U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

39–010 

" ! SENATE 113TH CONGRESS

2d Session 

REPORT

2014

113–218 

Calendar No. 487 

PRESIDENTIAL AND FEDERAL RECORDS ACT 

AMENDMENTS OF 2014 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

H.R. 1233 

TO AMEND CHAPTER 22 OF TITLE 44, UNITED STATES CODE, POPULARLY KNOWN AS THE PRESIDENTIAL RECORDS ACT, TO ESTABLISH PROCEDURES FOR THE CONSIDERATION OF CLAIMS OF 

CONSTITUTIONALLY BASED PRIVILEGE AGAINST DISCLOSURE 

OF PRESIDENTIAL RECORDS, AND FOR OTHER PURPOSES 

JULY 23, 2014.—Ordered to be printed 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

THOMAS R. CARPER, Delaware, Chairman 

CARL LEVIN, Michigan 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

MARK BEGICH, Alaska 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

RON JOHNSON, Wisconsin 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

MICHAEL B. ENZI, Wyoming 

KELLY AYOTTE, New Hampshire 

GABRIELLE A. BATKIN, Staff Director 

JOHN P. KILVINGTON, Deputy Staff Director 

MARY BETH SCHULTZ, Chief Counsel 

JONATHAN M. KRADEN, Senior Counsel 

DEIRDRE G. ARMSTRONG, Professional Staff Member 

KEITH B. ASHDOWN, Minority Staff Director 

CHRISTOPHER J. BARKLEY, Minority Deputy Staff Director 

ANDREW C. DOCKHAM, Minority Chief Counsel 

PATRICK J. BAILEY, Minority Counsel 

LAURA W. KILBRIDE, Chief Clerk 


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(III) 

CONTENTS 

Page 

I. Purpose and Summary .................................................................................. 1 

II. Background and Need for the Legislation ................................................... 2 

III. Legislative History ......................................................................................... 5 

IV. Section-by-Section Analysis of the Bill, as Reported .................................. 6 

V. Evaluation of Regulatory Impact .................................................................. 9 

VI. Congressional Budget Office Cost Estimate ................................................ 10 

VII. Changes in Existing Law Made by the Bill, as Reported ........................... 10 


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1Section 2201(2) of the Presidential Records Act of 1978 defines Presidential records as ‘‘documentary materials . . . created or received by the President, his immediate staff, or a unit or 

individual of the Executive Office of the President whose function is to advise and assist the 

President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. 

Such term (A) includes any documentary materials relating to the political activities of the 

President or members of his staff, but only if such activities relate to or have a direct effect 

upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the 

President; but (B) does not include any documentary materials that are (i) official records of an 

agency . . . (ii) personal records; (iii) stocks of publications and stationery; or (iv) extra copies 

of documents produced only for convenience of reference, when such copies are clearly so identified.’’ 44 U.S.C. 2201(2). 

Calendar No. 487 

113TH CONGRESS REPORT " ! SENATE 2d Session 113–218 

TO AMEND CHAPTER 22 OF TITLE 44, UNITED STATES CODE, POPULARLY 

KNOWN AS THE PRESIDENTIAL RECORDS ACT, TO ESTABLISH PROCEDURES FOR THE CONSIDERATION OF CLAIMS OF CONSTITUTIONALLY 

BASED PRIVILEGE AGAINST DISCLOSURE OF PRESIDENTIAL RECORDS, 

AND FOR OTHER PURPOSES 

JULY 23, 2014.—Ordered to be printed 

Mr. CARPER, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

[To accompany H.R. 1233] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (H.R. 1233) to amend chapter 22 of 

title 44, United States Code, popularly known as the Presidential 

Records Act, to establish procedures for the consideration of claims 

of constitutionally based privilege against disclosure of Presidential 

records, and for other purposes, having considered the same, reports favorably thereon, with amendments, and recommends that 

the bill, as amended, do pass. 

I. PURPOSE AND SUMMARY

H.R. 1233, the Presidential and Federal Records Act Amendments of 2014, amends the Presidential Records Act of 1978 to establish a process by which incumbent and former Presidents can 

review Presidential records 1 to determine whether to assert that 

executive privilege limits the release of those records. The bill also 

makes a number of reforms to the Federal Records Act to modVerDate Mar 15 2010 02:20 Jul 29, 2014 Jkt 039010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\SR218.XXX SR218

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2 44 U.S.C. 2203(f)(1). 

3 Id. 

4 44 U.S.C. 2204(c)(2). 

5 Although signed into law by President Carter, the PRA only applied to the records of Presidents who took office starting on January 20, 1981 or later. 6 Exec. Order No. 12667, 54 Fed. Reg. 3,403 (Jan. 18, 1989). 

ernize federal recordkeeping statutes and additional changes to improve the federal government’s ability to capture and archive electronic records. 

II. BACKGROUND AND NEED FOR THE LEGISLATION

Amendments to the Presidential Records Act 

Congress passed the Presidential Records Act of 1978 (‘‘PRA’’ or 

‘‘the Act’’) in the wake of the Watergate scandal and the resignation of President Nixon. Concerned about the possible destruction 

and loss of President Nixon’s records, Congress gave the Archivist 

of the United States custody of former Presidents’ records.2 The Act 

establishes a presumption that most Presidential records should ultimately be released to the public by imposing on the Archivist ‘‘an 

affirmative duty to make such records available to the public as 

rapidly and completely as possible consistent with the provisions of 

this Act.’’ 3

Under the Act, however, a President has discretion to restrict access to his or her records for up to twelve years after leaving office. 

Following that period, records are to be released in accordance with 

the standards contained in the Freedom of Information Act 

(‘‘FOIA’’), with two key exceptions. First, FOIA’s ‘‘deliberative process’’ exemption, pertaining to inter-agency or intra-agency memorandums or letters (5 U.S.C 552(b)(5)), does not apply. Second, the 

Act implicitly allows a President to argue executive privilege 

shields certain records from public release, noting ‘‘[n]othing in this 

Act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or 

former President.’’ 4

Although the PRA provided guidelines for the management, custody, and access to Presidential records, it did not establish any 

procedures for the consideration of Presidential privilege claims. As 

a result, sitting Presidents have taken the matter into their own 

hands and issued Executive Orders purporting to govern the issue. 

President Ronald Reagan, the first President covered by the Act’s 

mandates,5 issued the first such order in the final days of his administration. Executive Order 12667 required the Archivist to give 

the incumbent President and the former President whose White 

House created the record in question thirty calendar days advance 

notice before releasing Presidential records.6 The order authorized 

the Archivist to release the records at the end of that period unless 

the incumbent or former President claimed executive privilege, or 

unless the incumbent President instructed the Archivist to extend 

the period indefinitely. If the incumbent President decided to invoke executive privilege, the Archivist would withhold the records 

unless directed to release them by a final court order. If the incumbent President decided not to support a former President’s claim of 

privilege, the Archivist would decide whether or not to honor the 

claim. 


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7 3 C.F.R. 2001 Comp., pp. 815–819. 

8See http://www.gpo.gov/fdsys/pkg/CFR-2010-title3-vol1/pdf/CFR-2010-title3-vol1-eo13489 .pdf 

Around the same time that President Reagan issued Executive 

Order 12667, he also exercised his right under the PRA to restrict 

access to some of his records for 12 years. This restriction period 

expired in January 2001. 

In February 2001, the Archivist provided the 30–day notice required by President Reagan’s Executive Order of the Archivist’s intent to release nearly 70,000 pages of President Reagan’s records. 

In March, June, and August of 2001, counsel to then President 

George W. Bush requested that the Archivist extend the time for 

claiming executive privilege. The third extension request in August 

did not provide a specific deadline for compliance. 

In November 2001, President George W. Bush issued Executive 

Order 13233, the ‘‘Further Implementation of the Presidential 

Records Act.’’ 7 The order superseded President Reagan’s Executive 

Order on the PRA and gave current and former Presidents (as well 

as Vice-Presidents) broad authority to withhold Presidential 

records or delay their release indefinitely. 

For example, the Bush Executive Order allowed a former President to extend the document review period indefinitely (something 

the Reagan order authorized only sitting Presidents to do) and also 

provided an unlimited review period for the current President. In 

addition, the order greatly expanded the number of people who 

could assert executive privilege by allowing former Presidents to 

designate individuals to raise such claims after the former President’s death and by providing a former Vice-President the authority to assert executive privilege claims over their records. 

The procedure established under the Bush Executive Order also 

could have been used to undermine the PRA’s presumption that 

most Presidential records should ultimately be released. Unlike the 

Reagan order, which authorized the release of records on a schedule unless a President affirmatively extended the schedule or 

claimed privilege, the Bush order purported to prohibit the release 

of any records until after both the former and current President affirmatively notified the Archivist. Therefore, if either the current or 

former President simply did not respond to the Archivist, the 

records would not be released. Furthermore, the Bush order required the Archivist to honor a former President’s claim of executive privilege and withhold the records, even if the incumbent 

President disagreed with the former President’s claim. 

