SUBSCRIBE NOW!

Vol. 24 No. 6 — June 2007

However, Executive Order 13233, signed by President George W. Bush on Nov. 1, 2001, has the potential to exclude access to presidential records; Bush did not offer reasons for this order. But it is difficult to avoid policy pitfalls and learn from the past and our failures if records and documentation are not available. Access to records, especially those that fall within Executive Order 13233, is not always timely or easy.

Putting the Best Presidential Foot Forward

There are 18 presidential libraries across the U.S., featuring museums and archives with official documents and records celebrating a long list of U.S. presidents. [For a list of the presidential libraries, see the sidebar on page 49.] Benjamin Hufbauer, who has written extensively on presidential libraries, observed the following in a Jan. 20, 2007, New York Times article: “The exhibits in newer presidential libraries often amount to little more than extended campaign commercials in museum form, because the former president and his supporters essentially control the content.”

The concept of a presidential library originated with Franklin Delano Roosevelt, who dedicated his own library in Hyde Park, N.Y., in 1941. Built with private funds donated by family and friends, the facility was later transferred to the government. Likewise, George W. Bush and his family are raising money for his facility to be built at Southern Methodist University in Dallas.

While the museum side of a presidential library may reflect the president as a superhero, the archives represent a more realistic view, documenting intentions, opinions, and actions in speeches, executive orders, memoranda, and action on legislation. The archives, however, contain the presidential official papers as well as audiotapes, videotapes, emails, and other media that record events, actions, and decisions.

Presidential Records Act

Prior to the enactment of the Presidential Records Act of 1978 (PRA), presidents and their families considered presidential materials to be their own personal property. Congress passed the first Presidential Libraries Act (PLA) in 1955 (44 U.S.C. 2108), providing a system of privately built presidential libraries. In reaction to the Watergate cover-up and issues of access to President Richard Nixon’s records, Congress passed the PRA in 1978 stating unequivocally that official records of a president and vice president are the property of the government and belong to the American people. The PRA mandated that official presidential records are the property of the U.S. government, and the overall management of these records is the responsibility of the National Archives and Records Administration (NARA) and the directors of the presidential libraries.

President Nixon challenged the government’s claim to ownership of presidential records as specified in the Presidential Recordings and Materials Preservation Act of 1974 (P.L. 93-528) in Nixon v. Administrator of General Services (433 U.S. 425 1977). Nixon claimed that the act violated separation of powers and executive privilege; however, the U.S. Supreme Court found otherwise. The court ruled that the act did not violate the separation of powers provisions of the U.S. Constitution and that executive privilege is subject to erosion over time.

Unique Archival Records

Sharon K. Fawcett, assistant archivist for Presidential Libraries, said the presidential archives occupy 183,312 cubic feet of space in the presidential libraries. She estimated that the total pages of record are between 400 million and 500 million.

According to Elaine Didier, director of the Gerald R. Ford Library (the archives are at the University of Michigan–Ann Arbor, and the museum is in Grand Rapids, Mich.), and Jay Hakes and Robert Bohanan, director and deputy director (respectively) of the Jimmy Carter Library in Atlanta, processing archives records is time-consuming. It involves describing materials and developing finding aids—tools that “facilitate discovery of information within a collection of records.” Archival records are more complex than book or journal catalog records because there are no standard descriptors; each record is unique. The complexity and distinctive character of these records preclude automated processing.

Bohanan said that at the Jimmy Carter Library, “we have 27 million pages of White House records. Eisenhower had 5 or 6 million.” The Bill Clinton archives contain 48 million pages of emails and 70 million pages of textual records. At the current staffing levels, processing will take many years. About 70 percent of the Gerald Ford records are processed, compared to about 60 percent of the Jimmy Carter records.

Bohanan said that the Carter archives are processed according to subject. “We have people out there who want to do research on the Carter administration, and I have to say it may take 5 or 6 years before we can satisfy the requests,” he said. Records in libraries established after 1981 and beginning with the Ronald Reagan materials are processed on a first-come, first-served basis. After pointing out that the Gerald Ford archives were obtained by Deed of Gift rather than PRA procedures, Didier said, “There are real differences in the role of archivists. We can exercise judgment as to when we process something. We try very hard to respond to [a] researcher’s area of interest. The PRA archives [are] process[ed] according to the Freedom of Information Act [FOIA] requests. They end up with fragments.”

Special Considerations

Public access to declassified records related to national defense may actually be delayed for years. According to Fawcett, “The process may involve sending records to several agencies and wait[ing] for replies from each agency.” The current procedures for declassifying records are part of Executive Order 12958, which President Clinton signed in 1995. A provision for automatic declassification by the original classifying agency was provided after 25 years from the original date, except for documents related to sensitive information specified in the order. The agency head is required to officially notify appropriate information security authorities at least 180 days before automatic declassification. The president can direct that the material remain classified. President Bush also directed that some declassified documents be reclassified.

