[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.