On January 21, 2009, the day after his inauguration, President 

Barack Obama issued Executive Order 13489.8 The Obama order 

revoked the Bush order and established a process for handling executive privilege claims similar to the one articulated in President 

Reagan’s 1989 Executive Order. 

It has become evident to Congress that the PRA is not sufficiently clear with respect to its disclosure mandates. Without further Congressional action each successive President likely will 

issue his or her own executive order interpreting the original PRA. 

This would make the public’s access to Presidential records contingent upon the will of the executive—the avoidance of which was 

the goal of the original PRA. 


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9 Nixon v. Administrator of General Services, et al., 433 U.S. 425, 448 (1977). 10See National Archives Act, P.L. 73–432, 48 Stat. 1122 (1934). 

H.R. 1233 would end the uncertainty associated with the handling of executive privilege claims over Presidential records by legislatively establishing procedures to ensure the timely release of 

such records. 

First, H.R. 1233 requires the Archivist to give the former and incumbent Presidents notice that the Archivist intends to release a 

former President’s records. The bill entitles the Presidents to a period of 60 days—extendable for an additional 30 days upon request—to object to the records’ release. This gives a former and incumbent President time to review the records and decide whether 

to claim privilege. If neither President objects, the Archivist shall 

release the records to the public. 

Second, H.R. 1233 establishes different procedures for addressing 

privilege claims depending on whether the claimant is the current 

or a former President. This two-track approach reflects the Supreme Court’s assessment that although former Presidents may retain some level of privilege over their documents after vacating the 

White House, such a claim ‘‘carries much less weight than a claim 

asserted by the incumbent himself.’’ 9 Accordingly, under the bill, 

if an incumbent President claims privilege over a former President’s records, the Archivist must withhold such records, and the 

requester of the records then bears the burden of challenging the 

incumbent President’s claim of executive privilege in court. In comparison, if the incumbent President declines to support a former 

President’s privilege claim, the Archivist will delay releasing the 

records for a short period of time in order to give the former President time to obtain a court order to enforce his or her privilege 

claim. Absent a court order to the contrary, the Archivist will release the records. This is the same approach followed in President 

Reagan’s Executive Order on the PRA. 

Third, H.R. 1233 clarifies that the decision to assert a claim of 

a constitutionally based privilege against the disclosure of a Presidential record must be made personally by a former President or 

the incumbent President. 

Finally, H.R. 1233 would ensure that all Presidential records, 

even those sent from a personal electronic messaging account, are 

properly preserved and maintained. 

Amendments to the Federal Records Act 

H.R. 1233 also would amend several sections of the Federal 

Records Act, a statute originally enacted over 60 years ago. Congress first addressed federal recordkeeping in the 1930s, when the 

combination of growing public concern over poor agency recordkeeping practices and an expanding federal government necessitated recordkeeping solutions for a larger volume of records. In 

1934, Congress established the National Archives and the position 

of Archivist of the United States as the primary, central agent of 

records preservation for the federal government.10

In 1950, Congress followed up the establishment of the National 

Archives with the Federal Records Act (‘‘FRA’’), which established 

basic records management responsibilities for federal agencies and 

set standards for how records were to be maintained, used, 


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11See 44 U.S.C. 3301, et seq. 12Presidential Records Act Amendments of 2009, H.R. 35, 111th Cong. (2009). See also S. Rep. 

No. 111–21 (2010). 

archived and ultimately disposed.11 Agencies were to internally 

manage and store most of their own records, while the National Archives would filter and preserve historical records that were to be 

ultimately transferred to the National Archives for posterity. 

Congress has enacted amendments to the FRA over the years, 

but federal recordkeeping laws are still focused on the media or 

physical characteristics of how a record is preserved (e.g. books, papers, maps, photographs, etc.). H.R. 1233 would make a number of 

important improvements to the FRA, including updating the definition of what constitutes a ‘record’ to shift the emphasis away from 

the physical media used to store information to the actual information being stored, regardless of form or characteristic. The bill also 

gives the National Archives and Records Administration (‘‘NARA’’) 

the authority to determine whether information is a ‘record’, thus 

giving NARA the ability to issue regulations governing how agencies preserve, maintain, and handle the ever-increasing amount of 

electronic communications. 

H.R. 1233 would also allow agencies to transfer documents to 

NARA for processing in advance of the statutorily required date, 

authorize agencies to use digital reproductions when they are required to indefinitely maintain copies of documents, and require 

the Archivist to prescribe internal procedures to prevent the unauthorized removal or destruction of classified records from NARA facilities. 

Finally, like the amendments to the PRA, the amendments to the 

FRA also include language that would provide that an employee of 

an executive agency may not create or send a record from a nonofficial electronic messaging account without ensuring such record 

was submitted to an official electronic messaging account. 

III. LEGISLATIVE HISTORY

H.R. 35, the Presidential Records Act Amendments of 2009, was 

introduced on January 6, 2009, by Representatives Edolphus 

Towns, Dan Burton, William Lacy Clay, Darrell Issa, Brad Sherman, and Henry Waxman. On January 7, 2009, H.R. 35 was agreed 

to in the House of Representatives by a vote of 359 to 58. On April 

1, 2009, with Senators Lieberman, Akaka, Carper, Pryor, Tester, 

Burris, Bennet, Collins, Coburn, and Voinovich present, by a voice 

vote, H.R. 35 was ordered reported favorably out of the Committee 

with an amendment in the nature of a substitute,12 but the bill 

was never enacted into law. 

H.R. 1233 was introduced on March 18, 2013, by Representative 

Elijah E. Cummings (D-MD). H.R. 1233 includes language to update and modernize the Federal Records Act and the changes to 

the Presidential Records Act that were included in H.R. 35, as previously passed out of this Committee. On January 14, 2014, H.R. 

1233 was agreed to in the House of Representatives by a vote of 

420 to 0. The bill was received in the Senate on January 15, 2014 

and referred to the Homeland Security and Governmental Affairs 

Committee. 


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The Committee considered the bill at a business meeting on May 

21, 2014. Senators Carper and Coburn offered one amendment to 

the bill which clarified that a President, Vice President or their 

staff should ensure that all Presidential records, even those sent 

from a personal electronic messaging account, are properly preserved and maintained in an official electronic messaging account. 

The amendment also extended the deadlines for ensuring Presidential and federal records are submitted to an official electronic 

messaging account from five days in the original bill to 20 days. 

The Committee approved the amendment en bloc. 

The committee ordered the bill, as amended, reported favorably 

en bloc by voice vote on May 21, 2014. Senators Carper, Pryor, 

Landrieu, McCaskill, Tester, Begich, Coburn, Johnson, Portman, 

and Enzi were present for the vote on the amendment and the bill. 

IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short title; Table of contents 

Section 1 establishes the bill’s short title as the ‘‘Presidential and 

Federal Records Act Amendments of 2014’’ and provides the bill’s 

table of contents. 

Section 2. Presidential records 

Subsection 2(a)(1) adds a new section 2208 to chapter 22 of title 

44, United States Code, establishing a process for a former or incumbent President to make a claim of executive privilege over 

records of that former President yet to be released to the public. 

New subsection 2208(a)(1) provides that, when the Archivist of 

the United States decides to make Presidential records publicly 

available, the Archivist will promptly give advance notice to the 

former President during whose term the record was created and 

the incumbent President. The Archivist will also make the notice 

available to the public. 

New subsection 2208(a)(2) provides that the notice will be in 

writing and contain pertinent information as determined by the Archivist. 

New subsection 2208(a)(3)(A) provides that 60 business days 

after providing notice under subsection (a)(1), the Archivist shall 

make the noticed records available to the public unless the Archivist receives a claim of constitutional privilege from a former or incumbent President. The subsection allows for two exceptions to the 

60-day deadline. First, subparagraph (a)(3)(B) authorizes a former 

or incumbent President to extend the deadline up to 30 additional 

working days by filing a statement with the Archivist that the additional time is needed for adequate review of the records. Second, 

under subparagraph (a)(3)(C) a deadline for review cannot expire 

before July 20th of the year that an incumbent President first 

takes office. 

New subsection 2208(b) requires the former or incumbent President to personally assert a privilege claim and notify the Archivist, 

the House Committee on Oversight and Government Reform, and 

the Senate Committee on Homeland Security and Governmental 

Affairs of the privilege claim on the day it is asserted. 

New subsection 2208(c) establishes the process through which a 

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ner in which the Archivist handles claims of privilege by a former 

President. 

New subsection 2208(c)(1) provides that if the former President 

asserts a privilege claim, the Archivist shall consult with the incumbent President to determine whether the incumbent President 

upholds the privilege claim of the former President. 

Under new subsection 2208(c)(2)(A), the Archivist must inform 

the former President and the public of the incumbent President’s 

decision on the former President’s claim of privilege within 30 days 

after having first received the claim of privilege. 

