Running Head: THE PRESIDENTIAL RECORDS ACT OF 1978: LEGISLATIVE PAPER

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The Presidential Records Act of 1978: Legislative Paper Kelly McDonald 6/30/2013 LIS6661

Running Head: THE PRESIDENTIAL RECORDS ACT OF 1978: LEGISLATIVE PAPER

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The Presidential Records Act of 1978: Legislative Paper The Presidential Records Act of 1978 began as a bill from the 95th Congressional session. This bill, House Report No.95-1487, was sponsored by House Representative Lunsford Preyer, a Democrat from North Carolina. Representative Preyer wrote this bill for the House Committee on House Administration and the House Committee on Oversight Government and Reform (H.R. 13500--95th Congress: Presidential Records Act, 1978). These two committees were responsible for presenting the bill to the House on July 17, 1978, where it was passed on to the Senate on October 10 of that same year. The bill soon passed through the Senate and was signed into law by President Jimmy Carter on November 4, 1978 as Public Law 95-591 (H.R. 13500-95th Congress: Presidential Records Act, 1978).

PRAs Purpose This legislation was created in response to the Nixon Watergate scandal where upon leaving office presidents would have previously had complete control of those records to do whatever they wished with them. The Presidential Records Act (PRA) was enacted in order to make many presidential records public property after the executive leaves the White House (Katherine, n.d). The first papers to become subject to the laws of the legislation were the Reagan administration papers. These papers were assembled under the 1978 law by archivists instead of the former executives themselves (Katherine, n.d). In the past, presidential papers were changed, unable to be retrieved, or even destroyed. President Coolidges wife, Grace, admitted many of her husbands papers had been destroyed before they were turned over to the Library of Congress (Katherine, n.d). This Act ensured the

Running Head: THE PRESIDENTIAL RECORDS ACT OF 1978: LEGISLATIVE PAPER

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papers would be preserved, and since official records of the president cannot be sanitized, they reasoned, a rich source of overall policy information would eventually be made available to those who want to know how certain policy decisions were made (Katherine, n.d). The public would have access to important information about their government and its leader. This piece of legislation was not the first attempt in keeping the records safe from abuse. President Truman had requested that the Federal Records Act of 1950 encompass presidential records as well, so that the federal agencies would preserve them through the National Archives and Records Service (Katherine, n.d). Presidential Libraries have been around longer than the PRA, and the Presidential Libraries Act of 1955 also dealt with these important documents. It formalized a process of requiring the papers of a presidency and allowed the National Archives and Records Service to manage the collections (Katherine, n.d), but it did not have the time requirements stipulated in the PRA of 1978. In 1974, Congress passed the Presidential Recordings and Materials Act, asserting public control of the records and established a committee to examine issues of ownership with respect to presidential records (Katherine, n.d). This Act was put forth as a direct response to President Nixons request for control of his records. Congress needed immediate action to stop the president from destroying valuable information about his work during his term. Four years later, the PRA was passed, stemming from the need to solidify procedures and requirements about the process of acquiring and dispersing the documents. Even though President Carter signed the PRA into law, the Act only applied to the records of Presidents who took office starting on January 20, 1981 or later (Presidential Records Act Amendments of 2009, 2009). This law not only covered presidential papers, but vice presidential as well (Katherine, n.d). A vice presidents roles had begun changing when the law was signed, and the public

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wanted to know about the worth of their second in command (Katherine, n.d). In the 1960s, vice presidents only had twenty staff members and no executive budget, but by the 1980s, they had seventy staff members and a budget of $2 million (Katherine, n.d). Their records became more important, and the Act was written so that it had jurisdiction over them as well. Before disposing of records, the PRA requires presidents and vice presidents to consult with an archivist (Katherine, n.d). The two heads of state are allowed to place restrictions, up to twelve years, on records that fall into any of several categories, including those relevant to national security or advice exchanged between the president and his or her advisers (Katherine, n.d). Even with those allowances, some presidents have shown discontent with the established law.

