The Presidential Records Act: Background and Recent Issues for Congress
Released: 2014-12-31T00:00:00

Introduction

Enacted in 1978, the Presidential Records Act (PRA), as amended, instructs the collection and retention of—as well as codifies public access to—presidential records. Since the PRA's enactment, some incumbent Presidents have issued executive orders that detail how they interpreted the law.

Presidential records are critical tools for understanding the powers and operations of the executive branch of the federal government. These records, however, may include information that, if released to the public, could endanger national security, adversely affect the nation's economy, or result in an unwarranted invasion of personal privacy.

The PRA details which presidential records and materials the National Archives and Records Administration (NARA) is to assume responsibility for at the end of a President's Administration. According to the act, when a President leaves office, his official records remain property of the federal government, under the supervision of the Archivist of the United States. Once a location for a presidential library has been determined, and the facility is deeded or otherwise placed into the custody of the United States, the former President's records are to be deposited there.

The provisions of the PRA have remained relatively unchanged since the law's 1978 enactment, except for several technical amendments. Incumbent Presidents, however, have varied widely in how they chose to interpret the PRA. Additionally, Presidents from both major political parties have faced questions and concerns about their abilities to maintain accurate, comprehensive, and accessible archives, especially considering their increasing use of electronic—and perhaps ephemeral—platforms like email, Facebook, Twitter, blogs, and YouTube. The PRA requires the collection of all presidential records, including those created on electronic platforms. The increasing volume of records created by incumbent Presidents may prompt further concerns about incumbent Presidents' abilities to appropriately collect and retain records.

Congress has the authority to revise or enhance recordkeeping requirements for incumbent Presidents, including requiring more systematic methods for collecting and maintaining email or Internet records. The 113 th Congress (2013-2014), for example, passed H.R. 1233 , and the President signed into law, P.L. 113-187 , the Presidential and Federal Records Act Amendments of 2014, which codifies the length of time an incumbent or applicable former President has to review records and decide whether to challenge release to the public. P.L. 113-187 also prevents the President and his immediate staff from use of a "non-official electronic messaging account" to create federal records, unless that record is forwarded to an "official" email address within five days. The law, however, does not define "non-official electronic messaging account," nor does the PRA.

In addition to ensuring the implementation of recent amendments to the PRA, Congress might elect to oversee whether all of the platforms and technologies used to create presidential records allow for appropriate capture, retention, and future access of those records.

This report discusses the PRA and its interpretations by successive Administrations. This report examines policy options related to the capture, maintenance, and use of presidential records, with a focus on electronic presidential records.

The Presidential Records Act

As noted above, the Presidential Records Act (PRA) was enacted in 1978, and the statute, as amended, instructs the collection and retention of—as well as codifies public access to—presidential records. Prior to the enactment of the PRA, "presidential records were under the control of the president whose administration generated them."

Pursuant to the PRA, presidential records are collected and maintained by the incumbent President until he leaves office. When a President leaves office, his official records remain property of the federal government, under the supervision of the Archivist of the United States. The act applies to the records of Presidents dating back to Ronald Reagan.

The PRA defines a presidential record as "documentary materials … created by the President or his immediate staff." In turn, the term documentary materials includes

all books, correspondence, memorandums, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, and motion pictures, including, but not limited to, audio, audiovisual, or other electronic or mechanical recordations.

Pursuant to Chapter 22 of Title 44 of the U.S. Code , upon leaving office, an outgoing President may restrict access to certain of his archived records for up to 12 years. Certain presidential files and records may be excepted from public access indefinitely if they qualify under any of the six criteria delineated in 44 U.S.C. Section 2204:

1. the information is specifically exempted by an executive order for the purpose of national security or foreign policy; 2. the information is related to federal office appointments; 3. the information is explicitly exempted from disclosure by statute; 4. the information includes trade secrets and commercial or financial information that is privileged or confidential; 5. the information is a confidential communication that requests or submits advice between the President and his advisers—or between the advisers themselves; or 6. the information is personnel or medical files, and their disclosure would amount to an unwarranted invasion of personal privacy.

