The Presidential Records Act: An Overview

This article provides an overview of the Presidential Records Act of 1978, including issues pertaining to the ownership, management, retention of, and access to presidential and vice-presidential records.

The Presidential Records Act of 1978 (PRA), 44 U.S.C. §§ 2201 to 2209, is a federal law that governs the disposition of records of the President, the Vice President, and their respective offices. Before the passage of the PRA, presidential records were not formally subject to federal statute. By tradition, most outgoing administrations provide some records to the National Archives for preservation in presidential libraries. However, there was no law that mandated which records remained in the possession of the U.S. government (USG). The PRA is often mentioned in conjunction with the Federal Records Act of 1950, 44 U.S.C. § 3301. The Federal Records Act applies to records created by executive branch federal agencies, but not to presidential and vice-presidential records.

This article should assist lawyers advising federal agencies but it may also be useful for requesters and others interested in information and records maintained by the National Archives and Records Administration (NARA).

Records Covered by the Presidential Records Act

The PRA defines documentary materials as consisting of all:

• Books.
• Correspondence.
• Memoranda.
• Documents.
• Papers.
• Pamphlets.
• Works of art.
• Models.
• Pictures.
• Photographs.
• Plats.
• Maps.
• Films.
• Motion pictures, including but not limited to audio visual records or other electronic or mechanical recordings.

(44 U.S.C. § 2201(1).)

Presidential records are documentary materials created or received by:

• The President.
• The President’s immediate staff.
• A unit or individual of the Executive Office of the President (EOP), the function of which is to advise or assist the President.

To qualify as a presidential record, materials must have been created or received in the course of conducting activities that:

• Relate to presidential duties.
• Have an effect on the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

(44 U.S.C. § 2201(2).)

Records related to political activities are not exempt if they relate to or effect carrying out presidential duties (44 U.S.C. § 2201(2)(A)).

Records Not Covered by the Presidential Records Act

Presidential records do not include:

• Official records of a federal agency. Federal agency records are covered by the Federal Records Act.
• Personal records. Personal records consist of all documentary materials of a purely private or nonpublic character, including:
  • diaries, journals, or other personal notes that were not used for government business (44 U.S.C. § 2201(3)(A));
  • materials relating to private political associations that did not affect presidential duties (44 U.S.C. § 2201(3)(B));
  • materials relating exclusively to the President’s election to office that did not affect presidential duties; and
  • materials relating exclusively to the election of particular others that did not affect presidential duties.
    
    
    (44 U.S.C. § 2201(3)(C)).

• Stocks of publications and stationery (44 U.S.C. § 2201(2)(B)).
• Extra copies of documents produced only for reference if the copies are clearly designated (44 U.S.C. § 2201(2)(B)).

Ownership of Presidential Records

The PRA provides that the United States must reserve and retain complete ownership, possession, and control of presidential records (44 U.S.C. § 2202).

Before the enactment of the PRA in 1978 and the Presidential Recordings and Materials Preservation Act of 1974 (PRMPA), 44 U.S.C. § 2111, Presidents and Vice Presidents held full property rights to their papers. President Nixon successfully sued the USG for a “per se taking” under the Fifth Amendment claiming that the PRMPA severely restricted his rights to his presidential papers (see, Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 1992)).

The court noted that every prior President had exercised complete dominion and control of their presidential papers after departing office. In rejecting the government’s argument that a common law proposition existed that the USG, as the employer of a former President, owned papers created and maintained by its employees created in the course of employment, the court held that “before the Presidential Records Act of 1978 (citation omitted), presidents were never subjected to any such specific, express legal duty to create or maintain their papers.” (See Nixon, 978 F.2d at 1276.)

Management and Custody of Presidential Records

The PRA imposes a responsibility on the President to create and maintain documentary materials related to the duties of the presidency while the President is in office. The PRA also grants authority to the Archivist of the United States (Archivist) to provide guidance and oversight to the President during the President’s term of office regarding presidential records as well as to take custody of presidential records after the conclusion of the President’s term.

Presidential Obligation to Document the Performance of Presidential Duties

Before the enactment of the PRA, there existed no common law, statutory, or constitutional duty on the President to ensure adequate documentation of the execution of the duties of the presidency. The PRA dictates that the President must take all steps that may be necessary to assure adequate documentation of the performance of presidential duties are preserved and maintained as presidential records, including records of:

• Activities.
• Deliberations.
• Decisions.
• Policies.

(44 U.S.C. § 2203(a).)

