[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 5059 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  2d Session
                                S. 5059

    To amend chapter 22 of title 44, United States Code, to ensure 
  Presidential records are preserved, duly created when non-official 
   electronic messaging accounts are used, and made available to the 
   public and the next administration in a timely fashion to advance 
     national security and accountability, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 17, 2020

  Mr. Murphy introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
    To amend chapter 22 of title 44, United States Code, to ensure 
  Presidential records are preserved, duly created when non-official 
   electronic messaging accounts are used, and made available to the 
   public and the next administration in a timely fashion to advance 
     national security and accountability, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Promoting Accountability and 
Security in Transitions Act of 2020'' or the ``PAST Act''.

SEC. 2. SENSE OF CONGRESS.

    The sense of Congress is the following:
            (1) The preservation of Presidential records (as defined in 
        section 2201 of title 44, United States Code) is a legal 
        obligation for every Presidential administration, as 
        Presidential records are the most important and widely used 
        source for studying how the executive branch of the Federal 
        Government works, how it has changed over time, and how it 
        might evolve to serve the needs of a new era.
            (2) The preservation of Presidential records is therefore 
        vital for--
                    (A) the public to be able to understand and learn 
                from the past;
                    (B) future policymaking to build on the past 
                administration's successes and experience;
                    (C) ensuring accountability for results, 
                performance, and conduct; and
                    (D) other purposes that serve to strengthen 
                American democracy.
            (3) Any effort to destroy, alter, or remove Presidential 
        records in violation of chapter 22 of title 44, United States 
        Code--
                    (A) threatens the values described in paragraph 
                (2); and
                    (B) may subject a person engaging in such efforts 
                to other criminal penalties under section 641 or 2071 
                of title 18, United States Code.
            (4) The lawful disposal of Presidential records that no 
        longer have administrative, historical, informational, or 
        evidentiary value must follow a process as described in section 
        2203 of title 44, United States Code.
            (5) What constitutes a Presidential record is determined 
        solely by whether the record relates to the ``carrying out of 
        constitutional, statutory, or other official or ceremonial 
        duties of the President'', as indicated in the definition of 
        the term ``Presidential records'' in section 2201 of title 44, 
        United States Code, and by the content of the information 
        contained in the record.
            (6) For communication between agencies and the Executive 
        Office of the President, the copy of the record belonging to 
        the agency is retained as an agency record pursuant to section 
        3301 of title 44, United States Code.
            (7) Consistent with section 2203 of title 44, United States 
        Code, any Presidential records created with non-official 
        electronic media shall be ``preserved'', which includes a 
        comprehensive documentation of all records and associated 
        metadata and attachments.
            (8) Applications or software with an automatic deleting 
        functionality are antithetical to the legal and historical 
        obligations described under chapter 22 of title 44, United 
        States Code.
            (9) Periods of Presidential transition are moments where 
        the national security of the United States is most vulnerable, 
        necessitating an early, good faith, and consistent commitment 
        by the outgoing administration to ensure continuity of 
        operations as it relates to national security and protecting 
        critical infrastructure, among other reasons.
            (10) Agencies and the Executive Office of the President are 
        required by law to cooperate with the Archivist of the United 
        States and the Federal Transition Coordinator of the General 
        Service Administration, who is tasked with ensuring agencies 
        comply with all statutory requirements relating to transition 
        planning under section 4(c) of the Presidential Transition Act 
        of 1963 (3 U.S.C. 102 note).
            (11) During a Presidential transition, Presidential 
        records, which contain valuable information regarding 
        agreements or negotiations with foreign governments and 
        international organizations and the actions and beliefs of 
        foreign nations or actors are of enormous value to the national 
        security.
            (12) Any effort to delay briefings, coordination, and 
        sharing information regarding key national security 
        relationships, threats, and operations with an incoming 
        administration or the destruction, removal, or alteration of 
        Presidential records that attest to the information described 
        in this section could pose a grave danger to the national 
        security.
            (13) An expeditious ascertainment of the plausible 
        President-elect and Vice-President-elect by the Administrator 
        of General Services plays a vital role in ensuring continuity 
        of Government and protecting national security such that the 
        risk of redundant expenditure is overwhelmed by the advantages 
        of an early access to transition resources to allow for 
        transition planning.
            (14) The National Archives and Records Administration plays 
        an essential role in ensuring the official proceedings of 
        Government are documented to improve democracy in the United 
        States, protect national security, provide continuity of 
        Government during a transition, and promote accountability for 
        actions taking during a Presidency.
            (15) The robust funding of the National Archives and 
        Records Administration and protection of its officers and 
        employees from political interference is a national imperative 
        and must be a priority for Congress.