According to the act, the Archivist of the United States—or, if there is a legal challenge, the federal courts—would have final determination over which records should be released to the public. The act also states that it is not to "be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President." The act does not define the scope of this privilege.

Presidential Interpretations of the PRA

Successive presidential Administrations have interpreted the PRA's meaning differently. This section will examine and compare the most recent two presidential interpretations—one from the George W. Bush Administration and the other from the Obama Administration. These executive orders are pivotal in setting the context for understanding how presidential interpretations of this law may affect its implementation. The final section of this report details P.L. 113-187 , the Presidential and Federal Records Act Amendments of 2014, which, among other things, codifies some parts of the PRA that have historically been interpreted in various ways by incumbent Presidents.

Executive Order 13233

On November 1, 2001, President George W. Bush issued E.O. 13233. This executive order gave the incumbent President, former Presidents, former Vice Presidents, and their designees broad authority to deny access to presidential documents after the termination of the 12-year access restriction and to delay the release of certain records indefinitely. Under the order, former Presidents had 90 days to review and decide whether documents requested for public release pursuant to a Freedom of Information Act (FOIA) request should be released. Incumbent Presidents had the authority to extend the review period indefinitely, and the Archivist had no recourse to challenge the status of materials that had been withheld or remained in review.

Executive Order 13489

During his first full day in office, President Barack Obama issued Executive Order 13489, which explicitly revoked E.O. 13233. Under E.O. 13489, after termination of the 12-year access restriction, incumbent Presidents and former Presidents were granted 30 days to review presidential records to determine whether they should be released. If an incumbent President claimed executive privilege for the records of a former President, the Counsel to the President was required to notify the Archivist, the appropriate former President, and the Attorney General of the action. The Archivist was then prohibited from releasing those records—unless instructed to do so by a court order.

In contrast to claims of executive privilege made by an incumbent President, under E.O. 13489, claims of executive privilege made by a former President required the Archivist to consult with the Attorney General, the Counsel to the President, or other appropriate officials to determine the validity of the request. According to the executive order, the incumbent President could have instructed the Archivist whether to release the records of a former President, and the Archivist is to "abide by" the President's determination—unless directed otherwise by a court order. If the Archivist denied a former President's executive privilege claim and determined that records should have been released, the incumbent President and appropriate former President were to be given 30 days' notice of the records' release.

E.O. 13489 vested much of the records disclosure authority in the hands of the incumbent President. This authority to determine which records of a former President should have been released to the public may arguably have stood in contrast to the designs of the Presidential Records Act, which places greater authority over records disclosure in the hands of the Archivist. The executive order did not define the boundaries of executive privilege, but it did define a " substantial question of executive privilege " as a situation in which "NARA's disclosure of Presidential records might impair national security (including the conduct of foreign relations), law enforcement, or the deliberative processes of the executive branch."

The Presidential and Federal Records Act Amendments of 2014

The 113 th Congress passed and President Obama signed into law the Presidential and Federal Records Act Amendments of 2014 ( P.L. 113-187 ), which addressed the creation of, collection of, retention of, and access to presidential records. The law, among other things, amended the PRA to explicitly provide a 60-day presidential record review period to the incumbent or applicable former President any time the Archivist intended to release previously unreleased presidential records. Pursuant to the bill's language, the review period can be extended for an additional 30 days if the Archivist provides a statement that "such an extension is necessary to allow an adequate review of the record." This language would supersede Executive Order 13489. The bill also codifies the requirement that any claim of executive privilege must be made by the applicable former President or by the incumbent President. P.L. 113-187 also prohibits anyone convicted of inappropriately using, removing, or destroying NARA records from accessing presidential records.

