§ 2204. — Restrictions on access to Presidential records.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 44USC2204]
TITLE 44--PUBLIC PRINTING AND DOCUMENTS
CHAPTER 22--PRESIDENTIAL RECORDS
Sec. 2204. Restrictions on access to Presidential records
(a) Prior to the conclusion of his term of office or last
consecutive term of office, as the case may be, the President shall
specify durations, not to exceed 12 years, for which access shall be
restricted with respect to information, in a Presidential record, within
one or more of the following categories:
(1)(A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) in fact properly classified
pursuant to such Executive order;
(2) relating to appointments to Federal office;
(3) specifically exempted from disclosure by statute (other than
sections 552 and 552b of title 5, United States Code), provided that
such statute (A) requires that the material be withheld from the
public in such a manner as to leave no discretion on the issue, or
(B) establishes particular criteria for withholding or refers to
particular types of material to be withheld;
(4) trade secrets and commercial or financial information
obtained from a person and privileged or confidential;
(5) confidential communications requesting or submitting advice,
between the President and his advisers, or between such advisers; or
(6) personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal
privacy.
(b)(1) Any Presidential record or reasonably segregable portion
thereof containing information within a category restricted by the
President under subsection (a) shall be so designated by the Archivist
and access thereto shall be restricted until the earlier of--
(A)(i) the date on which the former President waives the
restriction on disclosure of such record, or
(ii) the expiration of the duration specified under subsection
(a) for the category of information on the basis of which access to
such record has been restricted; or
(B) upon a determination by the Archivist that such record or
reasonably segregable portion thereof, or of any significant element
or aspect of the information contained in such record or reasonably
segregable portion thereof, has been placed in the public domain
through publication by the former President, or his agents.
(2) Any such record which does not contain information within a
category restricted by the President under subsection (a), or contains
information within such a category for which the duration of restricted
access has expired, shall be exempt from the provisions of subsection
(c) until the earlier of--
(A) the date which is 5 years after the date on which the
Archivist obtains custody of such record pursuant to section
2203(d)(1); or
(B) the date on which the Archivist completes the processing and
organization of such records or integral file segment thereof.
(3) During the period of restricted access specified pursuant to
subsection (b)(1), the determination whether access to a Presidential
record or reasonably segregable portion thereof shall be restricted
shall be made by the Archivist, in his discretion, after consultation
with the former President, and, during such period, such determinations
shall not be subject to judicial review, except as provided in
subsection (e) of this section. The Archivist shall establish procedures
whereby any person denied access to a Presidential record because such
record is restricted pursuant to a determination made under this
paragraph, may file an administrative appeal of such determination. Such
procedures shall provide for a written determination by the Archivist or
his designee, within 30 working days after receipt of such an appeal,
setting forth the basis for such determination.
(c)(1) Subject to the limitations on access imposed pursuant to
subsections (a) and (b), Presidential records shall be administered in
accordance with section 552 of title 5, United States Code, except that
paragraph (b)(5) of that section shall not be available for purposes of
withholding any Presidential record, and for the purposes of such
section such records shall be deemed to be records of the National
Archives and Records Administration. Access to such records shall be
granted on nondiscriminatory terms.
(2) Nothing 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.
(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 shall be exercised by the Archivist unless
otherwise previously provided by the President or former President in a
written notice to the Archivist.
(e) The United States District Court for the District of Columbia
shall have jurisdiction over any action initiated by the former
President asserting that a determination made by the Archivist violates
the former President's rights or privileges.
(Added Pub. L. 95-591, Sec. 2(a), Nov. 4, 1978, 92 Stat. 2525; amended
Pub. L. 98-497, title I, Sec. 107(b)(7), Oct. 19, 1984, 98 Stat. 2287.)
