HR 1233 “Presidential and Federal Records Act Amendments”

In a statement that is inscribed at the entrance to his Presidential Library, President Harry Truman said: “The papers of the Presidents are among the most valuable sources of material for history. They ought to be preserved and they ought to be used.” Since those words were spoken many years ago, experience has taught historians President Truman should have added “and the government should make them accessible to the public as soon as possible.”

For over a decade, the National Coalition for History has been a lead advocate for enactment of Presidential Records Act (PRA) reform legislation. The organization was a plaintiff with other historical and archival groups in a federal lawsuit that sought to have an Executive Order (EO) issued by President George W. Bush, which severely limited public access to presidential records, declared invalid.

On January 21, 2009, in one of his first official acts, President Barack Obama revoked the Bush administration’s Executive Order 13233. The language in the Obama Executive Order 13489 is similar to an EO issued by President Reagan in 1989 which was also in effect during the presidencies of George H.W. Bush and Bill Clinton. The Reagan executive order was revoked when President Bush issued EO 13233 in November 2001.

Unfortunately, without the passage of legislation there is nothing to prevent a future chief executive from reinstituting onerous restrictions on access or extending the privilege beyond that of the incumbent and former-president as President Bush did.

To put this issue to rest, legislation (HR 1233) was introduced in the House in 2013 creating a framework that would enable former presidents to request continued restricted access on a very narrow basis, in essence codifying the Reagan and Obama administration rules.

HR 1233 passed the House earlier this year by an overwhelming vote of 420-0. On May 21, 2014, the Senate Homeland Security and Governmental Affairs (HSGA) Committee passed HR 1233 by voice vote. The bill is now ready for floor consideration by the Senate.

While these developments are good news, two similar bills were overwhelmingly passed in the 110th and 111th Congresses only to die in the Senate. PRA reform bills were cleared by the Senate HSGA Committee in both those congresses only to have holds placed on them by various Republican senators, which prevented consideration on the Senate floor.

In the past, Senator Jeff Sessions (R-AL) has been the most visible opponent of the PRA and it remains to be seen will once again single-handedly stymie this much needed reform. However, Senator Tom Coburn (R-OK) is the ranking member on the Senate HSGA Committee and he strongly supports the bill’s passage.

Background

As a result of the Watergate battles between Congress and the federal courts with former-President Nixon over his files, it became obvious that a law was needed to prevent similar constitutional conflicts in the future. In 1978, Congress passed the Presidential Records Act (PRA), in an attempt to clarify legal issues surrounding presidential records preservation and maintenance.

The PRA governs the official records of Presidents and Vice Presidents created or received after January 20, 1981. The PRA changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents must manage their records. The PRA also defined what did and did not qualify as a presidential record, detailed guidelines for the management and custody of presidential records, established procedures for restricting access to Presidential records under certain circumstances, and granted the Archivist of the United States the authority to promulgate regulations enforcing the PRA.

What has proved most vexing part of the PRA for historians, archivists political scientists, journalists, and authors is the process for restricting access to these records that were established by the statute. Specifically, the PRA allows for public access to Presidential records through the Freedom of Information Act (FOIA) beginning five years after the end of the Administration, but allows the President to invoke as many as six specific restrictions to public access for up to twelve years. The PRA also establishes procedures for Congress, courts, and subsequent Administrations to obtain special access to records that remain closed to the public, following a thirty-day notice period to the former and current Presidents.

The PRA did not, however, provide a procedure allowing former presidents to request continued restricted access to presidential records created during their respective administrations beyond twelve years. This flaw in the statute in effect leaves it up to each President to interpret the law and to impose restrictions as they see fit through the issuance of executive orders. As noted above, several presidents since the passage of the PRA have issued EOs to change the request procedure and define the limits of such requests. This has led to abuses such as 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 EO for the first time gave the heirs or a representative of a former-President authority to withhold presidential records or delay their release indefinitely.

The issuance of President Obama’s EO revoked the onerous restrictions placed by President George W. Bush and restored the standards established by President Reagan. However, without the passage of legislation there is nothing to prevent a future chief executive from reinstituting onerous restrictions on access or extending the privilege beyond that of the incumbent and former-president as President Bush did.

Legislation (HR 1233) was introduced in the House in 2013 creating a framework that would enable former presidents to request continued restricted access on a very narrow basis, in essence codifying the Reagan and Obama administration rules. On January 14, 2014, the House of Representatives, by an overwhelming vote of 420-0, approved the “Presidential and Federal Records Act Amendment of 2014.” (HR 1233)

HR 1233 imposes a time limit in which a former president must assert any claim of privilege upon a determination of the Archivist to make available to the public a record of that former president. The bill also establishes processes for managing the disclosure of records upon the assertion of privilege by a former president, and grants to the incumbent president the power to decide whether or not to uphold any privilege claim of a former president, absent a court order to the contrary.

HR 1233–Summary of House Version passed January 14, 2014 (source: www.congress.gov)

Presidential and Federal Records Act Amendments of 2014

(Sec. 2) Amends the Presidential Records Act to require the Archivist of the United States, upon determining to make publicly available any presidential record not previously made available, to: (1) promptly provide written notice of such determination to the former President during whose term of office the record was created, to the incumbent President, and to the public; and (2) make such record available to the public within 60 days, except any record with respect to which the Archivist receives notification from a former or incumbent President of a claim of constitutionally-based privilege against disclosure. Prohibits the Archivist from making a record that is subject to such a claim publicly available unless: (1) the incumbent President withdraws a decision upholding 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, retention, removal, or destruction of the records of the Archives.

Prohibits an officer or employee of an executive agency from creating or sending a presidential 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 presidential record, or (2) forwards a complete copy of the presidential record to an official electronic messaging account of the officer or employee within five days after the original creation or transmission of the presidential record.

(Sec. 3) Provides that the transfer to the Archivist of records by a federal agency that have historical significance shall take place as soon as practicable but not later than 30 years after the creation or receipt of such records by an agency. Expands the authority of the Archivist with respect to the creation and preservation of audio and visual records.

(Sec. 5) Revises the definition of “records” for purposes of this Act to include all recorded information, regardless of form or characteristics. Makes the Archivist’s determination of whether recorded information is a record binding on all federal agencies.

(Sec. 6) Directs the Archivist to prescribe internal procedures to prevent the unauthorized removal of classified records from the National Archives and Records Administration (NARA) or the destruction or damage of such records, including when such records are accessed electronically. Requires such procedures to: (1) prohibit any person, other than personnel with appropriate security clearances (covered personnel), from viewing classified records in any room that is not secure, except in the presence of NARA personnel or under video surveillance, from being left alone with classified records unless under video surveillance, or from conducting any review of classified records while in the possession of any personal communication device; (2) require all persons seeking access to classified records to consent to a search of their belongings upon conclusion of their records review; and (3) require all writings prepared by persons, other than covered personnel, during the course of a review of classified records to be retained by NARA in a secure facility until such writings are determined to be unclassified, are declassified, or are securely transferred to another secure facility.

(Sec. 7) Repeals provisions authorizing the National Study Commission on Records and Documents of Federal Officials.

(Sec. 9) Transfers responsibility for records management from the Administrator of the General Services Administration (GSA) to the Archivist. Requires the transfer of records from federal agencies to the National Archives in digital or electronic form to the greatest extent possible.

(Sec. 10) Prohibits an officer or employee of an executive agency from creating or sending 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 within five days after the original creation or transmission of the record. Provides for disciplinary action against an agency officer or employee for an intentional violation of such prohibition.