[House Report 113-127]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 113-127
======================================================================
PRESIDENTIAL AND FEDERAL RECORDS ACT AMENDMENTS OF 2013
_______
June 25, 2013.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Issa, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 1233]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom was
referred the bill (H.R. 1233) to amend chapter 22 of title 44,
United States Code, popularly known as the Presidential Records
Act, to establish procedures for the consideration of claims of
constitutionally based privilege against disclosure of
Presidential records, and for other purposes, having considered
the same, report favorably thereon with amendments and
recommend that the bill as amended do pass.
CONTENTS
Page
Committee Statement and Views.................................... 4
Section-by-Section............................................... 5
Explanation of Amendments........................................ 8
Committee Consideration.......................................... 8
Application of Law to the Legislative Branch..................... 8
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 8
Statement of General Performance Goals and Objectives............ 8
Duplication of Federal Programs.................................. 8
Disclosure of Directed Rule Makings.............................. 8
Federal Advisory Committee Act................................... 9
Unfunded Mandate Statement....................................... 9
Earmark Identification........................................... 9
Committee Estimate............................................... 9
Budget Authority and Congressional Budget Office Cost Estimate... 9
Changes in Existing Law Made by the Bill as Reported............. 10
The amendments (stated in terms of the page and line
numbers of the introduced bill) are as follows:
Page 9, after line 16, insert the following:
(e) Disclosure Requirement for Official Business Conducted
Using Non-official Electronic Messaging Account.--
(1) Amendment.--Chapter 22 of title 44, United States
Code, as amended by subsection (a)(1), is further
amended by adding at the end the following new section:
``Sec. 2209. Disclosure requirement for official business conducted
using non-official electronic messaging accounts
``(a) In General.--An officer or employee of an executive
agency may not create or send a Presidential record using a
non-official electronic messaging account unless such officer
or employee--
``(1) copies an official electronic messaging account
of the officer or employee in the original creation or
transmission of the Presidential record; or
``(2) forwards a complete copy of the Presidential
record to an official electronic messaging account of
the officer or employee within five days after the
original creation or transmission of the Presidential
record.
``(b) Adverse Actions.--The intentional violation of
subsection (a) (including any rules, regulations, or other
implementing guidelines), as determined by the appropriate
supervisor, shall be a basis for disciplinary action in
accordance with subchapter I, II, or V of chapter 75 of title
5, as the case may be.
``(c) Definitions.--In this section:
``(1) Electronic messages.--The term `electronic
messages' means electronic mail and other electronic
messaging systems that are used for purposes of
communicating between individuals.
``(2) Electronic messaging account.--The term
`electronic messaging account' means any account that
sends electronic messages.
``(3) Executive agency.--The term `executive agency'
has the meaning given that term in section 105 of title
5.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 22 of title 44, United States
Code, as amended by subsection (a)(3), is further
amended by adding at the end the following new item:
``2209. Disclosure requirement for official business conducted using
non-official electronic messaging accounts.''.
Page 11, beginning on line 12, strike ``for deposit'' and
insert ``a copy of''.
Page 17, line 8, strike ``and'' the first place it appears
and insert ``or''.
Page 21, line 20, insert ``the first place it appears''
before ``and''.
Page 22, line 17, insert ``the first place it appears''
before ``and''.
Page 24, strike lines 1 through 7, and insert the following:
(b) Records Centers and Centralized Microfilming Services.--
(1) Amendment.--Section 2907 of title 44, United
States Code, is amended--
(A) in the section heading by inserting ``or
digitization'' after ``microfilming''; and
(B) by inserting ``or digitization'' after
``microfilming''.
(2) Conforming amendment.--The table of sections at
the beginning of chapter 29 of title 44, United States
Code, is amended in the item relating to section 2907
by inserting ``or digitization'' after
``microfilming''.
Page 25, line 9, strike ``2906(a)(1)'' and insert ``2906''.