References in Text
This Act, referred to in subsec. (c)(2), probably means Pub. L. 95-
591, Nov. 4, 1978, 92 Stat. 2523, known as the Presidential Records Act
of 1978, which enacted this chapter, amended sections 2107 and 2108 of
this title, and enacted provisions set out as notes under section 2201
of this title. For complete classification of this Act to the Code, see
Short Title of 1978 Amendment note set out under section 101 of this
title and Tables.
Amendments
1984--Subsec. (c)(1). Pub. L. 98-497 substituted ``National Archives
and Records Administration'' for ``National Archives and Records Service
of the General Services Administration''.
Effective Date of 1984 Amendment
Amendment by Pub. L. 98-497 effective Apr. 1, 1985, see section 301
of Pub. L. 98-497, set out as a note under section 2102 of this title.
Executive Order No. 12667
Ex. Ord. No. 12667, Jan. 18, 1989, 54 F.R. 3403, which established
policies and procedures governing the assertion of Executive privilege
by incumbent and former Presidents in connection with the release of
Presidential records by the National Archives and Records Administration
pursuant to this chapter, was revoked by Ex. Ord. No. 13233, Sec. 13,
Nov. 1, 2001, 66 F.R. 56029, set out below.
Ex. Ord. No. 13233. Further Implementation of the Presidential Records
Act
Ex. Ord. No. 13233, Nov. 1, 2001, 66 F.R. 56025, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, and in order to establish
policies and procedures implementing section 2204 of title 44 of the
United States Code with respect to constitutionally based privileges,
including those that apply to Presidential records reflecting military,
diplomatic, or national security secrets, Presidential communications,
legal advice, legal work, or the deliberative processes of the President
and the President's advisors, and to do so in a manner consistent with
the Supreme Court's decisions in Nixon v. Administrator of General
Services, 433 U.S. 425 (1977), and other cases, it is hereby ordered as
follows:
Section 1. Definitions.
For purposes of this order:
(a) ``Archivist'' refers to the Archivist of the United States or
his designee.
(b) ``Presidential records'' refers to those documentary materials
maintained by the National Archives and Records Administration pursuant
to the Presidential Records Act [of 1978], 44 U.S.C. 2201-2207.
(c) ``Former President'' refers to the former President during whose
term or terms of office particular Presidential records were created.
Sec. 2. Constitutional and Legal Background.
(a) For a period not to exceed 12 years after the conclusion of a
Presidency, the Archivist administers records in accordance with the
limitations on access imposed by section 2204 of title 44. After
expiration of that period, section 2204(c) of title 44 directs that the
Archivist administer Presidential records in accordance with section 552
of title 5, the Freedom of Information Act, including by withholding, as
appropriate, records subject to exemptions (b)(1), (b)(2), (b)(3),
(b)(4), (b)(6), (b)(7), (b)(8), and (b)(9) of section 552. Section
2204(c)(1) of title 44 provides that exemption (b)(5) of section 552 is
not available to the Archivist as a basis for withholding records, but
section 2204(c)(2) recognizes that the former President or the incumbent
President may assert any constitutionally based privileges, including
those ordinarily encompassed within exemption (b)(5) of section 552. The
President's constitutionally based privileges subsume privileges for
records that reflect: military, diplomatic, or national security secrets
(the state secrets privilege); communications of the President or his
advisors (the presidential communications privilege); legal advice or
legal work (the attorney-client or attorney work product privileges);
and the deliberative processes of the President or his advisors (the
deliberative process privilege).
(b) In Nixon v. Administrator of General Services, the Supreme Court
set forth the constitutional basis for the President's privileges for
confidential communications: ``Unless [the President] can give his
advisers some assurance of confidentiality, a President could not expect
to receive the full and frank submissions of facts and opinions upon
which effective discharge of his duties depends.'' 433 U.S. at 448-49.
