Who owns the President’s papers? Prior to the passage of the 1978 Presidential Records Act, American presidents claimed legal ownership of the records generated during the course of their presidency, and established public access to these historical materials at their own pleasure. The 1978 Presidential Records Act essentially put an end to this tradition by establishing that ownership and control of presidential records belonged to the United States. The PRA requires Presidents upon leaving office to deposit their records at the National Archives and Records Administration (NARA) in the custody of the Archivist of the United States. Thereafter the Archivist assumes “responsibility for the custody, control, and preservation of, and access to the Presidential Records of that President.”1

Beyond the question of ownership, the Presidential Records Act recognizes the importance of documenting the activities and decisions of the Executive Office of the President (EOP), and providing access to these records. To achieve these ends, the PRA imposes on the President the duty of implementing records management controls in order that “the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented….” Public access to these records is via Freedom of Information requests (FOIA) five years after the records are deposited at NARA. The PRA also allows the President to stipulate a period of up to twelve years before which the United States Archivist can release/open the records of his administration. Ronald Reagan, for instance, opted to restrict the release of his records for the full twelve years. The records of his administration were due to be opened in 2001.

Presidential Records Act and Coverage

 “Presidential Records” as defined by the PRA are “documentary materials, or any reasonably segregable portion thereof, created, or received by the President, his 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 constitutional, statutory, or other official or ceremonial duties of the President.”2 Presidential records exclude the President’s personal records as these are “documentary materials…of a purely private or non-public character” which have no bearing on the President’s constitutional or official duties. These records are to be archived separately from presidential records.

“Documentary materials” includes correspondence created or received by the President and members of the Executive Office of the President. The PRA does not distinguish between electronic correspondence and paper correspondence; as long as the document reflects the policies and deliberations of the Executive Office of the President, the material is subject to the PRA. Therefore, the White House is required to archive materials such as e-mails, and even its web pages. The Obama administration, which utilizes many of recent innovations like blogs, Twitter, and Facebook has moved the Presidential Records Act into a new era of communication. The Obama administration pursuant to the PRA, archives its online postings on these social media sites. It also treats the public’s comments and messages on these sites as presidential records as they constitute a form of correspondence between the White House and the public. The administration on a White House Blog post explained that “instead of sending an e-mail, people often now post on someone’s profile or comment on a video that’s been uploaded. When people want to tell the White House what they think, they’ll often do the same thing on our social media pages” and “these new types of communication from individuals to the White House, even though they take a different form, are governed by the PRA.” 3 The White House manages these records through an automated archiving process.

Archiving Records

The Presidential Records Act governs retention and management of presidential records. In establishing a records creation and management system, the White House can be assisted by the Archivist of the United States, who is empowered by statute to “provide guidance and assistance…with respect to ensuring adequate and proper documentation of the policies and transactions of the Federal government…”4 Professor Anna K. Nelson, the Distinguished Historian in residence at American University, in an e-mail to HNN, explained that “NARA's work in the White house is subject to the desires of the President and his staff. Some will ask for an archivist on detail from NARA. Others, like the Bush administration does not want anyone. Most have records managers.” Nevertheless, while “previous presidential records were under no such obligation “the White house under the PRA must keep its records according to rules set by NARA.”

The adequacy of White House records management system has been challenged several times over the years. These challenges, in the form of law suits, to federal government record keeping have largely been in respect to the preservation of electronic records. The guidelines by which electronic records are archived by the federal government have evolved in great part in response to judicial decisions emanating from these suits. For example, prior to the 1993 D.C. Circuit Court of Appeals ruling in Armstrong v. EOP, the federal government did not archive emails in their electronic forms; rather, emails were printed and filed. The electronic versions of the emails were then scheduled for deletion from the live system at the White House. The federal government followed this policy in the blief that “…the printed copy is identical to what is on the computer screen.” Therefore, “printing the actual message text on the computer screen normally is sufficient for adequate documentation of the agency’s business.”5 The court however agreed with Armstrong et al., that print-outs of emails are not full reproductions of the emails in their original electronic form. A paper copy might omit pertinent information contained in the electronic record which does not appear in the onscreen message. These include the identity of the sender(s) and the recipient(s). For example, an email could be sent out to a number of people on a distribution list titled List A and the paper record will only note that the email was sent out to this list without capturing the actual names of the recipients. As such, the court determined that electronic records of emails are not extra copies of hard-copy emails, but are distinct federal records themselves, and pursuant to the Federal and Presidential Records Act, must be preserved. The court also affirmed that federal agencies and the Executive Office of the President are obligated to periodically review the record keeping practices of their staff to ensure that they are following established standards and procedures.

