Presidential Records Act of 1978

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95TH UNITED STATES CONGRESS
2ND SESSION


An Act
To amend title 44 to insure the preservation of and public access to the official records of the President, and for other purposes.


Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
That this Act may be cited as the ``Presidential Records Act of 1978´´.


Sec. 2. Records Management, Preservation, and Public Availability.[edit]

(a) Title 44 of the United States Code is amended by adding immediately after chapter 21 the following new chapter:


``Chapter 22.−presidential records

``Sec. 2201. Definitions.
``Sec. 2202. Ownership of Presidential records.
``Sec. 2203. Management and custody of Presidential records.
``Sec. 2204. Restrictions on access to Presidential records.
``Sec. 2205. Exceptions to restriction on access.
``Sec. 2206. Regulations.
``Sec. 2207. Vice-Presidential records.

``§ 2201. Definitions.[edit]

``As used in this chapter—
``(1) The term `documentary material´ means all books, correspondence, memorandums, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, and motion pictures, including, but not limited to, audio, audiovisual, or other electronic or mechanical recordations.
``(2) The term `Presidential records´ means 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 carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term—
``(A) includes any documentary materials relating to the political activities of the President or members of his 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; but
``(B) does not include any documentary materials that are (i) official records of an agency (as defined in section 552(e) of title 5, United States Code)[1]; (ii) personal records; (iii) stocks of publications and stationery; or (iv) extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.
``(3) The term `personal records´ means all documentary materials, or any reasonably segregable portion therof,[2] of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes—
``(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;
``(B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and
``(C) materials relating exclusively to the President's own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.
``(4) The term `Archivist´ means the Archivist of the United States.
``(5) The term `former President´, when used with respect to Presidential records, means the former President during whose term or terms of office such Presidential records were created.


``§ 2202. Ownership of Presidential records.[edit]

``The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.


``§ 2203. Management and custody of Presidential records.[edit]

``(a) Through the implementation of records management controls and other necessary actions, the President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records pursuant to the requirements of this section and other provisions of law.
``(b) Documentary materials produced or received by the President, his staff, or units or individuals in the Executive Office of the President the function of which is to advise and assist the President, shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.
``(c) During his term of office, the President may dispose of those of his Presidential records that no longer have administrative, historical, informational, or evidentiary value if—
``(1) the President obtains the views, in writing, of the Archivist concerning the proposed disposal of such Presidential records; and
``(2) the Archivist states that he does not intend to take any action under subsection (e) of this section.
``(d) In the event the Archivist notifies the President under section (c) that he does intend to take action under subsection (e), the President may dispose of such Presidential records if copies of the disposal schedule are submitted to the appropriate Congressional Committees at least 60 calendar days of continuous session of Congress in advance of the proposed disposal date. For the purpose of this section, continuity of session is broken only by an adjournment of Congress sine die, and the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of the days in which Congress is in continuous session.
``(e) The Archivist shall request the advice of the Committee on Rules and Administration and the Committee on Governmental Affairs of the Senate and the Committee on House Administration and the Committee on Government Operations of the House of Representatives with respect to any proposed disposal of Presidential records whenever he considers that—
``(1) these particular records may be of special interest to the Congress; or
``(2) consultation with the Congress regarding the disposal of these particular records is in the public interest.
``(f)
``(1) Upon the conclusion of a President's term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President. The Archivist shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this Act.
``(2) The Archivist shall deposit all such Presidential records in a Presidential archival depository or another archival facility operated by the United States. The Archivist is authorized to designate, after consultation with the former President, a director at each depository or facility, who shall be responsible for the care and preservation of such records.
``(3) The Archivist is authorized to dispose of such Presidential records which he has appraised and determined to have insufficient administrative, historical, informational, or evidentiary value to warrant their continued preservation. Notice of such disposal shall be published in the Federal Register at least 60 days in advance of the proposed disposal date. Publication of such notice shall constitute a final agency action for purposes of review under chapter 7 of title 5, United States Code.


``§ 2204. Restrictions on access to Presidential records.[edit]

