U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

79–010 

" ! SENATE 111th Congress 

1st Session 

REPORT

2009

111–21 

Calendar No. 64 

PRESIDENTIAL RECORDS ACT AMENDMENTS 

OF 2009 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

H.R. 35 

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 

MAY 19, 2009.—Ordered to be printed 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

ROLAND W. BURRIS, Illinois 

MICHAEL BENNET, Colorado 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

MICHAEL L. ALEXANDER, Staff Director 

KEVIN J. LANDY, Chief Counsel 

JONATHAN M. KRADEN, Counsel 

ADAM R. SEDGEWICK, Professional Staff Member 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

JOHN K. GRANT, Minority Counsel 

TRINA DRIESSNACK TYRER, Chief Clerk 


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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 

Continued 

Calendar No. 64 

111th Congress SENATE REPORT " ! 1st Session 111–21 

PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2009 

MAY 19, 2009.—Ordered to be printed 

Mr. LIEBERMAN, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

[To accompany H.R. 35] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (H.R. 35) 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, having considered the same, reports favorably thereon 

with an amendment and recommends that the bill do pass. 

CONTENTS 

Page 

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

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

III. Legislative History ......................................................................................... 4 

IV. Section-by-Section Analysis .......................................................................... 4 

V. Evaluation of Regulatory Impact .................................................................. 6 

VI. Congressional Budget Office Cost Estimate ................................................ 6 

VII. Changes in Existing Law .............................................................................. 7 

I. PURPOSE AND SUMMARY

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

was introduced on January 6, 2009. The legislation amends the 

Presidential Records Act of 1978 to establish a process by which incumbent and former Presidents can review Presidential records 

whose release is regulated by the Presidential Records Act in order 

to determine whether to assert that executive privilege limits the 

release of those records.1


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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). 2 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. 3 44 U.S.C. 2203(f)(1). 

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

5 Exec. Order No. 12,667, 54 Fed. Reg. 3,403 (Jan. 18, 1989). 

II. BACKGROUND AND NEED FOR THE LEGISLATION

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

‘‘the Act’’) in the wake of the Watergate scandal and the resignation of President Richard M. 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 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 that executive privilege 

shields certain records from public release, noting that ‘‘[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, 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.5 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 


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6 3 C.F.R. 2001 Comp., pp. 815–819. 

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

claim. 

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 

didn’t provide a specific deadline for compliance. 

In November 2001, President George W. Bush issued Executive 

Order 13233, entitled ‘‘Further Implementation of the Presidential 

Records Act.’’ 6 The order superceded 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 that 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 

had affirmatively notified the Archvist. 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 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. 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 clear 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 own 

executive order interpreting the original PRA, thus making the 

public’s access to Presidential records contingent upon the will of 

the executive—the avoidence of which was the very goal of the 

original PRA. 


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7 Nixon v. Administrator of General Services, et al., 433 U.S. 425, 448 (1977). 

H.R. 35 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. 35 requires the Archivist to give the former and incumbent Presidents notice that he 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 the former and incumbent Presidents 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. 35 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 vactating 

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

claim asserted by the incumbent himself.’’ 7 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 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. 35 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. 

III. LEGISLATIVE HISTORY

H.R. 35 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. The bill was received in the Senate on January 8, 2009 and referred to the Homeland Security and Governmental Affairs Committee. On April 1, 2009, with Senators Lieberman, Akaka, Carper, 

Pryor, Tester, Burris, Bennet, Collins, Coburn, and Voinovich 

present, by a voice vote, the bill was ordered reported favorably out 

of the Committee with an amendment in the nature of a substitute. 

IV. SECTION-BY-SECTION ANALYSIS, AS REPORTED

Section 1. Short title 

This section provides that the short title of H.R. 35 is the ‘‘Presidential Records Act Amendments of 2009.’’ 


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Section 2. Procedures for consideration of claims of constitutionally 

based privilege against disclosure 

Section 2(a) adds a new section 2208 to chapter 22 of title 44, 

United States Code, popularly known as the Presidential Records 

Act of 1978, establishing how records will be reviewed by a former 

or current President prior to the public release of those records 

under the Presidential Records Act. 

