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Lawsuit for access to Reagan papers dismissed

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    News Media Update         WASHINGTON, D.C.         Freedom of Information    

Lawsuit for access to Reagan papers dismissed

  • Due to a lack of any current injury suffered by a group of open-government advocates, a federal judge in Washington, D.C., dismissed their lawsuit for release of former President Ronald Reagan’s executive papers.

April 9, 2004 — The U.S. District Court in Washington, D.C., dismissed a lawsuit late last month for the release of former President Ronald Reagan’s papers consistent with the Presidential Records Act. The lawsuit was brought by a group of open-government advocates, including historians’ groups and The Reporters Committee for Freedom of the Press.

Judge Colleen Kollar-Kotelly ruled that because the plaintiffs are not currently suffering any injury, they do not have the legal standing to continue their lawsuit.

Historically, a former president or his family decided when executive records were to be made public. But in 1978 Congress passed the Presidential Records Act in response to former President Richard Nixon’s attempt to withhold tapes and files. The act requires presidential records to be reviewed by the National Archives for privileged information and released to the public 12 years after the president leaves office, subject to any constitutional privileges asserted by the former president.

Reagan is the first president subject to the act. His records should have been available in January 2001.

In February 2001, the National Archives notified Reagan and President George W. Bush, whose father served as vice president under Reagan for eight years, that it intended to release the records.

Citing a little-known executive order signed by Reagan in 1989 that gave the sitting president the authority to assert privilege over a former president’s papers, White House Counsel Alberto Gonzalez instructed the National Archives to extend the release date so the Bush administration could “review the many constitutional and legal questions raised by potential release of sensitive and confidential presidential records.”

The White House subsequently extended the release date two more times.

On Nov. 1, 2001, President Bush issued Executive Order 13,233, which allows the former president, his survivors if he is deceased, or the sitting president to assert a constitutional privilege over the records. The order applies the same standards to vice presidential records.

On November 28, 2001, a coalition of open-government advocates filed a lawsuit against the National Archives for the release of 68,000 pages of Reagan’s records. They argued that the executive order violates the Presidential Records Act by allowing records to be withheld past the 12 years mandated by the act.

Since the lawsuit was filed, many of the records have been released, while according to the court, “new records have come to light.” Currently, only 74 pages of documents are being withheld by Reagan and Bush under constitutional privilege. Those 74 pages were not included in the original 68,000 requested.

In dismissing the case, on March 28, Judge Kollar-Kotelly held that because all of the requested records had either been released or withheld under a constitutional privilege, the plaintiffs were no longer being injured and had no grounds to continue the lawsuit. She further found that while the past withholding of records was an injury to the plaintiffs, it was “simply not redressable by the relief they seek,” and that injury from future withholding under the order is “simply too hypothetical.”

According to attorney Scott Nelson of the Public Citizen Litigation Group, the open government advocates will request that Kollar-Kotelly reconsider their claims.

(American Historical Association v. National Archives and Records Association; Counsel: Scott Nelson, Public Citizen Litigation Group, Washington, D.C.) GP

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