
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 44USC2204]

 
                 TITLE 44--PUBLIC PRINTING AND DOCUMENTS
 
                    CHAPTER 22--PRESIDENTIAL RECORDS
 
Sec. 2204. Restrictions on access to Presidential records

    (a) Prior to the conclusion of his term of office or last 
consecutive term of office, as the case may be, the President shall 
specify durations, not to exceed 12 years, for which access shall be 
restricted with respect to information, in a Presidential record, within 
one or more of the following categories:
        (1)(A) specifically authorized under criteria established by an 
    Executive order to be kept secret in the interest of national 
    defense or foreign policy and (B) in fact properly classified 
    pursuant to such Executive order;
        (2) relating to appointments to Federal office;
        (3) specifically exempted from disclosure by statute (other than 
    sections 552 and 552b of title 5, United States Code), provided that 
    such statute (A) requires that the material be withheld from the 
    public in such a manner as to leave no discretion on the issue, or 
    (B) establishes particular criteria for withholding or refers to 
    particular types of material to be withheld;
        (4) trade secrets and commercial or financial information 
    obtained from a person and privileged or confidential;
        (5) confidential communications requesting or submitting advice, 
    between the President and his advisers, or between such advisers; or
        (6) personnel and medical files and similar files the disclosure 
    of which would constitute a clearly unwarranted invasion of personal 
    privacy.

    (b)(1) Any Presidential record or reasonably segregable portion 
thereof containing information within a category restricted by the 
President under subsection (a) shall be so designated by the Archivist 
and access thereto shall be restricted until the earlier of--
        (A)(i) the date on which the former President waives the 
    restriction on disclosure of such record, or
        (ii) the expiration of the duration specified under subsection 
    (a) for the category of information on the basis of which access to 
    such record has been restricted; or
        (B) upon a determination by the Archivist that such record or 
    reasonably segregable portion thereof, or of any significant element 
    or aspect of the information contained in such record or reasonably 
    segregable portion thereof, has been placed in the public domain 
    through publication by the former President, or his agents.

    (2) Any such record which does not contain information within a 
category restricted by the President under subsection (a), or contains 
information within such a category for which the duration of restricted 
access has expired, shall be exempt from the provisions of subsection 
(c) until the earlier of--
        (A) the date which is 5 years after the date on which the 
    Archivist obtains custody of such record pursuant to section 
    2203(d)(1); or
        (B) the date on which the Archivist completes the processing and 
    organization of such records or integral file segment thereof.

    (3) During the period of restricted access specified pursuant to 
subsection (b)(1), the determination whether access to a Presidential 
record or reasonably segregable portion thereof shall be restricted 
shall be made by the Archivist, in his discretion, after consultation 
with the former President, and, during such period, such determinations 
shall not be subject to judicial review, except as provided in 
subsection (e) of this section. The Archivist shall establish procedures 
whereby any person denied access to a Presidential record because such 
record is restricted pursuant to a determination made under this 
paragraph, may file an administrative appeal of such determination. Such 
procedures shall provide for a written determination by the Archivist or 
his designee, within 30 working days after receipt of such an appeal, 
setting forth the basis for such determination.
    (c)(1) Subject to the limitations on access imposed pursuant to 
subsections (a) and (b), Presidential records shall be administered in 
accordance with section 552 of title 5, United States Code, except that 
paragraph (b)(5) of that section shall not be available for purposes of 
withholding any Presidential record, and for the purposes of such 
section such records shall be deemed to be records of the National 
Archives and Records Administration. Access to such records shall be 
granted on nondiscriminatory terms.
    (2) Nothing in this Act shall be construed to confirm, limit, or 
expand any constitutionally-based privilege which may be available to an 
incumbent or former President.
    (d) Upon the death or disability of a President or former President, 
any discretion or authority the President or former President may have 
had under this chapter shall be exercised by the Archivist unless 
otherwise previously provided by the President or former President in a 
written notice to the Archivist.
    (e) The United States District Court for the District of Columbia 
shall have jurisdiction over any action initiated by the former 
President asserting that a determination made by the Archivist violates 
the former President's rights or privileges.

(Added Pub. L. 95-591, Sec. 2(a), Nov. 4, 1978, 92 Stat. 2525; amended 
Pub. L. 98-497, title I, Sec. 107(b)(7), Oct. 19, 1984, 98 Stat. 2287.)

                       References in Text

    This Act, referred to in subsec. (c)(2), means Pub. L. 95-591, Nov. 
4, 1978, 92 Stat. 2523, known as the Presidential Records Act of 1978, 
which enacted this chapter, amended sections 2107 and 2108 of this 
title, and enacted provisions set out as notes under section 2201 of 
this title. For complete classification of this Act to the Code, see 
Short Title of 1978 Amendment note set out under section 101 of this 
title and Tables.


                               Amendments

    1984--Subsec. (c)(1). Pub. L. 98-497 substituted ``National Archives 
and Records Administration'' for ``National Archives and Records Service 
of the General Services Administration''.


                    Effective Date of 1984 Amendment

    Amendment by Pub. L. 98-497 effective Apr. 1, 1985, see section 301 
of Pub. L. 98-497, set out as a note under section 2102 of this title.

                Ex. Ord. No. 12667. Presidential Records

    Ex. Ord. No. 12667, Jan. 18, 1989, 54 F.R. 3403, provided:
    By virtue of the authority vested in me as President by the 
Constitution and 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 pursuant to the Presidential Records Act of 1978 [44 
U.S.C. 2201 et seq.], 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 of 1978 (Pub. L. No. 95-591, 92 Stat. 2523-27, as amended by Pub. L. 
No. 98-497, 98 Stat. 2287), codified at 44 U.S.C. 2201-2207.
    (d) ``NARA regulations'' refers to the NARA regulations implementing 
the Presidential Records Act. 53 Fed. Reg. 50404 (1988), codified at 36 
C.F.R. Part 1270.
    (e) ``Presidential records'' refers to those documentary materials 
maintained by NARA pursuant to the Presidential Records Act and the NARA 
regulations.
    (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 the 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, utilizing 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. If a shorter time period is required under 
the circumstances 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 
Federal 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 promptly notified of any such determination.
    (c) If after appropriate review and consultation under subsection 
(a) of this section, 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 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 Federal agencies 
as he 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. Judicial Review. This Order is intended only to improve the 
internal management of the Executive branch and is not intended to 
create any right or benefit, substantive or procedural, enforceable at 
law by a party against the United States, its agencies, its officers, or 
any person.
                                                          Ronald Reagan.

                  Section Referred to in Other Sections

    This section is referred to in sections 2205, 2206 of this title; 
title 22 section 4352.