Under the PRA, the public cannot access any records for 5 years after a president leaves office. Between the fifth and 12th years after a president leaves office, most records are available, except those that require FOIA processing or records that are related to national defense, foreign policy, trade secrets, confidential information, confidential communications among the president and his advisors, personal information, medical files, and other items that may involve privacy (44 U.S.C. 2204). Twelve years after leaving office, the president or his or her other designee or the current president can prevent records from being released for an indefinite period of time (Executive Order 13233); FOIA requests may take years to process.

On Nov. 6, 2001, Steve Hensen, then-president of The Society of American Archivists, wrote to Rep. Stephen Horn, R-Calif., “Our apprehension over this Executive Order [13233] is on several levels. First, it violates both the spirit and letter of existing U.S. law on access to presidential papers as clearly laid down in 44 U.S.C. 2201-2207. … The Executive Order puts the responsibility for these decisions with the President, and indeed with any sitting President into the future. Access to the vital historical records of this nation should not be governed by executive decree. … Second, on a broader level this Executive Order potentially threatens to undermine one of the very foundations of our nation. Free and open access to information is the cornerstone to modern democratic societies around the world. … Finally, we would urge Congress to reassert its authority in these matters.” It took more than 5 years for Congress and a change in congressional majority to take action.

Presidential Records Act Amendments of 2007 (H.R. 1255) was introduced into the House of Representatives on March 1, 2007, and was passed on March 14, 2007. The legislation repeals the provisions of Executive Order 13233 and restores the authority for the release of records to the Archivist of the U.S., who is currently Allen Weinstein. A similar bill (S. 886), which has been introduced into the Senate, now awaits action.

The position of U.S. archivist is a presidential appointment. When a president leaves office, it is customary for all appointees to resign, but the incoming president has the option of continuing the appointment of an officeholder. Upon receiving a request for records, the archivist is required to notify the former president and the incumbent president about the request as well as to provide copies of the requested records for review. The former president may designate someone to review records on his or her behalf. The former president is required to inform the archivist if access is granted within 90 days. At the same time or thereafter, the incumbent president or his or her designee will review the records and decide whether to concur with the former president’s decision. If there is disagreement, the records cannot be released until the incumbent president advises the archivist to do so. The incumbent president may restrict release and access beyond the 12 years specified in the PRA for any reason.

Universal Money Woes

Funding is a challenge for presidential archives, like many other libraries. All presidential libraries, except the Carter Library, are supported, in part, by foundations established to provide building funds. The preservation and maintenance of the archives in each presidential library are funded by the NARA and supplemented by local museum entrance fees and store revenues, however, the funding is not sufficient to expeditiously process millions of pages of emails, texts, audiotapes and videotapes, and other materials.

The complexities of processing millions of unique records, inadequate funding, and time-consuming legal procedures create daunting tasks and processes. In addition, presidential archivists must work within the limits of the various laws passed by Congress.

The Tough Task of Digitization

One of the most difficult tasks facing NARA and presidential archivists is digitization. Martha Morphy, chief information officer at NARA, said, “NARA is formulating a strategy across the agency. We hope to do the majority of digitization through partnerships.” Footnote is one of the partners, and its collection includes the papers of the Continental Congress and Constitutional Convention records. “There are 9 billion pages in 8 million documents in the vaults in the Washington, D.C., area,” she said. “There may be sets of documents, our treasures that we will do internally.”

According to Fawcett, “We do not have the technology for scanning equipment that can handle our original documents without hurting them. Scanning has to be done one page at a time. There is no way to streamline the process. There also is the problem of handwriting requiring high dpi.” Metadata is a major challenge. It cannot be done automatically. Metadata for presidential records must be developed one page at a time by people.

Researchers still rely on these documents to produce analyses of U.S. history and the leaders who helped shape critical decades. Many books have been written based on materials in presidential archives including two recent titles: Presidential Courage: Brave Leaders and How They Changed America 1789–1989 by Michael Beschloss (Simon & Schuster, 2007) and Nixon and Kissinger: Partners in Power by Robert Dallek (HarperCollins, 2007).

Current layers of bureaucracy and high hurdles have resulted in delays, expense, and suppression of materials that might otherwise serve to enlighten and educate. Since scholars, students, journalists, and the public have been impeded in their efforts to learn about our history, our government, and our presidents, open and accountable government is essential to ethical and efficient functioning of our democratic republic. The next president taking office in January 2009 may take another view of access to history and government.