Historians Lose in Court to Obtain Select Reagan-Era Documents

On 24 September 2004, Judge Kollar-Kotelly of the United States District Court for the District of Columbia issued a ruling on a claim made by historians and archivists in the case “American Historical Association, et al v. National Archives and Records Administration.”

The case focuses on a claim for access to 74 pages (9 documents) of presidential-related “confidential” (P-5 exemption) materials dating back to the administration of Ronald Reagan that President George W. Bush claimed a privilege on and refused to release. In her ruling the judge held that the law required that the plaintiffs had to demonstrate a “special need” to overcome the claim of privilege, and that in spite of the passage of time the special need still has to be asserted; since no such claim was made, summary judgment was granted to the government.

Regarding another count still pending in the original suit made by the historical/archival community -- that the Executive Order 13233 signed by President George W. Bush on 1 November 2001 which purports to “further implement” the Presidential Records Act of 1978 contains illegal provisions -- the judge granted the plaintiffs motion to “reconsider” her earlier order from March 2004 in which she dismissed the case on “ripeness” grounds. Judge Kollar-Kotelly now has directed that the plaintiffs and the government prepare a new round of stand-alone briefings. Public Citizen Litigation Group is preparing the brief that will be submitted on behalf of the plaintiff organizations by the 31 October 2006, the court filing deadline.

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