If the incumbent President upholds the former President’s privilege claim, new subsection 2208(c)(2)(B) prohibits the Archivist 

from releasing the records unless the incumbent President withdraws his or her decision to uphold the former President’s claim or 

the Archivist is otherwise directed by a final and non-appealable 

court order. 

If the incumbent President decides not to uphold the former 

President’s claim of privilege (or fails to make a decision within the 

applicable time period), new subsection 2208(c)(2)(C) requires the 

Archivist to release the applicable records 90 days after having 

first received notification of the former President’s claim. The gap 

in time between the incumbent President’s decision on whether to 

uphold the former President’s privilege claim and the release of the 

records is designed to provide a former President the opportunity 

to argue his or her privilege claim in court. However, under H.R. 

1233, the Archivist will ultimately release records unless otherwise 

directed by a court order in an action initiated by the former President. 

New subsection 2208(d)(1) provides that if the incumbent President asserts his or her own privilege claim over a former President’s records, the Archivist shall not release the records unless the 

incumbent President withdraws his or her privilege claim or the 

Archivist is otherwise directed by a final and non-appealable court 

order. Subsection (d)(2) provides that subsection (d) does not apply 

to records required to be made available in connection with judicial 

or congressional proceedings. 

New subsection 2208(e) requires the Archivist to adjust applicable time periods to comply with the return date of any congressional subpoena, judicial subpoena, or judicial process. 

Subsection (b) makes technical corrections to modernize a number of definitions contained in 44 U.S.C. Sec. 2201. 

Subsection (c) modifies 44 U.S.C. Sec. 2203 to give Presidential 

administrations the option to, in effect, allow pre-accession of physical and electronic records. 

Subsection (d) amends 44 U.S.C. Sec. 2204 to prevent the Archivist from making any original Presidential records available to individuals claiming access to the records as a designated representative of a President if that individual has been convicted of a crime 

related to the review, retention, removal, or destruction of records 

of the Archives. 

Subsection (e) adds a new section 2209 to chapter 22 of title 44, 

United States Code, which provides that a President, Vice President or their staff should ensure that all Presidential records, even 

those sent from a personal electronic messaging account, are properly preserved and maintained in an official electronic messaging 


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account. In cases of intentional violation of this requirement, the 

section authorizes disciplinary action as determined by the appropriate supervisor, in accordance with subchapter I, II, or V of chapter 75 of title 5, U.S. Code. 

Section 3. National Archives and Records Administration (NARA) 

Subsection (a) amends 44 U.S.C. Sec. 2107 to outline the federal 

agency option of ‘pre-accessioning,’ or the transfer of agency documents to NARA for processing and release in advance of the statutorily required date for doing so. 

Subsection (b) amends 44 U.S.C. Sec. 2111 to clarify that NARA 

may accept for deposit ‘recorded information’ generally, rather than 

the more limited types of information (e.g. motion-picture films, 

still pictures, and sound recordings) that are listed under the current statutory language. 

Subsection (c) amends provisions in 44 U.S.C. Sec. 2114 to modernize terminology addressing the audio and visual records that 

NARA is likely to receive for deposit. 

Subsection (d) amends 44 U.S.C. Sec. 2116 to include digital reproductions among the categories of reproductions that federal 

agencies may keep when they are statutorily required to maintain 

copies of documents indefinitely. 

Section 4. Records management by Federal agencies 

Section 4 amends 44 U.S.C. Sec. 3106 to expand the types of unlawful forms of destruction to include actions that are specific to 

electronic records, such as ‘corruption,’ ‘deletion,’ and ‘erasure,’ that 

may not be covered under the current statutory language. 

Section 5. Disposal of records 

Subsection (a) amends 44 U.S.C. 3301 to update the definition of 

‘records’ to shift the emphasis to the information being stored in a 

given record, rather than any specific media used to store information and gives NARA the authority to determine what constitutes 

a ‘record’ as that term is applied to federal agencies. This, in effect, 

gives NARA the ability to issue binding regulations governing 

agencies’ record preservation, maintenance, and transfer requirements. 

Subsections (b), (c), (e) amend 44 U.S.C. Sec. 3302(3), 3303(1), 

and 3312, respectively, to add digitization language to provisions 

dealing with the scheduled disposal and evidentiary validity of federal records. 

Subsection (d) amends 44 U.S.C. Sec. 3303a(c) to update the language regarding the respective House and Senate congressional 

committees of jurisdiction. 

Section 6. Procedures to prevent unauthorized removal of classified 

records from National Archives 

This section requires the Archivist to prescribe internal procedures to prevent the unauthorized removal or destruction of classified records from NARA facilities. 


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Section 7. Repeal of provisions related to the National Study Commission on Records and Documents of Federal Officials 

This section repeals provisions of Chapter 33 of title 44 governing the now-defunct National Study Commission on Records and 

Documents of Federal Officials. 

Section 8. Pronoun amendments 

This section removes pronouns throughout title 44 and replaces 

them with gender-neutral references to the Archivist, former President, incumbent President, or other official, as appropriate. 

Section 9. Records management by the Archivist 

Subsection (a) amends 44 U.S.C. Sec. 2902 to require NARA promote and pursue electronic recordkeeping and receipt of electronic 

records from federal agencies. 

Subsection (b) amends 44 U.S.C. Sec. 2907 to provide the Archivist with the authority to establish and use records centers with 

the capability of digitizing records in the same way that NARA 

would capture records on microfilm or other photographic processes. 

Subsection (c) amends 44 U.S.C. Sec. 2904 to delete vestigial language regarding the General Services Administration (GSA) and its 

Administrator. 

Subsection (d) amends 44 U.S.C. Sec. 2906 to clarify NARA’s 

ability to inspect federal agencies’ records for the purpose of ensuring their historical value. 

Subsections (e), (f), and (g) amend 44 U.S.C. Sec. 2115, the heading for chapter 29, of title 44, U.S.C., and 44 U.S.C. 3102(2), respectively, to delete references to GSA and its Administrator. 

Section 10. Disclosure requirement for official business conducted 

using non-official electronic messaging account 

Section 10 adds a new section 2911 to chapter 29 of title 44, 

United States Code, which would provide that an employee of an 

executive agency may not create or send a record from a non-official electronic messaging account without ensuring such record was 

submitted to an official electronic messaging account within 20 

days. In cases of intentional violation of this disclosure requirement, the section authorizes disciplinary action as determined by 

the appropriate supervisor, in accordance with subchapter I, II, or 

V of chapter 75 of title 5, U.S. Code. 

V. EVALUATION OF REGULATORY IMPACT

Pursuant to the requirement of paragraph 11(b)(1) of rule XXVI 

of the Standing Rules of the Senate the Committee has considered 

the regulatory impact of this bill. The Committee believes the bill 

updates the Federal Records Act and ends the uncertainty currently associated with the handling of executive privilege claims 

over Presidential records by establishing how the release of a 

former President’s records will be managed. The legislation will not 

result in additional regulation, increased economic impact, adverse 

impact on personal privacy, or additional paperwork on any individuals or businesses. 


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VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

JUNE 5, 2014. 

Hon. TOM CARPER, 

Chairman, Committee on Homeland Security and Governmental Affairs, U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1233, the Presidential 

and Federal Records Act Amendments of 2014. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

H.R. 1233—Presidential and Federal Records Act Amendments of 

2014 

H.R. 1233 would amend federal law regarding the preservation, 

storage, and management of federal records. The legislation would 

amend the Presidential Records Act to establish a process for reviewing Presidential records. The legislation also would update archival laws to accommodate the government’s use of electronic and 

digital communications. Finally, H.R. 1233 would require the National Archives and Records Administration (NARA) to prevent unauthorized access or removal of government records. 

According to NARA, most provisions in H.R. 1233 would codify 

and expand current practices. Executive Orders and Presidential 

memoranda have directed NARA and agencies to better manage 

government records. Consequently, CBO estimates that implementing H.R. 1233 would have no significant cost over the next five 

years. The legislation could affect direct spending by agencies not 

funded through annual appropriations; therefore, pay-as-you-go 

procedures apply. CBO estimates, however, that any net increase 

in spending by those agencies would not be significant. Enacting 

H.R. 1233 would not affect revenues. 

H.R. 1233 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on the budgets of state, local, or tribal governments. 

On May 20, 2013, CBO transmitted a cost estimate for H.R. 

1233, the Presidential and Federal Records Act Amendments of 

2013, as ordered reported by the House Committee on Oversight 

and Government Reform on March 20, 2013. Both versions of the 

legislation contain similar provisions, and their estimated costs are 

the same. 

The CBO staff contact for this estimate is Matthew Pickford. The 

estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 

VII. CHANGES IN EXISTING LAWS MADE BY THE BILL, AS REPORTED

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, the following changes in existing law made by 

the bill, as reported, are shown as follows: (existing law proposed 

to be omitted is enclosed in black brackets, new matter is printed 


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in italic, existing law in which no change is proposed is shown in 

roman): 

UNITED STATES CODE 

* * * * * * * 

TITLE 44—PUBLIC PRINTING AND 

DOCUMENTS 

* * * * * * * 

Chap. Sec. 

