American Historical v. National Archives and Recs.

• Decision Date: 01 October 2007
• Docket Number: Civil Action No. 01-2447 (CKK).
• Citation: 516 F.Supp.2d 90
• Parties: AMERICAN HISTORICAL ASSOCIATION, et al., Plaintiffs, v. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

516 F.Supp.2d 90

AMERICAN HISTORICAL ASSOCIATION, et al., Plaintiffs, v. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, et al., Defendants.

Civil Action No. 01-2447 (CKK).

United States District Court, District of Columbia.

October 1, 2007.

Scott Lawrence, Nelson, Public Citizen Litigation Group, Washington, DC, for Plaintiffs.

Craig M. Blackwell, John Russell Tyler, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Plaintiffs¹ filed suit against the National Archives and Records Administration ("NARA"), and the Archivist of the United States,² (collectively, "the Government" or "Defendants"), seeking injunctive and declaratory relief related to Executive Order 13,233, signed by President George W. Bush on November 1, 2001, which purported to "further implemen[t]" the Presidential Records Act ("PRA") of 1978, 44 U.S.C. §§ 2201-2207 (1991). In Count I of Plaintiffs' First Amended Complaint ("Complaint"), Plaintiffs asked the Court to find that Executive Order 13,233 constitutes an impermissible exercise of the executive power, and to enjoin its implementation. Compl. ¶¶ 66-73. In Count II of their Complaint, Plaintiffs asked the Court to order the release of specific documents that had been withheld, initially under the terms of the Executive Order, but later under the incumbent president's independent invocation of constitutional privilege. Compl. ¶¶ 74-83.

The Court originally dismissed the instant suit on jurisdictional grounds on March 28, 2004. However, Plaintiffs subsequently filed a motion to alter or amend the Court's ruling pursuant to Federal Rule of Civil Procedure 59(e), informing the Court that material facts that were omitted by the Parties in the initial round of briefing impacted the Court's grounds for dismissal. Although Defendants argued that the Court had reached the correct result, Defendants did not dispute the facts as presented by Plaintiffs. On September 24, 2005, the Court granted Plaintiffs' Motion to Alter or Amend the Judgment, agreeing to reconsider its earlier ruling. In the same Order and accompanying Memorandum Opinion, the Court granted summary judgment for Defendants with respect to Count II of Plaintiffs' Complaint, finding that Plaintiffs were required to show some "demonstrated, specific need" for the records they sought in order to overcome the president's assertion of constitutional privilege, but that Plaintiffs had conceded that they could make no such required showing of need. The Court further asked the Parties to file renewed dispositive cross-motions with respect to Count I.

Accordingly, presently before the Court are the Parties' renewed dispositive motions with respect to Count I of Plaintiffs' Complaint, specifically Defendants' [57] Motion to Dismiss and Plaintiffs' [58] Motion for Summary Judgment. Both motions are fully briefed. After considering the aforementioned filings, the history of the case, the [60] amicus brief filed in support of Plaintiffs' Motion for Summary Judgment, and the relevant statutes, case law, executive orders, and legislative history, the Court shall GRANT IN PART and DENY IN PART Defendants' [57] Motion to Dismiss, and GRANT IN PART and DENY IN PART Plaintiffs' [58] Motion for Summary Judgment. While the Court finds that Plaintiffs' challenges are not ripe with respect to all but one of the sections of Executive Order 13,233 with which they take issue, the Court finds that Plaintiffs' claim under section 3(b) is justiciable. Furthermore, the Court finds the Archivist's reliance on section 3(b) to be arbitrary, capricious, and contrary to law in violation of the Administrative Procedure Act ("APA"). Accordingly, the Court need not reach Plaintiffs' alternative argument that Plaintiffs have a nonstatutory right to judicial review and a declaration under 28 U.S.C. § 2201 because Executive Order 13,233 is contrary to the terms of the PRA and lacks a valid constitutional basis. The Court shall therefore declare that the Archivist's reliance on section 3(b) of Executive Order 13,233 is unlawful pursuant to the APA and prohibit the Archivist from further reliance on this provision.

