PRESIDENTIAL RECORDS ACT OF 1978

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP10T01930R000500160014-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 24
• Document Creation Date: December 22, 2016
• Document Release Date: October 17, 2012
• Sequence Number: 14
• Content Type: OPEN SOURCE

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'95TH CONGREBB) HOIISE OF REPRESENTATIVES ~RErT.95-1487
~d Session Jj' Part I
PRESIDENTIAL RECORDS .ACT OF 1978
Au cusT 14, 1978.-Ordered to be printed
Mr. Bxooxs, from the Committee on Government Operations,
submitted the following
REPORT
1To accompany H.R. 13500 which, on July 17, 1978, was referred jointly to the
Committee on Government Operations and the Committee on House
Administration]
[Including cost estimate of the Congressional Budget Office]
The Committee on Government Operations, to whom was referred
the bill (H.R. 13500) to amend title 44 to insure the preservation of
and public access to the official records of the President, and for other
purposes, having considered the same, report favorably thereon with
amendments and recommend that the bill as amended do pass.
The amendments are as follows:
Page 2, line 21, strike out "an effect" and insert in lieu thereof
"a direct effect".
Page 3, line 22, insert "direct" immediately before "effect".
Page 5, line 9, strike out "and", and on line 13 strike out "; and"
and everything that follows through line 18 and insert in lieu thereof
a period.
Page 5, line 12, strike out "days" and insert in lieu thereof "calendar
clays of continuous session of Congress" and, immediately after line
18, insert the following:
For the purpose of this subsection, 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.
Page 10, line 19; insert "civil or" immediately before "criminal".
Page 12, strike out line 14 and everything that follows through
line 20; on line 21, redesignate paragraph (3) as paragraph (2) ; and
ion page 13, line 3, redesignate paragraph (4) as paragraph (3).
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-~~ .'`l.,~l~ %'i ~~ ~. ... '~ 2Tii ir1 ! r [ :1T,~? ,~% l:i .[~
f y EXPLANATION OF A14ENDMENTS ~. i',~ . ~ ~ '
The first two amendments clarify that in order for documentaay
materials involving the political activities of the President or his
staff to be considered "Presidential records", the activities in question
must relate to or have a "direct" effect upon the carrying out of the
official or ceremonial duties of~ the President.. These ch_ anges were
made so that the act would not'impinge on the President's first amend-
ment right to free speech or political association by including as gov-
ernment property records .that might have a tangential effect upon
his or his staff's official or ceremonial responsibilities, but consist of
purely personal political'eobimunication's' '
The third amendment~strikes?a provision-which would have required
microfilming prior to destruction of all materials that the President
proposed to discard becauserthe~=had no administrative, informational,
historical;~?~or`evideritiary"value. The only exception 'to'this'require-
ment was for routinetor ceremonial maal to or from persons acting
individually. The committee vas concerned that the cost of micro-
filming ~~=ould have discouraged~-proper~ records disposal, in that it
might be less expensive to keep all materials regardless of their docu-
,.mentaxy worth. ,, , ? - r - . .
The,fourth ~amendmerit cla,iifies that ?information concerning the
disposal of Presidential records must be provided to 'the Congress
60 legislative days, rather than 60 calendar dad=s, in advance of action
b the ~liite'FIouse. ' ? ~ - "
Y
.The.,fifth amendment. provides that records which ?are otherwise
barred `from.',release? under one ?of "?the 'six restrictive categories 'the
;former ;President may' sleleet 'from, ;shall be available ppursuant 'to , a
.'sub ~oena or~other court order fo"r civil as'?~ell as criininal'proceedings.
?"`~h'e'last`amendment deletes,a'provision which would have`provxled
for the"a`ppointmerit of 'the Archivist of the ..United States by 'the
-President,,wvith the advice and consent of the Senate, for a'term of 10
years~with removal for good cause'onlj=. The provision-posed a dilemma
with strong constitutional :,overtones. Because, the' Archivist is fan
?executive,branch official, limitations'in,'any form 'on the autlionty
Hof ahe President to `remove him?Rrould be constitutionally suspect.