SEC. 3. DEFINITIONS.

    Section 2201 of title 44, United States Code, is amended--
            (1) in paragraph (1), by inserting ``, and includes the 
        metadata associated with all such material'' before the period; 
        and
            (2) by adding at the end the following:
            ``(6) The term `electronic messaging account' includes 
        electronic mail, chat or instant messaging, text messaging, 
        voicemail messaging, and other messaging platforms or apps, 
        such as social media or mobile applications, among other 
        applications.
            ``(7) The term `official electronic messaging account' 
        includes electronic messaging accounts provided by an executive 
        agency or the Executive Office of the President.
            ``(8) The term `dispose', with respect to documentary 
        material, means to remove, deface, alter, corrupt, delete, 
        erase, or otherwise destroy the documentary material.''.

SEC. 4. MANAGEMENT AND CUSTODY OF PRESIDENTIAL RECORDS.

    (a) In General.--Section 2203 of title 44, United States Code, is 
amended--
            (1) by redesignating subsections (e), (f), and (g) as 
        subsections (g), (h), and (i), respectively;
            (2) by redesignating subsection (d) as subsection (e);
            (3) by striking subsection (c) and inserting the following:
    ``(c) The President shall obtain the advice of the Archivist in 
applying standards, procedures, and techniques designed to--
            ``(1) improve the management of records;
            ``(2) promote the maintenance and security of records 
        determined appropriate for preservation; and
            ``(3) facilitate the segregation and disposal of records of 
        temporary value.
    ``(d)(1) During the President's term of office, if the President 
wishes to dispose of those Presidential records of such President that 
no longer have administrative, historical, informational, or 
evidentiary value--
            ``(A) the President shall request, in writing, the views of 
        the Archivist concerning the proposed disposal of such 
        Presidential records; and
            ``(B) the Archivist shall indicate, in writing, whether the 
        Archivist intends to take any action under subsection (g) of 
        this section with respect to the Presidential records.
    ``(2) Not later than 5 business days after the date on which the 
Archivist provides a written indication under paragraph (1)(B), the 
Archivist shall make publicly available on a website any communications 
received or sent by the Archivist regarding the potential disposal of 
Presidential records under paragraph (1).'';
            (4) in subsection (e), as so redesignated--
                    (A) by striking ``subsection (c)'' and inserting 
                ``subsection (d)''; and
                    (B) by striking ``subsection (e)'' and inserting 
                ``subsection (g)''; and
            (5) by inserting after subsection (e), as so redesignated, 
        the following:
    ``(f) In January of each even-numbered year, the Archivist shall, 
in coordination with the Office of Administration of the Executive 
Office of the President, submit to the Chairman and Ranking Member of 
each committee of jurisdiction of either House of Congress, of the 
Committee on Appropriations of the Senate, and of the Committee on 
Appropriations of the House of Representatives and to the President a 
report that--
            ``(1) is based on inspections conducted by the Archivist, 
        in coordination with the Office of Administration of the 
        Executive Office of the President, of the Presidential records 
        management programs of the Executive Office of the President; 
        and
            ``(2) evaluates--
                    ``(A) the records management activities and 
                training conducted and standard operating procedures 
                and guidance issued pursuant to this section; and
                    ``(B) responses to any recommendations resulting 
                from inspections or studies conducted under this 
                section.''.
    (b) Conforming Amendments.--
            (1) Section 2105(a)(2) of title 44, United States Code, is 
        amended by striking ``paragraph (f)(2)'' and inserting 
        ``subsection (i)(2)''.
            (2) Chapter 22 of title 44, United States Code, is 
        amended--
                    (A) in section 2204(b)(2)(A), by striking ``section 
                2203(d)(1)'' and inserting ``2203(i)(1)''; and
                    (B) in section 2206(1), by striking ``section 
                2203(f)(3)'' and inserting ``section 2203(i)(4)''.

SEC. 5. RESTRICTIONS ON ACCESS TO PRESIDENTIAL RECORDS.

