The Presidential Records Act of 1978 (“PRA”) governs the official records of Presidents and Vice Presidents created or received after January 20, 1981. The U.S. must reserve and retain complete ownership, possession, and control of Presidential records; and such records must be administered in accordance with the provisions of the statute[i]. The PRA controls the disposition of Presidential records defined as documentary materials created or received by the President or his/her immediate staff, or any other whose function is to advise and assist the President[ii].
It is to be noted that such records must be related to activities relating to the constitutional, statutory, or other official or ceremonial duties of the President, including records dealing with political activities[iii]. According to PRA, the legal ownership of the official records of the President changed from private to public.
The PRA also established a new statutory structure under which Presidents must manage their records. The President must take steps to assure that the activities, deliberations, decisions, and policies that reflect the performance of his/her constitutional, statutory, or other official or ceremonial duties are adequately documented and such records are maintained as Presidential records[iv]. Similarly, the President can dispose of his/her Presidential records that do not have administrative, historical, informational, or evidentiary value upon some conditions[v].
The PRA makes clear that the U.S. reserves and retains complete ownership, possession, and control of presidential records, which must be administered by the archivist. Upon the conclusion or serving consecutively after the last term of a President in his/her office, the archivist will assume responsibility for the custody, control, and preservation of the Presidential records of that President. The archivist has a duty to make such records available to the public[vi].
However, the archivist can dispose of such Presidential records which if it is found to have insufficient administrative, historical, informational, or evidentiary value to warrant their continued preservation. Notice of such disposal must be published in the federal register in advance[vii].
It is to be noted that before leaving his/her office, a President can specify that access to certain of the records be restricted for a period of up to 12 years. However, the release of these records can be obtained under specified circumstances[viii]. It can be seen that the former President can waive the restrictions on the disclosure of such records, or the archivist can release such records in the public domain through publication by the former President or his/her agent[ix].
Generally, if death or disability of a President or former President occurs, any discretion or authority of the President or former President will be exercised by the archivist unless otherwise provided by the President or former President in a written notice to the archivist[x].
The PRA establishes a process for restriction and public access to these records. It is to be noted that the PRA allows for public access to Presidential records through the Freedom of Information Act (FOIA). The PRA also establishes procedures for Congress, courts, and subsequent administrations to obtain special access to records that remain closed to the public.
It is to be noted that Vice Presidential records are also to be treated in the same way as Presidential records. It can be seen that the duties and responsibilities of the Vice President, with respect to Vice-Presidential records will be the same as the duties and responsibilities of the President[xi].
[i] 44 USCS § 2201.
[ii] 44 USCS § 2201(2).
[iv] 44 USCS § 2203(a).
[v] 44 USCS § 2203(3).
[vi] 44 USCS § 2203(f)(1).
[vii] 44 USCS § 2203(f)(3).
[viii] 44 USCS § 2204(a).
[ix] 44 U.S.C.A. § 2204(b)(1)(B).
[x] 44 USCS § 2204.
[xi] 44 USCS § 2207.