One of the outcomes of the decision reached in Armstrong v. EOP was the implementation of the Automated Records Management System. The system was used to archive White House electronic mails by the Clinton administration in accordance with the Presidential and Federal Records Act. ARMS, however, was discontinued by the Bush Administration with the intention of replacing it with a new archiving system, the Electronic Communications Records Management System (ECRMS), but it was never implemented.

The White House electronic records keeping came under scrutiny repeatedly during the George W. Bush years. In 2007, the National Security Archives and Citizens for Responsibility and Ethics in Washington filed separate lawsuits against the Executive Office of the President, the White House Office of Administration, and the National Archives and Records Administration. The lawsuits challenged the robustness of the White House management of electronic records on the grounds that millions of emails generated between 2003 and 2005 had gone missing from the White House email system. In addition, with the removal of ARMS and the non-implementation of ECRMS, the White House reportedly had archived emails in paper format, in violation of the decision reached in Armstrong v. EOP.  Criticism appeared again in 2008 when it was discovered that some White House officials had circumvented the PRA by using Republican National Committee email accounts for official White House purposes. The Committee on Oversight and Government Reform has been investigating the alleged violations of PRA, and has reported the loss of federal records because some of the emails in question were destroyed by the RNC (which is neither subject to the Presidential nor the Federal Records Act). 6

Attempts to Reform

The electronic records controversies, particularly those that occurred during the George W. Bush presidency, give weight to the words of Former United States Archivist John Carlin that “electronic records pose the biggest challenge ever to recordkeeping in the Federal government.” 7 The Federal government and NARA are still working out how to adequately archive electronic records in an electronic format, the volume of which has increased since the PRA and FRA came into place. The National Archives and Records Administration has developed the Electronic Records Archive System to enable it to meet the challenge of storing the government’s electronic records. NARA has also developed the Electronic Records Management Initiative with the objective of aiding agencies to better manage their electronic records. 

Besides the above mentioned initiatives, efforts to improve the management of federal electronic records include the Electronic Message Preservation Act which was introduced in the House of Representatives in March 2009. One of the provisions of the Act was a process for the annual certification of the President’s management of Presidential Records by the United States Archivist. The provision was borne out of concerns generated by the White House e-mail controversies that White House’s archiving system of presidential records was inadequate. 

The Presidential Records Act (and the Federal Records Act) which govern federal record keeping faces several challenges in the 21st century world of electronic communication. There still remains to be addressed one of the worrying aspects of the increasing use of computers, which as Professor Anne K. Nelson explained is the “convenience of the delete key….” The ease with which records materials can be erased could threaten the spirit of the Presidential and Federal Records Act.

Endnotes

1 See 44 U.S.C. 2203.

2 See 44 U.S.C 2201.

3 Macon Philips, “Reality Check: The Presidential Records Act of 1978 meets web-based social media of 2009,” The White House Blog, http://www.whitehouse.gov/blog/Reality-Check-The-Presidential-Records-Act (accessed November 5, 2009).

4 See 44 U.S.C. 2904.

5 See Armstrong v. Executive Office of President, 1 F.3d 1274 (D.C. Circ. 1993).

6 “The Use of RNC E-mail Accounts by White House Officials,” Committee on Oversight and Government Reform, http://oversight.house.gov/index.php?option=com_content&view=article&id=2469&catid=44:legislation (accessed November 22, 2009).

7 Statement by John Carlin, Archivist of the United States, July 8, 2003, http://www.archives.gov/about/speeches/07-8-03a.html (accessed November 4, 2009).