Society of American Archivists article "NARA’s Work to Release Records Related to Judge Brett M. Kavanaugh"

November 2018

When the President nominated Judge Brett M. Kavanaugh to be a Supreme Court Justice in July, staff at the National Archives and Records Administration (NARA) knew they had a big job ahead of them.

Each time a candidate is nominated to the Supreme Court, NARA staff immediately begin the task of reviewing and releasing records related to that nominee. That process is governed by several laws, including the Presidential Records Act (PRA), the Federal Records Act, and the Freedom of Information Act (FOIA). All of the records, electronic and paper, must be reviewed by archival staff before being released by NARA.

When Chief Justice John Roberts was nominated in 2005, the National Archives processed and released roughly 70,000 pages. For Justice Elena Kagan’s nomination in 2010, the number of processed and released pages reached 170,000.

The volume of records in the George W. Bush Presidential and in the National Archives relating to Judge Kavanaugh reaches the equivalent of several million pages. Those records were created when Judge Kavanaugh served in the White House Counsel’s Office and the White House Office of the Staff Secretary during the George W. Bush administration and also as an Associate Independent Counsel in the Office of Independent Counsel Kenneth W. Starr during the William J. Clinton administration.

The PRA requires that we give first priority to records requested by a chairman of a congressional committee. Some records might be withheld or released in redacted form for various reasons, e.g., to protect confidential communications within the White House, to protect the personal privacy of living individuals, to protect the identities of confidential sources, and to preserve the secrecy of grand jury proceedings. The PRA representative of former President George W. Bush, who has an independent right of access to Presidential records of his administration, is also engaged in a separate process to review and provide records to the Senate Judiciary Committee.

In our efforts toward transparency, we have created a web page summarizing the Judge Kavanaugh records. Presidential records are being reviewed by NARA archivists and will be released on NARA’s George W. Bush Presidential Library’s website, along with previously released records. NARA has released the records from the Office of Independent Counsel Starr on the National Archives website. Additionally, correspondence between NARA and the Senate Judiciary Committee related to the overall process can be found in NARA’s FOIA Electronic Reading Room. I encourage anyone with a deep interest in how this process works to read these exchanges for the latest and most accurate information.

I remain deeply committed to the efforts of archives in providing transparency as our best hope in combating low public trust in government. Transparency also supports active public engagement with government, and NARA is seeing high levels of engagement and interest in what we do. After all, archives and open government records are one of the pillars of democracy. When I became Archivist of the United States, I took an oath of office just as every Federal employee does. I swore to support and defend the Constitution of the United States and the rule of law. That is what I have been doing, that is what I am doing, and that is what I will continue to do as long as I am the Archivist of the United States.