Presidential Transitions: Government Records

INSIGHTi
Presidential Transitions: Government Records
November 24, 2020
In Section 2 of the Presidential Transition Act of 1963 (as amended; 3 U.S.C. 102 note), Congress
declared that “[t]he national interest requires that [presidential] transitions ... be accomplished so as to
assure continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal
Government, both foreign and domestic.” The crux of such a transition is the transfer of executive power
from the incumbent to the President-elect. The executive’s power manifests in a variety of processes with
application to a broad range of policy areas and issues. CRS has produced a set of products examining
selected processes and policies that may be of particular interest during a presidential transition. This
Insight discusses presidential records access, federal records, and electronic records considerations. Other
related products examine clemency, executive orders, presidential appointments (executive branch),
rulemaking, and presidential transitions general y.
At the conclusion of a presidency, both the President and the Administration likely have generated
mil ions of government records, which document the actions and decisionmaking processes of the
executive branch and may be of long-term interest to Congress, federal agencies, incoming Presidents,
researchers, and members of the general public. The Presidential Records Act (PRA; 44 U.S.C. §§2201-
2207) governs materials created by the President and certain components of the Executive Office of the
President. The Federal Records Act (FRA; 44 U.S.C. Chapters 21, 29, 31, and 33) governs materials
created by agencies.
In 2014, the Presidential and Federal Records Act Amendments of 2014 required presidential and federal
records to be assessed for preservation not by the type of media used to store the information but by the
content of the information itself, encompassing digital and electronic records more clearly into the statute.
The National Archives and Records Administration (NARA) plays a supporting role in the case of
presidential records and a coordinating and directing role in the case of federal records, explained in
further detail below.
Presidential Records
The PRA defines presidential records as “documentary materials … created or received by the President,
the President’s immediate staff, or a unit or individual of the Executive Office of the President whose
function is to advise or assist the President.”
Prior to the PRA’s 1978 enactment, records were considered the President’s private property. Now, the
PRA states that presidential records are the property of the United States. Under the PRA, the President
Congressional Research Service
https://crsreports.congress.gov
IN11542
CRS INSIGHT
Prepared for Members and
Committees of Congress

---

Congressional Research Service
2
may request advice and assistance from NARA regarding records management practices, and the
Archivist of the United States (the head of NARA) plays an important role in the maintenance and access
of a former President’s records.
The PRA does not establish automatic access to an incumbent President’s records, which may be
protected by executive privilege on a case-by-case basis. However, the PRA does statutorily narrow an
incumbent President’s ability to restrict records access as an Administration draws to a close. As the
length of time between the conclusion of a presidency and the present day increases, presidential records
become more accessible.
Access to a former President’s records is governed in terms of time passed since the conclusion of the
presidency:
 Less than five years out, no public access is granted due to the Archivist’s processing of
the records.
 Between 5 and 12 years out, the Archivist determines PRA restrictions with the former
President in accordance with 44 U.S.C. §2204.
 After 12 years, the PRA restrictions no longer apply.
Certain federal officials may access a former President’s records within the 12-year time frame by gaining
“special access” to presidential records. The PRA permits either house of Congress, committees, or
subcommittees requesting information for chamber or committee business to be granted special access to
the former President’s records. In practice, observers have questioned what constitutes a House or Senate
request for presidential records and who needs to make the request to qualify under the PRA. This
possible statutory ambiguity may affect the ability of minority party members and general committee
members to gain access to presidential records.
Federal Records
Under the FRA, federal records are defined as
all recorded information, regardless of form or characteristics, made or received by a Federal agency
under Federal law or in connection with the transaction of public business and preserved or
appropriate for preservation by that agency or its legitimate successor as evidence of the
organization, functions, policies, decisions, procedures, operations, or other activities of the
Government or because of the informational value of the data in them.
At the end of any presidential Administration, many political appointees in federal agencies may leave
their positions. Upon their departure from federal service, these appointees wil have to ensure the federal
records they created are properly managed and preserved. To facilitate this process, NARA issues
bulletins to federal agencies regarding records management, blogs about NARA’s role in a presidential
transition, and produces resources directly for political employees by communicating their records
responsibilities throughout their tenure.
Electronic Records
In an increasingly digital age, federal agencies and appointees have adapted to electronic records
management and preservation. Congress may consider if current guidance and recordkeeping processes
are sufficient. NARA’s 2013 “Capstone” approach encourages an agency to categorize and assess
preservation value of email based on the work and/or position of the email account owner, rather than by
the individual content of the email record. NARA continues to build the Electronic Records Archives
(ERA) system to facilitate records schedule updates and timely transfer of records materials. NARA also

---

Congressional Research Service
3
has issued specific guidance on the removal of records and the management of social media, email, and
instant and text message records.
In al cases, however, the preservation of records materials depends on federal employees to understand
and properly apply records management guidance. Preservation of records at the agency level, while often
considered a support activity, also involves the preservation of valuable material vital to performing
essential government functions and providing information for public and congressional oversight.
Looking forward, electronic records management and retrieval may continue to be an area of policy
interest as Congress looks beyond the presidential transition and toward NARA’s 2022 goal of moving to
al -electronic format records accessioning.


Author Information

Meghan M. Stuessy

Analyst in Government Organization and Management




Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

IN11542 · VERSION 1 · NEW

---