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

United States decides to make Presidential records publicly available, he will promptly give advance notice to the former President 

during whose term the record was created and to the incumbent 

President. The Archivist will also make the notice available to the 

public. 

Subsection 2208(a)(2) provides that the notice will be in writing 

and contain pertinent information as determined by the Archivist. 

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. 

Subsection 2208(b) requires the former or incumbent President to 

personally assert a privilege claim. Also, the former or incumbent 

President must notify the Archivist, the House Committee on Oversight and Government Reform and the Senate Committee on 

Homeland and Governmental Affairs of the privilege claim on the 

day it is asserted. 

Subsection 2208(c) establishes the process through which a 

former President’s records are released to the public and the manner in which the Archivist handles claims of privilege by a former 

President. • Subparagraph (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 subparagraph (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, subparagraph(c)(2)(B) prohibits the Archivist from 

releasing the records unless the incumbent President withdraws 

his 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), subparagraph(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 


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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 privilege claim in court. However, under H.R. 35, the 

Archivist will ultimately release records unless otherwise directed 

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

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. 

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. 

Section 2(b) amends Section 2204 of the PRA 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. 

Section 2(c) makes clerical amendments to the Presidential 

Records Act. 

Section 3. Executive order of November 1, 2001 

Section 3 provides that Executive Order 13233, dated November 

1, 2001, and Executive Order 12667, dated January 1, 1989, shall 

have no force or effect. 

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 that the 

bill 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. 

VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

APRIL 21, 2009. 

Hon. JOSEPH I. LIEBERMAN, 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. 35, the Presidential 

Records Act Amendments of 2009. 

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. 


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Enclosure. 

H.R. 35—Presidential Records Act Amendments of 2009 

H.R. 35 would amend the Presidential Records Act to establish 

a process for reviewing Presidential records. That act details which 

records and materials are to be assumed by the National Archives 

and Records Administration (NARA) at the end of a President’s administration. 

H.R. 35 would require the Archivist of the United States to provide notice to the incumbent and former President and the public 

up to 90 days before making Presidential records public. If a claim 

of executive privilege is made by a former President against such 

disclosure and the incumbent President determines not to uphold 

the claim, the Archivist would release the materials within 90 days 

of that determination unless the Archivist is otherwise directed by 

a final court order that is not subject to appeal. If a claim of executive privilege is made by an incumbent President against such disclosure, the Archivist could not release material unless the claim 

is withdrawn or the Archivist is otherwise directed by a court 

order. H.R. 35 also would allow a newly elected President until 

July 20 of the first year in office to review Presidential records that 

would otherwise be made public during that time. Finally, the legislation would rescind Executive Orders 13233 and 12667. (Those 

orders concern the procedures for releasing Presidential records by 

NARA.) 

Based on information from NARA, CBO estimates that implementing H.R. 35 would have no significant impact on federal 

spending. Enacting the legislation would not affect direct spending 

or revenues. 

The bill contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Matthew Pickford. 

This estimate was approved by Theresa Gullo, Deputy Assistant 

Director for Budget Analysis. 

VII. CHANGES IN EXISTING LAWS

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 

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

roman): 

UNITED STATES CODE 

* * * * * * * 

TITLE 44—PUBLIC PRINTING AND 

DOCUMENTS 

* * * * * * * 


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CHAPTER 22—PRESIDENTIAL RECORDS 

* * * * * * * 

Sec. 

2201 Definitions. 

* * * * * * * 

2208. Claims of constitutionally based privilege against disclosure. 

* * * * * * * 

§ 2204. Restrictions on access to Presidential records 

(a) * * * 

* * * * * * * 

(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) 

if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of records of the Archives. 

* * * * * * * 

§ 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 


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(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 period 

under subparagraph (A), or any extension of that period under subparagraph (B), would otherwise expire after January 19 and before 

July 20 of the year in which the incumbent President first takes office, then such period or extension, respectively, shall expire on July 

20 of that year. 

(b)(1) For purposes of this section, any claim of constitutionally 

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

a former President or the incumbent President, as applicable. 

(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. 


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(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 of 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. 

(d)(1) 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— 

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

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

that is not subject to appeal. 

(2) This subsection shall not apply with respect to any Presidential record required to be made available under section 

2205(2)(A) or (C) of this title. 

(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. 

Æ 


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