Federal judge rules that former presidents cannot withhold records indefinitely

[JURIST] Judge Colleen Kollar-Kotelly [official profile] of the US District for the District of Columbia ruled [PDF text; National Security Archives press release] Monday that the National Archives cannot rely on an executive order by President George W. Bush that permits former presidents and vice-presidents to delay the release of administration records. Executive Order 13,233 [text], issued by Bush in November 2001 purportedly to further implement the Presidential Records Act of 1978 [text], provided that former presidents and vice-presidents had the power to review presidential papers and documents before their release to the public under the Freedom of Information Act [text]. The power to publish presidential records rests in the National Archives [official website], which has awaited approval by former presidents or their designated representatives before releasing documents.

In finding that the order is "not necessary to preserve any constitutionally-based privilege," Kollar-Kotelly wrote:

While presumably a former president must have some time to review documents for privilege, as a former president may at very least be heard to assert claims of executive privilege, ... the Court does not find any support for the proposition that removing discretion from the [National Archives] with respect to what constitutes a reasonable time for said review after 30 days has expired would somehow threaten a former president's ability to make privilege determinations.
Kollar-Kotelly did not reach the questions of whether the entire order violated the US Constitution or whether former presidents can claim executive privilege to bar the records' release. The American Historical Association [official website] and other archivist advocacy groups filed the lawsuit to compel the White House to turn over documents, in particular records from the Reagan administration that remain under the control of the Reagan family. AP has more.

 

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