The Court cited the precedent of the Constitutional Convention, the
records of which were ``sealed for more than 30 years after the
Convention.'' Id. at 447 n.11. Based on those precedents and principles,
the Court ruled that constitutionally based privileges available to a
President ``survive the individual President's tenure.'' Id. at 449. The
Court also held that a former President, although no longer a Government
official, may assert constitutionally based privileges with respect to
his Administration's Presidential records, and expressly rejected the
argument that ``only an incumbent President can assert the privilege of
the Presidency.'' Id. at 448.
(c) The Supreme Court has held that a party seeking to overcome the
constitutionally based privileges that apply to Presidential records
must establish at least a ``demonstrated, specific need'' for particular
records, a standard that turns on the nature of the proceeding and the
importance of the information to that proceeding. See United States v.
Nixon, 418 U.S. 683, 713 (1974). Notwithstanding the constitutionally
based privileges that apply to Presidential records, many former
Presidents have authorized access, after what they considered an
appropriate period of repose, to those records or categories of records
(including otherwise privileged records) to which the former Presidents
or their representatives in their discretion decided to authorize
access. See Nixon v. Administrator of General Services, 433 U.S. at 450-
51.
Sec. 3. Procedure for Administering Privileged Presidential Records.
Consistent with the requirements of the Constitution and the
Presidential Records Act, the Archivist shall administer Presidential
records under section 2204(c) of title 44 in the following manner:
(a) At an appropriate time after the Archivist receives a request
for access to Presidential records under section 2204(c)(1), the
Archivist shall provide notice to the former President and the incumbent
President and, as soon as practicable, shall provide the former
President and the incumbent President copies of any records that the
former President and the incumbent President request to review.
(b) After receiving the records he requests, the former President
shall review those records as expeditiously as possible, and for no
longer than 90 days for requests that are not unduly burdensome. The
Archivist shall not permit access to the records by a requester during
this period of review or when requested by the former President to
extend the time for review.
(c) After review of the records in question, or of any other
potentially privileged records reviewed by the former President, the
former President shall indicate to the Archivist whether the former
President requests withholding of or authorizes access to any privileged
records.
(d) Concurrent with or after the former President's review of the
records, the incumbent President or his designee may also review the
records in question, or may utilize whatever other procedures the
incumbent President deems appropriate to decide whether to concur in the
former President's decision to request withholding of or authorize
access to the records.
(1) When the former President has requested withholding of the
records:
(i) If under the standard set forth in section 4 below, the
incumbent President concurs in the former President's decision to
request withholding of records as privileged, the incumbent
President shall so inform the former President and the Archivist.
The Archivist shall not permit access to those records by a
requester unless and until the incumbent President advises the
Archivist that the former President and the incumbent President
agree to authorize access to the records or until so ordered by a
final and nonappealable court order.
(ii) If under the standard set forth in section 4 below, the
incumbent President does not concur in the former President's
decision to request withholding of the records as privileged, the
incumbent President shall so inform the former President and the
Archivist. Because the former President independently retains the
right to assert constitutionally based privileges, the Archivist
shall not permit access to the records by a requester unless and
until the incumbent President advises the Archivist that the former
President and the incumbent President agree to authorize access to
the records or until so ordered by a final and nonappealable court
order.
(2) When the former President has authorized access to the records:
(i) If under the standard set forth in section 4 below, the
incumbent President concurs in the former President's decision to
authorize access to the records, the Archivist shall permit access
to the records by the requester.
(ii) If under the standard set forth in section 4 below, the
incumbent President does not concur in the former President's
decision to authorize access to the records, the incumbent President
may independently order the Archivist to withhold privileged
records. In that instance, the Archivist shall not permit access to
the records by a requester unless and until the incumbent President
advises the Archivist that the former President and the incumbent
President agree to authorize access to the records or until so
ordered by a final and nonappealable court order.
Sec. 4. Concurrence by Incumbent President.
Absent compelling circumstances, the incumbent President will concur
in the privilege decision of the former President in response to a
request for access under section 2204(c)(1). When the incumbent
President concurs in the decision of the former President to request
withholding of records within the scope of a constitutionally based
privilege, the incumbent President will support that privilege claim in
any forum in which the privilege claim is challenged.
