In a memo from 1985 that was released on Monday, Supreme Court nominee Samuel Alito declared that "the Constitution does not protect a right to an abortion." That memo was part of a haul of almost 200 pages of records from the Ronald Reagan and George Bush presidential libraries. How did the archivists at the presidential libraries decide which documents to release?
They asked the presidents (and their appointed representatives). First, researchers submitted written requests for information about Alito. The archivists searched through their collections for relevant material; any documents they turned up had to be sent out for review before they could be made public. According to George W. Bush's protocol for presidential record-keeping, both the current and former president must sign off for documents to be released. Either one could have claimed executive privilege and forced the archivists to withhold the pages. (In Reagan's case, a family-appointed representative could have claimed executive privilege on his behalf.)
Until 1978, the rules for releasing records varied from president to president. Former chief executives were expected to donate their papers to the National Archives, but they had no obligation to do so. (In practice, only Nixon refused.) Since gifts to the archives aren't covered by the Freedom of Information Act, the rules for releasing records from these collections were negotiated in the terms of the donation. In most cases, former presidents chose to make everything public except documents that would be exempt from FOIA requests anyway.
The Presidential Records Act of 1978 made White House papers public property. Each president's papers now go to the National Archives at the end of his term. They remain sealed for up to five years while librarians sort them out. Under the terms of the act, former presidents can choose to seal documents relating to security, personal matters, trade secrets, federal appointments, or confidential communications for another seven years. After this initial 12-year period, archivists handle all pages in accordance with the Freedom of Information Act, which has its own similar special exemptions.
So, what happens when you ask a presidential library for documents? It's possible that they've already been released—about a quarter of the 50 million pages at the Reagan library are already open to the public. But if you want pages that haven't been "processed," you'll need to submit a FOIA request. Archivists scour the collection for relevant pages, then conduct three separate reviews to see if they might be covered by a special exemption. Questionable pages are sent to the White House and to the former president or his representative for review. For high-profile documents—like those relating to a Supreme Court nominee—the archivists send every page to the White House.
The former and incumbent presidents get 90 days to look over the documents, but the White House can ask for unlimited extensions (during which time the library must keep the records sealed). If you don't like how your document request was handled, you can either file an administrative appeal with the National Archives, or you can try to argue your case before a judge.
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Explainer thanks Michael Duggan of the Ronald Reagan Presidential Library.