
will delay releasing the records for a short period of time in
order to give the former President time to obtain a court order
to enforce his privilege claim. Absent a court order to the
contrary, the Archivist will release the records. This is the
same approach followed in President Reagan's Executive Order on
the PRA.
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\7\Nixon v. Administrator of General Services, et al., 433 U.S.
425, 448 (1977).
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Third, H.R. 35 clarifies that the decision to assert a
claim of a constitutionally based privilege against the
disclosure of a Presidential record must be made personally by
a former President or the incumbent President.
III. Legislative History
H.R. 35 was introduced on January 6, 2009, by
Representatives Edolphus Towns, Dan Burton, William Lacy Clay,
Darrell Issa, Brad Sherman, and Henry Waxman. On January 7,
2009, H.R. 35 was agreed to in the House of Representatives by
a vote of 359 to 58. The bill was received in the Senate on
January 8, 2009 and referred to the Homeland Security and
Governmental Affairs Committee. On April 1, 2009, with Senators
Lieberman, Akaka, Carper, Pryor, Tester, Burris, Bennet,
Collins, Coburn, and Voinovich present, by a voice vote, the
bill was ordered reported favorably out of the Committee with
an amendment in the nature of a substitute.
IV. Section-by-Section Analysis, as Reported
Section 1. Short title
This section provides that the short title of H.R. 35 is
the ``Presidential Records Act Amendments of 2009.''
Section 2. Procedures for consideration of claims of constitutionally
based privilege against disclosure
Section 2(a) adds a new section 2208 to chapter 22 of title
44, United States Code, popularly known as the Presidential
Records Act of 1978, establishing how records will be reviewed
by a former or current President prior to the public release of
those records under the Presidential Records Act.
Subsection 2208(a)(1) provides that, when the Archivist of
the United States decides to make Presidential records publicly
available, he will promptly give advance notice to the former
President during whose term the record was created and to the
incumbent President. The Archivist will also make the notice
available to the public.
Subsection 2208(a)(2) provides that the notice will be in
writing and contain pertinent information as determined by the
Archivist.
Subsection 2208(a)(3)(A) provides that 60 business days
after providing notice under subsection (a)(1), the Archivist
shall make the noticed records available to the public unless
the Archivist receives a claim of constitutional privilege from
a former or incumbent President. The subsection allows for two
exceptions to the 60-day deadline. First, subparagraph
(a)(3)(B) authorizes a former or incumbent President to extend
the deadline up to 30 additional working days by filing a
statement with the Archivist that the additional time is needed
for adequate review of the records. Second under subparagraph
(a)(3)(C), a deadline for review cannot expire before July 20th
of the year that an incumbent President first takes office.
Subsection 2208(b) requires the former or incumbent
President to personally assert a privilege claim. Also, the
former or incumbent President must notify the Archivist, the
House Committee on Oversight and Government Reform and the
Senate Committee on Homeland and Governmental Affairs of the
privilege claim on the day it is asserted.
Subsection 2208(c) establishes the process through which a
former President's records are released to the public and the
manner in which the Archivist handles claims of privilege by a
former President.
Subparagraph (c)(1) provides that if the former
President asserts a privilege claim, the Archivist shall
consult with the incumbent President to determine whether the
incumbent President upholds the privilege claim of the former
President.
Under subparagraph (c)(2)(A), the Archivist must
inform the former President and the public of the incumbent
President's decision on the former President's claim of
privilege within 30 days after having first received the claim
of privilege.
If the incumbent President upholds the former
President's privilege claim, subparagraph(c)(2)(B) prohibits
the Archivist from releasing the records unless the incumbent
President withdraws his decision to uphold the former
President's claim or the Archivist is otherwise directed by a
final and non-appealable court order.
If the incumbent President decides not to uphold
the former President's claim of privilege (or fails to make a
decision within the applicable time period),
subparagraph(c)(2)(C) requires the Archivist to release the
applicable records 90 days after having first received
notification of the former President's claim. The gap in time
between the incumbent President's decision on whether to uphold
the former President's privilege claim and the release of the
records is designed to provide a former President the
opportunity to argue his privilege claim in court. However,
under H.R. 35, the Archivist will ultimately release records
unless otherwise directed by a court order in an action
initiated by the former President.