``(a) Prior to the conclusion of his term of office or last consecutive term of office, as the case may be, the President shall specify durations, not to exceed 12 years, for which access shall be restricted with respect to information, in a Presidential record, within one or more of the following categories:
``(1)
``(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and
``(B) in fact properly classified pursuant to such Executive order;
``(2) relating to appointments to Federal office;
``(3) specifically exempted from disclosure by statute (other than sections 552 and 552b of title 5, United States Code), provided that such statute
``(A) requires that the material be withheld from the public in such a manner as to leave no discretion on the issue, or
``(B) establishes particular criteria for withholding or refers to particular types of material to be withheld;
``(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
``(5) confidential communications requesting or submitting advice, between the President and his advisers, or between such advisers; or
``(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
``(b)
``(1) Any Presidential record or reasonably segregable portion thereof containing information within a category restricted by the President under subsection (a) shall be so designated by the Archivist and access thereto shall be restricted until the earlier of—
``(A)
``(i) the date on which the former President waives the restriction on disclosure of such record, or
``(ii) the expiration of the duration specified under subsection (a) for the category of information on the basis of which access to such record has been restricted; or
``(B) upon a determination by the Archivist that such record or reasonably segregable portion thereof, or of any significant element or aspect of the information contained in such record or reasonably segregable portion thereof, has been placed in the public domain through publication by the former President, or his agents.
``(2) Any such record which does not contain information within a category restricted by the President under subsection (a), or contains information within such a category for which the duration of restricted access has expired, shall be exempt from the provisions of subsection (c) until the earlier of—
``(A) the date which is 5 years after the date on which the Archivist obtains custody of such record pursuant to section 2203 (d) (1); or
``(B) the date on which the Archivist completes the processing and organization of such records or integral file segment thereof.
``(3) During the period of restricted access specified pursuant to subsection (b) (1), the determination whether access to a Presidential record or reasonably segregable portion thereof shall be restricted shall be made by the Archivist, in his discretion, after consultation with the former President, and, during such period, such determinations shall not be subject to judicial review, except as provided in subsection (e) of this section. The Archivist shall establish procedures whereby any person denied access to a Presidential record because such record is restricted pursuant to a determination made under this paragraph, may file an administrative appeal of such determination. Such procedures shall provide for a written determination by the Archivist or his designee, within 30 working days after receipt of such an appeal, setting forth the basis for such determination.
``(c)
``(1) Subject to the limitations on access imposed pursuant to subsections (a) and (b), Presidential records shall be administered in accordance with section 552 of title 5, United States Code, except that paragraph (b) (5) of that section shall not be available for purposes of withholding any Presidential record, and for the purposes of such section such records shall be deemed to be records of the National Archives and Records Service of the General Services Administration. Access to such records shall be granted on nondiscriminatory terms.
``(2) Nothing in this Act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President.
``(d) Upon the death or disability of a President or former President, any discretion or authority the President or former President may have had under this chapter shall be exercised by the Archivist unless otherwise previously provided by the President or former President in a written notice to the Archivist.
``(e) The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President's rights or privileges.


``§ 2205. Exceptions to restriction on access.[edit]

``Notwithstanding any restrictions on access imposed pursuant to section 2204
``(1) the Archivist and persons employed by the National Archives and Records Service of the General Services Administration who are engaged in the performance of normal archival work shall be permitted access to Presidential records in the custody of the Archivist;
``(2) subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available—
``(A) pursuant to subpena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding;
``(B) to an incumbent President if such records contain information that is needed for the conduct of current business of his office and that is not otherwise available; and
``(C) to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available; and
``(3) the Presidential records of a former President shall be available to such former President or his designated representative.


``§ 2206. Regulations.[edit]

``The Archivist shall promulgate in accordance with section 553 of title 5, United States Code, regulations necessary to carry out the provisions of this chapter. Such regulations shall include—
``(1) provisions for advance public notice and description of any Presidential records scheduled for disposal pursuant to section 2203 (f) (3);
``(2) provisions for providing notice to the former President when materials to which access would otherwise be restricted pursuant to section 2204(a) are to be made available in accordance with section 2205 (2);
``(3) provisions for notice by the Archivist to the former President when the disclosure of particular documents may adversely affect any rights and privileges which the former President may have; and
``(4) provisions for establishing procedures for consultation between the Archivist and appropriate Federal agencies regarding materials which may be subject to section 552(b) (7) of title 5, United States Code.


``§ 2207. Vice-Presidential records.[edit]

``Vice-Presidential records shall be subject to the provisions of this chapter in the same manner as Presidential records. The duties and responsibilities of the Vice President, with respect to Vice-Presidential records, shall be the same as the duties and responsibilities of the President under this chapter with respect to Presidential records. The authority of the Archivist with respect to Vice-Presidential records shall be the same as the authority of the Archivist under this chapter with respect to Presidential records, except that the Archivist may, when the Archivist determines that it is in the public interest, enter into an agreement for the deposit of Vice-Presidential records in a non-Federal archival depository. Nothing in this chapter shall be construed to authorize the establishment of separate archival depositories for such Vice-Presidential records.´´.

(b)
(1) The table of chapters for title 44, United States Code, is amended by inserting immediately after the item relating to chapter 21 the following new item:

``22. Presidential Records ………………… 2201´´.

(2) Section 2107 of title 44, United States Code, is amended by adding at the end thereof the following new sentence:

``This section shall not apply in the case of any Presidential records which are subject to the provisions of chapter 22 of this title.´´.

(3) Section 2108 (c) of title 44 is amended by adding at the end thereof the following:

``Only the first two sentences of this subsection shall apply to Presidential records as defined in section 2201(2) of this title.´´.


Sec. 3. Effective Date.[edit]

The amendments made by this Act shall be effective with respect to any Presidential records (as defined in section 2201(2) of title 44, as amended by section 2 of this Act) created during a term of office of the President beginning on or after January 20, 1981.


Sec. 4. Separability.[edit]

If any provision of this Act is held invalid for any reason by any court, the validity and legal effect of the remaining provisions shall not be affected thereby.


Approved November 4, 1978.


Notes[edit]

  1. As referred to in par. (2)(B)(i), section 552 (e) was redesignated section 552 (f) by section 1802(b) of Pub. L. 99–570, 10/27/1986.
  2. So in original (sp). Probably should be “thereof,”.

Legislative History[edit]

  • HOUSE REPORTS:
    • No. 95-1487, Pt. I (Comm. on Government Operations)
  • CONGRESSIONAL RECORD, Vol. 124 (1978):
    • Oct. 10, considered and passed House.
    • Oct. 13, considered and passed Senate, amended.
    • Oct. 15, House concurred in Senate amendments.
  • WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 14, No. 45 (1978):
    • Nov. 6, Presidential statement.