Additionally, the Presidential and Federal Records Act Amendments of 2014 prohibits the use of a "non-official electronic messaging account" to create a presidential record. The law, however, does not define "non-official electronic messaging account." Additionally, no definition is provided for "official electronic messaging account." The statutory definition of presidential record , as noted above, includes all materials "created by the President or his immediate staff." The PRA then lists potential types of presidential records, but it does not specifically list or limit the platforms on which these records may be created. Federal statute would seem to suggest that the sender and content of the message created on an electronic messaging account would determine whether the message qualified as a presidential record. The terms "official electronic messaging account" and "non-official electronic messaging account," therefore, might have no effect over whether a particular record qualifies as a presidential record pursuant to the PRA. Alternatively, the Archivist could issue an interpretive rule in the Federal Register that could provide a definition for "non-official electronic messaging account" that could clarify the legislative language.

In many cases, only the .gov email addresses of the President and his immediate staff are equipped with automated email archiving technologies. To ensure the automated capture of all qualifying presidential records, Congress could amend the law or the Archivist could promulgate a regulation to ensure that qualifying presidential records created on any electronic messaging account without automated record capturing technology be forwarded to electronic messaging accounts equipped with such technology.

Maintaining Electronic Records

Capturing Records Across Multiple Platforms

Although the PRA was written prior to the use of electronic platforms to create records, the law appears to require collection and maintenance of—and accessibility to—the records of former Presidents, which today are largely created electronically. As new technologies are introduced and increasingly utilized by Presidents, NARA must continuously ensure that widely used and perhaps ephemeral technologies used to create electronic records do so in formats that can be collected, maintained, and accessed in perpetuity. Archiving presidential use of social networking sites like Facebook or Twitter, for example, may pose different archival challenges than email.

Pursuant to the PRA, NARA is responsible for the custody, control, and preservation of the records of former Presidents. Incumbent Presidents, however, are responsible for managing and archiving their records during the tenure of their Administrations. NARA has worked with incumbent Presidents as they prepare to leave office to ensure the capture and preservation of records generated through social media. Examples may be found in the preserved whitehouse.gov content available through the websites of the Clinton and George W. Bush Libraries.

To address the task of accepting, preserving, and making available presidential records, including those created electronically, NARA created an Executive Office of the President (EOP) system within its Electronic Records Archive (ERA) to maintain and make available such records. According to NARA, the ERA is currently used to preserve the electronic records from the George W. Bush Administration, including the electronic records of former Vice President Dick Cheney, and it is used by archivists to review these records to make them available to the public. ERA is not yet used to preserve the electronic records of the Clinton Administration. Although NARA will not be given archival control of President Obama's records until after his tenure in office ends, the National Archives said the ERA "has the capability to manage the electronic records of any given administration." NARA has said that the "Administration has consulted with NARA regarding the records status of PRA content on social media sites and technical approaches to managing them."

At a May 3, 2011, House Oversight and Government Reform Committee hearing, Brook M. Colangelo, chief information officer of the Office of Administration in the EOP, testified that "the EOP has been able to rely on an automated system that archives email sent and received on the EOP system." The commercial, off-the-shelf product used to capture all EOP emails "archives inbound and outbound email messages in near real time and in original format with attachments, whether sent or received from EOP computers or EOP BlackBerries." Mr. Colangelo also testified that Short Message Service (SMS) texts and Personal Identification Number (PIN) messaging are also automatically archived by commercial software.

The Obama Administration is the first to extensively use public websites like Facebook, Twitter, and YouTube, as well as other social networking media. Mr. Colangelo testified that there is no software to "offer a sufficiently comprehensive, reliable, and affordable" method of automatic archiving of presidential use of social networking sites. Archiving the presidential use of sites like Twitter and Facebook, therefore, "is handled on a component-by-component basis" using a "combination of traditional manual archiving techniques (like saving content in an organized folder structure) and automated techniques (such as Real Simple Syndication (RSS) feeds and Application Programming Interfaces (APIs))." Mr. Colangelo said the White House would continue to search for a comprehensive automatic archiving option for social media.

Mr. Colangelo also said EOP employees are instructed to conduct all work-related communications on their EOP email accounts, except in emergency circumstances when they cannot access the EOP system and must accomplish time-sensitive work.

If EOP employees do perform work on nonwork email accounts or other platforms, they are required by White House policy to forward such records to the proper destinations for archiving.

