Public access to presidential records

Friday, February 20, 2009

Note: Endnotes will be found in a pdf document linked at the bottom of this article.

Just a day after his inauguration, on Jan. 21, 2009, President Barack Obama signed an executive order revoking the George W. Bush administration’s Executive Order 13222 — an order that many historians and open-government advocates argued severely limited access to the records of former presidents.1

President Obama’s new executive order is just the latest in a long history of laws and regulations affecting presidential libraries and presidential records. Drawing on the work of other archivists, presidential-records scholars, and journalists, this article provides a brief historical overview of our nation’s presidential libraries and the laws affecting access to presidential records. This article also looks at some more recent access controversies involving presidential records.

Brief history of presidential records
Our nation’s first president, George Washington, took great pains to preserve his place in history. While still a general in the Continental Army, Washington wrote a letter to the president of the Continental Congress on April 4, 1781, to express his frustration that so many of his “valuable documents which may be of equal public utility and private satisfaction” were in such disarray. He suggested hiring a team of writers led by an officer named Richard Varick, who would work under Washington’s direct supervision, “to preserve from injury and loss such valuable papers.” Washington gave Varick detailed instructions for organizing his personal papers and transcribing his correspondence. Washington’s military orders and instructions were to be organized meticulously and his letters transcribed in a “clear and intelligent manner, that there may be no difficulty in the references.” Once the material was transcribed, Varick returned the original documents to Washington, but Washington would insist that both the transcripts and original documents belonged to the people, “as species of Public property, sacred in my hands.”2

After he became president, Washington showed frustration with the lack of organization and recordkeeping in the new government. In an April 3, 1797, letter to James McHenry, Washington suggested constructing a separate building on his estate at Mount Vernon “for the accommodation and security of my military, civil, and private papers which are voluminous, and may be interesting.” However, that building was never built and Washington simply packed up his papers and took them with him when he left office, setting a precedent for future presidents.3

In fact, until relatively recently the papers and correspondence generated by presidents while in office were not considered public records. Because of concerns over confidentiality, separation of powers and partisanship, presidential papers were considered personal property and that status remained unchallenged for nearly 200 years.4 Ulysses S. Grant lost many of his papers. Most of Zachary Taylor’s were burned when Union troops occupied his son’s home in Louisiana in 1862 during the Civil War. On the day before his death in 1886, Chester A. Arthur set three garbage cans full of documents on fire.5 After Warren Harding’s death in 1923 the first lady, Florence Harding, burned nearly half of his personal papers.6

By the beginning of the 20th century, however, several families of former presidents began donating their papers to the Library of Congress, state historical societies or universities, often with restricted conditions on access. By the late 1930s, the Library of Congress had acquired the papers of 22 presidents.7 Yet despite several government attempts to preserve presidential papers, most disappeared, either given away as souvenirs, destroyed, lost in family attics, or sold to autograph collectors.8

On Dec. 10, 1938, President Franklin D. Roosevelt set in motion what would eventually become the precedent for all future presidents by announcing plans to donate his papers, correspondence, historical manuscripts, books and memorabilia to the U.S. government, along with his estate at Hyde Park, N.Y., on which he would build a “Presidential Library.” In April 1939, Congress accepted Roosevelt’s gift, and the National Archives — founded about four years earlier — was placed in charge of running the new library. The Franklin D. Roosevelt Library was dedicated on June 30, 1941, establishing the first presidential library along with the idea that presidential records should belong to the government and made available to the public.9

Roosevelt’s successor, Harry Truman, also saw the benefit of a library to house his presidential papers. In 1950, Missouri Supreme Court Judge Ernest M. Tipton and several other friends of President Truman filed an application of incorporation for the establishment of the Harry S. Truman Library in Missouri to house Truman’s writings, papers, relics and memorabilia.10 Truman also urged Congress to establish a system of privately built and federally maintained presidential libraries. His efforts culminated in 1955 with the passage of the Presidential Libraries Act, which codified the procedures that Roosevelt had established for his own presidential library and encouraged other presidents to donate their papers to the government. Although the Presidential Libraries Act of 1955 did improve public access to presidential papers, these records were still considered a gift of private property, and the law allowed for limits to access to documents for a certain period of time, or indefinitely, depending on the nature of the content.11

