Executive Order 13233--Further Implementation of the Presidential
Records Act

November 1, 2001

    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 security 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 Presidential 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
President'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 assurance 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 privileges 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 respect to his
Administration's Presidential records, and expressly rejected the
argument that ``only an

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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 President 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 withholding 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 request 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 assert
            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

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            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 authorize access to the records, the
            incumbent President may independently 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 President 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 President 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
nonappealable 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 privileged 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 representative

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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 discretion 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
privileges.
    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 President. 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 President.
    (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.
                                                George W. Bush
 The White House,
 November 1, 2001.

[Filed with the Office of the Federal Register, 11:23 a.m., November 2,
2001]

Note: This Executive order was published in the Federal Register on
November 5.