Segregating Presidential and Personal Records

Documentary materials produced or received by the President, the President’s staff, or EOP, should be categorized on receipt or creation and filed separately as either:

• Presidential records.
• Personal records.

(44 U.S.C. § 2203(b).)

The USG takes ownership of records categorized as presidential records only (see, Ownership of Presidential Records, above).

Disposal of Presidential Records During the President’s Term of Office

The PRA allows for the disposal of certain presidential records that no longer have administrative, historical, informational, or evidentiary value if:

• The President obtains the Archivist’s views on the disposal in writing;
• The Archivist states that they do not intend to take any action regarding the proposed disposal.

(44 U.S.C. § 2203(c).)

If the Archivist notifies the President that they intend to take action to potentially stop the destruction of the records, the President may still dispose of the presidential records by going to Congress. To pursue that action, the President must submit the disposal schedule to the appropriate Congressional committees at least 60 days in advance while Congress is in session (44 U.S.C. § 2203(d)).

If the Archivist has concerns about a planned disposal of presidential records and the President does not elect to submit the disposal schedule to Congress, the Archivist consults all of the following:

• The Committee on Rules and Administration.
• The Committee on Governmental Affairs of the U.S. Senate.
• The Committee on House Oversight on Government Operations of the U.S. House of Representatives.

The Archivist consults these Committees if the Archivist believes that:

• The records may be of special interest to Congress.
• It is in the public interest to consult with Congress on the disposal of the particular records.

(44 U.S.C. § 2203(e).)

Maintenance and Preservation of Presidential Records by the Archivist

The Archivist may maintain and preserve presidential records on behalf of the President, but the President maintains exclusive custody, control, and access to the records during the President’s term of office. The Archivist may not disclose any records except under the direction of the President until the conclusion of the President’s term of office. (44 U.S.C. § 2203(f).)

After the President leaves office, after one or two terms, the Archivist assumes responsibility for the presidential records. The Archivist has several responsibilities, including:

• A duty to make the records available to the public as quickly and completely as possible (44 U.S.C. § 2203(g)(1)).
• Depositing all presidential records into an archival facility operated by the USG. The Archivist is authorized to designate a director for the facility responsible for the records. (44 U.S.C. § 2203(g)(2).)
• Disposal of presidential records that the Archivist has determined to have insufficient value to warrant continued preservation. Any disposal must be noticed in the Federal Register at least 60 days before the planned disposal date. (44 U.S.C. § 2203(g)(4).)

Restrictions on Access to Presidential Records

The PRA allows sitting presidents to restrict prospective access to records in specified categories. The categories roughly track the language of several Freedom of Information Act (FOIA) exemptions. Before leaving office, the President must designate which records are to receive restricted access. The restricted access may last up to 12 years if the information:

• Is authorized by executive order to be kept secret in the interest of national defense or foreign policy and is, in fact, properly classified under the executive order (44 U.S.C. § 2204(a)(1)(A) and (B)).
• Relates to Federal office appointments (44 U.S.C. § 2204(a)(2)).
• Is specifically exempted from disclosure by statute (44 U.S.C. § 2204(a)(3)).
• Contains trade secrets and commercial or financial information obtained from a person (44 U.S.C. § 2204(a)(4)).
• Contains confidential communications requesting or submitting advice, between the President and their advisers or between advisers (44 U.S.C. § 2204(a)(5)).
• Consists of personnel and medical files where disclosure constitutes a clearly unwarranted invasion of privacy (44 U.S.C. § 2204(a)(6)).

The Archivist must restrict access to any presidential record or a segregable portion that falls into any of the six categories under 44 U.S.C. § 2204(a) until the earlier of:

• The date when the former President waives the restriction.
• The expiration of the durations specified by the former President for each category (not to exceed 12 years).
• The date the Archivist determines that the record or segregable portion has been put into the public domain by the former President or their agent.

(44 U.S.C. § 2204(b)(1).)

Denial of Access to Presidential Records

During the period while access to presidential records is restricted, the Archivist retains discretion, subject to consultation with the former President, to deny access to the records. The Archivist’s decision is not subject to judicial review during the restricted access period, but the PRA does require the Archivist to establish an administrative review process. (44 U.S.C. § 2204(b)(3)).

Access Procedures for Non-Restricted Presidential Records

For all non-restricted presidential records, requests for records are handled under the FOIA. The exception is that no records may be withheld under Exemption 5 (5 U.S.C. § 552(b)(5)), which applies to deliberative records and records subject to other common law privileges like attorney client privilege (44 U.S.C. § 2204(c)).

