[Federal Register Volume 74, Number 15 (Monday, January 26, 2009)]
[Presidential Documents]
[Pages 4669-4671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1712]
[[Page 4667]]
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Part VIII
The President
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Executive Order 13489--Presidential Records
Executive Order 13490--Ethics Commitments by Executive Branch Personnel
Memorandum of January 21, 2009--Senior White House Staff Pay Freeze
Presidential Documents
Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 4669]]
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
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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.
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Sec. 6. Revocation. Executive Order 13233 of November
1, 2001, is revoked.
(Presidential Sig.)
THE WHITE HOUSE,
January 21, 2009.
[FR Doc. E9-1712
Filed 1-23-09; 8:45 am]
Billing code 3195-W9-P