Under this and subsequent acts, more presidential libraries were established. It was not until 1974 when the Watergate scandal unfolded during President Richard M. Nixon’s administration that the law governing access to presidential records changed. On Sept. 7, 1974, nearly a month after he resigned the presidency, Nixon signed an agreement with the General Services Administration that designated his transfer of presidential records as a deposit and not a gift, allowed Nixon to restrict access to those records, and gave him the right to withdraw all materials after three years, except his Oval Office tape recordings.12 After the press and the public became aware of this agreement, members of Congress acted quickly to prevent any further action on Nixon’s part to conceal his presidential records. On Dec. 19, 1974, Congress overturned Nixon’s agreement with the GSA and passed the Presidential Recordings and Materials Preservation Act, which ultimately placed Nixon’s records in federal custody and stipulated that the National Archives must segregate and return to the estate of the former president materials identified as purely “personal-private” or “personal-political” and unrelated to the president’s constitutional and statutory duties. Though this law only applied to Nixon’s records, it established for the first time that the federal government owned presidential records.13

The Watergate scandal and cover-up left an indelible mark on the history of presidential records. In an effort to prevent any future concealment of presidential records, Congress passed the Presidential Records Act of 1978, which permanently changed the legal ownership of presidential papers from private to public. Beginning with President Ronald Reagan’s administration, and continuing through every presidential administration thereafter, the act required the archivist of the United States to assume custody of the president’s public records after he leaves office.14

Under this new law there were six restrictions that presidents could assert over their records. Among them, the act established a 12-year moratorium on access to presidential records that involved classified national-security information, personal privacy, trade secrets or confidential commercial or financial information.15 The act also distinguished between the president’s public and private records. Documents such as diaries, journals, personal notes and any materials relating exclusively to private political associations are deemed “personal records” and “do not relate or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”16

Executive orders, executive privilege
The records generated by President Ronald Reagan were the first to be subject to provisions of the Presidential Records Act. On Jan. 18, 1989, just two days before leaving office, Reagan issued Executive Order 12667. Under this order, he and his predecessors were allowed 30 days’ notice when records were about to be released by the National Archives and Records Administration. The order also gave presidents the right to assert an executive privilege claim in court “if NARA’s disclosure of Presidential records might impair the national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the Executive branch.”17

In 2001 President George W. Bush issued another executive order that overturned Reagan’s executive order and established a whole new set of restrictions on the release of presidential records. In February 2001, shortly after Bush took office, the National Archives notified both President Bush and former President Reagan that it intended to release Reagan’s records because the 12-year restriction on the release of certain materials as outlined in the Presidential Records Act was about to expire. In response, Attorney General Alberto Gonzales requested a 90-day extension, then another, which was soon followed by an indefinite extension to consider the release of the Reagan records.18 On Nov. 1, 2001, President Bush signed Executive Order 13233, “Further Implementation of the Presidential Records Act,” which set a 90-day review period on the release of records for the former president and an unspecified review period for the incumbent president; required that the release of information must be approved by both the current and previous president even if privilege is not claimed; and said anyone who challenges the president’s executive privilege must show a “demonstrated, specific need” for the records, among other requirements.19

In December 2001 a group of historians and open-government advocates sued in court to overturn Bush’s executive order. They argued that Executive Order 13233 violated the Presidential Records Act, and asked for a declaratory judgment preventing the archivist of the United States from implementing the order. The suit also requested the release of 68,000 pages of Reagan’s files that were withheld at the direction of the Bush administration despite the direct requirements of the Presidential Records Act.20 The district court dismissed this case in March 2004, finding no controversy because no executive privilege was claimed. The plaintiffs asked the court to reinstate the case, which it agreed to do in May 2004, but in September 2005, the court upheld the assertion of executive privilege by the incumbent president as permissible under existing case law.21

While litigation, legislation and advocacy against Bush’s executive order continued, President Obama issued his Executive Order 13489 revoking Bush’s Executive Order 13233.22 Obama’s new executive order restored much of the language that existed in Reagan’s previous order, giving only the incumbent president and living former presidents the right to claim executive privilege. Under the previous Bush order, heirs or designees of deceased presidents could assert claims of executive privilege. The Obama order also removed a significant loophole in the Bush executive order that gave former vice presidents the right of executive privilege. Obama’s order made it clear that vice presidential records are included under the definition of “presidential records.”23

Recent access controversies
Controversy surrounding access to presidential records is not new. Cases where scholars, authors, reporters and average citizens were denied access to presidential records can be traced as far back as 1968, when Professor Francis L. Lowenheim of Rice University accused officials at the Franklin D. Roosevelt Presidential Library of deliberately withholding documents related to FDR’s foreign-policy decisions during World War II.24 Historians and biographers have also accused staff at the John F. Kennedy Library of censoring documents and blocking access to Kennedy’s papers in an effort to protect his privacy and public image.25 Many more access controversies surrounded the Richard Nixon administration during and after the Watergate scandal of the 1970s.26 Additional information on this subject can be found in sources cited in the selected bibliography and endnotes sections of this article. Following is a brief selection and overview of more current cases of restricted access to presidential records gathered from various media and online sources.

