Presidential Records Act Gets New Teeth
The Presidential Records Act has come a long way since George W. Bush’s attempt to eviscerate it in 2001. The Act recently gained teeth that will, among other improvements: establish a process for the publication of presidential records after the president leaves office, making it harder for former executives to block publication of their records by citing executive privilege; forbid executive branch officials from conducting government business over personal email, thereby evading the FOIA; and modernize records management by expanding and clarifying the definition of electronic records.
On November 1, 2001, President Bush signed Executive Order 13233, giving former presidents, vice presidents, and their heirs the indefinite authority to block the release of White House records. The White House’s intrusion was confounding, considering the infrequency former executives and their designated representatives cite executive privilege to block the release of records. President Clinton has not asserted executive privilege over any of his Presidential records, and neither has George W. Bush. The last time a president did cite executive privilege in an attempt to withhold documents from the public was Ronald Reagan, who cited the privilege to withhold 74 pages that were set to become public in 2001. This singular incident is what prompted President Bush to sign the sweeping EO 13233, allowing his White House Counsel – not the National Archives – to review 68,000 pages of Reagan’s records and decide if the public had the right to read them. The National Security Archive and others filed suit to revoke the order, which was partially won, but the ruling failed to clarify whether former presidents, former vice presidents, and their heirs could indefinitely stop the disclosure of presidential records.
President Obama fully revoked EO 13233 on his first full day in office, permitting only the incumbent president to assert constitutional privileges to withhold information and stating he would hold himself and his own records “to a new standard of openness.”
Ambiguities remained, however, and there was still no system in place for the release of the most historically significant documents, with documents remaining “closed” until a member of the public submitted a FOIA request for them (and even then many hoops remained for requesters to jump through if those documents contained even a modicum of classified material). More importantly, without reform legislation the possibility continued to exist of a future executive reinstating unreasonable barriers to White House records.
The most recent update to the Presidential Records Act, “The Presidential and Federal Records Act Amendments of 2014,” (HR1233) codifies Obama’s improvements, makes it much more difficult for former presidents to block access to their records, and establishes that once the Archivist issues a notification to make presidential records public, both the sitting president and affected former president have just 60 days to review the records, with only one option to extend that period another 30 days.
Introduced in the House on March 18, 2013, by Rep. Elijah Cummings (D-MD) and ultimately signed into law by President Obama on November 26, 2014, HR 1233 improves public access to records by establishing “the procedures the Archivist of the United States will use to make records public.” The procedures include notifying the public, the sitting president, and the president during whose term the records were created that records should be released within 60 days of the Archivist’s notification. HR 1233 imposes a time limit wherein a president may object to the disclosure, and outlines procedures for the Archivist to take if the “President claims a constitutionally-based privilege [“executive privilege”] against disclosure of the record.”
This important change will go a long way to improve the declassification process at presidential libraries, which currently moves at a glacial pace — including a seven year wait for the presidential sign off for the release of 1970s telephone conversations between Secretary of State Henry Kissinger and President Gerald Ford and an ongoing delay in the presidential sign off allowing the declassification of historically significant documents on the 20-year-old Rwandan genocide from the Clinton Library.
Also of importance, HR 1233 “forbids officers and employees of the executive branch from using personal email accounts for government business, unless the employee copies all emails to either the originating officer or employee’s official government email, or to an official government record system to be recorded and archived.”
The Act also:
- Allows the Archivist to direct and effect the transfer of permanent records of a Federal agency “as soon as practicable and at a time mutually agreed upon by the Archivist and a Federal agency not later than 30 years after the creation or receipt of such records by that agency.” The Archivist could have seized this extraordinary opportunity, for example, to order the transfer of the Panetta Review, the torture tapes ultimately destroyed by the former CIA official in charge of the agency’s defunct torture program, Jose Rodriguez, and the Torture Report itself, to NARA’s custody.
- Strengthens the Federal Records Act by expanding the definition of Federal records to clearly include electronic records.
- Confirms that Federal electronic records will be transferred to the National Archives in electronic form.
- Grants the Archivist of the United States final determination as to what constitutes a federal record.
- Authorizes the early transfer of permanent electronic federal and Presidential records to the National Archives (legal custody remains with the agency or the President).
- Empowers the National Archives to safeguard original and classified records from unauthorized removal.
The National Security Archive applauds this amendments’ improvements to public access of White House records, which will help prevent future executives from hiding their records from the public. Rep. Cummings deserves special thanks for this bill’s passage. It’s worth noting that with the passage of these amendments to the Presidential Records Act, the passage of the DATA Act earlier this year, and the ongoing efforts to pass the FOIA Improvement Act of 2014, this congressional session could pass some of the most pro-transparency legislation in history.
To help ensure the success of the FOIA Improvement Act, set to be taken up in the House which already passed complimentary legislation earlier this year thanks to the ongoing, bipartisan efforts of Reps. Elijah Cummings and Darryl Issa, contact House Whip Rep. Kevin McCarthy (R-CA) and Speaker John Boehner (R-OH) to make sure the bill makes it on the House calendar for a vote before the end of session this week.