Executive Order 13233 - Lawsuit

Lawsuit

In November 2001, the National Security Archive, the American Historical Association and other plaintiffs filed a lawsuit in the D.C. District Court against the National Archives and Records Administration and the Archivist, claiming constitutional problems with the order, and pointing out that "access to materials may be delayed for an unlimited period of time after the expiration of the 12-year restriction period while a former president and the incumbent president ‘review’ materials proposed for release", because of § 3(b) of the order, which states

After receiving the records he requests, the former President shall review those records as expeditiously as possible, and for no longer than 90 days for requests that are not unduly burdensome. The Archivist shall not permit access to the records by a requester during this period of review or when requested by the former President to extend the time for review.

While most of the lawsuit was found to be unjusticiable at this time due to lack of ripeness, in October 2007 the Court held that "the Archivist’s reliance on § 3(b) of Executive Order 13,233 is arbitrary, capricious, an abuse of discretion, and not in accordance with law in violation of the Administrative Procedure Act" and enjoined "the Archivist from further relying on § 3(b) of Executive Order 13,233". The rest of the lawsuit was dismissed without prejudice.