Presidential Records Management: Preservation and Disposal

Presidential Records Management: Preservation and Disposal

Updated August 9, 2022
Presidential Records Management: Preservation and Disposal
Presidential records provide an essential window into many
private property of the President (44 U.S.C. §2202).
of the most consequential actions and decisions of the
However, not all materials created by the President or
American government. The Presidential Records Act (PRA;
presidential advisors are considered records.
44 U.S.C. §§2201-2209) sets forth requirements regarding
the maintenance, access, and preservation of presidential
Compared to presidential records, which must be preserved
and vice presidential information during and after a
and maintained in accordance with the PRA, personal
presidency.
records do not require such retention. Personal records of a
purely private or nonpublic character include such things as
The PRA provides records maintenance requirements and
diaries or journals but also include (1) materials relating
permissions that vary depending on whether a presidency is
exclusively to the President’s own election and materials
in progress or has concluded. These matters may be of
directly relating to the election of a particular individual or
particular interest to Congress as it carries out its oversight
individuals to federal, state, or local office that “have no
activities and ensures presidential records are effectively
relation to or direct effect upon the carrying out of
collected and controlled during and after a presidency.
constitutional, statutory, or other official or ceremonial
duties of the President” and (2) materials relating to private
This In Focus provides information on what constitutes a
political associations (44 U.S.C. §2201(3)).
presidential record; the roles and responsibilities the PRA
assigns to the President, National Archives and Records
All presidential records are initially considered appropriate
Administration (NARA), and Department of Justice (DOJ);
for permanent preservation. However, the PRA provides a
and the PRA’s application to the preservation and disposal
process for the incumbent President to dispose of
of presidential records during and after a presidency. It
presidential records by obtaining the Archivist’s written
includes information on NARA’s ability to request a DOJ
approval. This process is further described below.
investigation.
Roles and Responsibilities
For more information about the PRA generally, see CRS
The PRA specifies roles and responsibilities for the
Report R46129, The Presidential Records Act: An
implementation and enforcement of presidential records
Overview.
policy to the President, NARA, and DOJ.
What Are Presidential Records?
The PRA requires the President to take “all such steps as
The PRA governs the collection and retention of records
may be necessary to assure that the activities, deliberations,
created or received by the President, immediate presidential
decisions, and policies that reflect the performance of the
staff, and certain units or individuals within the Executive
President’s constitutional, statutory, or other official or
Office of the President. Presidential records include, among
ceremonial duties are adequately documented” (44 U.S.C.
other types of information, documentary materials relating
§2203(a)). The President is further directed to implement
to certain political activities as well as information that
records management controls and may consult NARA and
relates to the constitutional, statutory, or other official or
DOJ on how to best comply with the statute.
ceremonial duties of the President. Presidential records are
the property of the United States and are not considered the
NARA provides advice and assistance to the White House
on records management practices upon request throughout a
Definition of Presidential Records
presidential transition and a presidency and to former
Presidents. The PRA requires the head of NARA, the
The Presidential Records Act at 44 U.S.C. §2201(3) defines
Archivist of the United States (hereinafter, the Archivist), to
presidential records as “documentary materials, or any
consult with Congress and particular congressional
reasonably segregable portion thereof, created or received by
committees regarding presidential requests for the disposal
the President, the President’s immediate staff, or a unit or
of such records deemed to be of special congressional
individual of the Executive Office of the President whose
interest.
function is to advise or assist the President, in the course of
conducting activities which relate to or have an effect upon the
DOJ provides guidance to the executive branch on how to
carrying out of the constitutional, statutory, or other official or
comply with the legal requirements of government
ceremonial duties of the President. Such term—
information policy, of which records maintenance policy,
“(A) includes any documentary materials relating to the
including presidential records, is a part.
political activities of the President or members of the
President’s staff, but only if such activities relate to or have a
direct effect upon the carrying out of constitutional, statutory,
or other official or ceremonial duties of the President.”
https://crsreports.congress.gov