1. Joint Committee on Printing ............................................................................ 101 

* * * * * * * 

29. Records Management by the Archivist of the United States øand by the 

Administrator of General Services ¿ .................................... 2901 

* * * * * * * 

CHAPTER 21—NATIONAL ARCHIVES AND RECORDS ADMINISTRATION 

Sec. 

2101. Definitions. 

* * * * * * * 

ø2114. Preservation of motion-picture films, still pictures, and sound recordings.¿ 

2114. Preservation of audio and visual records. 

* * * * * * * 

ø§ 2107. Acceptance of records for historical preservation¿ 

øWhen it appears to the Archivist to be in the public interest, he 

may—¿ 

ø(1) accept for deposit with the National Archives of the 

United States the records of a Federal agency, the Congress, 

the Architect of the Capitol, or the Supreme Court determined 

by the Archivist of the United States to have sufficient historical or other value to warrant their continued preservation by 

the United States Government;¿ 

ø(2) direct and effect the transfer to the National Archives 

of the United States of records of a Federal agency that have 

been in existence for more than thirty years and determined by 

the Archivist of the United States to have sufficient historical 

or other value to warrant their continued preservation by the 

United States Government, unless the head of the agency 

which has custody of them certified in writing to the Archivist 

that they must be retained in his custody for use in the conduct of the regular current business of the agency;¿ 

ø(3) direct and effect, with the approval of the head of the 

originating agency, or if the existence of the agency has been 

terminated, then with the approval of his successor in function, 

if any, the transfer of records, deposited or approved for deposit with the National Archives of the United States to public 

or educational institutions or associations; title to the records 

to remain vested in the United States unless otherwise authorized by Congress; and¿ 

ø(4) transfer materials from private sources authorized to be 

received by the Archivist by section 2111 of this title.¿ 


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§ 2107. Acceptance of records for historical preservation 

(a) IN GENERAL.—When it appears to the Archivist to be in the 

public interest, the Archivist may— 

(1) accept for deposit with the National Archives of the 

United States the records of a Federal agency, the Congress, the 

Architect of the Capitol, or the Supreme Court determined by 

the Archivist to have sufficient historical or other value to warrant their continued preservation by the United States Government; 

(2) direct and effect the transfer of records of a Federal agency determined by the Archivist to have sufficient historical or 

other value to warrant their continued preservation by the 

United States Government to the National Archives of the 

United States, as soon as practicable, and at a time mutually 

agreed upon by the Archivist and the head of that Federal 

agency not later than thirty years after such records were created or received by that agency, unless the head of such agency 

has certified in writing to the Archivist that such records must 

be retained in the custody of such agency for use in the conduct 

of the regular business of the agency; 

(3) direct and effect, with the approval of the head of the originating Federal agency, or if the existence of the agency has 

been terminated, with the approval of the head of that agency’s 

successor in function, if any, the transfer of records, deposited 

or approved for deposit with the National Archives of the 

United States to public or educational institutions or associations; title to the records to remain vested in the United States 

unless otherwise authorized by Congress; and 

(4) transfer materials from private sources authorized to be 

received by the Archivist by section 2111 of this title. 

(b) EARLY TRANSFER OF RECORDS.—The Archivist— 

(1) in consultation with the head of the originating Federal 

agency, is authorized to accept a copy of the records described 

in subsection (a)(2) that have been in existence for less than 

thirty years; and 

(2) may not disclose any such records until the expiration of— 

(A) the thirty-year period described in paragraph (1); 

(B) any longer period established by the Archivist by 

order; or 

(C) any shorter period agreed to by the originating Federal agency. 

* * * * * * * 

ø§ 2111. Material accepted for deposit¿ 

øWhen the Archivist considers it to be in the public interest he 

may accept for deposit—¿ 

ø(1) the papers and other historical materials of a President 

or former President of the United States, or other official or 

former official of the Government, and other papers relating to 

and contemporary with a President or former President of the 

United States, subject to restrictions agreeable to the Archivist 

as to their use; and¿ 

ø(2) documents, including motion-picture films, still pictures, 

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priate for preservation by the Government as evidence of its 

organization, functions, policies, decisions, procedures, and 

transactions.¿ 

øThis section shall not apply in the case of any Presidential 

records which are subject to the provisions of chapter 22 of this 

title.¿ 

§ 2111. Material accepted for deposit 

(a) IN GENERAL.—When the Archivist considers it to be in the 

public interest the Archivist may accept for deposit— 

(1) the papers and other historical materials of a President or 

former President of the United States, or other official or former 

official of the Government, and other papers relating to and 

contemporary with a President or former President of the 

United States, subject to restrictions agreeable to the Archivist 

as to their use; and 

(2) recorded information (as such term is defined in section 

3301(a)(2) of this title) from private sources that are appropriate for preservation by the Government as evidence of its organization, functions, policies, decisions, procedures, and transactions. 

(b) EXCEPTION.—This section shall not apply in the case of any 

Presidential records which are subject to the provisions of chapter 

22 of this title. 

* * * * * * * 

ø§ 2114. Preservation of motion-picture films, still pictures, 

and sound recordings¿ 

øThe Archivist may make and preserve motion-picture films, still 

pictures, and sound recordings pertaining to and illustrative of the 

historical development of the United States Government and its activities, and provide for preparing, editing, titling, scoring, processing, duplicating, reproducing, exhibiting, and releasing for nonprofit educational purposes, motion-picture films, still pictures, and 

sound recordings in his custody.¿ 

§ 2114. Preservation of audio and visual records 

The Archivist may make and preserve audio and visual records, 

including motion-picture films, still photographs, and sound recordings, in analog, digital, or any other form, pertaining to and illustrative of the historical development of the United States Government and its activities, and provide for preparing, editing, titling, 

scoring, processing, duplicating, reproducing, exhibiting, and releasing for non-profit educational purposes, motion-picture films, still 

photographs, and sound recordings in the Archivist’s custody. 

§ 2115. Reports; correction of violations 

(a) In carrying out øtheir respective¿ the duties and responsibilities under chapters 21, 25, 29, 31, and 33 of this title, the Archivist øand the Administrator¿ may øeach¿ obtain reports from any 

Federal agency on such agency’s activities under such chapters. 

(b) When øeither¿ the Archivist øor the Administrator¿ finds 

that a provision of any such chapter has been or is being violated, 

the Archivist øor the Administrator¿ shall (1) inform in writing the 


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head of the agency concerned of the violation and make recommendations for its correction; and (2) unless satisfactory corrective measures are øinaugurated¿ demonstrably commenced within 

a reasonable time, submit a written report of the matter to the 

President and the Congress. 

§ 2116. Legal status of reproductions; official seal; fees for 

copies and reproductions 

(a) When records that are required by statute to be retained indefinitely have been reproduced by photographic, microphotographic, digital, or other processes, in accordance with standards 

established by the Archivist the indefinite retention by the photographic, microphotographic, digital, or other reproductions constitutes compliance with the statutory requirement for the indefinite retention of the original records. The reproductions, as well as 

reproductions made under regulations to carry out chapter 21, 29, 

31, and 33 of this title, shall have the same legal status as the 

originals. 

* * * * * * * 

(c) The Archivist may charge a fee set to recover the costs for 

making or authenticating copies or reproductions of materials 

transferred to øhis¿ the Archivist’s custody. Such fee shall be fixed 

by the Archivist at a level which will recover, so far as practicable, 

all elements of such costs, and may, in the Archivist’s discretion, 

include increments for the estimated replacement cost of equipment. Such fees shall be paid into, administered, and expended as 

a part of the National Archives Trust Fund. The Archivist may not 

charge for making or authenticating copies or reproductions of materials for official use by the United States Government unless appropriations available to the Archivist for this purpose are insufficient to cover the cost of performing the work. 

* * * * * * * 

CHAPTER 22—PRESIDENTIAL RECORDS 

* * * * * * * 

Sec. 

2201. Definitions. 

* * * * * * * 

2208. Claims of constitutionally based privilege against disclosure. 

2209. Disclosure requirement for official business conducted using non-official electronic messaging accounts. 

* * * * * * * 

§ 2201. Definitions 

As used in this chapter— 

(1) The term ‘documentary material’ means all books, correspondence, ømemorandums¿ memoranda, documents, papers, pamphlets, works of art, models, pictures, photographs, 

plats, maps, films, and motion pictures, including, but not limited to, øaudio, audiovisual¿ audio and visual records, or other 

electronic or mechanical recordations, whether in analog, digital, or any other form. 

