[DOCID: f:hr044.110]
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110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-44
======================================================================
PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2007
_______
March 9, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Waxman, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 1255]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom was
referred the bill (H.R. 1255) 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, report
favorably thereon with amendments and recommend that the bill
as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Legislative History.............................................. 5
Section-by-Section............................................... 5
Explanation of Amendments........................................ 6
Committee Consideration.......................................... 7
Rollcall Votes................................................... 7
Application of Law to the Legislative Branch..................... 7
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 7
Statement of General Performance Goals and Objectives............ 7
Constitutional Authority Statement............................... 7
Federal Advisory Committee Act................................... 7
Unfunded Mandate Statement....................................... 7
Earmark Identification........................................... 8
Committee Estimate............................................... 8
Budget Authority and Congressional Budget Office Cost Estimate... 8
Changes in Existing Law Made by the Bill as Reported............. 9
Additional views of Representative Tom Davis..................... 12
The amendments (stated in terms of the page and line
numbers of the introduced bill) are as follows:
Page 5, line 4, insert the following:
(b) Restrictions.--Section 2204 of title 44, United States Code
(relating to restrictions on access to presidential records) is amended
by adding at the end the following new subsection:
``(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.''.
Page 5, line 5, strike ``(b)'' and insert ``(c)''.
Page 5, line 11, strike ``(c)'' and insert ``(d)''.
Purpose and Summary
H.R. 1255, the ``Presidential Records Act Amendments of
2007,'' was introduced March 1, 2007, by Reps. Henry A. Waxman,
Todd Russell Platts, Wm. Lacy Clay, and Dan Burton. The
legislation amends the Presidential Records Act of 1978 to
establish a process whereby incumbent and former presidents
can, within specified time limits, review records prior to
their public release under the Act and determine whether to
assert constitutional privilege claims against release of the
records. The bill nullifies Executive Order 13233, which
established a nonstatutory process for review of presidential
records and assertion of privilege claims.
Background and Need for Legislation
The retention and management of presidential records has
evolved since the earliest days of our nation. Until the
establishment of the first presidential library for Franklin D.
Roosevelt in 1939, there were few protocols or systems in place
to archive or maintain the executive records of former
presidents.
Following the Watergate scandal and the subsequent
resignation of President Nixon in 1974, Congress enacted the
Presidential Records Act of 1978, which made clear that these
records belong to the American people, not to the president.
The Act gave the Archivist of the United States custody of the
records of a former president and imposed 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.'' \1\ Under the Act, a president may
restrict access to records for up to 12 years. Following that
period, records are to be released in accordance with the
Freedom of Information Act, except that the ``deliberative
process'' exemption does not apply. In addition, the Act
recognizes presidential authority to assert executive
privilege, providing that: ``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.'' \2\
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\1\ 44 U.S.C. 2203(f)(1).
\2\ 44 U.S.C. 2204(C)(2).
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The Presidential Records Act first applied to the records
of former President Ronald Reagan. On January 18, 1989,
President Reagan issued Executive Order 12667. This executive
order established a process to deal with potential executive
privilege claims over records covered by the Presidential
Records Act. The order required the Archivist to give the
incumbent and former presidents 30 calendar days advance notice
before releasing presidential records. 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.
Before he left office, President Reagan exercised his right
under the Presidential Records Act to restrict access to some
of his records for 12 years. This 12-year restriction period
expired in January 2001. In February 2001, the Archivist
provided the 30-day notice required by Executive Order 12667 of
his intent to release about 68,000 pages of former President
Reagan's records. In March, June, and August of 2001, the
Counsel to the President instructed the Archivist to extend the
time for claiming executive privilege.
In November 2001, President George W. Bush issued Executive
Order 13233--Further Implementation of the Presidential Records
Act.\3\ The order overturned the Reagan order and gave current
and former presidents and vice presidents broad authority to
withhold presidential records or delay their release
indefinitely.
---------------------------------------------------------------------------
\3\ 3 C.F.R. 2001 Comp., pp. 815-819.