The Growth of Presidential Records

Pursuant to the PRA, presidential records are provided to NARA at the end of each presidential administration. As a result, NARA has tracked the increasing volume and varied electronic formats employed by each administration.

According to NARA's Report on Alternative Models for Presidential Libraries , "Presidential Libraries … experienced an explosive growth in the volume of electronic records, especially White House email." The report continued:

Presidential Library holdings in electronic form are now much larger than the paper holdings. Indeed, the email system for the George W. Bush Administration alone is many times larger than the entire textual holdings of any other Presidential Library. These electronic holdings bring new challenges to processing and making available Presidential records. The sheer volume exponentially increases what archivists have to search and isolate as relevant to a request, a lengthy process in and of itself before the review begins. Once review begins, the more informal communication style embodied in Presidential record emails often blends personal and record information in the same email necessitating more redactions.

In that same report, NARA noted that the Administration of William J. Clinton provided NARA 20 million presidential record emails at the conclusion of the President's eight-year tenure.

In June 2010, the Government Accountability Office (GAO) submitted testimony to the House Committee on Oversight and Government Reform's Subcommittee on Information Policy, Census, and National Archives on "The Challenges of Managing Electronic Records." GAO stated that the "[h]uge volumes of electronic information" were a "major challenge" in agency record management.

Electronic information is increasingly being created in volumes that pose a significant technical challenge to our ability to organize it and make it accessible. An example of this growth is provided by the difference between the digital records of the George W. Bush administration and that of the Clinton administration: NARA has reported that the Bush administration transferred 77 terabytes of data to the [National] Archives [and Records Administration] on leaving office, which was about 35 times the amount of data transferred by the Clinton administration.

On April 25, 2013, a NARA blog post provided additional details on the records being transferred to the George W. Bush Library and Museum in Dallas, TX—"more than 70 million pages of textual records, 43,000 artifacts, 200 million emails (totaling roughly 1 billion pages), and 4 million digital photographs (the largest holding of electronic records of any of our libraries)." This amounts to a 3,500% increase in the volume of electronic records created when comparing one two-term administration to the next—an eight-year period.

The rapid increase in the volume of electronic presidential records does not present challenges in terms of demands on physical space for storage. Electronic records, however, may present challenges in terms of the collection of and perpetual access to the diverse and often ephemeral platforms used to create the records.

Analysis of Recent Congressional Legislative Proposals

As previously noted, Congress has the authority to use its legislative powers to amend the Presidential Records Act. Appendix A describes legislative proposals to amend the PRA that were introduced in recent Congresses. Congress may also use its oversight powers to investigate and potentially influence changes in the PRA's implementation. This section analyzes the potential effects of some of these proposals and explores some of the tensions that have emerged as technology has evolved to allow for the proliferation of presidential records in a wide variety of electronic platforms.

Records Management Consistency vs. Potential Oversight Tensions

In recent Congresses, legislation has been introduced that would require the Archivist to promulgate records management regulations for the incumbent President. These bills would have also required the Archivist to oversee the incumbent President's adherence to these regulations. Requiring the Archivist to detail and oversee the incumbent President's records management practices could prompt more consistency across presidential Administrations.

As noted earlier in this report, pursuant to current law NARA is responsible for the custody, control, and preservation of the records of former Presidents. Sitting Presidents, however, are responsible for managing and archiving their records during the tenure of their Administrations. The Presidential and Federal Records Act Amendments of 2014 clarify that the Archivist "may maintain and preserve Presidential records on behalf of the President," but asserts that the Archivist "may not disclose any such records except under the direction of the President" or until the President leaves office.

If the Archivist were required to oversee a sitting President's records management, it would appear to mark the first time someone other than the incumbent President was formally authorized to oversee such management. The Archivist is appointed by the President, with the advice and consent of the Senate, "without regard to political affiliations and solely on the basis of the professional qualifications required to perform the duties and responsibilities of the office," and he or she serves at the pleasure of the President. H.R. 1234 sought, therefore, to authorize an official who can be removed by the President to oversee and report to Congress on the actions of the President. Such an arrangement might have prompted tensions between the President and the Archivist or might arguably have complicated or politicized the appointment of future Archivists.