    Section 2204 of title 44, United States Code, is amended--
            (1) in subsection (b)(3), by striking ``shall not be 
        subject to judicial review, except as provided'' and inserting 
        ``shall be subject to judicial review, including as provided''; 
        and
            (2) in subsection (e)--
                    (A) by inserting ``(1)'' before ``The United 
                States''; and
                    (B) by adding at the end the following:
    ``(2)(A) A person seeking access to a Presidential record to which 
access is restricted under subsection (a) may file an action in the 
United States District Court for the District of Columbia seeking 
release of the Presidential record.
    ``(B) In an action filed under subparagraph (A), the court shall 
direct the release of a Presidential record, or a reasonably segregable 
portion thereof, if the court determines that the Presidential record, 
or the reasonably segregable portion thereof, is not within any of the 
categories specified in subsection (a) and there is not a valid claim 
of constitutionally based privilege against disclosure.''.

SEC. 6. EXCEPTIONS TO RESTRICTED ACCESS.

    Section 2205(2)(C) of title 44, United States Code, is amended--
            (1) by striking ``to any committee or subcommittee 
        thereof'' and inserting ``upon request by the Chairman or 
        Ranking Member of a committee or subcommittee thereof, to such 
        Chairman or ranking member,''; and
            (2) by striking ``its business'' and inserting ``the 
        business of the committee or subcommittee''.

SEC. 7. REGULATIONS.

    Section 2206 of title 44, United States Code, is amended--
            (1) by inserting ``(a)'' before ``The Archivist'';
            (2) in subsection (a), as so designated--
                    (A) in paragraph (3), by striking ``and'' at the 
                end;
                    (B) in paragraph (4), by striking the period and 
                inserting a semicolon; and
                    (C) by adding at the end the following:
            ``(5) provisions--
                    ``(A) for what constitutes official and non-
                official electronic messaging accounts; and
                    ``(B) establishing procedures for documenting--
                            ``(i) Presidential records created on non-
                        official electronic messaging accounts 
                        (including emerging technologies, applications, 
                        and platforms); and
                            ``(ii) required metadata;
            ``(6) provisions for the preservation of digital media, 
        including from social media accounts, that may appear to be 
        personal records or private property but the preservation of 
        which may be required under this chapter; and
            ``(7) provisions for the appropriate circumstances and 
        controls for the use of messaging applications and software 
        with automatic deleting or other similar functionalities.''; 
        and
            (3) by adding at the end the following:
    ``(b) The Archivist shall issue, and shall annually update, 
implementation guidance with respect to the regulations described in 
paragraphs (5) and (6) of subsection (a).''.

SEC. 8. DISCLOSURE REQUIREMENT FOR OFFICIAL BUSINESS CONDUCTED USING 
              NON-OFFICIAL ELECTRONIC MESSAGING ACCOUNTS.

    (a) In General.--Section 2209(a) of title 44, United States Code, 
is amended--
            (1) in the matter preceding paragraph (1), by striking 
        ``create or send'' and inserting ``create, send, or receive'';
            (2) by redesignating paragraphs (1) and (2) as 
        subparagraphs (A) and (B), respectively, and adjusting the 
        margin accordingly; and
            (3) by striking ``The President,'' and inserting the 
        following:
            ``(1) Limitations.--Not later than 90 days after assuming 
        office, the President shall publicly release guidelines for 
        officers and employees of the Executive Office of the President 
        who create or receive documentary material that--
                    ``(A) prohibit the use of non-official electronic 
                messaging accounts that cannot be easily copied or 
                forwarded to an official electronic messaging account 
                for official business; and
                    ``(B) prohibit the use of messaging accounts or 
                software with automatic deleting or other similar 
                functionalities.
            ``(2) Requirements for use.--The President,''.

SEC. 9. PRESIDENTIAL TRANSITION ACT OF 1963.

