PRESIDENTIAL RECORDS ACT OF 1978. Encyclopedia of American Journalism

The Presidential Records Act of 1978 (PRA)—a statute that
mandates near total public release of the records of presidents no later than twelve years after they have left office—
was the culmination of efforts by members of the United
States Congress and the history/archives community to
ensure public ownership and access to the records of American presidents. Had it not been for the Watergate scandal
and the prolonged battle over custody of President Richard
Nixon’s papers, including the famed Watergate tapes, the
law probably would never have been enacted. While the
PRA has never been statutorily amended, several presidential Executive Orders relating to the act remain contested.
For nearly two hundred years the papers of presidents
were considered each individual’s “personal” property. As
such, presidents retained rights to the use of their papers,
including the right to donate or dispose of them or restrict
public access. Beginning with Franklin D. Roosevelt, presidents began donating their papers to National Archives and
Records Administration (NARA) administered presidential
libraries.
The Watergate scandal served as the catalyst for enactment of several laws that culminated in the PRA and in
public ownership presidential records for every president
after President Jimmy Carter. In July 1973, during the
Senate investigation into the burglary of the Democratic
national committee headquarters at the Watergate hotel in
Washington, D.C., in June, 1972, senators learned that President Nixon had made and apparently still retained secretly
made tape recordings of conversations held in the White
House. They realized that the tapes could possibly reveal
the answer to the key question posed by Senator Howard
Baker of Tennessee with respect to the burglary and the
White House effort to cover it up: “What did the President
know and when did he know it?” Congress called for Nixon
to turn them over. A two-decade fight over access and control of the Watergate tapes ensued and led to a public outcry
over the ownership of presidential papers.
Four weeks prior to leaving office as a result of the
Watergate scandal, President Nixon negotiated an agreement (as had his predecessors) to donate his presidential
materials to a NARA administered presidential library.
But the agreement contained a controversial provision that
required destruction of what many considered the most historically important materials, including the White House
tapes. Within two weeks Congress stepped in and passed
the Presidential Recordings and Materials Preservation Act
(PRMPA) a law (44 U.S.C. 2111) that not only protected the
Nixon tape recordings from destruction but also directed
NARA to take into “protective custody” all the Nixon
presidential materials, including his personal papers. The
PRMPA provided that the president’s “personal and private” papers would be returned to Nixon but the rest would
be considered federal property.
The statute also contained an important provision that
authorized the establishment of a national commission to study the complex issues surrounding the disposition of
the records of not just presidents but all federal officials.
On March 31, 1977, the “Public Documents Commission”
issued its report calling for federal ownership of all documents produced by the president, members of Congress, as
well as federal judges and justices. Congress did not act on
the commission’s recommendations regarding the papers of
members of Congress and federal judges, but it did embrace
recommendations regarding public ownership of presidential papers.
The Presidential Records Act (44 U.S.C. 2201-2207) was
enacted in 1978 and signed into law by President Carter. The
new provisions first applied to the president and vice-president who would assume office on January 20, 1981—that
fell to Ronald Reagan and George H.W. Bush. Thereafter,
the records of all subsequent presidents and vice-presidents
came under the provisions of the PRA.
The PRA accomplished three things: 1) it changed the
tradition of handling presidential papers as legal ownership now switched from private to public; 2) it codified into
law principles that long existed concerning how presidential papers would be treated and processed by the national
archives; and 3) it served to retain for former presidents
those constitutional authorities that over the years various
federal courts had affirmed rightfully belonged to them
(i.e., the right to claim executive privilege).
The PRA defined presidential records to include all documentary materials generated or received by the president
and his staff generated “in the course of conducting activities which relate to or have an effect upon the carrying out
of constitutional, statutory, or other official or ceremonies
of the President.” In essence, the definition was meant to
cover all materials generated by a president and his staff
except “personal records” of the president, a term which is
also defined by the statute.
In order to protect the constitutional powers and prerogatives of the president, the PRA provides that “nothing
in this Act shall be construed to confirm, limit, or expand
any constitutionally based privilege which maybe available to an incumbent or former president” – language that
theoretically enables a former or sitting president to claim a
privilege and hence bar public release over any presidential
document for a period of time. The law also gives the Archivist of the United States independent legal authority and
responsibility for the “custody, control, and preservation of,
and access to” the president’s records. The archivist has an
affirmative duty to make such records available to the public consistent with provisions of the act. Time has shown
though that this charge is not so easily accomplished.
