At Cause of Action Institute, we work to ensure that the government follows the laws, rules, and standards that apply to it. This is one post in a series addressing various legal implications of the use of social media platforms by President Trump, Vice President Pence, and their respective staffs. You can access our earlier posts on the PRA here. This post focuses on the history of and recent changes to the Presidential Records Act of 1978, 44 U.S.C. 22 §§ 2201-2209.
The History and Background of the Presidential Records Act
Before the enactment of the Presidential Records Act of 1978, 44 U.S.C. 22 §§ 2201-2209 (“PRA” or “the Act”), records produced by a president while in office were deemed the personal materials of the president himself and were subject to disposal, retention, and disclosure by the former presidents at their will. In the wake of the Watergate scandal and President Nixon’s resignation, Congress became concerned that President Nixon’s records would be destroyed or lost. In response, Congress enacted the PRA, changing the presumption that presidential records were personal materials to be handled by the president at his discretion to one of public ownership by the American people that favors release of such records.
Signed into law by President Carter, the PRA applies to records of all Presidents who took office on January 20, 1981 or later. Thus, the records of Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama, and Donald Trump are all subject to the PRA. Additionally, the PRA extends to the records of Vice Presidents. However, the mechanics of that are a topic for another day.
Since its passage, the PRA has been modified by Executive Order three times and amended, in part, four times. Executive Orders 12667, 13233, and 13489, were generally concerned with revising the procedures for dealing with executive privilege claims. However, this series of Executive Orders raised concerns on Capitol Hill that, absent Congressional action, each successive President could modify the interpretation of the PRA at their will by executive action, thus limiting access to presidential records in direct opposition to the goal of the Act. In 2014, Congress passed the Presidential and Federal Records Act Amendments of 2014, Pub. L. No. 113-187, 128 Stat. 2006 (2014) (“2014 Amendments”), which amended the PRA for the primary purpose of “end[ing] the uncertainty associated with the handling of executive privilege claims over Presidential records by legislatively establishing procedures to ensure the timely release of such records.” The 2014 Amendments also created a new disclosure requirement for records created or sent from personal electronic messaging accounts.
On December 28, 2016, the National Archives and Records Administration (“NARA”) issued a Notice of Proposed Rulemaking (“NPRM”) to revise its regulations to incorporate the 2014 Amendments. The comment period for the Presidential Records NPRM ended on January 27, 2017. However, on January 20, 2017, President Trump ordered a freeze on all pending regulations subject to review by the Director of the Office of Management and Budget (“OMB”). The White House released regulatory freeze guidance memoranda on January 20 and January 24. The memoranda are somewhat unclear on what steps apply to regulations, like the Presidential Records NPRM, that were published in the Federal Register and open to public comment when the regulatory freeze was issued, but are not yet final rules. The best reading of the application of the regulatory freeze memoranda as to the Presidential Records NPRM likely requires that the regulation be withdrawn and subjected to review by OMB. To date, it is unclear if NARA sent a letter withdrawing its Presidential Records NPRM.
On January 30, President Trump issued the “Reducing the Regulation and Controlling Regulatory Costs” Executive Order (“2-for-1 Executive Order”), which, in theory, requires that for each new regulation implemented by an agency, two regulations must be removed. The stated policy of the 2-for-1 Executive Order is “to be prudent and financially responsible in the expenditure of funds, from both public and private sources.” The Executive Order’s policy considers both the cost the government bears in administering the regulatory state and the costs imposed by the regulatory state on individuals and businesses. The 2-for-1 Executive Order requires “any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” Arguably, a new regulation could have no cost or reduce costs, and thus not be subject to the 2-for-1 Executive Order. It is not yet clear what costs, if any, are associated with the Presidential Records NPRM, and whether it could be further delayed by the 2-for-1 Executive Order.
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Kara McKenna is a counsel at Cause of Action Institute.
Kara is admitted only in New York and New Jersey. Practice limited to matters and proceedings before United States Courts and agencies.