    [Weekly Compilation of Presidential Documents Volume 37, Number 44 (Monday, November 5, 2001)]
    [Pages 1581-1584]
    [Online from the Government Publishing Office, www.gpo.gov]

    <R04>
    Executive Order 13233--Further Implementation of the Presidential
    Records Act

    November 1, 2001

        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.'' <E T='03'<ls-thn-eq>Id.</E<ls-thn-eq> 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 a Government official, may
    assert constitutionally based privileges with respect to his
    Administration's Presidential records, and expressly rejected the
    argument that ``only an

    [[Page 1582]]

    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.
    (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

    [[Page 1583]]

                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.
        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

    [[Page 1584]]

    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 discretion 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.
        Sec. 13. Revocation.
        Executive Order 12667 of January 18, 1989, is revoked.
                                                    George W. Bush
     The White House,
     November 1, 2001.

    [Filed with the Office of the Federal Register, 11:23 a.m., November 2,
    2001]

    Note: This Executive order was published in the Federal Register on
    November 5.