(2) The term ‘Presidential records’ means documentary materials, or any reasonably segregable portion thereof, created or 

received by the President, øhis¿ the President’s immediate 


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staff, or a unit or individual of the Executive Office of the 

President whose function is to øadvise and assist¿ advise or assist the President, in the course of conducting activities which 

relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of 

the President. Such term— 

(A) includes any documentary materials relating to the 

political activities of the President or members of øhis¿ the 

President’s staff, but only if such activities relate to or 

have a direct effect upon the carrying out of constitutional, 

statutory, or other official or ceremonial duties of the 

President; but 

* * * * * * * 

§ 2203. Management and custody of Presidential records 

(a) Through the implementation of records management controls 

and other necessary actions, the President shall take all such steps 

as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of øhis¿ the President’s constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are ømaintained¿ preserved and maintained as Presidential records pursuant 

to the requirements of this section and other provisions of law. 

(b) Documentary materials produced or received by the President, øhis¿ the President’s staff, or units or individuals in the Executive Office of the President the function of which is to øadvise and 

assist¿ advise or assist the President, shall, to the extent practicable, be categorized as Presidential records or personal records 

upon their creation or receipt and be filed separately. 

(c) During øhis¿ the President’s term of office, the President may 

dispose of øthose of his Presidential records¿ those Presidential 

records of such President that no longer have administrative, historical, informational, or evidentiary value if— 

(1) * * * 

(2) the Archivist states that øhe¿ the Archivist does not intend to take any action under subsection (e) of this section. 

(d) In the event the Archivist notifies the President under subsection (c) that øhe¿ the Archivist does intend to take action under 

subsection (e), the President may dispose of such Presidential 

records if copies of the disposal schedule are submitted to the appropriate Congressional Committees at least 60 calendar days of 

continuous session of Congress in advance of the proposed disposal 

date. For the purpose of this section, continuity of session is broken 

only by an adjournment of Congress sine die, and the days on 

which either House is not in session because of an adjournment of 

more than three days to a day certain are excluded in the computation of the days in which Congress is in continuous session. 

(e) The Archivist shall request the advice of the Committee on 

Rules and Administration and the Committee on Governmental Affairs of the Senate and the Committee on House Oversight and the 

Committee on Government Operations of the House of Representatives with respect to any proposed disposal of Presidential records 

whenever øhe¿ the Archivist considers that— 


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(1) * * * 

* * * * * * * 

(f) During a President’s term of office, the Archivist may maintain 

and preserve Presidential records on behalf of the President, including records in digital or electronic form. The President shall remain 

exclusively responsible for custody, control, and access to such Presidential records. The Archivist may not disclose any such records, except under direction of the President, until the conclusion of a President’s term of office, if a President serves consecutive terms upon the 

conclusion of the last term, or such other period provided for under 

section 2204 of this title. 

ø(f)¿ (g)(1) Upon the conclusion of a President’s term of office, or 

if a President serves consecutive terms upon the conclusion of the 

last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, 

the Presidential records of that President. The Archivist shall have 

an affirmative duty to make such records available to the public as 

rapidly and completely as possible consistent with the provisions of 

this øAct¿ chapter. 

* * * * * * * 

(3) The Archivist is authorized to dispose of such Presidential 

records which øhe¿ the Archivist has appraised and determined to 

have insufficient administrative, historical, informational, or evidentiary value to warrant their continued preservation. Notice of 

such disposal shall be published in the Federal Register at least 60 

days in advance of the proposed disposal date. Publication of such 

notice shall constitute a final agency action for purposes of review 

under chapter 7 of title 5, United States Code. 

§ 2204. Restrictions on access to Presidential records 

(a) Prior to the conclusion of øhis¿ a President’s term of office or 

last consecutive term of office, as the case may be, the President 

shall specify durations, not to exceed 12 years, for which access 

shall be restricted with respect to information, in a Presidential 

record, within one or more of the following categories: 

(1) * * * 

* * * * * * * 

(5) confidential communications requesting or submitting advice, between the President and øhis¿ the President’s advisers, 

or between such advisers; or 

* * * * * * * 

(b)(1) Any Presidential record or reasonably segregable portion 

thereof containing information within a category restricted by the 

President under subsection (a) shall be so designated by the Archivist and access thereto shall be restricted until the earlier of— 

(A) * * * 

(B) upon a determination by the Archivist that such record 

or reasonably segregable portion thereof, or of any significant 

element or aspect of the information contained in such record 

or reasonably segregable portion thereof, has been placed in 


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the public domain through publication by the former President, 

or øhis¿ the President’s agents. 

* * * * * * * 

(3) During the period of restricted access specified pursuant to 

subsection (b)(1), the determination whether access to a Presidential record or reasonably segregable portion thereof shall be restricted shall be made by the Archivist, in øhis¿ the Archivist’s discretion, after consultation with the former President, and, during 

such period, such determinations shall not be subject to judicial review, except as provided in subsection (e) of this section. The Archivist shall establish procedures whereby any person denied access 

to a Presidential record because such record is restricted pursuant 

to a determination made under this paragraph, may file an administrative appeal of such determination. Such procedures shall provide for a written determination by the Archivist or øhis designee¿ 

the Archivist’s designee, within 30 working days after receipt of 

such an appeal, setting forth the basis for such determination. 

* * * * * * * 

(d) Upon the death or disability of a President or former President, any discretion or authority the President or former President 

may have had under this chapter, except section 2208, shall be exercised by the Archivist unless otherwise previously provided by 

the President or former President in a written notice to the Archivist. 

* * * * * * * 

(f) The Archivist shall not make available any original Presidential records to any individual claiming access to any Presidential record as a designated representative under section 2205(3) 

of this title if that individual has been convicted of a crime relating 

to the review, retention, removal, or destruction of records of the Archives. 

§ 2205. Exceptions to restricted access 

Notwithstanding any restrictions on access imposed pursuant to 

øsection 2204¿ sections 2204 and 2208 of this title— 

(1) * * * 

(2) subject to any rights, defenses, or privileges which the 

United States or any agency or person may invoke, Presidential records shall be made available— 

(A) pursuant to øsubpena¿ subpoena or other judicial 

process issued by a court of competent jurisdiction for the 

purposes of any civil or criminal investigation or proceeding; 

(B) to an incumbent President if such records contain information that is needed for the conduct of current business of øhis¿ the incumbent President’s office and that is 

not otherwise available; and 

* * * * * * * 

(3) the Presidential records of a former President shall be 

available to such former President or øhis¿ the former President’s designated representative. 

* * * * * * * 


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§ 2207. Vice-Presidential records 

Vice-Presidential records shall be subject to the provisions of this 

chapter in the same manner as Presidential records. The duties 

and responsibilities of the Vice President, with respect to VicePresidential records, shall be the same as the duties and responsibilities of the President under this chapter, except section 2208, 

with respect to Presidential records. The authority of the Archivist 

with respect to Vice-Presidential records shall be the same as the 

authority of the Archivist under this chapter with respect to Presidential records, except that the Archivist may, when the Archivist 

determines that it is in the public interest, enter into an agreement 

for the deposit of Vice-Presidential records in a non-Federal archival depository. Nothing in this chapter shall be construed to authorize the establishment of separate archival depositories for such 

Vice-Presidential records. 

§ 2208. Claims of constitutionally based privilege against disclosure 

(a)(1) When the Archivist determines under this chapter to make 

available to the public any Presidential record that has not previously been made available to the public, the Archivist shall— 

(A) promptly provide notice of such determination to— 

(i) the former President during whose term of office the 

record was created; and 

(ii) the incumbent President; and 

(B) make the notice available to the public. 

(2) The notice under paragraph (1)— 

(A) shall be in writing; and 

(B) shall include such information as may be prescribed in 

regulations issued by the Archivist. 

(3)(A) Upon the expiration of the 60-day period (excepting Saturdays, Sundays, and legal public holidays) beginning on the date the 

Archivist provides notice under paragraph (1)(A), the Archivist shall 

make available to the public the Presidential record covered by the 

notice, except any record (or reasonably segregable part of a record) 

with respect to which the Archivist receives from a former President 

or the incumbent President notification of a claim of constitutionally 

based privilege against disclosure under subsection (b). 

(B) A former President or the incumbent President may extend the 

period under subparagraph (A) once for not more than 30 additional days (excepting Saturdays, Sundays, and legal public holidays) by filing with the Archivist a statement that such an extension 

is necessary to allow an adequate review of the record. 

(C) Notwithstanding subparagraphs (A) and (B), if the 60-day period under subparagraph (A), or any extension of that period under 

subparagraph (B), would otherwise expire during the 6-month period after the incumbent President first takes office, then that 60- 

day period or extension, respectively, shall expire at the end of that 

6-month period. 

(b)(1) For purposes of this section, the decision to assert any claim 

of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) must be 

made personally by a former President or the incumbent President, 

as applicable. 


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(2) A former President or the incumbent President shall notify the 

Archivist, the Committee on Oversight and Government Reform of 

the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate of a privilege claim 

under paragraph (1) on the same day that the claim is asserted 

under such paragraph. 

(c)(1) If a claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a 

record) is asserted under subsection (b) by a former President, the 

Archivist shall consult with the incumbent President, as soon as 

practicable during the period specified in paragraph (2)(A), to determine whether the incumbent President will uphold the claim asserted by the former President. 