Dick Cheney’s energy task force
On Jan. 29, 2001, President George W. Bush signed an executive order creating what was officially known as the National Energy Policy Development Group, but commonly referred to in the news as the “Cheney energy task force.” The task force, comprising several Cabinet members and White House aides, met with approximately 300 groups and individuals in an effort to draft a national energy policy.27 The task force issued a report on May 16, 2001, with several recommendations, but environmental groups, consumer advocates, and congressional Democrats claimed that the task force had shut them out of discussions and argued that advice from corporate energy executives and lobbyists was given preferential consideration.28

In June 2001 the General Accounting Office, the investigative arm of Congress, requested information about the people involved in the task force and the “nature, purpose and attendees in connection with the meetings,” eventually suing in federal court to force a release of documents related to the task force.29 Cheney refused to release that information, claiming executive privilege, and the Sierra Club and Judicial Watch also sued.30

On Aug. 2, 2002, U.S. District Judge Emmet G. Sullivan ruled that the Bush administration had 30 days to turn over documents and written responses to questions about the task force from the Sierra Club and Judicial Watch, but Cheney’s attorneys appealed, arguing in court that the release of those documents would improperly inhibit the decision-making abilities of the executive branch. On Oct. 17, 2002, Sullivan again ordered the release of task-force documents, and again the Bush administration appealed the decision.31 The case eventually went before U.S. District Judge John D. Bates, who ruled in December 2002 that the GAO had no legal standing to sue Cheney.32 On June 24, 2004, the U.S. Supreme Court also ruled in Cheney’s favor on the case involving the Sierra Club and Judicial Watch, stating in a 7-2 majority that the U.S. Court of Appeals for the District of Columbia Circuit had not given due weight to the executive branch’s need to be free of “vexatious litigation.”33

Hillary Clinton’s records at Clinton Library
As Hillary Clinton launched her presidential campaign in 2007, the public-policy group Judicial Watch sued the National Archives and Records Administration to force a release of documents from the William J. Clinton Presidential Library related to the former first lady’s time in the White House. Meeting notes, e-mails, phone logs, schedules and appointment memos were among the documents Judicial Watch sought through a Freedom of Information Act request. Although the Clinton Library had already released about 1 million pages of domestic-policy memos and other documents, many of which dealt with the first lady’s work in the early 1990s on a health-care task force, some information in those documents was censored or redacted because it included confidential legal advice and personal information about Hillary Clinton’s associates, including addresses, telephone numbers and Social Security numbers.34

In a separate case from March 2008, archivists at the Clinton Library blocked the release of material related to 140 pardons that President Clinton approved on his last day in office. The documents were withheld on advice from the president’s attorneys, who cited confidentiality clauses in the Presidential Records Act of 1978 that allow presidents to restrict access to such documents for up to 12 years after the presidents leave office.35

Both issues became political fodder during the 2008 Democratic presidential primary when Hillary Clinton cited her experience as first lady as one of her qualifications to be president. Her Democratic primary challengers criticized her for restricting access to records from her husband’s administration. With more than 250 FOIA requests pending and only 11 archivists at the Clinton Library to process them, NARA officials said they could not predict whether any of the material would be released before the election, but by March 19, 2008, the Clinton Library did release 11,000 pages of records, including the details from the first lady’s meetings, trips, speaking engagements and social activities — but a third of those records were redacted to protect the privacy of Clinton’s associates.36

George W. Bush Presidential Library
Not without controversy, Southern Methodist University in Dallas was chosen as the future home for the George W. Bush Presidential Library. Some SMU faculty, scholars and religious leaders protested inclusion of a proposed public policy institute as part of the library on campus, asserting that such an institute would taint the university’s academic integrity.37 But in February 2008 university trustees unanimously approved a resolution allowing the library to be built. Then United Methodist Church approval was required because SMU is owned by the South Central Jurisdiction of the church. A small group of Methodist clergy signed a petition opposing the new library and public policy center, but in July 2008 the United Methodist Church dismissed the petition and approved the project.38

Another controversy involved a 2008 Times of London report that Houston businessman and Bush campaign fund-raiser Stephen Payne was caught on tape offering access to top administration officials in exchange for six-figure donations to President Bush’s library foundation. The Bush administration promptly distanced itself from Payne, whose name had also surfaced in 2006 in connection with White House visitor logs (see below). Press Secretary Dana Perino called Payne’s actions “inappropriate” and said, “No one is allowed to try to say that there would be official action done under this administration in connection to any contribution that they may or may not make to the library.”39

