Judge dismisses NARA suit

A federal judge's decision this week left unclear whether an executive order trumps a congressional statute in matters involving access to presidential records.

Judge Colleen Kollar-Kotelly, of the U.S. District Court for the District of Columbia, dismissed a lawsuit brought by historians against the National Archives and Records Administration. The historians alleged that NARA had blocked access to 68,000 pages of former President Ronald Reagan's records.

The district judge dismissed the case March 28 as moot because NARA had released the sought-after records before the conclusion of the lawsuit. But as a consequence, Kollar-Kotelly failed to rule on what she wrote was the principle of the case: Did President George W. Bush overstep the limitations of his power when he issued an executive order altering the terms of the Presidential Records Act of 1978?

The American Historical Association, which filed the lawsuit, had asked the court to overrule the executive order that Bush issued on Nov. 1, 2001, as "an impermissible exercise of executive power." Bush's executive order put new restrictions on records to which public access had been guaranteed under the Presidential Records Act.

Under the statute, restrictions to many presidential records expire 12 years after a president leaves office. But Bush's order asserts a constitutionally based privilege to former presidential and vice presidential records that does not expire. Access to those records can be gained only at the discretion of the sitting president in consultation with the former president, if the former president is still living.

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