Libraries at University of Nebraska-Lincoln

 

Document Type

Article

Date of this Version

2021

Citation

United States Archives and Records Administration, 2021.

Comments

U. S. government work.

Abstract

How the Presidential Records Act Affects the President, Vice President, and White House Staff During the Administration

Overview

The Presidential Records Act (PRA) of 1978, as amended, 44 U.S.C. §§ 2201-2209, governs the official records of Presidents and Vice Presidents created on or received after January 20, 1981. The PRA changed the legal ownership of the official records of the President from private to public.

The PRA established a new statutory structure under which Presidents must manage their records. The Presidential Records Act:

 Defines and states public ownership of the records;

 Places the responsibility for the custody and management of incumbent Presidential records with the President;

 Allows the incumbent President to dispose of records that no longer have administrative, historical, informational, or evidentiary value, once the Archivist of the United States has provided his written views on the proposed disposal;

 Requires that the President and the President's staff take all practical steps to file personal records separately from Presidential records;

 Establishes a process for public access to and restriction of Presidential records. Specifically, the PRA allows for public access to Presidential records, including 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 twelve years. The PRA also establishes procedures for Congress, courts, and subsequent Administrations to obtain “special” access to records that remain closed to the public. (A chart describing these access provisions and restrictions is attached.) The procedures for privilege review by the incumbent and former Presidents are established by the PRA, Executive order 13489 and NARA’s regulations;

 Requires that Vice Presidential records are to be treated in the same way as Presidential records.

Presidential records are defined as:

“documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” [44 U.S.C. § 2201(2)].

These records can be in any media, including textual, audiovisual, and electronic.

Personal records are defined as:

“documentary materials or any reasonably segregable portion thereof, of a purely private or nonpublic character, which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President” and which include “diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business,” “private political associations” and “materials relating exclusively to the President’s own election to the office of the Presidency” [44 U.S.C. § 2201(3)].

Personal records remain the personal property of the President or the record creator.

Records created by the President-elect and the transition team are also considered personal records. To the extent that these records are received and used after the inauguration by the incoming Presidential Administration, they may become Presidential or Federal records. Former Presidents have traditionally donated these personal transition records to the National Archives and Records Administration for deposit in their Presidential Library.

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