Missing Bush White House e-mails
As Congress and federal prosecutors began investigations into the George W. Bush White House’s dismissal of eight U.S. attorneys and the administration’s leaking of Valerie Plame’s CIA identity, reports began to surface in the news that e-mails relevant to both investigations were not being made available to investigators.40 An April 12, 2007, report by the advocacy group Citizens for Responsibility and Ethics in Washington documented that more than 5 million e-mails generated by the White House between March 2003 and October 2005 were lost or deleted. 41 Additionally, the report revealed that Bush administration officials were using a private Internet domain, called gwb43.com and owned by the Republican National Committee, to conduct official White House business in violation of Presidential Records Act regulations governing communications between public officials.42

Further, in August 2008 the Associated Press obtained a nine-page internal White House draft document outlining the administration’s e-mail problems to companies bidding on a project to recover the missing electronic messages. The document stated that as many as 225 days of e-mail dating to 2003 were missing and outlined a process in which private contractors would attempt to retrieve lost e-mail from 35,000 disaster-recovery backup tapes.43

In September 2007, both CREW and the National Security Archive, an independent, nongovernment research institute and library located at George Washington University, sued the Executive Office of the President to force the Bush administration to recover the missing e-mails.44 After several months of legal arguments and court appeals, U.S. Magistrate Judge John Facciola issued an opinion on Jan. 15, 2009, that said the White House had failed in its obligation to safeguard all electronic messages and ordered the administration to conduct a search of all offices for the missing e-mails.45 In his opinion, Facciola said, “I have always begun with the premise that, as just indicated, the emails that are said to be missing are the very heart of this lawsuit and there is a profound societal interest in their preservation. They are, after all, the most fundamental and useful contemporary records of the recent history of the President’s office. If Napoleon was right when he said that he did not care who wrote France’s laws if he could write its history, then the importance of preserving the e-mails cannot be exaggerated.”46

Secret Service White House visitor logs
In January 2006, Judicial Watch filed a Freedom of Information request with the Secret Service requesting a release of White House visitor logs that the group said would show how often lobbyist Jack Abramoff met with President Bush and his staff.47 Judicial Watch wanted to know about the extent of Abramoff’s ties to the White House after a federal probe into improper influence and public corruption charges led to Abramoff’s pleading guilty on Jan. 3, 2006, to three criminal felony counts of conspiracy, honest services mail fraud, and tax evasion.48 In February 2006 Judicial Watch sued the Secret Service in U.S. District Court in Washington, claiming that the Secret Service had failed to meet a Feb. 21 deadline for releasing the White House visitor logs.49 In May 2006, Judge John Garrett Penn of the U.S. District Court for the District of Columbia ordered the Secret Service to release the records unedited, which revealed that Abramoff went to the White House twice in five years, although the White House has acknowledged three additional visits.50

Meanwhile, CREW filed two separate lawsuits in 2006 seeking access to Secret Service visitor logs. CREW wanted to determine whether nine conservative religious leaders visited the White House and Vice President Dick Cheney’s residence, and also whether Texas businessman and campaign fundraiser Stephen Payne had visited the White House. As noted earlier, Payne allegedly tried to sell access to administration officials in exchange for contributions to Bush’s presidential library fund.51

Because Secret Service visitor records were subject to Freedom of Information Act requests, the Bush administration ordered Secret Service visitor logs to be turned over to the White House, where they would be treated as presidential records outside the scope of the public-records law. The White House argued that revealing the Secret Service logs would impede the president’s ability to perform his constitutional duties.52 However, on Jan. 9, 2009, U.S. District Judge Royce Lamberth rejected that claim and declared that the government illegally deleted Secret Service computer records. According to papers filed in the case, the deletions went back as far as 2001, the year President Bush took office.53

Vice President Cheney’s records
In September 2008, a group of historians and nonprofit groups, concerned that Vice President Dick Cheney might destroy some key national-security documents, joined Citizens for Responsibility and Ethics in Washington in filing a lawsuit in the U.S. District Court for the District of Columbia asking that a federal judge declare that the vice president’s records are covered by the Presidential Records Act. A spokesman for Cheney said, “The Office of the Vice President currently follows the Presidential Records Act and will continue to follow the requirements of the law, which includes turning over vice presidential records to the National Archives at the end of the term.”54

