Presidential & Federal Records Act Enacted into Law

In December 2014, President Obama signed into law the Presidential and Federal Records Act Amendments of 2014 (PL 113-187). This is a major victory for the National Coalition for History and the community of historians who have been advocating for the passage of Presidential Records Act (PRA) reform legislation since the issuance of President George W. Bush’s 2001 Executive Order (EO) 13233 restricting public access to presidential records.

The fact that there was nothing in the PRA that set forth a constitutional privilege review procedure has proved vexing for historians, archivists, political scientists, journalists, and others. The process for restricting access has created delays and uncertainty as to when records would be released. The Presidential Records Act allows the public to make Freedom of Information Act requests beginning five years after a president leaves office; however, it allows the former president to claim six FOIA restrictions for up to 12 years.

The PRA did not, however, provide a procedure allowing former presidents to request continued restricted access. This flaw in the statute in effect has left it up to each president to interpret the law and to impose restrictions as they have seen fit through the issuance of executive orders.

This situation has led to abuses, such as President George W. Bush’s attempt to broaden the authority of those able to make a privilege claim and potentially restrict public access indefinitely beyond the 12-year period in the law. For example, the Bush executive order for the first time gave the heirs or a representative of a former president the opportunity to request the withholding of presidential records or delay their release indefinitely.

In the past, extension requests by former presidents for additional time in which to review records have been routinely granted by the incumbent. For example, a recent report by Politico found that the Obama administration has provided President Clinton with numerous extensions for records related to a variety of controversial issues from his administration.1

The new law will end that practice. For the first time, the former and incumbent presidents, after receiving notice from the National Archives of its intent to release a record, will be subject to specific time limitations as they review records for constitutionally based privilege against disclosure. The current and former president would have an initial 60 days to review the records and would be allowed one 30-day extension.

The law also clarifies that if the president, vice president, or their “immediate staff” use a nonofficial e-mail account to create a record, they must either make a copy of the record or forward it to their official e-mail account within 20 days of creation of the record.

The new law also makes important changes to the way federal records are treated. According to a National Archives press release, the updates to the Federal Records Act include:

  • Strengthening the Federal Records Act by expanding the definition of federal records to clearly include electronic records. This is the first change to the definition of a federal record since the enactment of the act in 1950.
  • Confirming that federal electronic records will be transferred to the National Archives in electronic form.
  • Granting the Archivist of the United States final determination as to what constitutes a federal record.
  • Authorizing the early transfer of permanent electronic federal and presidential records to the National Archives, while legal custody remains with the agency or the president.
  • Clarifying the responsibilities of federal government officials when using nongovernment e-mail systems. If government employees use a nonofficial e-mail account to create a record, they must either make a copy of the record or forward it to their official e-mail account within 20 days of creation of the record. This is to prevent situations such as the recent revelations that former-Secretary of State Hillary Clinton used a private server to conduct agency business, but did not routinely copy or forward her emails to the State Department.
  • Empowering the National Archives to safeguard original and classified records from unauthorized removal.2

In responding to the enactment of the new law, Archivist of the United States David Ferriero stated in the press release, “We welcome this bipartisan effort to update the nation’s records laws for the 21st century.”

Notes:

  1. Josh Gerstein, “Secrets of the Clinton Library,”Politico (August 25, 2014), http://www.politico.com/story/2014/08/secrets-of-the-clinton-library-110289.html.
  2. To read the full press release, please visit http://1.usa.gov/1ycEidR