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Tuesday, November 27, 2012

The Presidential Records Act: Background and Recent Issues for Congress

Wendy Ginsberg
Analyst in American National Government

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) 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 of, preservation of, and access to, 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.

Presidential records are captured and maintained by the incumbent President and provided to NARA upon 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. According to data from NARA, the volume of records created by Presidents has been growing exponentially, and the platforms used to create records are also expanding.

On his first full day in office, President Barack H. Obama issued an executive order (E.O. 13489), which grants the incumbent President and relevant former Presidents 30 days to review records prior to their release to the public. E.O. 13489 changed the presidential record preservation policies promulgated by the George W. Bush Administration through E.O. 13233.

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. 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. Congress may also have an interest in examining whether the incumbent President is appropriately capturing all records in every available medium and whether NARA can appropriately retain these records and make them available to researchers and the general public in perpetuity.

Date of Report: November 15, 2012
Number of Pages: 15
Order Number: R40238
Price: $29.95

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