In a Dec. 8, 2008, filing with the court, Cheney’s attorneys went further, saying, “The vice president alone may determine what constitutes vice presidential records or personal records, how his records will be created, maintained, managed and disposed, and are all actions that are committed to his discretion by law.”55 On Jan. 19, 2009, U.S. District Judge Colleen Kollar-Kotelly ruled in favor of the vice president, rejecting CREW’s claim and accepting a pledge by a senior White House aide that Cheney’s documents and other materials would be transferred as required to the National Archives.56

NARA’s Office of Presidential Libraries
On July 21, 2008, the History News Network Web site published an article by an independent researcher, Anthony Clark, who was writing a book on the politics and history of presidential libraries. The article, “Why Is It So Hard to Get Documents from the National Archives about the National Archives?,” chronicled Clark’s challenges gaining access to records created at the National Archives and Records Administration’s Office of Presidential Libraries. Clark discovered that since NARA’s Office of Presidential Libraries was created in 1964, no records from that office had been transferred to the National Archives.57

In response to Clark’s multiple FOIA requests, NARA initially said all of those records were “operational” and not suitable for transfer to the National Archives, but later agreed to release more than 250 cubic feet of records deemed relevant to Clark’s work and to make those records available to him on a monthly schedule.58 Clark, however, unsatisfied with NARA’s timeliness and responsiveness to his requests, established a blog detailing his ongoing challenges in accessing NARA’s presidential records.59

President Obama’s BlackBerry
During the 2008 presidential election campaign, there was a growing concern among public-information advocates and national security officials that Democratic Party nominee Barack Obama’s well-documented use of the BlackBerry electronic communication device would become limited if he became president. In addition to concerns about hackers breaking into Obama’s electronic communications or learning his location, national-security advisers, historians and open-government groups argued over how much of Obama’s BlackBerry communications would be preserved under the Presidential Records Act.60

After his election in November 2008, Obama, his staff and national-security advisers negotiated a compromise, announced Jan. 22, 2009, that would allow Obama to continue using his BlackBerry as president. The deal allows him to stay in touch with senior staff and a small group of friends using the device. Anyone given access to Obama’s private e-mail address received a briefing from the White House counsel’s office; forwarding messages from the president to anyone else was prohibited. The Associated Press reported on Jan. 23 that Obama’s BlackBerry communications would be subject to the Presidential Records Act, although according to White House Spokesman Robert Gibbs exemptions would be made for “strictly personal communications.”

“Gibbs did not say how that classification would be determined,” AP reported, “but made clear that the device could be used for both business and personal exchanges.”61

With this agreement, Barack Obama became the first U.S. president to use e-mail while in office.62 Privacy concerns led Obama’s predecessor, George W. Bush, to discontinue using e-mail just before his inauguration in 2001. In a Jan. 17, 2001, e-mail to 42 friends and advisers, Bush said, “My lawyers tell me that all correspondence by e-mail is subject to open record requests… Since I do not want my private conversations looked at by those out to embarrass, the only course of action is not to correspond in cyberspace. This saddens me. I have enjoyed conversing with each of you.”63

Note: Endnotes will be found in a pdf document linked here.


Selected bibliography

Cox, Richard J. “America’s Pyramids: Presidents and their libraries,” Government Information Quarterly 19 (2002).

Freidel, Frank. “Roosevelt to Reagan: The Birth and Growth of Presidential Libraries,” Prologue 21 (summer 1989).

Geselbracht, Raymond. “The Four Eras in the History of Presidential Papers,” Prologue 15 (spring 1983).

Glenn, David. “When History Becomes Legacy,” The Chronicle of Higher Education, March 9, 2007.

Hirshon, Arnold. “Recent Developments in the Accessibility of Presidential Papers and Other Presidential Historical Materials,” Government Publications Review, vol. 6, no. 4 (1979).

Hufbauer, Benjamin. Presidential Temples: How Memorials and Libraries Shape Public Memory, University Press of Kansas, 2006.

Lantzer, Jason S. “The Public History of Presidential Libraries: How the Presidency is Presented to the People,” Journal of the Association for History and Computing, vol. 6, no. 1, April 2003.

Smith, Nancy Kegan, and Stern, Gary M. “A Historical Review of Access to Records in Presidential Libraries,” The Public Historian, vol. 28, no. 3 (summer 2006).

Span, Paula. “Monumental Ambition: Presidential libraries are history and hagiography, archival mother lodes and gift shops pushing star-spangled dish towels,” The Washington Post, Feb. 17, 2002.

Wolff, Cynthia J. “Necessary Monuments: The Making of the Presidential Library System,” Government Publications Review 16 (1989).

Tags: , ,