Collection of, Retention of, and Access to Electronic Records

The rapid evolution of social media and other means of electronically created records present many challenges for meeting archiving requirements. Congress may choose to further assess and monitor whether the Administration is properly adhering to the PRA through the use of manual archiving techniques for capturing its use of social media. Congress may also have interest in fostering the development of a cost-effective technology that would automate the capture of records created with any electronic platform.

As noted earlier in the report, electronic platforms allow records to be created at a much greater volume than they were historically. Acquiring and paying for archival building space may not be a concern because electronic records do not need to be stored on shelves. It is not clear, however, that existing technologies are capturing all Presidential records in every medium of creation. Additionally, it is unclear whether the records captured and retained will be accessible to the public in perpetuity. In short, will the technologies that permit federal employees, lawmakers, and the general public to create and view certain records today (for example PDF technologies) exist in 10, 20, or 30 years? Or will the ephemeral nature of these platforms lead to a future situation in which millions of records created on multiple technologies can no longer be accessed?

Appendix A. Presidential Records Act Amendments Introduced in the 111 th , 112 th , and 113 th Congresses

This appendix provides background information on bills from the three previous Congresses that sought to amend the Presidential Records Act. Similar provisions can be found in the legislation throughout each Congress.

113 th Congress

In addition to H.R. 1233 , which was passed and enacted as P.L. 113-187 , another measure related to recordkeeping stuff was also considered ion the 113 th Congress.

Representative Elijah Cummings introduced the Electronic Message Preservation Act ( H.R. 1234 ). H.R. 1234 contained several provisions that would amend the sections of the PRA that apply to the creation of, retention of, collection of, and access to federal records, generally. Additionally, H.R. 1234 would have authorized the Archivist to promulgate regulations that established "standards necessary for the economical and efficient management of electronic Presidential records during the President's term in office." The regulations would have focused on "the capture, management, and preservation of electronic records," the electronic retrieval of electronic messages, and the creation of a process to certify the President's records management system. Pursuant to Section 2208 of H.R. 1234 , the Archivist would have been required to certify annually that the incumbent President was meeting the Archivist's records management requirements. The Archivist would also have been required annually to report to Congress on the President's records management certification status. In the report to accompany H.R. 1234 , the committee stated that the bill sought to address provisions in current law that have been "rendered antiquated" by the "rapid migration ... toward electronic communication and recordkeeping." H.R. 1234 contained language similar to the Presidential and Federal Records Act Amendments of 2014 ( P.L. 113-187 ), which prohibits "an officer or employee" from creating a presidential record on "a non-official electronic messaging account, unless" copies of the message are forwarded to an "official electronic messaging account" within five working days.

On June 25, 2013, H.R. 1234 was reported favorably, as amended, by the House Committee on Oversight and Government Reform. After being reported favorably by the committee, H.R. 1234 was placed on the House's Union Calendar. No further action has been taken on H.R. 1234 .

112 th Congress

In the 112 th Congress, two bills were introduced that would clarify the terms under which presidential records should be released to the public: the Transparency and Openness in Government Act ( H.R. 1144 ) and the Presidential Records Act Amendments of 2011 ( H.R. 3071 ). Both bills contain identical PRA-amending language.

Similar to the language in H.R. 1233 (113 th Congress), both H.R. 1144 and H.R. 3071 would have amended the PRA to provide a 60-day presidential record review period any time the Archivist intended to release previously unreleased presidential records. Pursuant to H.R. 3071 , the review period would have been extended for an additional 30 days if the Archivist provided a statement that "such an extension is necessary to allow an adequate review of the record." The bill also would have codified the requirement that any claim of executive privilege be made by the applicable former President or by the incumbent President. On September 29, 2011, Representative Edolphus Towns introduced H.R. 3071 , which contained identical amending language.