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Executive Order 13233 extends the review period for former
presidents to 90 days and allows former president to extend
that time indefinitely. In addition, it provides for a
unlimited review period for the current president. It requires
the Archives to honor the assertions of executive privilege
made by either the incumbent or former president. Even if the
incumbent president disagrees with the former president's
claim, the Archivist must honor the claim and withhold the
records.
Also, unlike the Reagan order which stated that records
were to be released on a schedule unless action occurred, the
Bush executive order states that records will be released only
after actions by the former and current presidents have
occurred. Therefore, if either the current or former president
simply does not respond to the Archivist, the records would not
be released.
Moreover, under the Bush executive order, designees of the
former president may 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.
Furthermore, the order authorizes former vice presidents to
assert executive privilege claims over their records.
Historians and scholars immediately raised concerns about
the potential impact the Bush executive order would have on the
future release of presidential records. These concerns continue
five years after the order went into effect. At a March 1,
2007, hearing before the Subcommittee on Information Policy,
the Census, and the National Archives, presidential historian
Robert Dallek expressed concern that current policies carry
``the potential for incomplete and distorted understanding of
past presidential decisions, especially about controversial
actions with significant consequences.'' He noted further:
Consider what difference the release of the Kennedy,
Johnson, and Nixon tapes has made in our understanding
of the decision-making on Vietnam in these
administrations. Consider how much we will lose if
representatives of the Reagan, Clinton, and current
Bush administrations were in the future to use
Executive Order 13233 to hold back documents on the
Reagan administration's decision-making relating to
Iran-contra or the Clinton administration's response to
intelligence about a potential Al Qaeda attack, or the
current administration's decision to fight in Iraq. It
is understandable that every presidentand his heirs
wants to put the best possible face on his administration, but an
uncritical or limited reconstruction of its history does nothing to
serve the long-term national interest.
H.R. 1255 would nullify Executive Order 13233 and establish
procedures to ensure the timely release of presidential
records. The bill requires the Archivist to provide advanced
notice to the former and incumbent presidents before the
presidential records are released. This gives the former and
incumbent presidents the time to review the records and decide
whether to claim privilege. Also, the bill requires the
Archivist to withhold records (or parts of records) for which
the incumbent president claims privilege. In this event, a
requester would have the burden of challenging a claim of
executive privilege in court.
H.R. 1255 makes several important changes in how release of
these records is managed. Unlike the Bush executive order, the
bill establishes a deadline for review of records. Under the
Bush executive order, the Archivist must wait for both the
current and former president to approve the release of
presidential records, a review process that can 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. If no objections were raised, the records would
automatically be released, whether or not there was a specific
request.
Second, the bill limits the authority of former presidents
to withhold records. Under the Bush executive order, the
Archivist must withhold records if a former president claims
privilege, and the requester must challenge the privilege claim
in court. The bill reverses the legal burden, requiring the
former president to protect a privilege claim with a court
order. Under the bill, if a former president claims privilege,
the Archivist will withhold the records for an additional 20
days in order to give the former president time to file suit to
enforce his privilege claim. However, the Archivist will
release the records absent a court order to the contrary or
absent the current president claiming privilege on that same
record. This is the same approach followed in the Reagan order.
Third, the bill clarifies that the incumbent and former
presidents must make privilege claims personally. The bill
would make clear that the right to claim executive privilege is
personal to current and former presidents and cannot be
bequeathed to assistants, relatives, or descendants.
And finally, the bill eliminates executive privilege claims
for vice presidents. The bill restores the long-standing
understanding that the right to assert executive privilege over
presidential records is a right held only by presidents.
Legislative History
H.R. 1255, legislation to improve public access to
presidential records, was introduced on March 1, 2007, by Reps.
Henry A. Waxman, Todd Russell Platts, Wm. Lacy Clay, and Dan
Burton, and referred to the Committee on Oversight and
Government Reform. H.R. 1255 is substantively identical to
legislation introduced by Rep. Horn in the 107th Congress as
H.R. 4187 and favorably reported by the Committee.
