POGO and Allies Support Amending the Presidential Records Act
Chairman Darrell E. Issa
Ranking Member Elijah E. Cummings
House Committee on Oversight and Government Reform
U.S. House of Representatives
2157 Rayburn House Office Building
Washington, D.C. 20515
BY FAX 202-225-3974 and 202-225-9852
Dear Chairman Issa and Ranking Member Cummings:
As groups dedicated to greater accountability and transparency in government, we write in support of the Presidential Records Act Amendments of 2011, H.R. 3071. This bill provides a framework for the assertion of privilege by a former president and clarifies the rights and obligations of the incumbent president and the Archivist of the United States in dealing with such claims.
Specifically, the bill imposes a time limit in which a former president must assert any claim of privilege upon a determination of the Archivist to make available to the public a record of that former president. The bill also establishes processes for managing the disclosure of records upon the assertion of privilege by a former president, and grants to the incumbent president the power to decide whether or not to uphold any privilege claim of a former president. Further, the decision of the incumbent president to release a document over a claim of privilege by a former president controls, absent a court order to the contrary.
In the absence of legislation like H.R. 3071, the process for dealing with claims of privilege by a former president has been left to the discretion of each incoming president through the issuance of executive orders. Those orders have varied widely, and have had an impact on the public’s access to presidential records. For example, President George W. Bush issued an executive order that permitted a former president to block the publication of any of his presidential records by the mere assertion of a privilege claim. By contrast, the executive order issued by President Obama gives to the incumbent president the final call on whether or not a claim of privilege will be asserted.
This legislation will ensure an orderly process for dealing with claims of privilege over the records of former presidents that affords the greatest degree of public access. The importance of presidential records cannot be overstated; they offer a unique window into our nation’s history and allow us to learn from our past mistakes. We therefore strongly support passage of H.R. 3071.
Finally, we note some have criticized the bill on the ground it creates a new, constitutionally- based privilege that former presidents may assert over the records of their presidency. We do not believe this accurately describes the legislation. To the contrary, H.R. 3071 merely provides a process by which a claim of privilege can be resolved within the executive branch, but does not itself recognize a new privilege.
Sincerely,
American Association of Law Libraries
American Association of University Professors
American Booksellers Foundation for Free Expression (ABFFE)
American Historical Association
American Library Association
American Society of News Editors
Association of American Publishers
Association of Centers for the Study of Congress
Association of Research Libraries
Center for Media and Democracy
Citizens for Responsibility and Ethics in Washington
Electronic Frontier Foundation
Government Accountability Project
iSolon.org
Knowledge Ecology International
Mid-Atlantic Regional Archives Conference
National Coalition Against Censorship
National Coalition for History
National Council on Public History
National Security Archive
OpenTheGovernment.org
Organization of American Historians
Project On Government Oversight
Public Citizen
Reporters Committee for Freedom of the Press
Society for History in the Federal Government
Society for Military History
Society of American Archivists
Society of Professional Journalists
Special Libraries Association
Utah Foundation for Open Government
William A. Wise Law Library - University of Colorado Law School
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POGO Staff
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