Presidential Records Management: Preservation and Disposal
Presidential Records Preservation
Improper Disposal Investigations
During a presidency, the incumbent President is exclusively
In the event of unlawful removal, defacing, or erasure of
responsible for custody, control, and access to presidential
records, the related Federal Records Act (44 U.S.C.
records, and the Archivist may maintain and preserve the
Chapters 21, 29, 31, and 33) requires the Archivist to
records on behalf of the President (44 U.S.C. §2203(f)).
initiate action through the Attorney General for the
NARA notes that the agency is available to consult with the
recovery of the records (44 U.S.C. §3106). Furthermore:
President regarding records management practices upon
In any case in which the head of a Federal agency
request, although the PRA does not require such
consultation. In its Guidance on Presidential Records,
does not initiate an action for such recovery or other
NARA recommends that an incoming Administration
redress within a reasonable period of time after
designate an attorney in the White House Counsel’s Office
being notified of any such unlawful action
to serve as contact with NARA on all PRA issues. The
described in subsection (a), or is participating in, or
agency writes:
believed to be participating in any such unlawful
action, the Archivist shall request the Attorney
Because the Administration faces an ongoing array
General to initiate such an action, and shall notify
of PRA issues, it is essential for NARA to have a
the Congress when such a request has been made.
primary point of contact in the White House
Counsel’s Office as soon as possible. This is
Thus, investigation of the unlawful removal or destruction
particularly important for responding to special
of government and presidential records requires the joint
access requests that NARA receives from Congress
cooperation of NARA and DOJ. The Archivist may not
and the Courts for the Presidential records of former
independently initiate action without the Attorney General.
Presidents.
NARA provides information on missing records and efforts
to retrieve materials at https://www.archives.gov/research/
After a presidency, the responsibility for the custody,
recover/help-recover.html.
control, preservation, and access to presidential records
shifts to the Archivist (44 U.S.C. §2208).
Penalties for Improper Disposal
Anyone found guilty of “willfully and unlawfully”
Presidential Records Disposal
concealing, removing, mutilating, obliterating, destroying,
All presidential records are initially considered permanent
or attempting to do any such action against a record can be
records. However, the PRA provides a process for the
fined and imprisoned for up to three years (18 U.S.C.
incumbent President to seek a change in the disposal
§2071). Anyone holding federal office who is convicted of
schedule of the President’s own records by obtaining the
this crime, in addition to fines and possible imprisonment,
Archivist’s written approval. As is routine with federal
can lose his or her position and be disqualified from holding
records created by agencies, an incumbent President may
federal office in the future.
seek the disposal of records that no longer have
administrative, historical, informational, or evidentiary
Presidential Records Act Enforcement
value. For more information on federal records, see CRS In
and Issues for Congress
Focus IF11119, Federal Records: Types and Treatments,
On August 8, 2022, the Washington Post reported that the
by Meghan M. Stuessy.
Federal Bureau of Investigation (FBI) had searched former
President Donald Trump’s residence for documents that
Presidential records may be disposed of if the President
may contain classified information. Reports indicate that
submits copies of the intended disposal schedule at least 60
the search is related to the February 2022 efforts by NARA
calendar days before the proposed disposal date to the
to retrieve 15 boxes of presidential records in Florida. In a
statutorily specified committees (44 U.S.C. §2203(d)).
collection of press statements from February 14, 2022,
NARA states, “As required by the Presidential Records Act
If the Archivist considers the identified records in the
(PRA), these records should have been transferred to
President’s proposed disposal schedule to be of special
NARA from the White House at the end of the Trump
interest to Congress or determines that consultation with
Administration in January 2021.” The PRA does not
Congress is necessary to assess the disposal request, the
provide a deadline for the physical transfer of records
Archivist shall request the advice of the specified
materials, although it does provide for a transfer of legal
committees (44 U.S.C. §2203(e)).
responsibility for materials to the Archivist in 44 U.S.C.
§2203.
The PRA does not provide the former President with a
process for disposing of presidential records. In contrast to
Congress may consider whether NARA has sufficient
the disposal request process for incumbent Presidents, the
ability to oversee the management of presidential records
Archivist may dispose of a former President’s presidential
during a presidency and whether White House staff are
records if the Archivist deems them to have insufficient
sufficiently trained on segregating presidential records from
value to warrant their continued preservation. The Archivist
personal records. Congress may also consider additional
must publish a notice in the Federal Register at least 60
legislation or oversight on the presidential records transfer
days in advance of the proposed disposal date (44 U.S.C.
process at the conclusion of an Administration. Congress
§2203(g)(4)).
might also assess the relationship between NARA and DOJ
with regard to investigations of records removal and if
either entity is helped or hampered by their joint
relationship as currently required in statute.
https://crsreports.congress.gov

Presidential Records Management: Preservation and Disposal

IF12056
Meghan M. Stuessy, Analyst in Government Organization
and Management

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https://crsreports.congress.gov | IF12056 · VERSION 3 · UPDATED