Once a president’s term of office is complete, all official
records are transferred to the custody of the Archivist of the
United States for processing and permanent retention in a
NARA presidential library. For the first five years, the president’s records are, in essence, closed while archivists begin
processing the papers into defined subject areas or topical
record groups. While Congress hoped that this amount of
time would be sufficient for processing the majority of a
president’s records for public access, in the first five years at
the Ronald Reagan Presidential Library archivists processed
only 9 percent of its holdings; in the case of the William
Jefferson Clinton presidential library, less than 1 percent
were made ready. The sheer volume of records and often
the lack of necessary archival staff means that the processing of records takes much longer than the law anticipated
and that in the early twenty first century, there were enormous backlogs. Access to presidential records is granted in
accordance with provisions of the Freedom of Information
Act (FOIA) and processing requests normally takes three
to four years, especially for classified records. While most
presidential records can theoretically be accessed five years
after a president leaves office, the PRA provides that some
records can remain closed for a total of twelve years. After
that, the law provides for virtually total public access to a
president’s papers, excepting only a handful of document
types covered by six restrictive exemptions.
The restrictions are designed to ensure that certain types
of information are not disclosed prematurely. The most commonly encountered exemptions that one finds referenced on
document redaction sheets of the records of a president are
the P-1, P-2, P-5, and P-6 exemptions.
The P-1 restriction seeks to protect “classified national
security information”; the P-2 restriction applies to information “relating to appointments to Federal office.” The
P-5 exemption relates to “confidential communications
requesting or submitting advice, between the President
and his advisers, or between such advisers” and is often of
most interest to historians, scholars, and journalists as these
records trace the decision-making process in the White
House. The P-6 relates to “unwarranted invasion of personal privacy” (the exact definition of “unwarranted” is not
clearly defined in statute or at this writing in case law).
While the provisions of law are relatively clear cut, two
presidents have issued Executive Orders (EO) relating to
aspects of the PRA. In 1989, just four days before leaving
office, President Reagan issued EO 12667—the order that
established the first policies and procedures for implementing the law. For over a decade the guidance served the public
interest well. In November 2001, President George W. Bush
issued EO 13233 and nullified the Reagan EO and revised
PRA policies and administrative procedures. A coalition of
historians, archivists, and government openness advocates
sued the government (American Historical Association v.
NARA) in December 2001 over certain provisions in the
Bush issued EO. The plaintiffs claimed that the new procedures locked up some sixty-eight thousand pages of Reagan era P-5 category presidential papers that should have
been made public the day Bush took office. The plaintiffs
also challenged the constitutionality of aspects of the Bush
EO. In time, all but a handful of the sixty-eight thousand
Reagan era records were scrutinized by President Reagan’s
representatives and, as the PRA provides, reviewed by the
incumbent president and released to the public. At this writing the validity of certain constitutionally questionable provisions of the EO have yet to be adjudicated.
The PRA seeks to ensure that all the records of a sitting president will, in time, become public. It is from these
records that the history and legacy of a president is fashioned. The law makes it clear that former and incumbent
presidents are but the temporary gatekeepers of presidential records and firmly establishes the principle of transparency, demonstrating that the American people have a right
to gain access to and scrutinize the decisions and actions of
presidents and their staff.
Further Reading
Kassop, Nancy. “Not Going Public: George W. Bush and the Presidential Records Act.” In In the Public Domain: Presidents
and the Challenge of Public Leadership, edited by Lori Cox
Han, and Diane J. Heith. New York: State University of New
York Press, 2005.
Kutler, Stanley I., ed. Abuse of Power: The New Nixon Tapes.
New York: Free Press, 1997.
Montgomery, Bruce. “Presidential Materials: Politics and the
Presidential Records Act.” American Archivist (Spring/
Summer) 2003.
Smith, Nancy Kegan, and Stern, Gary M. “Access to Records in
Presidential Libraries: Balancing Legal, Archival, and Public Interests.” The Public Historian, (Summer) 2006.
Three articles in RBM: A Journal of Rare Books, Manuscripts,
and Cultural Heritage (Fall) 2002: Nancy Cricco and Peter
Wosh, “The Past, Present, and Uncertain Future of Presidential Records”; John Brademas, “Presidential Records;” and
Bruce Craig, , “Executive Order 13233: We Dare Not Allow
Ourselves to be Bush-Whacked.”
R. Bruce Craig

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