The Subcommittee on Information Policy, the Census, and the
National Archives held a hearing on March 1, 2007, on the issue
of public access to presidential records. The witnesses were
Allen Weinstein, the Archivist of the United States, National
Archives and Records Administration; Harold Relyea, Specialist
in American National Government, Congressional Research
Service; Thomas Blanton, Director, National Security Archive,
George Washington University; Scott Nelson, Senior Attorney,
Public Citizen Litigation Group; Robert Dallek, Author/
Historian; Anna K. Nelson, Distinguished Historian in
Residence, American University; and Steve L. Hensen, Director
of Technical Services, Rare Book, Manuscript, and Special
Collections Library, Duke University (on behalf of the Society
of American Archivists).
The Subcommittee on Information Policy, the Census, and the
National Archives held a markup to consider H.R. 1255 on March
6, 2007. The Subcommittee approved the bill without amendment
and reported it favorably to the full Committee. The full
Committee held a markup to consider H.R. 1255 on March 8, 2007,
and approved it, as amended by voice vote.
Section-by-Section
Section 1. Short title
This section provides that the short title of H.R. 1255 is
the ``Presidential Records Act Amendments of 2007.''
Section 2. Procedures for consideration of claims of constitutionally
based priviledge 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 (a)(1) provides that, when the Archivist of the
United States determines to make records publicly available, he
will promptly give advance notice to the applicable former
president and the incumbent president. The Archivist will make
the notice available to the public. Subsection (a)(2) provides
that the notice will be in writing and contain pertinent
information as determined by the Archivist.
Subsection (a)(3)(A) requires the Archivist to make the
records available after 20 working days following notice unless
the Archivist has received a claim of constitutional privilege
by a former or incumbent president. There are two exceptions to
the 20-day deadline. Under subparagraph (a)(3)(B), a former or
incumbent president may extend the deadline for up to 20
additional working days by filing a statement with the
Archivist that the additional time is needed for adequate
review of the records. 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 (b) requires the former or incumbent president
to assert any claim of privilege personally. 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 same day that it is asserted.
Subsection (c) provides that if the former president
asserts a privilege claim, the Archivist must withhold release
of the records covered by that claim for another 20 working
days. Upon the expiration of this 20-day period, the Archivist
must release the records unless otherwise directed by a court
order in an action initiated by the former president.
Subsection (d) provides that if the incumbent president
asserts a privilege claim, the Archivist must continue to
withhold the records unless and until the incumbent president
withdraws the claim or the Archivist is otherwise directed by a
final and non-appealable court order. Subsection (d) does not
apply to records required to be made available in connection
with judicial or congressional proceedings.
Subsection 2(b) clarifies that authority to claim executive
privilege is personal to a former or incumbent president and
cannot be delegated to their representatives. In addition, it
clarifies that a former or incumbent vice president cannot
claim presidential privileges.
Subsection 2(c) makes a clerical amendment to the
Presidential Records Act.
Subsection 2(d) prevents 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 3. Executive order of November 1, 2001
Section 3 provides that Executive Order 13233, dated
November 1, 2001, shall have no force or effect.
Explanation of Amendments
Ranking Minority Member Davis offered an amendment, which
was accepted by voice vote, to prevent individuals who have
been convicted of a crime related to the review, retention,
removal, or destruction of records of the Archives from
accessing original copies of presidential records as a
designated representative of a president. The amendment was
accepted by voice vote.
Committee Consideration
On Thursday, March 8, 2007, the Committee ordered the bill
reported to the House by a voice vote.
Rollcall Votes
No rollcall votes were taken on this legislation.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill provides for increased public access to presidential
records. As such this bill does not relate to employment or
access to public services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress to enact the law
proposed by H.R. 1255. Article I, Section 8, Clause 18 of the
Constitution of the United States grants the Congress the power
to enact this law.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) requires a statement whether
the provisions of the reported include unfunded mandates. In
compliance with this requirement the Committee has received a
letter from the Congressional Budget Office that is included
herein.