'[See'Myers v. 'U.~S., 47 S. Ct:'21 (1926)' and Humphreys Executor"v:
U.S. 55;S.;,Ct.7869 (?1935).] He cannot,be designated aquasi-judicial
' orquasi-legislative, official because the ?actual control of. Presidential
~a Hers must remain ?-ithin the executi~=e'brancli.' 1Vixo'n;'v. Administra-
] 1 [
for of General Services, 97 S. Ct. 2777 (1977).]
(t ir?1U .9. . ~ PURPOSE"~ ~ !~. 'J'.~, i.~rr i
The purpose ofrH.~R.~13500lis'(?1) toyestablish thetpublic ownership
of records created by-future Presidents and their staffs=in the~course of
discharging their official duties; and (2) to establish procedures govern-
' ing the.preservation~and,public availability of these records at the~end
~.of a.PresidentiaL~adininistration. The legislation ~dould terminate the
tradition of,private ownership of Presidential papers and the reliance
on' bolunteerism~to,determine the fate?of?their, dispo'sitiou. Instead,
the preservation of'the historical recordef'future Presidencies ~Soiild
be assured and public access to the materials would be consistent under
standards fixed in law. The primary function of Presidential libraries
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remains ~unchaaiged. The libraries aae to continue to provide informa-
tion about their holdings and to,make records available to researchers
upon request ion an impartial basis. The legislation becomes effective
?for records created or received during the term Hof office of the President
beginning.on or after.January;20, 1981.
SUD'IMARY OF MAJOR PROVISIONS
The provisions of the bill are;in thI?ee basic categories: (1) definition
and declaration of ownership of Presidential records; (2) .p ublic access
to .Presidential records after a President leaves office; and (3) records .
management ,}irocedures during a?nd after a President's term.
Presidentia?1 records are defined as those records created or received
by the President and his aides, the purpose of which is the .advise
a.nd .assist the .President in the performance of his official duties: The
'definition of Presidential records vas designed .to encompass those
.records which currently fall outside the scope of the Freedom of
Information Act .(FOIA) 5 U.S.C. section. 552. See, e.g., Soucie v.
.David, 448 F. 2d .1068 (1971) and H. Rept. 'No. 93-876, ,93d Cong.,,
2d sess. 13 (1974). The intent is that all ?records which are neither
agency records subject to FOIA.nor personal records would fall within
,the ambit of Presidential records. Personal records are defined as those
matelials ?=hick are .neither .developed in .connection with nor utilized
during the transaction of Government ?business.
The legislation declares Presidential records .to be Government
property ,and provides that immediately upon the conclusion of a
President's tenure in office ,these records~are transferred to the custody
.of the Archivist of the United States. The Archivist is given the re-
sponsibility for the placement of the records in a Presidential library
or other,federally operated facility. '
An outgoing-President would be pei~itted to place mandatory
restrictions of up to 10 years on the availability to the general public
.of certain types of information. The six restrictive categories .are
modeled after several of the exemptions of t e reedom_of Inform_a-
,tion .Act. But unlike the F.OIA exem tions ?7hich may be_pplied in a
discretionary, fashion by feder agencies, the statutorily ermitt
?restrictions .chosen b the former President are- in in an must e
o serve- , ?, e six t . es o i one rmation t a.t may e restncte area
amt-~ssifie for national defense .reasons Aursuant to Executive
,_ ,order material .related -to Presidential a ointments; material ex-
empted from disc osure by another statute; trade secrets-and confi-
dential business information? confidential communications between
,the rest ent ,and .his a viseis? an information_whose disclosure
,_ta=ou resu t m a c ear y un~~=arranted invasion of personal privacy._^
The President is.given the pption of choosing to impose some,?all,?or
none of the restrictive categories; :or of being more selective and desig-
nating particular records or portions thereof which fall within the
six categories. Additionally, he could vary .the term of years for each
category, picking for exal>jiple, 6 years for one, 8 for another, and zero
for a third. ~ ~ ?
The Freedom, of Information Act,, with its ,procedural requirements
and provision for judicial revie~;=, ?=ou}d govern the public availability
of all Presidential records not subject to mandatory restrictions. For
example, there is no mandatory restriction category for investigatory
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1"iles compiled for law enforcement purposes; but such` records