[Federal Register Volume 66, Number 214 (Monday, November 5, 2001)]
[Presidential Documents]
[Pages 56023-56029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27917]



[[Page 56023]]

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Part IV





The President





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Executive Order 13233--Further Implementation of the Presidential 
Records Act


                        Presidential Documents 



Federal Register / Vol. 66, No. 214 / Monday, November 5, 2001 / 
Presidential Documents

___________________________________________________________________

Title 3--
The President

[[Page 56025]]

                Executive Order 13233 of November 1, 2001

                
Further Implementation of the Presidential 
                Records Act

                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, 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

[[Page 56026]]

                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.

[[Page 56027]]

(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).

                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.

[[Page 56028]]

                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 discre tion 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.

[[Page 56029]]

                Sec. 13. Revocation.

                Executive Order 12667 of January 18, 1989, is revoked.

                    (Presidential Sig.)B

                THE WHITE HOUSE,

                     November 1, 2001.

[FR Doc. 01-27917
Filed 11-2-01; 11:23 am]
Billing code 3195-01-P