Exceptions to Restricted Access

Although access is generally restricted, under certain circumstances, the PRA does allow access to:

• Designated categories of records under 44 U.S.C. § 2204 (see Restrictions on Access to Presidential Records, above).
• Records that a former President claims as constitutionally privileged under 44 U.S.C. § 2208 (see Claims of Constitutionally Based Privilege Against Disclosure, below).

All presidential records must be made available:

• To the Archivist and employees of NARA engaged in normal archival work on the records in the custody of the Archivist.
• Subject to any rights, defenses, or privileges that the USG, any agency, or person may invoke.
• Under subpoena or other judicial process issued by a court of competent jurisdiction for the purpose of any civil or criminal investigation or proceeding:
  • to an incumbent President if the records contain information necessary to the conduct of current business and the records are not otherwise available; and
  • to either House of Congress, to any committee or subcommittee on matters within its jurisdiction if the records are necessary for the conduct of its business and the records are not otherwise available.

(44 U.S.C. § 2205(2).)

The records of a former President must also be made available to that President or their designated representative (44 U.S.C. § 2205(3)). However, the Archivist is prohibited from granting access to original presidential records to any former President’s designated representative that has been convicted of a crime relating to the review, retention, removal, or destruction of records of the Archives (44 U.S.C. § 2204(f)).

Regulations

The Archivist must provide regulations to carry out the requirements of the PRA, including provisions for:

• Advance public notice and description of any presidential records scheduled for disposal.
• Notice to the former President when materials restricted under 44 U.S.C. § 2204(a) are made available under 44 U.S.C. § 2205(2).
• Notice by the Archivist to the former President when disclosure of presidential records may adversely affect any rights or privileges held by the former President.
• Establishing procedures for consultation between the Archivist and appropriate federal agencies regarding materials that may be considered law enforcement sensitive under 5 U.S.C. § 552(b)(7).

(44 U.S.C. § 2206; 36 C.F.R. §§ 1270.1 to 1270.50.)

Vice Presidential Records

The PRA specifies that vice presidential records are to be treated the same as presidential records and the duties and responsibilities of the former Vice President are the same as the former President. There is an exception to this general position related to 44 U.S.C. § 2208, which covers claims of constitutionally based privileges against disclosure and only apply to the former President. The PRA does permit the Archivist to enter into an agreement for depositing vice presidential records into a non-federal depository if the Archivist determines that it is in the public interest. (44 U.S.C. § 2207.)

Claims of Constitutionally Based Privilege Against Disclosure

A former or incumbent President may seek to assert executive privilege to prevent the Archivist from disclosing certain documents. The PRA refers to the claim as a “constitutionally based privilege against disclosure,” which is usually referred to as executive privilege (44 U.S.C. § 2208). Although the U.S. Constitution does not explicitly provide for an executive privilege, the privilege is considered to derive implicitly from the President’s powers under Article II and the separation of powers doctrine.

There is not a settled, universal definition of executive privilege and traditionally the executive branch defines the scope of the privilege more broadly than the legislative or judicial branch. Executive privilege is generally considered to be made of several privileges, including:

• The deliberative process privilege.
• Attorney work product privilege, or the attorney-client privilege.
• State secrets privilege, which pertains to military, diplomatic, or national security secrets.
• The presidential communications privilege, which generally protects communications to and from the President and their advisors about presidential functions from disclosure.
• The law enforcement privilege, which the Office of Legal Counsel recognizes as protecting certain criminal files (see Congressional Subpoenas of Department of Justice Investigative Files, Op. O.L.C. (1984)).

If the Archivist decides to make a previously undisclosed record available to the public, the Archivist must notify in writing both the former President during the term of which the record was created and the incumbent President (44 U.S.C. § 2208(a)(1)). The notification period is initially 60 days and can be extended by the former or incumbent President for an additional period of 30 days. However, at the beginning of a new President’s first term, the notification period extends until the end of the first six months. (44 U.S.C. § 2208(a)(3).)

Either the former President or the incumbent President may assert a claim of constitutionally based privilege against disclosure. The claim must be made personally by the former or incumbent President and must notify the:

• Archivist.
• Committee on Oversight and Government Reform of the U.S. House of Representatives.
• Committee on Homeland Security and Governmental Affairs of the U.S. Senate.

(44 U.S.C. § 2208(b).)

