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Originally Published: 4/11/2007

PRESIDENTIAL RECORDS ACT

By The Issue Wonk

 

 

The Presidential Records Act (PRA) (44 USC §§2201-2207) was passed in 1978 in the wake of the Watergate scandal. It “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.”1 It mandates that the records of former presidents would automatically become the property of the federal government upon leaving office and then transferred to the Archivist of the United States, to be made available to the public after no more than 12 years.

 

In addition to changing legal ownership of presidential records, the Act:

 

  • Makes the incumbent president responsible for custody and management of his own records.

  • Allows the incumbent president to “dispose of records that no longer have administrative, historical, information, or evidentiary value, once he has obtained the views of the Archivist of the United States on the proposed disposal.”

  • Requires the president and his staff to “take all practical steps to file personal records separately from presidential records.”

  • Establishes a process for restriction and public access to these records.

  • Requires that vice-presidential records be treated in the same way as presidential records.1

In short, it requires the preservation and ultimate disclosure of all records about official government business. All of the records of a president and a vice president, along with their immediate staff and other specific areas, belong to the United States, not to the individual people, and the president must “take such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequatenly documented and that such records are maintained as presidential records pursuant to the requirements of this section and other provisions of law.”

 

There have been 2 amendments to the original Act, both through Executive Orders:

 

Executive Order 12667 issued by President Ronald Reagan in 1989, established procedures for the National Archives and Records Administration (NARA) and former and incumbent presidents to implement the Act, particularly in regard to Executive Privilege.

 

Executive Order 13233 issued by President George W. Bush in 2001 supersedes Executive Order 12667 and includes the documents of former vice presidents, extending Executive Privilege to that office. Drafted by then-White House counsel Alberto Gonzales, 13233 limits access to the records of former U.S. Presidents “reflecting military, diplomatic, or national security secrets, Presidential communications, legal advice, legal work, or the deliberative processes of the president and the President’s advisers, and to do so in a manner consistent with the Supreme Court’s decisions in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), and other cases . . .” [Emphasis added.]

 

Executive Order 13233 has been criticized by the Society of American Archivists2 and the American Library Association.3 They claim that it “violates both the spirit and the letter of existing U.S. law . . .” and that the Order “potentially threatens to undermine one of the very foundations of our nation.” In response to their calls for repeal of Order 13233, in 2002 the House of Representatives Government Reform Committee passed a bill that restored Order 12667. The bill was never brought to the floor for a vote. However on March 14, 2007, the House passed a similar bill with an overwhelming bipartisan vote of 333-93. It has gone to the Senate for consideration but President Bush has threatened to veto it.

 

__________

 

1  Presidential Records Act (PRA) of 1978. Presidential Libraries.

 

2  Society of American Archivists. Call to Action on Executive Order 13233:  A Message from President Steve Hensen, November 15, 2001.

 

3  American Library Association. Resolution Concerning Executive Order 13,233, Further Implementation of the Presidential Records ActJanuary 21, 2002.

 

© The Issue Wonk, 2007

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