111 th Congress

Two bills introduced in the 111 th Congress would have significantly amended the PRA: H.R. 35 and H.R. 1387 . H.R. 35 incorporated amendments that had been introduced in previous Congresses, including an attempt to statutorily rescind President Bush's Executive Order 13233. Although the bill was not enacted, it marked continued concern by some Members of Congress that presidential Administrations were misinterpreting the spirit of the PRA. H.R. 1387 , which would have clarified the PRA's electronic recordkeeping requirements for the incumbent President, also incorporated legislative ideas from previous Congresses.

H.R. 35

On January 6, 2009, Representative Towns introduced H.R. 35 , the Presidential Records Act Amendments of 2009, which would have reinstituted many of the presidential records archiving policies in effect prior to George W. Bush's issuance of E.O. 13233, including shortening the presidential record review period to 20 days. The bill would have revoked President Bush's executive order. H.R. 35 would have required an incumbent President, former Presidents, or former Vice Presidents to justify why certain records should be afforded protected status for reasons of executive privilege. In contrast, under E.O. 13233, any person seeking to access unreleased presidential records had to demonstrate why the records should be disclosed—without full knowledge of the information that the record may include.

H.R. 35 passed the House under suspension of the rules on January 7, 2009, by a vote of 359-58. The bill was referred to the Senate Committee on Homeland Security and Governmental Affairs on January 8, 2009. On May 19, 2009, the committee reported the bill with an amendment in the nature of a substitute. The bill was placed on the Senate Legislative Calendar that day. No further action was taken on the bill.

H.R. 1387

On March 9, 2009, Representative Paul W. Hodes introduced H.R. 1387 , the Electronic Message Preservation Act. The bill, like H.R. 1234 (113 th Congress), would have amended 44 U.S.C. Section 2206, which directs the Archivist of the United States to promulgate regulations that govern PRA's implementation. H.R. 1387 would have required the Archivist to promulgate regulations for provisions to establish "standards necessary for the economical and efficient management of electronic Presidential records during the President's term of office." H.R. 1387 would have required the promulgated regulations to include

records management controls necessary for the capture, management, and preservation of electronic messages; records management controls necessary to ensure that electronic messages are readily accessible for retrieval through electronic searches; and a process to certify the electronic records management system to be used by the President for the purposes of complying with H.R. 1387 's new requirements.

Also similar to provisions in H.R. 1234 (113 th Congress), H.R. 1387 would have required the Archivist to certify, annually, that "electronic management controls established by the President" met the requirements of the legislation and to report to Congress the results of that certification. The Archivist would have also been required to submit a report within a year of an incumbent President leaving office that detailed "the volume and format of electronic Presidential records deposited into that President's Presidential archive depository" and whether those records met the legislation's requirements.

H.R. 1387 was reported by the House Oversight and Government Reform Committee on January 27, 2010, and passed the House under suspension of the rules on March 17, 2010. On March 18, 2010, the bill was referred to the Senate Committee on Homeland Security and Governmental Affairs. No further action was taken on the bill.

Appendix B. Vice Presidential Records

Similar to the President, the Vice President has discretion to determine which of his records qualify as presidential records under the PRA. 44 U.S.C. Section 2204 explicitly places the same recordkeeping duties and responsibilities on the Vice President as are placed on the President. The PRA does not explicitly define vice presidential records, but the record-preservation policies governing the Vice President's records have prompted controversy. On January 19, 2009, a federal district court judge In Washington, DC, found that Citizens for Responsibility and Ethics in Washington (CREW), which had sued then-Vice President Richard B. Cheney to preserve records he claimed were subject to his control, could not demonstrate that the Vice President failed to comply with his obligations under the PRA. In a previous motion, attorneys for the Vice President asserted that the Vice President alone may determine what constitutes vice presidential records or personal records, and that their creation, maintenance and disposal were actions committed to his discretion by law. The court's decision accepted former Vice President Cheney's claim that he should have discretion over which of his records are to be preserved and released to the public. The court also found that vice presidential records were, pursuant to 44 U.S.C. Section 2207, to be preserved in the same manner as presidential records. See Citizens for Responsibility and Ethics in Washington v. Cheney , 2009 U.S. Dist. LEXIS 3113 (D.D.C. 2009).