House Passes Presidential Disclosure Acts amid Lawsuits

The first week of the 111th Congress saw the passage in the House of two bills that, if enacted, would ensure accessibility to the contents of presidential libraries and the identities of donors whose gifts funded their construction. The Presidential Records Act Amendments of 2009 (H.R. 35), approved by a vote of 359–58, and the Presidential Library Donation Reform Act of 2009 (H.R. 36), which passed by 388–31, moved to the Senate in the waning days of the Bush administration, even as presidential papers and electronic files were being readied for transfer to a reportedly overwhelmed National Archives and several lawsuits proceeded that sought greater public access to those materials.

House Speaker Nancy Pelosi (D-Calif.) said January 7 of the bills’ passage, “If we are to have a government of, by, and for the people, then the people must have access to the information they need to question government actions and to hold their elected officials accountable.” Six days later, U.S. District Judge John Bates agreed with Congress that the Bush administration must leave with Obama aides copies of documents subpoenaed by the 110th Congress but never delivered, the Associated Press reported January 13. The House has reissued subpoenas for the materials, said to be related to the firing of nine U.S. attorneys shortly after the 2006 national elections.

H.R. 35 (PDF file) would rescind Executive Order 13233, which President Bush issued November 1, 2001, to allow incumbent or former presidents and vice presidents, as well as their heirs, to withhold the release of presidential papers indefinitely. The Presidential Records Act Amendments restores decision-making about the release of unclassified materials to the archivist of the United States. A similar bill passed the House in 2007 by an overwhelming margin, but stalled in the Senate.

The public-interest group Public Citizen, along with the National Security Archives and others, won a suit in October 2007 that partially overturned the executive order as it pertained to some 68,000 pages of documents in the Ronald Reagan Presidential Library that President Bush had declined to declassify.

However, several ongoing lawsuits seek the handover to the National Archives of millions of unique presidential records. Two legal actions against the Executive Office of the President in 2007, one filed by the National Security Archive (PDF file) and the other by Citizens for Responsibility and Ethics in Washington (CREW) (PDF file), seek the recovery of several million White House e-mails reported as deleted between 2003 and 2005, and their handover to the National Archives on January 20.

CREW filed a separate suit in September 2008 to block the destruction of any of Vice President Dick Cheney’s records and to ensure that the Archives receives them all; in a December court filing (PDF file), Cheney’s attorneys sought a summary dismissal on the grounds that only the vice-president may determine “what constitutes vice presidential records or personal records” as well as “how his records will be created, maintained, managed, and disposed.”

H.R. 36 (PDF file) would mandate that all future presidents disclose the source of every donation to a presidential library fundraising organization of $200 or more in a fiscal quarter. Because the bill stipulates that it “shall only apply with respect to contributions (whether monetary or in-kind) made after the date of the enactment of this Act,” the Presidential Library Donation Reform Act excludes donors to the foundation for the George W. Bush Presidential Library from being identified. Should the bill become law, the presidential library foundation for Barack Obama would be the first fundraising effort affected.

Ironically, even as lawmakers and activists were working to ensure the preservation of a thorough Bush administration record, officials at the National Archives were planning to freeze part of the estimated 100 terabytes of electronic information—more than 50 times the size of the digitized records from the Clinton administration—before migrating it all to its new $144-million computer system. “The electronic records archives system may be able to take in a tremendous amount of e-mail and other records,” National Archives Inspector General Paul Brachfeld said in the December 27 New York Times. “But just because you ingest the data does not mean that people can locate, identify, recover, and use the records they need.”

Posted on January 14, 2009. Discuss.

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