Presidential Documents

4669 

Federal Register 

Vol. 74, No. 15 

Monday, January 26, 2009 

Title 3— 

The President 

Executive Order 13489 of January 21, 2009 

Presidential Records 

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 governing the assertion of executive privilege by incumbent 

and former Presidents in connection with the release of Presidential records 

by the National Archives and Records Administration (NARA) pursuant 

to the Presidential Records Act of 1978, 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) ‘‘NARA’’ refers to the National Archives and Records Administration. 

(c) ‘‘Presidential Records Act’’ refers to the Presidential Records Act, 44 

U.S.C. 2201–2207. 

(d) ‘‘NARA regulations’’ refers to the NARA regulations implementing 

the Presidential Records Act, 36 C.F.R. Part 1270. 

(e) ‘‘Presidential records’’ refers to those documentary materials maintained 

by NARA pursuant to the Presidential Records Act, including Vice Presidential records. 

(f) ‘‘Former President’’ refers to the former President during whose term 

or terms of office particular Presidential records were created. 

(g) A ‘‘substantial question of executive privilege’’ exists if NARA’s disclosure of Presidential records might impair national security (including the 

conduct of foreign relations), law enforcement, or the deliberative processes 

of the executive branch. 

(h) A ‘‘final court order’’ is a court order from which no appeal may 

be taken. 

Sec. 2. Notice of Intent to Disclose Presidential Records. (a) When the 

Archivist provides notice to the incumbent and former Presidents of his 

intent to disclose Presidential records pursuant to section 1270.46 of the 

NARA regulations, the Archivist, using any guidelines provided by the incumbent and former Presidents, shall identify any specific materials, the 

disclosure of which he believes may raise a substantial question of executive 

privilege. However, nothing in this order is intended to affect the right 

of the incumbent or former Presidents to invoke executive privilege with 

respect to materials not identified by the Archivist. Copies of the notice 

for the incumbent President shall be delivered to the President (through 

the Counsel to the President) and the Attorney General (through the Assistant 

Attorney General for the Office of Legal Counsel). The copy of the notice 

for the former President shall be delivered to the former President or his 

designated representative. 

(b) Upon the passage of 30 days after receipt by the incumbent and 

former Presidents of a notice of intent to disclose Presidential records, 

the Archivist may disclose the records covered by the notice, unless during 

that time period the Archivist has received a claim of executive privilege 

by the incumbent or former President or the Archivist has been instructed 

by the incumbent President or his designee to extend the time period for 

a time certain and with reason for the extension of time provided in the 

notice. If a shorter period of time is required under the circumstances 

4670 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Presidential Documents 

set forth in section 1270.44 of the NARA regulations, the Archivist shall 

so indicate in the notice. 

Sec. 3. Claim of Executive Privilege by Incumbent President. (a) Upon receipt 

of a notice of intent to disclose Presidential records, the Attorney General 

(directly or through the Assistant Attorney General for the Office of Legal 

Counsel) and the Counsel to the President shall review as they deem appropriate the records covered by the notice and consult with each other, the 

Archivist, and such other executive agencies as they deem appropriate concerning whether invocation of executive privilege is justified. 

(b) The Attorney General and the Counsel to the President, in the exercise 

of their discretion and after appropriate review and consultation under subsection (a) of this section, may jointly determine that invocation of executive 

privilege is not justified. The Archivist shall be notified promptly of any 

such determination. 

(c) If either the Attorney General or the Counsel to the President believes 

that the circumstances justify invocation of executive privilege, the issue 

shall be presented to the President by the Counsel to the President and 

the Attorney General. 

(d) If the President decides to invoke executive privilege, the Counsel 

to the President shall notify the former President, the Archivist, and the 

Attorney General in writing of the claim of privilege and the specific Presidential records to which it relates. After receiving such notice, the Archivist 

shall not disclose the privileged records unless directed to do so by an 

incumbent President or by a final court order. 

Sec. 4. Claim of Executive Privilege by Former President. (a) Upon receipt 

of a claim of executive privilege by a living former President, the Archivist 

shall consult with the Attorney General (through the Assistant Attorney 

General for the Office of Legal Counsel), the Counsel to the President, 

and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former 

President’s claim of privilege or instead to disclose the Presidential records 

notwithstanding the claim of privilege. Any determination under section 

3 of this order that executive privilege shall not be invoked by the incumbent 

President shall not prejudice the Archivist’s determination with respect to 

the former President’s claim of privilege. 

(b) In making the determination referred to in subsection (a) of this section, 

the Archivist shall abide by any instructions given him by the incumbent 

President or his designee unless otherwise directed by a final court order. 

The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, 

unless a shorter time period is required in the circumstances set forth 

in section 1270.44 of the NARA regulations. Copies of the notice for the 

incumbent President shall be delivered to the President (through the Counsel 

to the President) and the Attorney General (through the Assistant Attorney 

General for the Office of Legal Counsel). The copy of the notice for the 

former President shall be delivered to the former President or his designated 

representative. 

Sec. 5. General Provisions. (a) Nothing in this order shall be construed 

to impair or otherwise affect: 

(i) authority granted by law to a department or agency, or the head 

thereof; or 

(ii) functions of the Director of the Office of Management and Budget 

relating to budget, administrative, or legislative proposals. 

(b) This order shall be implemented consistent with applicable law and 

subject to the availability of appropriations. 

(c) This order is not intended to, and does not, create any right or benefit, 

substantive or procedural, enforceable at law or in equity by any party 

against the United States, its departments, agencies, or entities, its officers, 

employees, or agents, or any other person. 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Presidential Documents 4671 

Sec. 6. Revocation. Executive Order 13233 of November 1, 2001, is revoked. 

THE WHITE HOUSE, 

January 21, 2009. 

[FR Doc. E9–1712 

Filed 1–23–09; 8:45 am] 

Billing code 3195–W9–P 


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