(2)(A) Not later than the end of the 30-day period beginning on 

the date of which the Archivist receives notification from a former 

President of the assertion of a claim of constitutionally based privilege against disclosure, the Archivist shall provide notice to the 

former President and the public of the decision of the incumbent 

President under paragraph (1) regarding the claim. 

(B) If the incumbent President upholds the claim of privilege asserted by the former President, the Archivist shall not make the 

Presidential record (or reasonably segregable part of a record) subject to the claim publicly available unless— 

(i) the incumbent President withdraws the decision upholding 

the claim of privilege asserted by the former President; or 

(ii) the Archivist is otherwise directed by a final court order 

that is not subject to appeal. 

(C) If the incumbent President determines not to uphold the claim 

of privilege asserted by the former President, or fails to make the 

determination under paragraph (1) before the end of the period 

specified in subparagraph (A), the Archivist shall release the Presidential record subject to the claim at the end of the 90-day period 

beginning on the date on which the Archivist received notification 

of the claim, unless otherwise directed by a court order in an action 

initiated by the former President under section 2204(e) of this title 

or by a court order in another action in any Federal court. 

(d) The Archivist shall not make publicly available a Presidential 

record (or reasonably segregable part of a record) that is subject to 

a privilege claim asserted by the incumbent President unless— 

(1) the incumbent President withdraws the privilege claim; or 

(2) the Archivist is otherwise directed by a final court order 

that is not subject to appeal. 

(e) The Archivist shall adjust any otherwise applicable time period under this section as necessary to comply with the return date 

of any congressional subpoena, judicial subpoena, or judicial process. 

§ 2209. Disclosure requirement for official business conducted 

using non-official electronic messaging accounts 

(a) IN GENERAL.—The President, the Vice President, or a covered 

employee may not create or send a Presidential or Vice Presidential 

record using a non-official electronic message account unless the 

President, Vice President, or covered employee— 

(1) copies an official electronic messaging account of the 

President, Vice President, or covered employee in the original 


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creation or transmission of the Presidential record or Vice Presidential record; or 

(2) forwards a complete copy of the Presidential or Vice Presidential record to an official electronic messaging account of the 

President, Vice President, or covered employee not later than 20 

days after the original creation or transmission of the Presidential or Vice Presidential record. 

(b) ADVERSE ACTIONS.—The intentional violation of subsection (a) 

by a covered employee (including any rules, regulations, or other implementing guidelines), as determined by the appropriate supervisor, shall be a basis for disciplinary action in accordance with 

subchapter I, II, or V of chapter 75 of title 5, as the case may be. 

(c) DEFINITIONS.—In this section: 

(1) COVERED EMPLOYEE.—The term ‘covered employee’ 

means— 

(A) the immediate staff of the President; 

(B) the immediate staff of the Vice President; 

(C) a unit or individual of the Executive Office of the 

President whose function is to advise and assist the President; and 

(D) a unit or individual of the Office of the Vice President 

whose function is to advise and assist the Vice President. 

(2) ELECTRONIC MESSAGES.—The term ‘electronic messages’ 

means electronic mail and other electronic messaging systems 

that are used for purposes of communicating between individuals. 

(3) ELECTRONIC MESSAGING ACCOUNT.—The term ‘electronic 

messaging account’ means any account that sends electronic 

messages. 

* * * * * * * 

CHAPTER 29—RECORDS MANAGEMENT BY THE ARCHIVIST OF THE 

UNITED STATES øAND BY THE ADMINISTRATOR OF GENERAL SERVICES¿ 

Sec. 

2901. Definitions. 

* * * * * * * 

2907. Records centers and centralized microfilming or digitization services. 

* * * * * * * 

2911. Disclosure requirement for official business conducted using non-official electronic messaging accounts. 

* * * * * * * 

§ 2901. Definitions 

As used in this chapter, and chapters 21, 25, 31, and 33 of this 

title— 

(1) * * * 

* * * * * * * 

(11) the term ‘National Archives of the United States’ means 

those official records which have been determined by the Archivist of the United States to have sufficient historical or other 

value to warrant their continued preservation by the Federal 

Government, and which have been accepted by the Archivist 

for deposit in øhis¿ the Archivist’s custody; 

* * * * * * * 


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§ 2902. Objectives of records management 

It is the purpose of this chapter, and chapters 21, 31, and 33 of 

this title, to require the establishment of standards and procedures 

to assure efficient and effective records management. Such records 

management standards and procedures shall seek to implement the 

following goals: 

(1) * * * 

* * * * * * * 

(4) Simplification of the activities, systems, and processes of 

records øcreation and of records maintenance and use¿ creation, maintenance, transfer, and use. 

* * * * * * * 

(6) Direction of continuing attention on records from their 

initial creation to their final disposition, with particular emphasis on the prevention of unnecessary Federal paperwork 

and the transfer of records from Federal agencies to the National Archives of the United States in digital or electronic form 

to the greatest extent possible. 

(7) Establishment and maintenance of such other systems or 

techniques as øthe Administrator or¿ the Archivist considers 

necessary to carry out the purposes of this chapter, and chapters 21, 31, and 33 of this title. 

* * * * * * * 

§ 2904. General responsibilities for records management 

(a) * * * 

(b) øThe Administrator¿ The Archivist shall provide guidance 

and assistance to Federal agencies to ensure economical and effective records management by such agencies. 

(c) In carrying out øtheir¿ the responsibilities under øsubsection 

(a) or (b), respectively¿ subsections (a) and (b), the Archivist øand 

the Administrator¿ shall øeach¿ have the responsibility— 

(1) * * * 

* * * * * * * 

(6) to conduct records management studies and, in øhis¿ the 

Archivist’s discretion, designate the heads of executive agencies 

to conduct records management studies with respect to establishing systems and techniques designed to save time and effort in records management; 

* * * * * * * 

(8) to report to the appropriate oversight and appropriations 

committees of the Congress and to the Director of the Office of 

Management and Budget in January of each year and at such 

other times as the Archivist øor the Administrator (as the case 

may be)¿ deems desirable— 

(A) * * * 

* * * * * * * 

ø(d) In addition, the Administrator, in carrying out subsection 

(b), shall have the responsibility to promote economy and efficiency 

in the selection and utilization of space, staff, equipment, and supplies for records management.¿ 


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(d) The Archivist shall promulgate regulations requiring all Federal agencies to transfer all digital or electronic records to the National Archives of the United States in digital or electronic form to 

the greatest extent possible. 

§ 2905. Establishment of standards for selective retention of 

records; security measures 

(a) The Archivist shall establish standards for the selective retention of records of continuing value, and assist Federal agencies in 

applying the standards to records in their custody. øHe¿ The Archivist shall notify the head of a Federal agency of any actual, impending, or threatened unlawful removal, defacing, alteration, or 

destruction of records in the custody of the agency that shall come 

to øhis¿ the Archivist’s attention, and assist the head of the agency 

in initiating action through the Attorney General for the recovery 

of records unlawfully removed and for other redress provided by 

law. In any case in which the head of the agency does not initiate 

an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the 

Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been 

made. 

* * * * * * * 

§ 2906. Inspection of agency records 

(a)(1) In carrying out øtheir respective¿ the duties and responsibilities under this chapter, øthe Administrator of General Services and¿ the Archivist (or the ødesignee of either¿ Archivist’s designee) may inspect the records or the records management practices 

and programs of any Federal agency øsolely¿ for the purpose of 

rendering recommendations for the improvement of records management practices and programs and for determining whether the 

records of Federal agencies have sufficient value to warrant continued preservation or lack sufficient value to justify continued preservation. Officers and employees of such agencies shall cooperate 

fully in such inspections, subject to the provisions of paragraphs (2) 

and (3) of this subsection. 

(2) Records, the use of which is restricted by law or for reasons 

of national security or the public interest, shall be inspected, in accordance with regulations promulgated by øthe Administrator and¿ 

the Archivist, subject to the approval of the head of the agency concerned or of the President. øThe regulations promulgated by the 

Administrator and the Archivist under this paragraph shall, to the 

extent practicable, be identical.¿ 

(3) If øthe Administrator or¿ the Archivist (or the ødesignee of 

either] Archivist’s designee) inspects a record, as provided in this 

subsection, which is contained in a system of records which is subject to section 552a of title 5, such record shall be— 

(A) maintained by øthe Administrator, the Archivist,¿ the 

Archivist or such designee as a record contained in a system 

of records; or 

* * * * * * * 

(b) In conducting the inspection of agency records provided for in 

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vist (or the ødesignee of either¿ Archivist’s designee) shall, in addition to complying with the provisions of law cited in subsection 

(a)(3), comply with all other Federal laws and be subject to the 

sanctions provided therein. 

§ 2907. Records centers and centralized microfilming or 

digitization services 

The Archivist may establish, maintain, and operate records centers and centralized microfilming or digitization services for Federal agencies. 

