Covering Candidates' Paper Trails

Terry Francke
November 13, 2007 — 1,227 views  
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Hillary Clinton's White House experience is documented in her husband's presidential papers, which they claim are at the mercy of the National Archives to release from his Presidential Library-and then only on the archivists' schedule, which they insist they can't accelerate.

Whatever the Church Lady might make of those protestations-Barack Obama, as quoted in the Chicago Tribune, and Judicial Watch in two federal court lawsuits, for example, are skeptical-the fact remains that the automatic filter that the presidential papers archiving process puts on the official record of those running for office is a problem that needs correcting, and it's mirrored in a California law that needs equal attention but may never get it.

There are actually two potential barriers to access to ex-presidents' papers by political researchers, journalists or more impatient historians. The first is an Act of Congress-actually a succession of them-and the second is an executive order issued by President George W. Bush early in his first term.

Under the original provisions of the Presidential Libraries Act, ex-presidents would build their own libraries with privately donated funds and then voluntarily turn over those buildings-and the bulk of the White House records the ex-presidents had generated and taken with them-to the National Archives.

But, as explained in an essay marking the 1955 law's 50th birthday, there have been some imperfectly resolved issues surrounding the fundamental question of who owns presidential papers-the former chief executive or the American people.  After the crisis in which former President Nixon declined to donate his papers to federal custody, President Jimmy Carter signed into law the Presidential Records Act of 1978.

This act declared that, starting with the next presidential administration, the official papers of the presidency would automatically become government property, would be transferred to the National Archives at the end of the administration, and would be subject to public request and disclosure five years after the end of the administration. A President would still have to utilize the Presidential Libraries Act if he wanted to build or donate a library to house the presidential records, which all Presidents have continued to do.

The 1978 act, however, requires that the National Archives follow special procedures to allow both the former and incumbent Presidents to review the records before they are released to the public. These procedures, which were revised in 2001 under Executive Order 13233, ensure that the former President has a full opportunity, as required by the Supreme Court, to assert possible claims of executive privilege.

A federal judge has recently held invalid that portion of the order that allowed former presidents and vice presidents to review their records sought from the Archives under the Freedom of Information Act.  Meanwhile an effort in Congress to legislatively undo the order is hung up in the Senate by a hold placed by a single Senator who will not state his reasons for the obstruction.

In California, an exemption from disclosure under the California Public Records Act allows ex-governors to bar public access to their papers, transferred to the State Archives, an institution under the administration of the Secretary of State, for the rest of their lives. Government Code Section 6268 states that the records of a former governor-even a recalled one-must be transferred to the Archives, but that he or she, acting in writing, "may restrict public access to any of the transferred public records, or any other writings he or she may transfer, which have not already been made accessible to the public," but access "shall not be restricted for a period greater than 50 years or the death of the Governor, whichever is later," and papers concerning applications for clemency or extradition can be withheld for only (!) 25 years after the cases are closed.

Accordingly, for example, if either Gray Davis or Arnold Schwarzenegger were to again seek some public office, he could instruct the State Archives keep the official papers of his administration out of the public's reach. Davis may have already done so, whether or not he contemplates resuming public life.

Section 6268 is bad policy, creating a post-executive privilege to plough under one's record at the very time when it may be of the greatest significance to the greatest number of people.  As such, it is a perk ripe for reconsideration, but is unlikely to be repealed so long as a governor has enough legislative support for an override-proof veto.

Terry Francke

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Over all these periods Francke has fielded tens of thousands of phoned and e-mailed queries on press and citizen rights; written the most widely used guidebooks to the law governing open meetings, open courts and public records in California; served as an advisory panel member to the National Center on Courts and the Media; taught journalism law at the Department of Communication at Stanford University; and served as an expert contributor to the 1994 major revisions to the Ralph M. Brown Act and Propositioin 59 of 2004, making open government a basic right of citizens under the California Constitution. Francke is a 1967 graduate of the University of Notre Dame and a 1979 graduate of McGeorge School of Law, University of the Pacific. Prior to his legal career, Francke worked as a weekly newspaper editor and in military and local government public affairs positions.