The Presidential Records Act of 1978 and the Presidential Executive Order

Arnita A. Jones, December 2001

Historical organizations whose members conduct research using federal records have been asked to comment on Executive Order 13223 relating to "further implementation of the Presidential Records Act" that was issued November 1, 2001 by President George W. Bush. After consultation with historians knowledgeable about presidential records, including National Coordinating Committee Director Bruce Craig, and after approval by the AHA Executive Committee, I sent the following letter to the United States House of Representatives Committee on Government Reform, which held hearings November 9 on the National Archives' failure to release records of the Ronald Reagan administration as provided by the Presidential Records Act of 1978.

November 19, 2001

To The Honorable Stephen Horn,
Chairman,
Committee on Government Reform,
2157 Rayburn House Office Building,
Washington, DC 20515

Dear Representative Horn,

I write on behalf of the American Historical Association concerning Executive Order 13223 issued November 1 by President George W. Bush. Founded in 1884, the AHA is the nation's oldest and largest association for scholars and teachers of history. Since it was chartered by the Congress in 1889 for "the promotion of historical studies, the collection and preservation of historical documents and artifacts, and the dissemination of historical research," the Association has maintained a steadfast concern for the preservation and availability of federal government records, pressing for the publication of diplomatic records in the late 19th century, advocating for the establishment of the National Archives in the 1930s and, more recently, supporting the Presidential Records Act of 1978.

In his February 28, 1978, testimony to the Congress in support of the Presidential Records Act, my predecessor Mack Thompson strongly endorsed the principle of public ownership of presidential records that the legislation embodied. Executive Order 13223, however, makes a mockery of the law and the intent of the Congress in enacting it. Far from establishing orderly procedures for the release of presidential records as the Bush administration claims, the order devises a series of nearly impenetrable barricades to information about presidential decision-making that the public has a right to have. Not only will incumbent and past presidents have to agree on the release of records, in the case of deceased presidents, the order also allow families to assert constitutional executive privilege. Moreover the order imposes no time limits for either former or incumbent presidents to decide upon the release of records, while it places the burden of demonstrating a specific need for records on those seeking access.

The public's right to see its own records is being flouted by Executive Order 13223. We urge the Congress to seek a legislative remedy.

Sincerely,
Arnita A. Jones
Executive Director

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Members interested in obtaining more information on the subject may consult electronic NCC WASHINGTON UPDATES Vol. 7, #46 (November 9, 2001) and #47 (November 16, 2001) or articles that have appeared in the Christian Science Monitor of November 14, the New York Times of November 15 and 16, and the San Francisco Chronicle of November 9, 2001. Those wishing to comment individually may contact the office of Rep. Stephen Horn (R-Calif.) at the following address: The Honorable Stephen Horn, Committee on Government Reform, 2157 Rayburn House Office Building, Washington D.C. 20515-6143.