Case 1:08-cv CKK Document 39-2 Filed 12/08/2008 Page 1 of 19 EXHIBIT 1

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1 Case 1:08-cv CKK Document 39-2 Filed 12/08/2008 Page 1 of 19 EXHIBIT 1

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14 Case 1:08-cv CKK Document Filed 12/08/ /16/2008 Page 14 2 of 719 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) CITIZENS FOR RESPONSIBILITY AND ) ETHICS IN WASHINGTON, et al. ) ) Plaintiffs, ) ) v. ) Civil Action No.: (CKK) ) THE HONORABLE RICHARD B. CHENEY, ) VICE PRESIDENT OF THE UNITED STATES ) OF AMERICA, et al., ) ) Defendants ) ) DECLARATION OF NANCY KEGAN SMITH I, Nancy Kegan Smith, hereby declare: 1. I am the Director of the Presidential Materials Staff in the Office of Presidential Libraries at the National Archives and Records Administration (NARA). My duties as Director of the Presidential Materials Staff include directing the staff that provides courtesy storage for the records and gifts of the incumbent President and Vice President; training new archival staff of the Presidential Record Act libraries; providing oversight and guidance on Presidential access issues; directing the declassification program for Presidential Library holdings; handling special access requests for Presidential and Vice Presidential records; and coordinating the White House part of Presidential moves. 2. I have been with NARA since August of Previously, I served as an archivist at the Johnson Library, ; Special Assistant to the head of Presidential

15 Case 1:08-cv CKK Document Filed 12/08/ /16/2008 Page 15 3 of 719 Libraries, ; Access Officer for Presidential Holdings in NARA s Office of General Counsel, ; and Director of the Presidential Materials Staff from September of 1998 until the present. I have over 30 years of experience in handling Presidential access issues and FOIA requests, appeals and litigation on behalf of NARA. I am familiar with the allegations in the present lawsuit, and make this declaration on the basis of my personal knowledge and of information I have received in the performance of my official duties. If called upon to do so I could testify competently as to the contents of this declaration. 3. Since 1981, NARA has offered and been providing courtesy storage for the Vice Presidential records that the incumbent Vice President and his staff create or receive under the Presidential Records Act (PRA), 44 U.S.C. 2207, until the records transfer at the end of the administration into the legal custody and control of the Archivist. Records on courtesy storage with NARA are in the physical possession of NARA until legal custody transfers to the Archivist, while the Vice President maintains legal custody over the records during his term(s). While the records are on courtesy storage, the Presidential Materials Staff provides reference service to the incumbent and returns the records back to the Vice President, if requested, on a one hour turn-around time, 24 hours a day basis. The records, gifts, and historical materials on courtesy storage are made available only to the incumbent Administration as requested for reference. Boxes of textual records in courtesy storage remain sealed while in NARA s physical possession. No archival processing takes place and only those designated by the Office of the Vice President are permitted to see the material. At the end of the Administration, all Vice Presidential records are transferred into NARA s legal custody under the PRA. NARA provides courtesy storage throughout the course of the Administration, which assists with the presidential 2

16 Case 1:08-cv CKK Document Filed 12/08/ /16/2008 Page 16 4 of 719 transition process, as it reduces the volume of records that need to be transferred from the Office of the Vice President during the final months of an administration. 4. NARA currently has legal custody over the Vice Presidential records from the vice presidencies of Vice President George H. W. Bush, Vice President Dan Quayle, and Vice President Albert Gore. At least two of these collections (those relating to the George H.W. Bush and Albert Gore Vice Presidencies), also include records that were created or received by those former Vice Presidents at their Vice Presidential Senate Offices. NARA s position is to treat these legislative records as Vice Presidential to be covered under the PRA, absent an express indication from the former Vice President or his representative that such records are considered to be personal in nature. We have not received any indication from those former Vice Presidents that their legislative records should be considered by NARA to be personal in nature and NARA accordingly treats them as PRA records. 5. Since 2001, NARA has routinely received records for courtesy storage from the Office of Vice President for Vice President Richard B. Cheney. These records have consisted of both textual Vice Presidential records from the incumbent Vice President, along with records in other non-textual media. NARA intends to work closely with the Office of Vice President to ensure that the remainder of the incumbent s Vice Presidential records are moved into NARA s physical custody by January 20, 2009, on which date NARA will also assume legal custody of these records as governed by the PRA. 6. NARA has been retaining, and will continue to retain and not dispose of, all Vice Presidential records -- whether executive or legislative as plaintiffs describe in their Amended Complaint -- that the Vice President or the Office of Vice President has physically transferred or will transfer to NARA. Accordingly, except for any recall request, as described in 3

