NCH Comments on Proposed Regulatory Changes to FOIA Rules on Presidential Records

On November 13, 2007, the National Coalition for History (NCH) submitted comments on a proposed regulation issued by the National Archives and Records Administration (NARA) implementing changes in the management of the Freedom of Information Act (FOIA) dealing with, among other issues, the handling of presidential records.

The section of the proposed regulation dealing with presidential records stated that “incumbent and former presidents have at least 90 days in which to invoke Executive Privilege to deny access to the requested information.” NCH asserted that the section runs counter to the recent decision in American Historical Association v. National Archives and Records Administration, Civ. No. 01-2447 (CKK), Slip op. at 34 (D.D.C. Oct, 1, 2007), which said it was unlawful for NARA to rely on Executive Order 13233, Section 3(b) that allows former presidents an unlimited amount of time to review FOIA requests.

The comments also pointed out that the proposed regulatory changes to FOIA ran counter to regulations already issued by NARA to implement the President Records Act that allows the Archivist to disclose any records at his discretion after a former president has had at least 30 calendar days to review them.

NCH’s comments mirrored those submitted by its Policy Board member, the National Security Archive. The full letter is set out below.

Regulation Comments Desk (NPOL), Room 4100
Policy and Planning Staff
National Archives and Records Administration
8601 Adelphi Rd.
College Park, MD 20740-6001

RE: Comments on NARA Proposed Rule Revising its Regulations Implementing the Freedom of Information Act (72 Fed. Reg. 51744-51747) (September 11, 2007)

To Whom It May Concern:

I am submitting the following comments on behalf of the National Security Archive on the proposed rule of the National Archives and Record Administration (NARA) revising its regulations implementing the Freedom of Information Act. 72 Fed. Reg. 51744-51747 (September 11, 2007).

The National Coalition for History (NCH) is consortium of over 70 organizations, which advocates on federal legislative and regulatory issues affecting historians, archivists, teachers, researchers, and other stakeholders. Since 1982, the National Coalition for History (formerly the National Coordinating Committee for the Promotion of History) has served as the voice for the historical and archival professions in Washington, DC. The history coalition is a non-profit organization organized under Section 501(c)(3) of the Internal Revenue Code.

The National Coalition for History shares the views of the National Security Archive, who has also submitted comments under separate cover on the proposed revision to the FOIA regulations:

Proposed Section 1250.26 extends the period for review by former and incumbent Presidents of Presidential records to “at least 90 days.” This is in conflict with NARA’s Presidential Record Act (PRA) regulations. The relevant PRA regulation at 36 C.F.R.

The PRA regulation provides a limit on the amount of delay that can be caused by a former president reviewing records the Archivist has scheduled for release and permits the Archivist to exercise his discretion after 30 days to proceed with a release. Proposed Section 1250.26, on the other hand, permits an unlimited review by former presidents with no authority to the Archivist to end the review and release records.

First, if NARA’s intent is to revise its PRA regulations to alter procedures for review of Presidential records, then it should notice those for comment so that all interested parties are informed of the proposed change and have an opportunity to comment.

Second, NARA’s change is supported by only one rationale; the proposed change is made “pursuant to provisions of the current Executive Order on the implementation of the Presidential Records Act.” A recent court decision in American Historical Association v. National Archives and Records Administration, Civ. No. 01-2447 (CKK), Slip op. at 34 (D.D.C. Oct, 1, 2007), indicates that it is unlawful for NARA to rely on Executive Order 13233, Section 3(b). The court’s decision explains, “in relying on § 3(b) of the Bush Order, the Archivist effectively denies himself the discretion (and accordingly the need to make reasoned, discretionary decisions with respect to the appropriate length of review) to release documents still under a former president’s review as he is permitted to do pursuant to 36 C.F.R. § 1270.46(d).” In light of this court decision, which holds that Section 3(b) of the Executive Order is unlawful and that NARA is enjoined from relying on that section of the Executive Order, conforming NARA’s regulations to Executive Order 13233 is manifestly improper.

Third, as a matter of exercising its discretion to promulgate regulations pursuant to the Presidential Records Act, this proposed revision violates the policy of that Act to require that presidential records be made available to the public as rapidly as possible. The proposed regulation does not explain how the extension of time for review by former presidents would advance the policies of the PRA or why such a change would be necessary. In fact, in light of the fact that delays at the Ronald Reagan Presidential Library have increased from 18 months in April 2001, to 78 months (6 ½ years) in February 2007, it would seem that this proposed provision will exacerbate the problem by permitting unlimited review by former presidents. The existing notification period, in contrast, at least has the benefit of providing an incentive for former presidents to complete their review in a timely manner.

Leland J. White
Executive Director