44 U.S.C. § 2205 — Exceptions to restricted access

Page 109 TITLE 44—PUBLIC PRINTING AND DOCUMENTS § 2206 1 See References in Text note below. appropriate review and consultation under subsection (a) of this section, may jointly determine that invoca- tion of executive privilege is not justified. The Archi- vist shall be notified promptly of any such determina- tion. (c) If either the Attorney General or the Counsel to the President believes that the circumstances justify invocation of executive privilege, the issue shall be pre- sented to the President by the Counsel to the President and the Attorney General. (d) If the President decides to invoke executive privi- lege, the Counsel to the President shall notify the former President, the Archivist, and the Attorney Gen- eral in writing of the claim of privilege and the specific Presidential records to which it relates. After receiving such notice, the Archivist shall not disclose the privi- leged records unless directed to do so by an incumbent President or by a final court order. SEC. 4. Claim of Executive Privilege by Former President. (a) Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant At- torney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege. Any determination under section 3 of this order that executive privilege shall not be in- voked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege. (b) In making the determination referred to in sub- section (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order. The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, un- less a shorter time period is required in the cir- cumstances set forth in section 1270.44 of the NARA regulations. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative. SEC. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) authority granted by law to a department or agency, or the head thereof; or (ii) functions of the Director of the Office of Man- agement and Budget relating to budget, administra- tive, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appro- priations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. SEC. 6. Revocation. Executive Order 13233 of November 1, 2001, is revoked. BARACK OBAMA. § 2205. Exceptions to restricted access Notwithstanding any restrictions on access imposed pursuant to sections 2204 and 2208 of this title— (1) the Archivist and persons employed by the National Archives and Records Adminis- tration who are engaged in the performance of normal archival work shall be permitted ac- cess to Presidential records in the custody of the Archivist; (2) subject to any rights, defenses, or privi- leges which the United States or any agency or person may invoke, Presidential records shall be made available— (A) pursuant to subpoena or other judicial process issued by a court of competent juris- diction for the purposes of any civil or criminal investigation or proceeding; (B) to an incumbent President if such records contain information that is needed for the conduct of current business of the in- cumbent President’s office and that is not otherwise available; and (C) to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available; and (3) the Presidential records of a former President shall be available to such former President or the former President’s designated representative. (Added Pub. L. 95–591, § 2(a), Nov. 4, 1978, 92 Stat. 2527; amended Pub. L. 98–497, title I, § 107(b)(7), Oct. 19, 1984, 98 Stat. 2287; Pub. L. 113–187, §§ 2(a)(2)(B), 8(5), Nov. 26, 2014, 128 Stat. 2005, 2012.) Editorial Notes AMENDMENTS 2014—Pub. L. 113–187, § 2(a)(2)(B)(i), substituted ‘‘sec- tions 2204 and 2208 of this title’’ for ‘‘section 2204’’ in in- troductory provisions. Par. (2)(A). Pub. L. 113–187, § 2(a)(2)(B)(ii), substituted ‘‘subpoena’’ for ‘‘subpena’’. Par. (2)(B). Pub. L. 113–187, § 8(5)(A), substituted ‘‘the incumbent President’s’’ for ‘‘his’’. Par. (3). Pub. L. 113–187, § 8(5)(B), substituted ‘‘the former President’s’’ for ‘‘his’’. 1984—Par. (1). Pub. L. 98–497 substituted ‘‘National Archives and Records Administration’’ for ‘‘National Archives and Records Service of the General Services Administration’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–497 effective Apr. 1, 1985, see section 301 of Pub. L. 98–497, set out as a note under section 2102 of this title. EFFECTIVE DATE Section effective with respect to Presidential records created during a term of office of President beginning on or after Jan. 20, 1981, see section 3 of Pub. L. 95–591, set out as a note under section 2201 of this title. § 2206. Regulations The Archivist shall promulgate in accordance with section 553 of title 5, United States Code, regulations necessary to carry out the provi- sions of this chapter. Such regulations shall in- clude— (1) provisions for advance public notice and description of any Presidential records sched- uled for disposal pursuant to section 2203(f)(3); 1 (2) provisions for providing notice to the former President when materials to which ac-