Opening the Records of the Reagan Years

John W. Carlin

One of our roles at the National Archives and Records Administration (NARA) is that of a steward of the modern Presidency. In that role, we take possession of, organize, preserve, and eventually make available to the public the records of each President of the United States after he leaves office. These materials represent some of the highest-level and most-requested records in our holdings.

The records of Ronald Reagan (1981-1989) are the first Presidential records covered under the Presidential Records Act (PRA). This act specified that all official Presidential and Vice Presidential records created after 20 January 1981 are the property of the federal government. Over the years, we have released about 4.5 million pages of the 43.8 million pages of Reagan records we hold, including some dealing with foreign policy topics--such as U.S.-Soviet relations. In recent months, we have made available for public inspection almost 68,000 more pages that were previously closed under a Presidential restriction category for confidential advice between the President and his advisers and among those advisers. Most of these records dealt with domestic policy issues and originated with White House staffers.

These openings have been in accordance with the law and a Presidential executive order that govern the release of Presidential records. In my column of August 2001, I explained the status of the release of Reagan White House papers and some of the background to this issue. Now I want to bring you up to date on what's been happening to the records of former President Reagan and the Vice Presidential papers of former President George H.W. Bush.

Presidents who served before 1981, except for President Richard Nixon, whose Presidential materials are governed by the provisions of the Presidential Recordings and Materials Preservation Act, were free to limit access to their White House papers because these papers were considered their personal property. All Presidents, however, from Herbert Hoover on--except President Nixon--have donated those papers to the federal government. These records are preserved and made accessible in the Presidential libraries run by NARA. President Nixon's records are in the National Archives at College Park.

The PRA, which applies to the records of Presidents from Reagan on, specifies that records can be withheld for up to twelve years under Presidential restrictive categories placed by the President and Vice President on their records before they leave office. After the first five years, these records become available in response to Freedom of Information Act (FOIA) requests, but records are still closed under both the FOIA exemptions and the Presidential restrictive categories, including records pertaining to national security, Presidential appointments, personal privacy, and confidential advice. After twelve years, the PRA restrictions expire, and the FOIA exemption protecting communications between the President and his advisers--and among the advisers themselves--or any other deliberative records does not apply.

But even after twelve years, NARA must notify both the former and current Presidents, and where appropriate the former Vice President, so they can review these sorts of records to consider whether to assert any constitutional privilege that might apply. Executive Order 12667, issued by President Reagan in January 1989, had established the procedure for NARA to notify the former and incumbent Presidents and for them to assert that privilege against the release of Presidential records.

It is the procedure for this notification that has put the Reagan Presidential and Bush Vice Presidential records in the news this year. In early 2001, NARA provided thirty-day notifications to the White House and to the Office of President Reagan for some 68,000 pages of Reagan records that had been withheld during the first twelve years because they concerned confidential advice involving the President and his advisers. Most of these 68,000 pages pertained to domestic policy issues from the Reagan years, such as economic, regulatory, trade, and civil rights issues. Many of the records are summaries of cabinet meetings or meetings of select members of the cabinet, such as the domestic or economic policy councils, or memos from White House staffers commenting on legislative or policy strategy.

Because this was the first time that Presidential records containing confidential advice could no longer be restricted under the PRA, last year the White House extended the thirty-day review period for the Reagan records so that it could conduct a thorough legal review of the PRA and consider the long-term implications of the release of this type of information on the deliberative process for the Presidency and the executive branch.

At the Bush Library in College Station, Texas, there are about five million pages of Vice Presidential records of George H.W. Bush. Of these, 61,500 have been opened pursuant to FOIA requests, and NARA is in the process of providing notification on about 1,800 pages that were previously withheld under the confidential advice category to former President Bush and President George W. Bush for their review--former President Bush's Presidential papers, from 1989 to 1993, will not be free of the Presidential restrictive categories until 2005.

Late last year, President Bush issued Executive Order 13233, which changed some of the procedures involved in opening Presidential records. Subsequently, this executive order was challenged in federal court in Washington, D.C., by a coalition of historians and public interest organizations including the Organization of American Historians.

Under Executive Order 13233, the 68,000 pages that had been withheld have now been reviewed by the White House, and, so far, all but 150 pages have been opened. Interest in the records of the Reagan Presidency has risen since the fall of 2001, when the White House review of documents began to make news in the media. The Reagan Library now has a steady stream of researchers interested in these records. Executive Order 13233 has resulted in a new procedure in the way we make public the records of our Presidents. Nevertheless, we remain committed to fulfilling our statutory mandate to make Presidential records available to the public as rapidly and completely as possible.

Access to Primary Documents in Reading Rooms

The National Archives and Records Administration (NARA) has recently clarified its existing requirements for people wanting to access original records in our research rooms. Prospective researchers must present picture identification (e.g., a driver's license or school identification card) when applying for a researcher identification card at any NARA location and a research card is now required for anyone who wishes to use original archival materials. Individuals who have recently moved and whose identification is no longer current, must present proof of the new address from an official source, such as a voter registration card, motor vehicle registration, phone or utility bill, or bank statement. As an agency of the Federal government, NARA appreciates your understanding of our need to enhance security by clarifying these requirements.

Supreme Court to Hear Copyright Extension Case

In October 2002, the Supreme Court will hear the case Eldred v. Ashcroft and decide whether the 1998 Copyright Term Extension Act is constitutional. The Act adds 20 years to existing copyrights, consequently preventing many works from entering the public domain. Under this act, films are granted protection for 95 years following their release and written works are protected for 70 years following the death of the originator. The High Court's decision on this case could result in thousands of films, books, and music from the 1920s and 1930s becoming freely available to the public--and would open the doors for historians and archivists to freely use previously unpublished materials, adding valuable discourse and cultural development to the field. Advocates of the Extension Act cite Congress's power to set copyright terms and the need for the U.S. to be put on an equal plane with European law. Dissidents however believe that the act hinders the purpose of copyright law, which ensures that copyrights on original works of authorship are not granted indefinitely. They also cite the fact that after many years, few works that are copyrighted remain in circulation and print. Overturning the Extension Act would open the market for these works and make them widely available in digital formats. The plaintiff, Eric Eldred, runs an Internet library and proposes that the Extension Act is unconstitutional. In a recent decision, Eldred lost on his appeal to the U.S. Court of Appeals for the District of Columbia Circuit court which held that Congress possessed the right to extend copyrighted works, and also that the act was not unconstitutional. The Organization of American Historians, the American Historical Association, the Society of American Archivists and other groups are urging historical and archival organizations to file or sign briefs supporting Eldred and his cause. This case provides an opportunity for citizens to express their views on the importance of the public domain and the harm caused by closing its doors. A brief will be filed on behalf of the organizations named and oral arguments before the Supreme Court will be held in the fall.