Inside the vault of the Ronald Reagan Presidential Library.
Photo Credit: Jason Saltoun-Ebin
Presidential records from the Reagan Administration are administered by the National Archives and Records Administration (NARA) and stored at The Ronald Reagan Presidential Library in Simi Valley, Calif. The Reagan Library is also the first presidential library to be governed by the 1978 Presidential Records Act (PRA) which made all records generated in the White House, starting with President Reagan, the property of the federal government. Prior to the PRA, presidential records were considered personal papers, and most presidents just took them upon leaving office. Some later sold them off, and others, like FDR, donated them to start their own presidential library.
In total, more than 50 million pages of records as well as thousands of hours of video and audio recordings and other gifts were given to the President and Mrs. Reagan in their official capacities as President and First Lady. Most of the documents are located at the Ronald Reagan Presidential Library.
When I started researching at the Reagan Library in late 2001, about five million of the 50 million pages of documents were open to the public. Confounding the problem of limited material, recently elected President George W. Bush issued an executive order on Nov. 1, 2001, that had the effect of halting the release of all presidential documents at the Reagan Library by giving both the former and sitting presidents increased authority to withhold the release of records under a claim of executive privilege or by just not taking any action.
After the Nov. 1, 2001 Executive Order, the first significant release did not come until 2003, when 68,000 pages of P-5 material (documents related to confidential communications) were released. The P-5 restriction had expired over two-years before, in January 2001, twelve-years after Reagan left office. The holdup was due to the Bush Order because both former President Reagan and President George W. Bush were given time to review the documents for claims of executive privilege.
Another change to the PRA as a result of the Bush Order shifted the burden to the researcher from the current or former president to challenge the validity of a claim of executive privilege. This was a change from the PRA under which the burden was on the current or former president to persuade the court that a claim of executive privilege was warranted.
Another example of the delay created by the Bush Order dealt with records that were originally classified for national security reasons, had been cleared by the classifying agency for release, but due to the Bush Order were not released because either the White House objected, or, as was more often the case, just failed to act. For example, in April 2009 I found documents that were declassified in 2001 but were not released until President Obama ordered the release on April 13, 2009.
President Obama campaigned on a platform of open government and transparency. One of his first acts as President was issuing Executive Order 13,489, “Presidential Records,” on January 21, 2009. The Obama Order rescinded the Bush Order and significantly directed the Archivist of the United States to release any documents that are ready for release within 30 days of notifying the incumbent and former president unless either the incumbent or former president issues a claim of executive privilege. Under The Bush Order, the Archivist of the United States was not permitted to release documents until both the former and incumbent president officially notified the Archivist that they consented to the release, regardless of whether or not a claim of executive privilege was made.
The Obama Order also correctly seems to have ended the legal battle over the status of Vice Presidential Records. Former Vice President Cheney was fighting to have Vice Presidential Records not included in the PRA. The Obama Order, Sec. 1(e) defines Presidential Records as Vice Presidential Records. The former Vice President has apparently dropped his objections.
The Obama Order also deals with the balance between claims of Executive Privilege and the public’s right to know by including the Attorney General in the process of reviewing claims of Executive Privilege, whether by the former or incumbent President. The Attorney General, in consultation with the Archivist and the White House counsel are directed to make a determination of whether or not Executive Privilege is justified. If they deem it is not, the Archivist is directed to release the document, even over the objection of the former president.
The immediate result of the Obama Order was first seen on April 10, 2009, when the National Archives announced that the Ronald Reagan Presidential Library and the George H.W. Bush Presidential Library would together be releasing 244,966 pages of documents (just 1,000 at the Bush Library) on April 13th. The NARA press release explicitly made clear that these 244,966 pages were all pending release since before President Obama took office.
The April 13th, 2009, release is the most significant release since the 2003. In the April 13th release, a quick count of records released in response to FOIA or Mandatory Review requests for classified material filed by myself and Richard Reeves totals almost 2,500 pages of records, most responsive to the collection of Peter Wallison, a White House lawyer during the Reagan Administration. The Wallison FOIA was filed in the hopes of getting a better picture of President Reagan’s meetings with the Tower Board Commission – The Commission established to get to the bottom of the Iran-Contra Affair. Alas, after going through the released Wallison files, the Tower Board Commission files I hoped would be there are absent. Perhaps they will be released in the next release, or the one thereafter.
As sweeping a change as the Obama Order has been for presidential records – and just as important is the recognition by President Obama of the transparency in government – the future of presidential records rests on shaky grounds. The next president can as quickly as President Obama, rescind his order and reinstate the Bush Order, or any other.
There are currently two important bills pending in Congress that would, if enacted, help to rectify the deficiencies in the PRA that were exposed during the previous administration. The first piece of legislation, H.R. 35, would require the Archivist of the United States to release a presidential record 20 days after a former president is notified “unless otherwise directed by a court order in an action initiated by the former President.” The language also solves the problem of whether or not a claim of executive privilege survives beyond the life of a former president. The Bush Order allowed claims of executive privilege by designees of the former President in perpetuity whereas H.R. 35 says that the former president “personally” must make the claim.
The second piece of legislation, H.R. 1387, would attempt to deal with the problem of the preservation of electronic records which came to light during the previous administration when the government watchdog group, Citizens for Responsibility and Ethics in Washington, reported that possibly five million emails were lost or destroyed between 2003 and 2005. H.R. 1387 proposes much needed oversight over electronic record keeping practices and would hopefully prevent this administration or any future administration from losing or destroying electronic records.
Another important safeguard for the preservation of presidential records would be authorizing the Archivist of the United States to implement a White House records keeping system. Currently, the record keeping system at the White House is administered by the sitting president. The problem with the Bush email stemmed from a change in the record keeping systems. This problem probably would not have happened if the Archivist of the United States was allowed inside the White House to establish a permanent record keeping system under NARA control.