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Indiana Law Journal

Document Type

Article

Publication Date

2016

Publication Citation

91 Indiana Law Journal Supplement 24 (2016)

Abstract

In Cook v. National Archives and Records Administration , the court misapplied the Freedom of Information Act’s (FOIA) privacy exemption to hide presidential records, favoring secrecy over the public interest. The court set up a double standard by protecting George W. Bush and Richard Cheney’s library reference requests—even though, under laws created during the Bush administration, librarians would face possible prison sentences for refusing to turn over similar requests.

In 2013, a Gawker reporter named John Cook made a FOIA request to the National Archives and Records Administration (NARA) to get more information on “who’s digging through what in former President George W. Bush and Vice President Dick Cheney’s libraries.” Cook hoped to get a glimpse of NARA’s special access request policies and procedures because Bush, Cheney, and their representatives made thousands of secret requests to sift through presidential records before the public could see the papers. The requests were secret because NARA maintains presidential records pursuant to the Presidential Records Act (PRA), which limits public access to presidential archives through several statutory embargoes. During the embargo periods, former presidents and vice presidents, and their designated representatives, are the only people who can look through the collection. This special privilege is provided by the PRA and carried out by NARA archivists through the “special access request” process.

The Cook v. NARA court relies on Exemption, the FOIA exemption that protects records containing personal information, to make Bush and Cheney’s special access requests off limits to the public. The court determines that the former officials’ interest in privately researching for their memoirs outweighs the public’s interest in seeing NARA’s operations during secretive record embargo periods (which have historically been opportunities for special access recipients to destroy and exploit presidential records), denying FOIA’s transparency directives.

This case note suggests that the Second Circuit tipped the balance too far in favor of privacy in Cook v. NARA by mistakenly (1) treating Bush and Cheney like ordinary academic scholars, (2) ignoring the open-government, transparency purposes of both the Presidential Records Act and the Freedom of Information Act, and (3) determining that PRA embargo periods are to provide former officials with unfettered access to their records.

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