The President
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 secu-rity
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 Presi-dential
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 Presi-dent’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 assur-ance
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 privi-leges
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 re-spect
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 Presi-dent
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 with-holding
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 re-quest
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 as-sert
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 au-thorize
access to the records, the incumbent President may inde-pendently
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 Presi-dent
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 Presi-dent
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 nonappeal-able
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 privi-leged
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 rep-resentative
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 privi-leges.
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 Presi-dent.
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 Presi-dent.
(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.
(Federal Register / Vol. 66, No. 214 / Monday, November 5, 2001 / Presidential Documents)