I. BACKGROUND

A. Historical Context

Prior to 1974, the wide array of materials generated during a presidency were generally considered the property of that president when his term ended, although those ownership rights might be limited somewhat by the public interest in them as records of government activity. See Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 431, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); Nixon v. United States, 978 F.2d 1269, 1270 (D.C.Cir.1992). In the midst of the Watergate investigation, however, Congress passed the Presidential Recordings and Materials Preservation Act ("PRMPA"), which transferred control of President Richard Nixon's presidential records to the Administrator of General Services (later changed to the "Archivist"), and directed the Administrator to develop regulations providing for public access to the materials. See 44 U.S.C. § 2111 note. The PRMPA was upheld as constitutional in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). Although the Court in Nixon v. Administrator of General Services held that there is a legal foundation for a former president's claim to executive privilege surviving his tenure in office, the Court also held that the former president's interest in keeping the records private erodes over time. Id. at 449, 451, 97 S.Ct. 2777.

1. Presidential Records Act

Several years later, Congress passed the Presidential Records Act of 1978 ("PRA" or "the Act"), which addressed this issue of public access to presidential papers in a broader context. In keeping with the view that presidential records are not personal property, the PRA states that "[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter." 44 U.S.C. § 2202. The Act confers on the Archivist of the United States "responsibility for the custody, control, and preservation of, and access to, the Presidential records" generated during the outgoing president's term or terms. 44 U.S.C. § 2203(f)(1). It further directs that the "Archivist shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this Act." Id. In conjunction with this mandate, the PRA includes several provisions for the restriction of access to presidential records.³

First, prior to leaving office, a president can restrict access to certain categories of information for up to twelve years. Id. § 2204(a)(1)-(6). In relevant part, the PRA allows a president to restrict access to "confidential communications requesting or submitting advice, between the President and his advisers, or between such advisers" for twelve years. Id. § 2204(a)(5).⁴

Second, records not restricted for the twelve-year period shall be made available by the Archivist to the public after five years, generally subject to the conditions of the Freedom of Information Act, 5 U.S.C. § 552.⁵ 44 U.S.C. §§ 2204(b)(2)(A), 2204(c)(1). Each of these FOIA exemptions may apply to presidential records indefinitely.⁶ As to the applicability of FOIA exemptions, the one exception to this direction is that presidential records cannot be withheld from members of the public based on FOIA exemption (b)(5). 44 U.S.C. § 2204(c)(1). In the ordinary FOIA context, the public is not entitled to materials that fall under exemption (b)(5), "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). In the context of presidential records, however, the (b)(5) exemption is inapplicable, so such materials are considered records belonging to the National Archives, and must be "granted on nondiscriminatory terms" to members of the public. 44 U.S.C. § 2204(c)(1).

Third, the PRA states that "[n]othing in this Act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President." Id. § 2204(c)(2).

Fourth, the PRA also applies to vice-presidential records:

"Vice-Presidential records shall be subject to the provisions of this chapter in the same manner as Presidential records. The duties and responsibilities of the Vice President, with respect to Vice-Presidential records, shall be the same as the duties and responsibilities of the President under this chapter with respect to Presidential records. The authority of the Archivist with respect to Vice-Presidential records shall be the same as the authority of the Archivist under this chapter with respect to Presidential records...."

Id. § 2207.

Finally, under the PRA, the Archivist must promulgate regulations to "carry out the provisions of this chapter." Id. § 2206. Pursuant to the PRA, such regulations should include, in relevant part, "provisions for notice by the Archivist to the former President when the disclosure of particular documents may adversely affect any rights and privileges which the former President may have[.]" Id. § 2206(3).

Accordingly, the National Archives and Records Administration has implemented the PRA by promulgating a regulation providing that whenever the Archivist intends to make public any presidential record, he must provide 30 days' notice to the former president to allow him, or his designated representative,⁷ to assert any rights or privileges that would foreclose access to the materials. 36 C.F.R. § 1270.46(a), (b), (d). If after receiving notice from the Archivist, the former president raises such a right or privilege he believes would preclude disclosure, "and the Archivist nevertheless determines that the record in question...