Sec. 5. Incumbent President's Right to Obtain Access.
This order does not expand or limit the incumbent President's right
to obtain access to the records of a former President pursuant to
section 2205(2)(B) [of title 44].
Sec. 6. Right of Congress and Courts to Obtain Access.
This order does not expand or limit the rights of a court, House of
Congress, or authorized committee or subcommittee of Congress to obtain
access to the records of a former President pursuant to section
2205(2)(A) or section 2205(2)(C). With respect to such requests, the
former President shall review the records in question and, within 21
days of receiving notice from the Archivist, indicate to the Archivist
his decision with respect to any privilege. The incumbent President
shall indicate his decision with respect to any privilege within 21 days
after the former President has indicated his decision. Those periods may
be extended by the former President or the incumbent President for
requests that are burdensome. The Archivist shall not permit access to
the records unless and until the incumbent President advises the
Archivist that the former President and the incumbent President agree to
authorize access to the records or until so ordered by a final and
nonappealable court order.
Sec. 7. No Effect on Right to Withhold Records.
This order does not limit the former President's or the incumbent
President's right to withhold records on any ground supplied by the
Constitution, statute, or regulation.
Sec. 8. Withholding of Privileged Records During 12-Year Period.
In the period not to exceed 12 years after the conclusion of a
Presidency during which section 2204(a) and section 2204(b) of title 44
apply, a former President or the incumbent President may request
withholding of any privileged records not already protected from
disclosure under section 2204. If the former President or the incumbent
President so requests, the Archivist shall not permit access to any such
privileged records unless and until the incumbent President advises the
Archivist that the former President and the incumbent President agree to
authorize access to the records or until so ordered by a final and
nonappealable court order.
Sec. 9. Establishment of Procedures.
This order is not intended to indicate whether and under what
circumstances a former President should assert or waive any privilege.
The order is intended to establish procedures for former and incumbent
Presidents to make privilege determinations.
Sec. 10. Designation of Representative.
The former President may designate a representative (or series or
group of alternative representatives, as the former President in his
discretion may determine) to act on his behalf for purposes of the
Presidential Records Act and this order. Upon the death or disability of
a former President, the former President's designated representative
shall act on his behalf for purposes of the Act and this order,
including with respect to the assertion of constitutionally based
privileges. In the absence of any designated representative after the
former President's death or disability, the family of the former
President may designate a representative (or series or group of
alternative representatives, as they in their discretion may determine)
to act on the former President's behalf for purposes of the Act and this
order, including with respect to the assertion of constitutionally based
privileges.
Sec. 11. Vice Presidential Records.
(a) Pursuant to section 2207 of title 44 of the United States Code,
the Presidential Records Act applies to the executive records of the
Vice President. Subject to subsections (b) and (c), this order shall
also apply with respect to any such records that are subject to any
constitutionally based privilege that the former Vice President may be
entitled to invoke, but in the administration of this order with respect
to such records, references in this order to a former President shall be
deemed also to be references to the relevant former Vice President.
(b) Subsection (a) shall not be deemed to authorize a Vice President
or former Vice President to invoke any constitutional privilege of a
President or former President except as authorized by that President or
former President.
(c) Nothing in this section shall be construed to grant, limit, or
otherwise affect any privilege of a President, Vice President, former
President, or former Vice President.
Sec. 12. Judicial Review.
This order is intended to improve the internal management of the
executive branch and is not intended to create any right or benefit,
substantive or procedural, enforceable at law by a party, other than a
former President or his designated representative, against the United
States, its agencies, its officers, or any person.
Sec. 13. Revocation.
Executive Order 12667 of January 18, 1989, is revoked.
George W. Bush.
Section Referred to in Other Sections
This section is referred to in sections 2205, 2206 of this title;
title 22 section 4352.
