Presidential Records: Issues for the 111th Congress

Wendy R. Ginsberg
Analyst in Government Organization and Management

Presidential documents are a historical resource that captures each incumbent’s conduct in presidential office and interpretation of the presidency. Pursuant to the Presidential Records Act ((PRA) 44 U.S.C. §§ 2201-2207; P.L. 95-591) the National Archives and Records Administration (NARA) collects most records of former Presidents and former Vice Presidents at the end of each administration. They are then disclosed to the public—unless the Archivist of the United States, the incumbent President, or the appropriate former President requests the records be kept private.

The PRA is the primary law governing the collection and preservation of, and access to, the records of a former President. Although the PRA has remained relatively unchanged since enactment in 1978, successive presidential administrations have interpreted its meaning differently. Moreover, it is unclear whether the PRA accounts for presidential recordkeeping issues associated with increasing and heavy use of new technologies, like Facebook, Twitter, and YouTube, by the President and his immediate staff. The House Oversight and Government Reform Committee addressed this and other issues related to presidential recordkeeping at a hearing on May 3, 2009.

Presidential records are captured and maintained by the incumbent President and provided to NARA upon the his departure from office. The records are then placed in the appropriate presidential repository, usually a presidential library created by a private foundation, which is subsequently deeded or otherwise provided to the federal government.

On his first full day in office, President Barack H. Obama issued an executive order (E.O. 13489), which grants the incumbent President and the relevant former Presidents 30 days to review records prior to their being released to the public. E.O. 13489 changed substantially the presidential record preservation policies promulgated by the George W. Bush Administration through E.O. 13233. Under the policies of the Bush Administration, the incumbent President, former Presidents, former Vice Presidents, and their designees were granted broad authority to deny access to presidential documents or to delay their release indefinitely. Moreover, under President Bush’s executive order, former Presidents had 90 days to review whether requested documents should be released.

Congress has the authority to revise or enhance recordkeeping requirements for the incumbent Presidents, including requiring a more systematic method of collecting and maintaining e-mail or Internet records. The 112th Congress may consider modifying the length of time an incumbent or former President has to review records and decide whether they should be released to the public or clarifying the recordkeeping requirements for the records of the Vice President, which currently give the Vice President broad authority to determine which records qualify as presidential records under the PRA.

This report examines the Presidential Records Act and how its implementation has varied in different presidential Administrations. This report outlines the debates about the preservation of all presidential records, including those created electronically, and examines the policy questions and options faced by the 112th Congress.


Date of Report: May 12, 2011
Number of Pages: 12
Order Number: R40238
Price: $29.95

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