* * * * * * * 

§ 2911. Disclosure requirement for official business conducted 

using non-official electronic messaging accounts 

(a) IN GENERAL.—An officer or employee of an executive agency 

may not create or send a record using a non-official electronic messaging account unless such officer or employee— 

(1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the 

record; or 

(2) forwards a complete copy of the record to an official electronic messaging account of the officer or employee not later 

than 20 days after the original creation or transmission of the 

record. 

(b) ADVERSE ACTIONS.—The intentional violation of subsection (a) 

(including any rules, regulations, or other implementing guidelines), 

as determined by the appropriate supervisor, shall be a basis for 

disciplinary action in accordance with subchapter I, II, or V of 

chapter 75 of title 5, as the case may be. 

(c) DEFINITIONS.—In this section: 

(1) ELECTRONIC MESSAGES.—The term ‘electronic messages’ 

means electronic mail and other electronic messaging systems 

that are used for purposes of communicating between individuals. 

(2) ELECTRONIC MESSAGING ACCOUNT.—The term ‘electronic 

messaging account’ means any account that sends electronic 

messages. 

(3) EXECUTIVE AGENCY.—The term ‘executive agency’ has the 

meaning given that term in section 105 of title 5. 

* * * * * * * 

CHAPTER 31—RECORDS MANAGEMENT BY FEDERAL 

AGENCIES 

* * * * * * * 

§ 3102. Establishment of program of management 

The head of each Federal agency shall establish and maintain an 

active, continuing program for the economical and efficient management of the records of the agency. The program, among other 

things, shall provide for 

(1) * * * 

(2) cooperation with øthe Administrator of General Services 

and¿ the Archivist in applying standards, procedures, and 

techniques designed to improve the management of records, 


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promote the maintenance and security of records deemed appropriate for preservation, and facilitate the segregation and 

disposal of records of temporary value; and 

* * * * * * * 

§ 3103. Transfer of records to records centers 

When the head of a Federal agency determines that such action 

may affect substantial economies or increased operating efficiency, 

øhe¿ the head of such agency shall provide for the transfer of 

records to a records center maintained and operated by the Archivist, or, when approved by the Archivist, to a center maintained 

and operated by the head of the Federal agency. 

§ 3104. Certifications and determinations on transferred 

records 

An official of the Government who is authorized to certify to facts 

on the basis of records in øhis¿ such official’s custody, may certify 

to facts on the basis of records that have been transferred by øhim 

or his¿ such official or such official’s predecessors to the Archivist, 

and may authorize the Archivist to certify to facts and to make administrative determinations on the basis of records transferred to 

the Archivist, notwithstanding any other law. 

§ 3105. Safeguards 

The head of each Federal agency shall establish safeguards 

against the removal or loss of records øhe¿ the head of such agency 

determines to be necessary and required by regulations of the Archivist. Safeguards shall include making it known to officials and 

employees of the agency— 

(1) * * * 

* * * * * * * 

ø§ 3106. Unlawful removal, destruction of records¿ 

øThe head of each Federal agency shall notify the Archivist of 

any actual, impending, or threatened unlawful removal, defacing, 

alteration, or destruction of records in the custody of the agency of 

which he is the head that shall come to his attention, and with the 

assistance of the Archivist shall initiate action through the Attorney General for the recovery of records he knows or has reason to 

believe have been unlawfully removed from his agency, or from another Federal agency whose records have been transferred to his 

legal custody. In any case in which the head of the agency does not 

initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the Archivist shall request the Attorney General to initiate 

such an action, and shall notify the Congress when such a request 

has been made.¿ 

§ 3106. Unlawful removal, destruction of records 

(a) FEDERAL AGENCY NOTIFICATION.—The head of each Federal 

agency shall notify the Archivist of any actual, impending, or 

threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the 

agency, and with the assistance of the Archivist shall initiate action 


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through the Attorney General for the recovery of records the head of 

the Federal agency knows or has reason to believe have been unlawfully removed from that agency, or from another Federal agency 

whose records have been transferred to the legal custody of that Federal agency. 

(b) ARCHIVIST NOTIFICATION.—In any case in which the head of 

a Federal agency does not initiate an action for such recovery or 

other redress within a reasonable period of time after being notified 

of any such unlawful action described in subsection (a), or is participating in, or believed to be participating in any such unlawful 

action, the Archivist shall request the Attorney General to initiate 

such an action, and shall notify the Congress when such a request 

has been made. 

* * * * * * * 

CHAPTER 33—DISPOSAL OF RECORDS 

Sec. 

3301. Definition of records. 

ø3315. Definitions.¿ 

ø3316. Establishment of Commission.¿ 

ø3317. Duties of Commission.¿ 

ø3318. Membership.¿ 

ø3319. Director and staff; experts and consultants.¿ 

ø3320. Powers of Commission.¿ 

ø3321. Support services.¿ 

ø3322. Report.¿ 

ø3323. Termination.¿ 

ø3324. Authorization of appropriations.¿ 

ø§ 3301. Definition of records¿ 

øAs used in this chapter, ‘records’ includes all books, papers, 

maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made 

or received by an agency of the United States Government under 

Federal law or in connection with the transaction of public business 

and preserved or appropriate for preservation by that agency or its 

legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the 

Government or because of the informational value of data in them. 

Library and museum material made or acquired and preserved 

solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of 

publications and of processed documents are not included.¿ 

§ 3301. Definition of records 

(a) RECORDS DEFINED.— 

(1) IN GENERAL.—As used in this chapter, the term ‘records’— 

(A) includes all recorded information, regardless of form 

or characteristics, made or received by a Federal agency 

under Federal law or in connection with the transaction of 

public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence 

of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States 

Government or because of the informational value of data 

in them; and 


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(B) does not include— 

(i) library and museum material made or acquired 

and preserved solely for reference or exhibition purposes; or 

(ii) duplicate copies of records preserved only for convenience. 

(2) RECORDED INFORMATION DEFINED.—For purposes of paragraph (1), the term ‘recorded information’ includes all traditional forms of records, regardless of physical form or characteristics, including information created, manipulated, communicated, or stored in digital or electronic form. 

(b) DETERMINATION OF DEFINITION.—The Archivist’s determination whether recorded information, regardless of whether it exists in 

physical, digital, or electronic form, is a record as defined in subsection (a) shall be binding on all Federal agencies. 

§ 3302. Regulations covering lists of records for disposal, 

procedure for disposal, and standards for reproduction 

The Archivist shall promulgate regulations, not inconsistent with 

this chapter, establishing— 

(1) procedures for the compiling and submitting to øhim¿ the 

Archivist of lists and schedules of records proposed for disposal, 

* * * * * * * 

(3) standards for the reproduction of records by øphotographic or microphotographic processes¿ photographic, microphotographic, or digital processes with a view to the disposal 

of the original records. 

§ 3303. Lists and schedules of records to be submitted to the 

Archivist by head of each Government agency 

The head of each agency of the United States Government shall 

submit to the Archivist, under regulations promulgated as provided 

by section 3302 of this title— 

(1) lists of any records in the custody of the agency that have 

been øphotographed or microphotographed¿ photographed, 

microphotographed, or digitized under the regulations and 

that, as a consequence, do not appear to have sufficient value 

to warrant their further preservation by the Government; 

* * * * * * * 

§ 3303a. Examination by Archivist of lists and schedules of 

records lacking preservation value; disposal of 

records 

(a) The Archivist shall examine the lists and schedules submitted 

to øhim¿ the Archivist under section 3303 of this title. If the Archivist determines that any of the records listed in a list or schedule 

submitted to øhim¿ the Archivist do not, or will not after the lapse 

of the period specified, have sufficient administrative, legal, research, or other value to warrant their continued preservation by 

the Government, øhe¿ the Archivist may, after publication of notice 

in the Federal Register and an opportunity for interested persons 

to submit comment thereon— 


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(1) * * * 

* * * * * * * 

(c) The Archivist may request advice and counsel from øthe Committee on Rules and Administration of the Senate and the Committee on House Oversight of the House of Representatives¿ the 

Committee on Oversight and Government Reform of the House of 

Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate with respect to the disposal of any 

particular records under this chapter whenever øhe¿ the Archivist 

considers that— 

(1) * * * 

* * * * * * * 

(e) The Archivist may approve and effect the disposal of records 

that are in øhis¿ the Archivist’s legal custody, provided that records 

that had been in the custody of another existing agency may not 

be disposed of without the written consent of the head of the agency. 

(f) The Archivist shall make an annual report to the Congress 

concerning the disposal of records under this chapter, including 

general descriptions of the types of records disposed of and such 

other information as øhe¿ the Archivist considers appropriate to 

keep the Congress fully informed regarding the disposal of records 

under this chapter. 