Earmark Identification
H.R. 1255 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e), or 9(f) of rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 1255. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 1255 from the Director of
Congressional Budget Office:
March 9, 2007.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1255, the
Presidential Records Act Amendments of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Peter R. Orzsag.
Enclosure.
H.R. 1255--Presidential Records Act Amendments of 2007
H.R. 1255 would amend the Presidential Records Act and
nullify Executive Order 13233 to establish a statutory process
for reviewing Presidential records. The bill would require the
Archivist of the United States to provide notice to the former
and incumbent President and the public 20 days before making
Presidential records public. During that 20-day period, a
former or incumbent President could claim a constitutionally
based privilege against disclosure of the information. If the
claim is made by a former President, the Archivist could
release the material at the end of an additional 20-day period
unless otherwise directed by a court order. If the claim is
made by an incumbent President, the Archivist could not release
the material unless the claim is withdrawn or the Archivist is
otherwise directed by a final court order that is not subject
to appeal. H.R. 1255 also would allow a newly elected President
additional time--until July 20 of the first year in office--to
review Presidential records that would otherwise be made public
during that time.
Based on information from the National Archives and Records
Administration, CBO estimates that implementing H.R. 1255 would
have no significant impact on federal spending. In addition,
the legislation would not affect direct spending or revenues.
The bill contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would not affect
the budgets of state, local, or tribal governments. H.R. 1255
would impose private-sector mandates, as defined by UMRA, on
former Presidents, their designees and families, and former
vice presidents by changing the procedure or eliminating the
ability to claim constitutionally based privileges related to
the disclosure of Presidential or Vice-Presidential records.
CBO estimates that the direct cost to comply with those
mandates would be minimal, if any, and well below the annual
threshold established by UMRA ($131 million in 2007, adjusted
annually for inflation).
The CBO staff contacts for this estimate are Matthew
Pickford (for federal costs) and Paige Piper/Bach (for the
private-sector impact). This estimate was approved by Peter H.
Fontaine, Deputy Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 44, UNITED STATES CODE
* * * * * * *
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 a non-Federal archival
depository. Nothing in this chapter shall be construed to
authorize the establishment of separate archival depositories
for such Vice-Presidential records.
Sec. 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 20-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 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 20
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 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 paragraph (1).
(c)(1) The Archivist shall not make publicly available a
Presidential record that is subject to a privilege claim
asserted by a former President until the expiration of the 20-
day period (excluding Saturdays, Sundays, and legal public
holidays) beginning on the date the Archivist is notified of
the claim.
(2) Upon the expiration of such period the Archivist shall
make the record publicly available unless otherwise directed by
a court order in an action initiated by the former President
under section 2204(e).
(d)(1) The Archivist shall not make publicly available a
Presidential 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).
(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.
* * * * * * *
ADDITIONAL VIEWS OF REPRESENTATIVE TOM DAVIS
This legislation is identical to legislation (H.R. 4187)
introduced in the 107th Congress and approved by the Committee
under Rep. Dan Burton's (R-IN) leadership. I commend him for
his work in this area. We need to ensure that the public's
interest remains paramount. As Rep. Mike Turner (R-OH) noted in
Subcommittee, it is important that we distinguish the Nation's
interest from a former President's interest. I offered an
amendment to this bill (H.R. 1255), which was approved by the
Committee on a voice vote that I would like to highlight.
My amendment will close a loophole in the Presidential
Records Act, which allows those individuals previously
convicted of a crime relating to mishandling Archives records
to continue to have special access to Presidential records. The
amendment states that the Archivist shall not make available
any original Presidential records to any individual claiming
access as a designated representative under Section 2205(3) of
title 44, if that individual has been convicted of a crime
relating to the review, retention, removal, or destruction of
Archives records.
In short, if you are convicted of mishandling Archives
records, we should not give you special access to original
Presidential records. We should take the simple step of
blocking your access to them. You are a risk, and we are
obligated to mitigate risks of this type. Given the critical
importance of Presidential records to the public, to
researchers, and to the press, we must ensure no one can tamper
with history.
Tom Davis.
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