On November 17, the House Oversight and Government Reform Committee approved, by voice vote, H.R. 3071, the “Presidential Records Act Amendments of 2011.” The version as adopted embodied a manager’s amendment offered by Committee Chairman Darrell Issa, R-Calif. that added federal records management provisions to the original bill which only addressed presidential records.
The bill amends the Presidential Records Act to require the Archivist of the United States, upon determining to make available any presidential record not previously made available publicly, to:
- (1) Provide written notice of such determination to the former President during whose term of office the record was created and to the incumbent President, and (2) Make the notice available to the public.
- Requires a presidential record to be made available to the public 60 days after the Archivist gives notice, unless the Archivist receives notification from a former or incumbent President of a claim of constitutionally based privilege against disclosure. The incumbent President has the authority to decide whether to uphold the former President’s invocation of executive privilege.
Prohibits the Archivist from making a record that is subject to a privilege claim asserted by the incumbent President publicly available unless:
(1) The incumbent President (on behalf of themselves or the former President) withdraws the claim; or (2) the Archivist is otherwise directed to do so by a final court order that is not subject to appeal.
- Prohibits the Archivist from making available any original presidential records to anyone claiming access to them as a designated representative of a President or former President if that individual has been convicted of a crime relating to the review, removal, or destruction of the Archives’ records.
Federal Records Management
The manager’s amendment also included provisions giving the National Archives increased ability to streamline the records preservation process and improve the oversight of records management by federal agencies. The bill as amended:
- Encourages agencies to turn over records to NARA “as soon as practicable, but no later than 30 years after the records were created or received by the agency.
- Allows NARA to accept for deposit the records of the Congress, the Architect of the Capitol, or the Supreme Court, in addition to those of federal agencies.
- Directs the Archivist to promulgate regulations within 18 months of enactment of the bill requiring all Federal agencies to transfer all digital or electronic records to NARA in digital form “to the greatest extent possible.” The regulations must include timelines for Federal agencies to comply “as soon as practicable,” but no later than four years after enactment. Agencies must submit a report to the Archivist a report on the agency’s progress with compliance.
- Directs the Archivist to annually certify whether the records management controls established by the incumbent President for the preservation of his or her records are being met.
The Committee also adopted an amendment offered by Rep. Patrick McHenry, R-N.C., that would prohibit the president, vice president and any employee in the Executive Office of the President or the Office of the Vice President from using any unofficial electronic mail or systems of communication for official businesses.
Floor action on the bill has not been scheduled and no comparable legislation has been introduced in the Senate.