Senate Amendment to H.R. 1233, Presidential and Federal Records Act Amendments of 2013

H.R. 1233 - Senate Amendment

Presidential and Federal Records Act Amendments of 2013

Sponsor
Rep. Elijah E. Cummings

Date
November 12, 2014 (113th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

On Wednesday, November 12, 2014, the House will consider the Senate Amendment to H.R. 1233, the Presidential and Federal Records Act Amendments of 2013, under suspension of the rules.  H.R. 1233 was introduced on March 18, 2013 by Rep. Elijah Cummings (D-MD) and referred to the Committee on Oversight and Government Reform, which ordered the bill reported by voice vote.

Bill Summary

H.R. 1233 codifies an executive order “to fill an executive privilege gap in the Presidential Records Act (PRA) while also streamlining outdated statutory recordkeeping language and making additional changes to improve the federal government’s ability to capture and archive electronic records.”[1]

Section 2 requires the Archivist of the United States, when making public any presidential record to: (1) provide written notice of such a determination to the former President during whose term the record was created; and (2) make such a record available within 60 days unless the Archivist receives a notification from the former or current President of a claim of constitutionally-based privilege against disclosure.  Furthermore, it prohibits the Archivist from making a record that is subject to such a claim available unless the President withdraws a decision upholding the claim or the Archivist is directed to do so by a final court order.

The Senate Amendment to H.R. 1233 modifies the provision prohibiting an employee of an executive agency from creating or sending a Presidential record using a non-official electronic messaging account unless the employee copies an official account or forwards a complete copy of the record to an official account within 20 days.  This requirement is limited to only the President, Vice President or “covered employees.”[2]

Section 3 provides that the transfer of records with historical significance to the Archivist by a federal agency take place “as soon as practicable,” but not more than 30 years after the creation or receipt for such records.  Section 3 also expands the authority of the Archivist with respect to the creation and preservation of audio and visual records. Section 4 requires that the head of every federal agency notify the Archivist of any actual, impending, or threatened unlawful destruction of any records in the custody of the agency, and directs the Archivist to initiate action through the Attorney General for the recovery of such records.

Section 5 revises the definition of records to include all information, regardless of form or characteristic, and makes the Archivist’s determination of whether recorded information meets that definition legally binding on all federal agencies.  Section 6 directs the Archivist to prescribe, not later than 90 days after enactment, internal procedures to prevent the unauthorized removal of classified records from the National Archives and Records Administration (NARA) or the destruction or damage of such records, including when such records are accessed or searched electronically.

Section 7 repeals provisions related to the National Study Commission on Records and Documents of Federal Officials.  Section 8 provides technical corrections to the U.S. Code in the relevant sections.  Section 9 transfers records management responsibility from the Administrator of the General Services Administration (GSA) to the Archivist, and requires the transfer of records from federal agencies to the National Archives in digital or electronic form.  Section 10 prohibits employees of an executive agency from creating or sending Federal records using a non-official electronic messaging account unless the employee copies an official account or forwards a complete copy of the record to an official account within 20 days.

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[1] House Report 113-127, p. 4.
[2] Covered employees are defined in this legislation as: 1) the immediate staff of the President; 2) the immediate staff of the Vice President; 3) a unit of individual of the Executive Office of the President whose function is to advise and assist the President; and 4) a unit or individual of the Office of the Vice President whose function is to advise and assist the Vice President.

Background

“Congress first addressed federal recordkeeping in the 1930s, when the combination of growing public concern over poor agency recordkeeping practices and an expanding federal bureaucracy necessitated recordkeeping solutions for a larger volume of records.”[3]  Congress established the National Archives in 1934, which included the new position of Archivist of the United States.[4]  The Archivist serves as the primary agent of records preservation for the U.S. federal government.[5]  The Federal Records Act (FRA) of 1950 established basic records management authority for federal agencies, in order to allow agencies to internally manage their own records, and give the Archives and the Archivist the ability to filter and preserve records transferred to the National Archives.[6]   The Public Records Act (PRA) of 1978, passed in the aftermath of Watergate, was enacted to comprehensively answer issues surrounding the preservation and maintenance of presidential records.[7]”

“The PRA did not, however, provide a procedure allowing former presidents to request continued restricted access to presidential records created during their respective administrations. To fill this gap, several presidents since the passage of the PRA have issued executive orders to formalize a request procedure and define the limits of such requests.”[8]  As a result, H.R. 1233 was drafted to create a framework to allow former presidents to request continued restricted access on a “very narrow basis.”[9]  This legislation was also drafted in order to: 1) enable NARA and other agencies to handle an increasing amount of electronic communication; 2) restrict access to records by individuals who committed Archives-related crimes; 3) codify federal requirements for employees filing electronic communication through personal messaging accounts within their agency; and 4) streamline and modernize by amending and repealing defunct and unnecessary provisions in the PRA.

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[3] House Report 113-127
[4] Id. at 4.
[5] Id. at 4.
[6] Id. at 4.
[7] Id. at 4.
[8] Id. at 5.
[9] Id. at 5.

Cost

CBO estimates that enacting this legislation would have no significant cost.[10]

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[10] http://www.cbo.gov/publication/44262

Additional Information

For questions or further information contact the GOP Conference at 5-5107.