Subsection 2208(d)(1) provides that if the incumbent
President asserts his or her own privilege claim over a former
President's records, the Archivist shall not release the
records unless the incumbent President withdraws his or her
privilege claim or the Archivist is otherwise directed by a
final and non-appealable court order. Subsection (d)(2)
provides that subsection(d) does not apply to records required
to be made available in connection with judicial or
congressional proceedings.
Subsection 2208(e) requires the Archivist to adjust
applicable time periods to comply with the return date of any
congressional subpoena, judicial subpoena, or judicial process.
Section 2(b) amends Section 2204 of the PRA to prevent the
Archivist from making any original Presidential records
available to individuals claiming access to the records as a
designated representative of a President if that individual has
been convicted of a crime related to the review, retention,
removal, or destruction of records of the Archives.
Section 2(c) makes clerical amendments to the Presidential
Records Act.
Section 3. Executive order of November 1, 2001
Section 3 provides that Executive Order 13233, dated
November 1, 2001, and Executive Order 12667, dated January 1,
1989, shall have no force or effect.
V. Evaluation of Regulatory Impact
Pursuant to the requirement of paragraph 11(b)(1) of rule
XXVI of the Standing Rules of the Senate the Committee has
considered the regulatory impact of this bill. The Committee
believes that the bill ends the uncertainty currently
associated with the handling of executive privilege claims over
Presidential records by establishing how the release of a
former President's records will be managed. The legislation
will not result in additional regulation, increased economic
impact, adverse impact on personal privacy, or additional
paperwork on any individuals or businesses.
VI. Congressional Budget Office Cost Estimate
April 21, 2009.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 35, the
Presidential Records Act Amendments of 2009.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 35--Presidential Records Act Amendments of 2009
H.R. 35 would amend the Presidential Records Act to
establish a process for reviewing Presidential records. That
act details which records and materials are to be assumed by
the National Archives and Records Administration (NARA) at the
end of a President's administration.
H.R. 35 would require the Archivist of the United States to
provide notice to the incumbent and former President and the
public up to 90 days before making Presidential records public.
If a claim of executive privilege is made by a former President
against such disclosure and the incumbent President determines
not to uphold the claim, the Archivist would release the
materials within 90 days of that determination unless the
Archivist is otherwise directed by a final court order that is
not subject to appeal. If a claim of executive privilege is
made by an incumbent President against such disclosure, the
Archivist could not release material unless the claim is
withdrawn or the Archivist is otherwise directed by a court
order. H.R. 35 also would allow a newly elected President until
July 20 of the first year in office to review Presidential
records that would otherwise be made public during that time.
Finally, the legislation would rescind Executive Orders 13233
and 12667. (Those orders concern the procedures for releasing
Presidential records by NARA.)
Based on information from NARA, CBO estimates that
implementing H.R. 35 would have no significant impact on
federal spending. Enacting the legislation would not affect
direct spending or revenues.
The bill contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
VII. Changes in Existing Laws
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the following changes in existing
law made by the bill, as reported, are shown as follows:
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 44--PUBLIC PRINTING AND DOCUMENTS
* * * * * * *
CHAPTER 22--PRESIDENTIAL RECORDS
* * * * * * *
Sec.
2201 Definitions.
* * * * * * *
2208. Claims of constitutionally based privilege against disclosure.
* * * * * * *
Sec. 2204. Restrictions on access to Presidential records
(a) * * *
* * * * * * *
(d) Upon the death or disability of a President or former
President, any discretion or authority the President or former
President may have had under this chapter, except section 2208,
shall be exercised by the Archivist unless otherwise previously
provided by the President or former President in a written
notice to the Archivist.
* * * * * * *
(f) The Archivist shall not make available any original
Presidential records to any individual claiming access to any
Presidential record as a designated representative under
section 2205(3) if that individual has been convicted of a
crime relating to the review, retention, removal, or
destruction of records of the Archives.
* * * * * * *
Sec. 2207. Vice-Presidential records
Vice-Presidential records shall be subject to the
provisions of this chapter in the same manner as Presidential
records. The duties and responsibilities of the Vice President,
with respect to Vice-Presidential records, shall be the same as
the duties and responsibilities of the President under this
chapter, except section 2208, with respect to Presidential
records. The authority of the Archivist with respect to Vice-
Presidential records shall be the same as the authority of the
Archivist under this chapter with respect to Presidential
records, except that the Archivist may, when the Archivist
determines that it is in the public interest, enter into an
agreement for the deposit of Vice-Presidential records in anon-
Federal archival depository. Nothing in this chapter shall be construed
to authorize the establishment of separate archival depositories for
such Vice-Presidential records.
