January 23, 2009
By Robert B. Townsend
President Barack Obama articulated a significant policy shift regarding federal records in his first week in office, signing an executive order on presidential records and issuing a presidential memorandum on the Freedom of Information Act (FOIA). But the news of the week was a bit mixed, as historians and ethics groups lost a lawsuit to preserve records from outgoing vice president Richard Cheney.
The executive order on presidential records overturns an order from the Bush administration (E.O. 13233) that raised significant barriers to access to those records. This executive order had gained particular attention during the presidential primaries, as members of the Clinton administration seemed to be invoking the order to limit access to records from Hillary Clinton’s office (See the AHA Today post, “Clinton Librarians Accused of Stonewalling Record Requests“). Under the new executive order signed on Wednesday, presidents could only limit access by invoking executive privilege. The order lays out a clear process for reviewing all such claims.
In addition to making presidential records more accessible, the White House also issued a presidential memorandum laying out similar policies for all federal records. Historians who work on the recent history of the United States will be particularly pleased by the memorandum on FOIA, which states that “in the face of doubt, openness prevails.” The memorandum goes further, calling on agencies to be proactive and “use modern technology to inform citizens about what is known and done by their government.”
The news last week was not all good for historians, however. On Monday, Judge Colleen Kollar Kotelly rejected the concerns of ethics watchdogs and historians, who filed a lawsuit charging that the office of the vice president Richard Cheney was failing to comply with the Presidential Records Act (See past AHA Today post, “AHA Part of Lawsuit to Preserve the Records of Vice President Cheney“). Although Judge Kotelly had generally agreed with the plaintiffs in a number of rulings along the way, in the end, she accepted assurances from staff in the vice president’s office and the archives that all records would be preserved. She conceded that “This Court is bound to apply the law only as it is written, not how the Court or any party believes it ought to be.” The lawsuit was initially filed by Citizens for Responsibility and Ethics in Washington, together with the AHA and a number of other historical organizations and historians.