Amendments to the Act In 1989, President Reagan presented Executive Order 12,667 requiring the U.S. archivist to notify a former president of the intent to release records from the library (Katherine, n.d), which amended that section of the PRA. In that same year, a Supreme Court decision in Bush v Armstrong addressed the new issue of electronic records. This ruling grouped the president and vice president together in the requirement that records from electronic messaging services could qualify for protection under the PRA (Katherine, n.d). President George W. Bush also issued an Executive Order in 2001 (Kumar, 2002). Order number 13,233 threatened to stall indefinitely access to sensitive records of both the president and second in command, by allowing current and former presidents and vice presidents to prevent the release of sensitive records (Katherine, n.d). This instituted new barriers to

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obtaining presidential and vice presidential records and former White House materials. The Order seeks to nullify the 1978 Presidential Records Act by allowing former presidents, vice presidents, and their heirs to assert independently based claims of executive privilege to control access to White House materials seemingly in perpetuity (Montgomery, 2002). It went against everything the PRA set out to protect. When it was reviewed, U.S. District Court Judge Colleen Kollar-Kotelly ruled that the provision was in violation of the 1978 Presidential Records Act because it eliminated the discretion that the law gave to the Archivist of the United States (Bush Overruled on Presidential Records, 2007). President Obama also issued an Executive Order, number 13,489, relating to the PRA. This order revoked the Bush order and established a process for handling executive privilege claims similar to the one articulated in President Reagan's 1989 Executive Order (Presidential Records Act Amendments of 2009, 2009). Other amendments were proposed since the Executive order. On January 6, 2009, the Presidential Records Act Amendments of 2009 was introduced to the Senate after being previously voted for approval in the House (Presidential Records Act Amendments of 2009, 2009). This particular piece of legislation was submitted in order to amend the Presidential Records Act of 1978 to establish a process by which incumbent and former Presidents can review Presidential records whose release is regulated by the Presidential Records Act in order to determine whether to assert that executive privilege limits the release of those records (Presidential Records Act Amendments of 2009, 2009). It did not get any further to be incorporated into the law and died in the Senate. In another effort, a new bill was introduced on September 29, 2011 in hopes to similarly amend the Act, but it did not reach the Senate. Most recently, a third attempt at an amendment was sent to the House on March 18, 2013, but no

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decisions have yet to be made on it (H.R. 35--111th Congress: Presidential Records Act Amendments of 2009, 2009).

Reflection on the Presidential Records Act of 1978 There are many people, including past presidents who disagree with the PRA and would see to it that it is amended or abolished all together. Their reasons include the safety of the nation and right to privacy, but in accordance with the open government laws and policy, it is important to remember the need for citizens to know whats going on in their government. If I were to change anything about the PRA it would be to shorten the length of time between when a president gives the records over to an archivist and when it is released to the public. As it stands, the Act allows a president to sustain the release for 12 years, but this is a long time to keep things from the people. If any time should be lapsed, it should be four years or less. That way as soon as their possible two year term is up, at least some of their documents will be available. The clause that says current presidents can sustain the release for prior presidents papers would alleviate the concern for any potential leak of ongoing National Defense concerns. The PRA is an important piece of legislation that has had a positive impact on keeping our presidents responsible for their actions while letting the public know how and why actions were taken while that president and vice president were in office.

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References Bush Overruled on Presidential Records. (2007). American Libraries, 38(10), 22-23. H.R. 13500--95th Congress: Presidential Records Act. (1978). In www.GovTrack.us. Retrieved from http://www.govtrack.us/congress/bills/95/hr13500 H.R. 35--111th Congress: Presidential Records Act Amendments of 2009. (2009). In www.GovTrack.us. Retrieved from http://www.govtrack.us/congress/bills/111/hr35 Katherine, G. (n.d). Access to vice presidential records in the aftermath of Executive Order 13,233: From haphazard past to uncertain future. Government Information Quarterly, 242-28. Kumar, M. (2002). Executive Order 13233 further implementation of the Presidential Records Act. Presidential Studies Quarterly, 32(1), 194-209. Montgomery, B. P. (2002). Source Material: Nixons Ghost Haunts the Presidential Records Act: The Reagan and George W. Bush Administrations. Presidential Studies Quarterly, 32(4), 789-809. Presidential Records Act Amendments of 2009 [electronic resource] : report of the Committee on Homeland Security and Governmental Affairs, United States Senate to accompany H.R. 35, to amend chapter 22 of title 44 United States Code, popularly known as the Presidential Records Act, to establish procedures for the consideration of claims of constitutionally based privilege against disclosure of presidential records. (2009). Washington : U.S. G.P.O., 2009.