Presidential-Records Order Partly Invalidated

A federal judge yesterday invalidated part of a 2001 executive order by President Bush that gives former presidents and vice presidents the right to review executive records before they are made public under the Freedom of Information Act.

The Bush order added layers of review to the process of releasing presidential records, giving sitting presidents the right to delay their release indefinitely while extending review authority to former presidents, vice presidents and their families. It also removed the previous 30-day window for former presidents to review documents before they are made available to the public.

The order aroused controversy among scholars and journalists, who saw the Bush move as an effort to keep presidential records secret long past the point when most FOIA exemptions expire. Their lawsuit challenged the action as a violation of the 1978 Presidential Records Act and an unjustified expansion of executive discretion.

Yesterday, U.S. District Court Judge Colleen Kollar-Kotelly invalidated the part of the order that blocks public access to the records while they are being reviewed by a former president.

Kollar-Kotelly ruled that the provision violates the Presidential Records Act by eliminating the discretion of the archivist of the United States, who is responsible for custody of the records, to release documents. Bush set 90 days as the minimum length of time for the review, and Kollar-Kotelly noted that the time frame could be "presumably indefinitely" extended upon a former president's request.

The judge dismissed other claims in the lawsuit, ruling that they were not ripe for adjudication.

White House spokesman Tony Fratto said the administration was reviewing the judge's opinion and had no immediate reaction.

One of the groups that brought the lawsuit, the National Security Archive, suggested in a statement posted on its Web site yesterday that there was a need for legislation rescinding the executive order, as Congress is considering.

"The court is enforcing procedural standards, but has avoided the hard questions about the role former presidents, former vice presidents, and their heirs can play when it comes to disclosure of presidential records," said Meredith Fuchs, the group's general counsel. "Unless the Executive Order is reversed or withdrawn, decisions about the release of records from this administration may ultimately be made by the Bush daughters."

The National Security Archive and other groups have complained that the Bush order has delayed the release of thousands of pages sought by scholars from presidential libraries.

Bush issued the order after holding up the release of 68,000 pages from Ronald Reagan's library, as the 12-year waiting period for their FOIA exemption was about to expire. The wait for documents from the Reagan library has since soared from 18 months to more than six years, the National Security Archive said.