    The Presidential Transition Act of 1963 (3 U.S.C. 102 note) is 
amended--
            (1) in section 3--
                    (A) in subsection (a)(8)(A), by striking clause (v) 
                and inserting the following:
    ``(v)(I)(aa) Activities under this paragraph shall include the 
preparation of a detailed classified, compartmented summary by the 
relevant outgoing executive branch officials of--
            ``(AA) specific strategic, tactical, and operational 
        threats to national security;
            ``(BB) major military or covert operations; and
            ``(CC) pending decisions on possible uses of military force 
        or covert actions.
    ``(bb) The summary prepared under item (aa) shall be provided to 
the President-elect and members of office staff with appropriate 
clearances that are designated by the President-elect as soon as 
possible after the date of the general elections held to determine the 
electors of President and Vice President under section 1 or 2 of title 
3, United States Code.
    ``(II) The Archivist of the United States shall collaborate with 
the Federal Transition Coordinator and agencies, including the 
Executive Office of the President, to ensure that the President-elect 
and members of office staff with appropriate clearances that are 
designated by the President-elect can easily access national security 
information (including documents, videos, audio, and briefings) created 
by the previous administration after the inauguration of the President-
elect.
    ``(III) The Archivist of the United States shall submit to the 
Chairman and Ranking Member of each committee of jurisdiction of either 
House of Congress, of the Committee on Appropriations of the Senate, 
and of the Committee on Appropriations of the House of Representatives 
a report if the Archivist of the United States believes there appears 
to be noncompliance with the requirements under this clause.''; and
                    (B) in subsection (c)--
                            (i) by inserting ``(1)'' before ``The 
                        terms''; and
                            (ii) by adding at the end the following:
    ``(2)(A) Not later than 6 days after the date of a general election 
described in paragraph (1), the Administrator shall make the 
ascertainment described in paragraph (1) without any interference or 
undue pressure from the President or a candidate for President, or any 
representative thereof, based on provisional results from State 
election officials and expert analysis of results.
    ``(B) Given the imperatives of an orderly transition, if there is a 
plausible chance that the apparent successful candidate for the office 
of President and Vice President, respectively, are not the incumbent, 
or if the incumbent was not a candidate, the Administrator shall 
provide a portion of the services and facilities authorized to be 
provided under this section to all parties with a plausible chance of 
being the successful candidate.''; and
            (2) in section 4--
                    (A) in subsection (d)--
                            (i) in paragraph (2)--
                                    (I) in subparagraph (B), by 
                                striking ``and'' at the end;
                                    (II) in subparagraph (C), by 
                                striking the period at the end and 
                                inserting ``; and''; and
                                    (III) by adding at the end the 
                                following:
                    ``(D) under the guidance of the Archivist of the 
                United States, monitor compliance with chapter 22 of 
                title 44, United States Code, including the 
                preservation of all records and prevention of any 
                records from being disposed unless done in accordance 
                with such chapter.'';
                            (ii) in paragraph (3)--
                                    (I) by redesignating subparagraphs 
                                (C) and (D) as subparagraphs (D) and 
                                (E), respectively; and
                                    (II) by inserting after 
                                subparagraph (B) the following:
                    ``(C) the Archivist of the United States;''; and
                            (iii) by adding at the end the following:
            ``(5) Role of the archivist.--
                    ``(A) In general.--Not later than 120 days before 
                the date of a Presidential election, the Archivist of 
                the United States shall send a written communication to 
                all officers and employees of the Executive Office of 
                the President who create or receive documentary 
                material (as defined under section 2201 of title 44, 
                United States Code)--
                            ``(i) describing the requirements under 
                        chapter 22 of title 44, United States Code; and
                            ``(ii) establishing a timeline for 
                        cooperation with the Archivist of the United 
                        States to ensure an orderly and timely 
                        transition of records subject to such chapter 
                        if there is a Presidential transition.
                    ``(B) Reporting.--
                            ``(i) In general.--Not later than 30 days 
                        after the date of a Presidential election which 
                        results in a Presidential transition, the 
                        Archivist of the United States, in coordination 
                        with the Federal Transition Coordinator, shall 
                        submit to the Chairman and Ranking Member of 
                        each committee of jurisdiction of either House 
                        of Congress, of the Committee on Appropriations 
                        of the Senate, and of the Committee on 
                        Appropriations of the House of Representatives 
                        a report discussing the status of the 
                        transition activities of the White House 
                        Transition Coordinating Council and identifying 
                        concerns, if any, regarding compliance with 
                        chapter 22 of title 44, United States Code.
                            ``(ii) Noncompliance.--The Archivist of the 
                        United States shall submit to the Chairman and 
                        Ranking Member of each committee of 
                        jurisdiction of either House of Congress, of 
                        the Committee on Appropriations of the Senate, 
                        and of the Committee on Appropriations of the 
                        House of Representatives a report if the 
                        Archivist of the United States believes there 
                        appears to be noncompliance with the 
                        requirements or timeline described in 
                        subparagraph (A).'';
                    (B) in subsection (e)(2)--
                            (i) in subparagraph (D), by striking 
                        ``and'' at the end;
                            (ii) in subparagraph (E), by striking the 
                        period at the end and inserting ``; and''; and
                            (iii) by adding at the end the following:
                    ``(F) under the guidance of the Archivist of the 
                United States, monitor compliance with chapter 22 of 
                title 44, United States Code, including the 
                preservation of all records and prevention of any 
                records from being disposed unless done in accordance 
                with such chapter.'';
                    (C) by redesignating subsection (i) as subsection 
                (j); and
                    (D) by inserting after subsection (h) the 
                following:
    ``(i) Role of the Archivist.--
            ``(1) In general.--Not later than 120 days before the date 
        of a Presidential election, the Archivist of the United States 
        shall send a written communication to the head of each agency--
                    ``(A) describing the requirements under chapter 33 
                of title 44, United States Code; and
                    ``(B) establishing a timeline for cooperation with 
                the Archivist of the United States to ensure an orderly 
                and timely transition of records subject to such 
                chapter if there is a Presidential transition.
            ``(2) Reporting.--
                    ``(A) In general.--Not later than 30 days after the 
                date of a Presidential election which results in a 
                Presidential transition, the Archivist of the United 
                States, in coordination with the Federal Transition 
                Coordinator, shall submit to the Chairman and Ranking 
                Member of each committee of jurisdiction of either 
                House of Congress, of the Committee on Appropriations 
                of the Senate, and of the Committee on Appropriations 
                of the House of Representatives a report discussing the 
                status of the transition activities of agencies and 
                identifying concerns, if any, regarding compliance with 
                chapter 33 of title 44, United States Code.
                    ``(B) Noncompliance.--The Archivist of the United 
                States shall submit to the Chairman and Ranking Member 
                of each committee of jurisdiction of either House of 
                Congress, of the Committee on Appropriations of the 
                Senate, and of the Committee on Appropriations of the 
                House of Representatives a report if the Archivist of 
                the United States believes there appears to be 
                noncompliance with the requirements or timeline 
                described in paragraph (1).''.