17 08118/ FAX, m ~005t005 Case 1:08-cv CKK Document Filed 12/08/ /16/2008 Page 17 5 of 719 paragraph 3 of this declaration, Rom the Vice President for access to his records before January 20, 2009 (because he alone maintains legal custody and control over his records until 3"anuary 20, 2009), all records at i~sue in the Amended Complaint in NARA s physical possession will be retained and not disposed, 7, At the beginning of the Bush-Cheney Administration, NARA recornm~ded, as we have since 198 l wirh each prior Administration governed by the PRA, that the President and Vice P~esident seek disposal authority under section 22o3(c) of the Presidential Records Act for the vast amount of public mail (including mail received by fax and ), wlfich we call "bulk mail," that they and their spouses receive on a daily basis. These records are described as: "Certain categories of public mail to the Vice President, the spouse of the Vice President, and their staffs including anonymous correspondence, correspondence with an incomplete address, mail from prolific writers, and public opinion mail," and "Publications, brochures, clippings and other types of en loswes in public mail, when there is no immediate or historical importance to the mateflais." NAP.& has determined that these records in their ~tirety do not have sufficient "administrative, his!orical, informational, or evidentiary value" (44 U.S.C. 2203( )) to warrant pma,nanem preservation under the PRA, Before the bul~ mail records are disposed of, NARA reviews them to select and retain a smal! sample Of le~ers for use in the Presidential Library. A copy of the September 21, 2001, Archivist of the United States ~tten view~ on this disposal request from the Office of the Vice President under the PRA is attached at Tab A. I declare under penalty of perjury that the foregoing is mac and correct, Date: September 16, 2008 NANCY I~GAN ~MITH

18 Case 1:08-cv CKK Document Filed 12/08/ /16/2008 Page 18 6 of 719 Tab A

19 09/11/ :24 FAX ~003/003 Case 1:08-cv CKK Document Filed 12/08/ /16/2008 Page 19 7 of 719 SEP t Mr, David S. ~d,d~neton Counsel to the Vice President The White Houae Washin~on, DC Dear Mr, Addington: In accordance with the authority ~r~nted to me by ~e Presidential Records Act, S~on 2203(c) (2), I approve of dispos~ of th~ ~o categories oftex~al Vice Pr~sidenti~ bulk mail d~c~b~ ~ your letter of August 16, 2001, Those catego~s ~e: (1) Certmin categories of public mail to the Vice President, the spouse of the Vice Presidem, and their sta~s including anonymous correspondence, correspondence with an incomplete address, m~l from prolific writers, and public opinion mail, Samples, when appropriate, will be retained, (2) Publications, brochures, lippin6s and other types of enclosures in public mail, when there is no immediate or historical importance to the matm ials, As with the di~osal of lh esidential bulk mail, I r~ommend that representatives of the National Archives and Records Administration (NARA), in coordination wi~ the White House Offioe of Records Management0 review thes~ matc rials before disposal and rake samples when appropriate. Thes~ samples willbe refaced perm~ently. NARA will inform you ifwo id~mtify groups of materials that ~hould not be destroyed during sampling, I do not intend to take any ~ongressional action with regm d to this request as provided for by Section 2203(e) of the Presidential Records Act, I support your effort to continue the disposal of bulk marl, This practice has been very successful since it began in ".~.J, OHN W.,CARLIN JOHN W, CA.P.LIN Archivist of the United States Official: N Reading: N, INL, NLMS, NOC, NWIVI, NCON N:BFidler:jw 09/20101 Doc nam~rcheneybu.do~ file ~od :