* * * * * * * 

§ 3312. Photographs or microphotographs of records considered as originals; certified reproductions admissible in evidence 

øPhotographs or microphotographs of records¿ Photographs, 

microphotographs of records, or digitized records made in compliance with regulations under section 3302 of this title shall have the 

same effect as the originals and shall be treated as originals for the 

purpose of their admissibility in evidence. Certified or authenticated reproductions of the øphotographs or microphotographs¿ photographs, microphotographs, or digitized records shall be admitted 

in evidence equally with the original øphotographs or microphotographs¿ photographs, microphotographs, or digitized records. 

* * * * * * * 

ø§ 3315. Definitions¿ 

øFor purposes of this section and section 3316 through section 

3324 of this title—¿ 

ø(1) the term ‘Federal official’ means any individual holding 

the office of President or Vice President of the United States, 

or Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States, or any officer 

of the executive, judicial, or legislative branch of the Federal 

Government;¿ 

ø(2) the term ‘Commission’ means the National Study Commission on Records and Documents of Federal Officials; and¿ 

ø(3) the term ‘records and documents’ shall include handwritten and typewritten documents, motion pictures, television 

tapes and recordings, magnetic tapes, automated data procVerDate Mar 15 2010 02:20 Jul 29, 2014 Jkt 039010 PO 00000 Frm 00031 Fmt 6659 Sfmt 6602 E:\HR\OC\SR218.XXX SR218

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essing documentation in various forms, and other records that 

reveal the history of the Nation.¿ 

ø§ 3316. Establishment of Commission¿ 

øThere is established a commission to be known as the National 

Study Commission on Records and Documents of Federal Officials.¿ 

ø§ 3317. Duties of Commission¿ 

øIt shall be the duty of the Commission to study problems and 

questions with respect to the control, disposition, and preservation 

of records and documents produced by or on behalf of Federal officials, with a view toward the development of appropriate legislative 

recommendations and other recommendations regarding appropriate rules and procedures with respect to such control, disposition, and preservation. Such study shall include consideration 

of—¿ 

ø(1) whether the historical practice regarding the records 

and documents produced by or on behalf of Presidents of the 

United States should be rejected or accepted and whether such 

practice should be made applicable with respect to all Federal 

officials;¿ 

ø(2) the relationship of the findings of the Commission to the 

provisions of chapter 19 of this title, section 2101 through section 2108 of this title, and other Federal laws relating to the 

control, disposition, and preservation of records and documents 

of Federal officials;¿ 

ø(3) whether the findings of the Commission should affect 

the control, disposition, and preservation of records and documents of agencies within the Executive Office of the President 

created for short-term purposes by the President;¿ 

ø(4) the recordkeeping procedures of the White House Office, 

with a view toward establishing means to determine which 

records and documents are produced by or on behalf of the 

President;¿ 

ø(5) the nature of rules and procedures which should apply 

to the control, disposition, and preservation of records and documents produced by Presidential task forces, commissions, and 

boards;¿ 

ø(6) criteria which may be used generally in determining the 

scope of materials which should be considered to be the records 

and documents of Members of the Congress;¿ 

ø(7) the privacy interests of individuals whose communications with Federal officials, and with task forces, commissions, 

and boards, are a part of the records and documents produced 

by such officials, task forces, commissions, and boards; and¿ 

ø(8) any other problems, questions, or issues which the Commission considers relevant to carrying out its duties under section 3315 through section 3324 of this title.¿ 

ø§ 3318. Membership¿ 

ø(a)(1) The Commission shall be composed of seventeen members 

as follows:¿ 

ø(A) one Member of the House of Representatives appointed 

by the Speaker of the House upon recommendation made by 

the majority leader of the House;¿ 


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ø(B) one Member of the House of Representatives appointed 

by the Speaker of the House upon recommendation made by 

the minority leader of the House;¿ 

ø(C) one Member of the Senate appointed by the President 

pro tempore of the Senate upon recommendation made by the 

majority leader of the Senate;¿ 

ø(D) one Member of the Senate appointed by the President 

pro tempore of the Senate upon recommendation made by the 

minority leader of the Senate;¿ 

ø(E) one member of the Federal judiciary appointed by the 

Chief Justice of the United States;¿ 

ø(F) one person employed by the Executive Office of the 

President or the White House Office, appointed by the President;¿ 

ø(G) three appointed by the President, by and with the advice and consent of the Senate, from persons who are not officers or employees of any government and who are specially 

qualified to serve on the Commission by virtue of their education, training, or experience;¿ 

ø(H) one representative of the Department of State, appointed by the Secretary of State;¿ 

ø(I) one representative of the Department of Defense, appointed by the Secretary of Defense;¿ 

ø(J) one representative of the Department of Justice, appointed by the Attorney General;¿ 

ø(K) the Administrator of General Services (or his delegate);¿ 

ø(L) the Librarian of Congress;¿ 

ø(M) one member of the American Historical Association, appointed by the counsel of such Association;¿ 

ø(N) one member of the Society of American Archivists, appointed by such Society; and¿ 

ø(O) one member of the Organization of American Historians, appointed by such Organization.¿ 

ø(2) No more than two members appointed under paragraph 

(1)(G) may be of the same political party.¿ 

ø(b) A vacancy in the Commission shall be filled in the manner 

in which the original appointment was made.¿ 

ø(c) If any member of the Commission who was appointed to the 

Commission as a Member of the Congress leave such office, or if 

any member of the Commission who was appointed from persons 

who are not officers or employees of any government becomes an 

officer or employee of a government, he may continue as a member 

of the Commission for no longer than the sixty-day period beginning on the date he leaves such office or becomes such an officer 

or employee, as the case may be.¿ 

ø(d) Members shall be appointed for the life of the Commission.¿ 

ø(e)(1) Members of the Commission shall serve without pay.¿ 

ø(2) While away from their homes or regular places of business 

in the performance of services for the Commission, members of the 

Commission shall be allowed travel expenses in the same manner 

as persons employed intermittently in the service of the Federal 

Government are allowed expenses under section 5703 of title 5, 

United States Code, except that per diem in lieu of subsistence 

shall be paid only to those members of the Commission who are not 


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full-time officers or employees of the United States or Members of 

the Congress.¿ 

ø(f) The Chairman of the Commission shall be designated by the 

President from among members appointed under subsection 

(a)(1)(G).¿ 

ø(g) The Commission shall meet at the call of the Chairman or 

a majority of its members.¿ 

ø§ 3319. Director and staff; experts and consultants¿ 

ø(a) The Commission shall appoint a Director who shall be paid 

at a rate not to exceed the rate of basic pay in effect for level V 

of the Executive Schedule (5 U.S.C. 5316).¿ 

ø(b) The Commission may appoint and fix the pay of such additional personnel as it deems necessary.¿ 

ø(c)(1) The Commission may procure temporary and intermittent 

services to the same extent as is authorized by section 3109(b) of 

title 5, United States Code, but at rates for individuals not to exceed the daily equivalent of the annual rate of basic pay in effect 

for grade GS–15 of the General Schedule (5 U.S.C. 5332).¿ 

ø(2) In procuring services under this subsection, the Commission 

shall seek to obtain the advice and assistance of constitutional 

scholars and members of the historical, archival, and journalistic 

professions.¿ 

ø(d) Upon request of the Commission, the head of any Federal 

agency is authorized to detail, on a reimbursable basis, any of the 

personnel of such agency to the Commission to assist it in carrying 

out its duties under sections 3315 through 3324 of this title.¿ 

ø§ 3320. Powers of Commission¿ 

ø(a) The Commission may, for the purpose of carrying out its duties under sections 3315 through 3324 of this title, hold such hearings, sit and act at such times and places, take such testimony, and 

receive such evidence, as the Commission may deem desirable.¿ 

ø(b) When so authorized by the Commission, any member or 

agent of the Commission may take any action which the Commission is authorized to take by this section.¿ 

ø(c) The Commission may secure directly from any department 

or agency of the United States information necessary to enable the 

Commission to carry out its duties under section 3315 through section 3324 of this title. Upon request of the Chairman of the Commission, the head of such department or agency shall furnish such 

information to the Commission.¿ 

ø§ 3321. Support services¿ 

ø(a) The Administrator of General Services shall provide to the 

Commission on a reimbursable basis such administrative support 

services and assistance as the Commission may request.¿ 

ø(b) The Archivist of the United States shall provide to the Commission on a reimbursable basis such technical and expert advice, 

consultation, and support assistance as the Commission may request.¿ 

ø§ 3322. Report¿ 

øThe Commission shall transmit to the President and to each 

House of the Congress a report not later than March 31, 1977. 


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Such report shall contain a detailed statement of the findings and 

conclusions of the Commission, together with its recommendations 

for such legislation, administrative actions, and other actions, as it 

deems appropriate.¿ 

ø§ 3323. Termination¿ 

øThe Commission shall cease to exist sixty days after transmitting its report under section 3322 of this title.¿ 

ø§ 3324. Authorization of appropriations¿ 

øThere is authorized to be appropriated such sums as may be 

necessary to carry out section 3315 through section 3324 of this 

title.¿ 

* * * * * * * 

Æ 


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