* * * * * * *
2208. Claims of constitutionally based privilege against disclosure
(a)(1) When the Archivist determines under this chapter to
make available to the public any Presidential record that has
not previously been made available to the public, the Archivist
shall--
(A) promptly provide notice of such determination
to--
(i) the former President during whose term of
office the record was created; and
(ii) the incumbent President; and
(B) make the notice available to the public.
(2) The notice under paragraph (1)--
(A) shall be in writing; and
(B) shall include such information as may be
prescribed in regulations issued by the Archivist.
(3)(A) Upon the expiration of the 60-day period (excepting
Saturdays, Sundays, and legal public holidays) beginning on the
date the Archivist provides notice under paragraph (1)(A), the
Archivist shall make available to the public the Presidential
record covered by the notice, except any record (or reasonably
segregable part of a record) with respect to which the
Archivist receives from a former President or the incumbent
President notification of a claim of constitutionally based
privilege against disclosure under subsection (b).
(B) A former President or the incumbent President may
extend the period under subparagraph (A) once for not more than
30 additional days (excepting Saturdays, Sundays, and legal
public holidays) by filing with the Archivist a statement that
such an extension is necessary to allow an adequate review of
the record.
(C) Notwithstanding subparagraphs (A) and (B), if the
period under subparagraph (A), or any extension of that period
under subparagraph (B), would otherwise expire after January 19
and before July 20 of the year in which the incumbent President
first takes office, then such period or extension,
respectively, shall expire on July 20 of that year.
(b)(1) For purposes of this section, any claim of
constitutionally based privilege against disclosure of a
Presidential record (or reasonably segregable part of a record)
must be asserted personally by a former President or the
incumbent President, as applicable.
(2) A former President or the incumbent President shall
notify the Archivist, the Committee on Oversight and Government
Reform of the House of Representatives, and the Committee on
Homeland Security and Governmental Affairs of the Senate of a
privilege claim under paragraph (1) on the same day that the
claim is asserted under such paragraph.
(c)(1) If a claim of constitutionally based privilege
against disclosure of a Presidential record (or reasonably
segregable part of a record) is asserted under subsection (b)
by a former President, the Archivist shall consult with the
incumbent President, as soon as practicable during the period
specified in paragraph (2)(A), to determine whether the
incumbent President will uphold the claim asserted by the
former President.
(2)(A) Not later than the end of the 30-day period
beginning on the date of which the Archivist receives
notification from a former President of the assertion of a
claim of constitutionally based privilege against disclosure,
the Archivist shall provide notice to the former President and
the public of the decision of the incumbent President under
paragraph (1) regarding the claim.
(B) If the incumbent President upholds the claim of
privilege asserted by the former President, the Archivist shall
not make the Presidential record (or reasonably segregable part
of a record) subject to the claim publicly available unless--
(i) the incumbent President withdraws the decision
upholding the claim of privilege asserted by the former
President; or
(ii) the Archivist is otherwise directed by a final
court order that is not subject to appeal.
(C) If the incumbent President determines not to uphold the
claim of privilege asserted by the former President, or fails
to make the determination under paragraph (1) before the end of
the period specified in subparagraph (A), the Archivist shall
release the Presidential record subject to the claim at the end
of the 90-day period beginning on the date of which the
Archivist received notification of the claim, unless otherwise
directed by a court order in an action initiated by the former
President under section 2204(e) of this title.
(d)(1) The Archivist shall not make publicly available a
Presidential record (or reasonably segregable part of a record)
that is subject to a privilege claim asserted by the incumbent
President unless--
(A) the incumbent President withdraws the privilege
claim; or
(B) the Archivist is otherwise directed by a final
court order that is not subject to appeal.
(2) This subsection shall not apply with respect to any
Presidential record required to be made available under section
2205(2)(A) or (C) of this title.
(e) The Archivist shall adjust any otherwise applicable
time period under this section as necessary to comply with the
return date of any congressional subpoena, judicial subpoena,
or judicial process.