SEC. 10. FORMER PRESIDENTS.

    The Act entitled ``An Act to provide retirement, clerical 
assistants, and free mailing privileges to former Presidents of the 
United States, and for other purposes'', approved August 25, 1958 
(commonly known as the ``Former Presidents Act of 1958'') (3 U.S.C. 102 
note), is amended by adding at the end the following:
    ``(h) If the Archivist of the United States determines that a 
former President did not comply with major requirements under chapter 
22 of title 44, United States Code, or the Presidential Transition Act 
of 1963 (3 U.S.C. 102 note), the monetary amounts described in 
subsections (a) and (b) shall be withheld until the later of--
            ``(1) 1 year after the date on which the Archivist makes 
        that determination; or
            ``(2) the date on which the Archivist determines the former 
        President has adequately complied with the requirements.''.

SEC. 11. PRESIDENTIAL ARCHIVAL DEPOSITORY.

    Section 2112 of title 44, United States Code, is amended--
            (1) in subsection (b)--
                    (A) by striking ``When the Archivist'' and 
                inserting ``(1) Subject to paragraph (2), when the 
                Archivist''; and
                    (B) by adding at the end the following:
            ``(2) The Archivist may not deposit papers, documents, or 
        other historical materials accepted under section 2111 of this 
        title or other Federal records appropriate for preservation in 
        a Presidential archival depository relating to a former 
        President under paragraph (1) until after the date on which the 
        Archivist determines that the former President has adequately 
        complied with the requirements under chapter 22 relating to 
        Presidential records (as defined in section 2201).'';
            (2) in subsection (g), by adding at the end the following:
    ``(6)(A) Notwithstanding paragraphs (3), (4), and (5) (to the 
extent that such paragraphs are inconsistent with this paragraph), this 
subsection shall be administered in accordance with this paragraph with 
respect to any Presidential archival depository created as a depository 
for the papers, documents, and other historical materials and 
Presidential records pertaining to any President who takes any action, 
including destruction, alteration, concealment, or removal, that 
threatens or damages the integrity and statutory preservation 
requirements under chapter 22 for Presidential records (as defined in 
section 2201).
    ``(B) For purposes of subparagraphs (A)(ii), (B)(i)(II), and 
(B)(ii)(II) of paragraph (3) the percentage of 100 percent shall apply 
instead of 60 or 20 percent.''; and
            (3) by adding at the end the following:
    ``(h) None of the funds in the account in the National Archives 
Trust Fund that may be expended for the benefit and in the interest of 
a Presidential archival depository relating to a former President may 
be used for the cost of digitizing records the former President wishes 
to deposit in and make available through the Presidential archival 
depository.''.
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