House Passes Major Presidential Records Reform
February 1, 2014. Inscribed at the entrance to the Harry S. Truman Presidential Library is this declaration by Truman: "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 that President Truman should have added "and the government should make them accessible to the public as soon as possible."
For more than a decade, the National Coalition for History has been a lead advocate for Presidential Records Act (PRA) reform. The Organization of American Historians joined along with the American Historical Association as plaintiff, along with other historical and archival groups, in a federal lawsuit that sought to invalidate Executive Order (EO) 13233, issued by President George W. Bush, which severely limited public access to presidential records.
On January 21, 2009, in one of his first official acts, President Barack Obama replaced Bush's executive order with his own, EO 13489. Obama's EO is similar to one issued by President Reagan in 1989, which was also in effect during the presidencies of George H.W. Bush and Bill Clinton, but was superseded by President Bush's EO 13233 in November 2001.
After the Watergate-era battles over President Nixon's papers, which pitted the judicial and legislative branches against the president, it became obvious that a law was needed to prevent similar constitutional conflicts. 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 after January 20, 1981. The PRA changed the legal ownership of the official records of a president from private to public, and established a new statutory structure under which presidents must manage their records. The PRA also defined what qualified 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 to be the most vexing part of the PRA for historians, archivists, political scientists, journalists, and authors is the process established by the statute for restricting access to these records. 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 12 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 president involved.
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 12 years. This flaw in the statute in effect leaves it up to each sitting president to interpret the law and impose restrictions as he or she sees 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 includes 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. 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.
President Obama's EO revoked the onerous restrictions placed by Bush 43 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 burdensome restrictions on access or extending the privilege beyond that of the incumbent and former president, as President Bush did.
To address this issue, the House of Representatives has passed, on a vote of 420–0, the Presidential and Federal Records Act Amendment of 2014 (HR1233), creating a framework that would enable former presidents to request continued restricted access only on a very narrow basis, in essence codifying the Reagan and Obama administration rules.
The bill, passed on January 14, imposes a time limit within which a former president may assert a claim of privilege. It 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.
The bill also requires federal employees who create or send a federal or presidential record from a nonofficial electronic messaging account to forward a complete copy of the record to an official electronic messaging account within five days. In cases of intentional violation of this disclosure requirement, the section authorizes disciplinary action as determined by the appropriate supervisor.
While the House vote is good news, two similar bills were overwhelmingly passed in the 110th and 111th Congresses only to die in the Senate. The Senate Homeland Security and Governmental Affairs Committee (HSGA) cleared PRA reform bills in the past, only to have holds placed on them by various Republican senators, most notably Senator Jeff Sessions (R-AL), that prevented consideration on the Senate floor.
Thus far this session, a Senate version has not yet been introduced. NCH has reached out to several senators, urging them to introduce a companion bill and bring it before the HSGA for consideration. Unfortunately, it remains to be seen, even if such a bill is introduced and marked up in committee, whether Senator Sessions will once again single-handedly stymie this much-needed reform.
Lee White is the executive director of the National Coalition for History. Sign up to receive the National Coalition for History (NCH) Washington Update, a weekly electronic newsletter that provides information on legislation, hearings, markups, and regulatory issues of concern to historians, archivists, and other stakeholders.
Posted: February 10, 2014
Tagged: Advocacy, News of the Profession