President Clinton's March 24, 1994 Memorandum Titled "Access to NSC Records"

Two weeks ago, President Clinton reversed the policy of all nine previous Presidents who have chaired the National Security Council and declared that the NSC is not an agency of the federal government, subject to the Freedom of Information Act (FOIA) and other records laws, but purely presidential in its functions. The President's memo and the resulting NSC staff memo (both enclosed) then ordered a system of voluntary "access by the public" to replace the existing court-enforceable FOIA process -- a "trust-me" FOIA.

Apparently, national security adviser Anthony Lake (our former board member) believes that our White House electronic mail lawsuit (Armstrong v. Executive Office of the President has forced an all-or-nothing decision: Either all the NSC's records are agency records and therefore subject to the FOIA, or they are all Presidential and not covered by FOIA until long after the President leaves office. The reality is somewhere in between, and reasonable people can disagree about exactly where. But the absolutist position is both false and self-defeating -- a choice to lie about the NSC's actual dual role rather than face up to the tough decisions necessary to draw a line between the Presidential and the agency records at the NSC.

There's something about the White House electronic mail that seems to bring out the worst tendencies among government officials, whoever's in the White House:

Now the Clinton Administration has made its contribution to White House E-mail folklore, by defining a whole agency out of existence. I will leave it to historians to describe the many agency functions performed by the NSC ever since the National Security Act of 1947 set it up -- overseeing the CIA, participating in diplomatic missions, coordinating interagency groups, etc. I can only speculate that a paranoia based on ignorance of the FOIA underlies the White House decision. As a frequent FOIA requester, I can testify from personal experience and frustration to the many restrictions built into the FOIA which prevent the release of information. I also find it hard to believe that a court would refuse the NSC if it asked for reasonable flexibility as to where to draw the line between its Presidential and its agency records; in fact, the courts would likely provide more flexibility than I would like, sweeping into the Presidential category much that I consider agency material. But never all of it. Stay tuned for the court ruling on this issue this summer.

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