If the claim of executive privilege is made by a former President, the Archivist must consult with the incumbent President to determine if the incumbent President intends to uphold the claim of privilege (44 U.S.C. § 2208(c)(1).) The Archivist must notify both the public and the former President of the incumbent President’s decision on the claim of privilege within 30 days of the former President’s decision to assert a claim of privilege (44 U.S.C. § 2208(c)(2)(A).) If the incumbent President upholds the claim of privilege, the Archivist cannot disclose the record unless the:

• Incumbent President withdraws the decision upholding the former President’s claim of privilege.
• Archivist is otherwise directed by a final court order that is not subject to appeal.

(44 U.S.C. § 2208(c)(2)(B).)

If the incumbent President decides not to uphold a former President’s claim of privilege, the Archivist must release the record after the expiration of the statutory notification period. However, the decision of the incumbent President can be challenged by a former President in the U.S. District Court for the District of Columbia as provided by 44 U.S.C. § 2204(e) (Trump v. Thompson, 20 F.4th 10 (D.C. Cir. 2021)).

Disclosure Requirement for Official Business Conducted Using Non-Official Electronic Messaging Accounts

The PRA generally prohibits the President, the Vice President, or covered employees from conducting official business using non-official electronic messaging accounts unless:

• The official electronic messaging account of the President, Vice President, or covered employee is copied in the original creation or transmission of the record.
• A complete copy of the original creation or transmission of the record is forwarded to the official electronic messaging account of the President, Vice President, or covered employee within 20 days.

(44 U.S.C. § 2209(a).)

Electronic messages are defined as “electronic mail and other electronic messaging systems that are used for the purposes of communicating between individuals” (44 U.S.C. § 2209(c)(2)).

Covered employees include:

• The immediate staff of the President.
• The immediate staff of the Vice President.
• A unit or individual of the Executive Office of the President, the function of which is to advise and assist the President.
• A unit or individual of the Executive Office of the Vice President, the function of which is to advise and assist the Vice President.

(44 U.S.C. § 2209(c)(1).)

Judicial Review and Remedies Under the PRA

The PRA contains both provisions enforceable by the government against a former or incumbent President and provisions that permit a former President to preserve their right to presidential records. The statute itself is silent on remedies against a former or incumbent President or Vice President for failing to comply with the requirements of the PRA and the U.S. District Court for the District of Columbia stated:

The PRA incorporates an assumption made by Congress (in 1978) that subsequent Presidents and Vice Presidents would comply with the Act in good faith, and therefore, Congress limited the scope of judicial review and provided little oversight authority for the President and Vice President’s document preservation decisions.

(See Citizens for Responsibility and Ethics in Washington v. Cheney, 593 F. Supp. 2d 194, 198 (D.D.C. 2009).)

In contrasting the PRA with the more expansive Federal Records Act, 44 U.S.C. §§ 3301-3307, the U.S. Court of Appeals for the D.C. Circuit, held that “neither the Archivist nor an agency head can initiate any action through the Attorney General to effect recovery or ensure preservation of presidential records” (Armstrong v. Executive Office of the President, Office of Admin., 1 F.3d 1274, 1291 (D.C. Cir. 1993)).

No Agency or Judicial Review of Presidential Categorization of Records

Even though NARA is charged with taking custody and control of presidential records, NARA cannot review the decisions of a President in categorizing the President’s documents as personal or presidential. NARA has no duty to assume custody and control over records that the President categorized as personal records and cannot be compelled under the Administrative Procedure Act (5 U.S.C. §§ 551-559) to declare those records presidential records under the meaning of the PRA (Judicial Watch, Inc. v. Nat’l Archives and Records Admin., 845 F. Supp. 2d 288, 300 (D.D.C. 2012).)

The court found that the PRA specified that the Archivist was to take custody and control of presidential records and that the classification of records as presidential or personal took place during the term of the President before the Archivist took possession. This made the President’s decision to categorize records as presidential or personal nonreviewable by NARA or the courts and there was no action that the court can compel the Archivist to take under the PRA. (Judicial Watch, 845 F. Supp. 2d at 301).

Actions by Former Presidents

The PRA gives former Presidents the ability to seek judicial review of decisions of the Archivist regarding disposal and disclosure of their presidential records (44 U.S.C. §§ 2204 and 2208). Venue for PRA suits by a former President lies with the U.S. District Court for the District of Columbia (44 U.S.C. § 2204(e).)

No Private Right of Action to Enforce PRA

While the PRA established the obligation to create and preserve presidential and vice-presidential records, the PRA does not create a private right of action (see Citizens for Responsibility and Ethics in Washington v. Cheney, 593 F. Supp. 2d 194, 198 (D.D.C. 2009)).