On November 26, 2014, President Obama signed H.R. 1233, the Presidential and Federal Records Act Amendments of 2014. The new law contains a number of important provisions aimed at modernizing and improving the record keeping and information management practices at federal departments and agencies. It also aims to streamline the manner in which executive privilege claims are processed, as part of the process for opening up presidential records of former administrations.
The law contains a number of miscellaneous provisions representing welcome revisions to the Federal Records Act, as originally acted in 1950. These include:
- Updating the definition of what constitutes a federal �record� for the first time in 64 years, to make clear that the term now includes all �recorded information,� encompassing not only all traditional forms of records, regardless of physical form or characteristics, but also information �created, manipulated, communicated, or stored in digital or electronic form.�
- Empowering the U.S. archivist with the authority to make a determination as to whether particular recorded information is in fact a �record� under the Federal Records Act, which will be binding on all federal agencies. (This statutory change was intended to supersede a 1981 Office of Legal Counsel opinion out of the Department of Justice, which upheld the State Department's position that notes of telephonic conversations involving Henry Kissinger were his property and not official �records� � over the objection of the General Services Administration, the predecessor agency to the National Archives and Records Administration.)
- Allowing for early transfer of permanent records to the custody of the U.S. archivist, including records in digital or electronic form, �as soon as practicable,� at a mutually agreed upon time, but not later than thirty (30) years after such records were created or received by the agency, subject to certain conditions.
- Requiring that any official business conducted on non-official e-mail systems is properly copied or forwarded to an official e-mail system for capture as a record and providing for disciplinary actions for intentional violations of this rule.
- Ensuring that enhanced procedures are put into place to prevent unauthorized removal of classified records from the National Archives.
- Codifying the requirement that agencies transfer in digital or electronic form to the National Archives their permanent electronic records �to the greatest extent possible.� This provision provides statutory authorization for the U.S. archivist's 2012 Managing Government Records Directive, which requires agencies to transfer permanently appraised electronic records created or received after December 31, 2019, to the National Archives only in digital or electronic form.
With respect to updating the Presidential Records Act of 1978, the new law codifies the procedures by which a former or incumbent president reviews records of former administrations for executive privilege, prior to the records being opened to the public. Under the new law, both the incumbent president and a former president would have 60 business days (subject only to one 30-day extension) to respond to a notice from NARA concerning the proposed release of records of the former administration. Past executive orders issued by successive presidents have contained controversial provisions and have allowed for lengthy delays in the processing of claims of executive privilege. Importantly, the new law also requires public notice of proposed openings of presidential records.
The new law also makes clear that presidential records of an incumbent administration that are transferred to the custody of the U.S. archivist for safekeeping during the president's term in office remain under the legal custody and control of the president and therefore are not subject to immediate public access.
Finally, the new law also prohibits the U.S. archivist from making available any original presidential records to an individual who has been convicted of a crime relating to the review, retention, removal, or destruction of records in the National Archives.
Jason R. Baron, Esq., Of Counsel, Drinker Biddle & Reath, LLP, was formerly the director of litigation at the U.S. National Archives and Records Administration.
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