Page 27, strike lines 14 through 16 and insert the following:
(1) Amendment.--The heading for chapter 29 of title
44, United States Code, is amended by striking ``AND BY
THE ADMINISTRATOR OF GENERAL SERVICES''.
(2) Conforming amendment.--The table of chapters at
the beginning of title 44, United States Code, is
amended in the item related to chapter 29 by striking
``and by the Administrator of General Services''.
At the end of the bill, insert the following (and amend the
table of contents accordingly):
SEC. 10. DISCLOSURE REQUIREMENT FOR OFFICIAL BUSINESS CONDUCTED USING
NON-OFFICIAL ELECTRONIC MESSAGING ACCOUNT.
(a) Amendment.--Chapter 29 of title 44, United States Code is
amended by adding at the end the following new section:
``Sec. 2911. Disclosure requirement for official business conducted
using non-official electronic messaging accounts
``(a) In General.--An officer or employee of an executive
agency may not create or send a record using a non-official
electronic messaging account unless such officer or employee--
``(1) copies an official electronic messaging account
of the officer or employee in the original creation or
transmission of the record; or
``(2) forwards a complete copy of the record to an
official electronic messaging account of the officer or
employee within five days after the original creation
or transmission of the record.
``(b) Adverse Actions.--The intentional violation of
subsection (a) (including any rules, regulations, or other
implementing guidelines), as determined by the appropriate
supervisor, shall be a basis for disciplinary action in
accordance with subchapter I, II, or V of chapter 75 of title
5, as the case may be.
``(c) Definitions.--In this section:
``(1) Electronic messages.--The term `electronic
messages' means electronic mail and other electronic
messaging systems that are used for purposes of
communicating between individuals.
``(2) Electronic messaging account.--The term
`electronic messaging account' means any account that
sends electronic messages.
``(3) Executive agency.--The term `executive agency'
has the meaning given that term in section 105 of title
5.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 29 of title 44, United States Code, is
amended by adding at the end the following new item:
``2911. Disclosure requirement for official business conducted using
non-official electronic messaging accounts.''.
Committee Statement and Views
PURPOSE AND SUMMARY
H.R. 1233, the Presidential and Federal Records Act
Amendments of 2013, was introduced on March 18, 2013, by
Representative Elijah E. Cummings (D-MD). This legislation
makes a number of modernizing reforms to federal recordkeeping
procedures and requirements. As amended, H.R. 1233 would codify
an executive order to fill an executive privilege related 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.
BACKGROUND AND NEED FOR LEGISLATION
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. In 1934, Congress established the National
Archives and the position of Archivist of the United States
(Archivist) as the primary, central agent of records
preservation for the federal government.\1\ In 1950, Congress
followed up the establishment of the National Archives with the
Federal Records Act (FRA), which established basic records
management authority for federal agencies and set basic records
management standards, including standards for disposal of
records. The intent was that agencies would manage their own
records internally, while the National Archives would filter
and preserve those records that were transferred to the
National Archives for posterity.
---------------------------------------------------------------------------
\1\See generally National Archives Act, 48 Stat. 1122 (1934).
---------------------------------------------------------------------------
In 1955, Congress addressed presidential recordkeeping in
its own right with the Presidential Libraries Act,\2\ which
adopted the presidential library model, first conceptualized in
1938, for the permanent maintenance of the records of former
presidents. In 1978, in the wake of Watergate, Congress passed
the PRA, which was intended to be a comprehensive answer to the
general issue of presidential records preservation and
maintenance.
---------------------------------------------------------------------------
\2\See generally P.L. 84-695 (1955).
---------------------------------------------------------------------------
The PRA defined what did and did not qualify as a
presidential record,\3\ clarified the ownership of presidential
records,\4\ detailed guidelines for the management and custody
of presidential records,\5\ established procedures for
restricting access to Presidential records under certain
circumstances,\6\ and granted the Archivist, who heads NARA,
the ability to promulgate regulations enforcing the PRA.\7\
---------------------------------------------------------------------------
\3\See id. at Sec. 2201.
\4\See id. at Sec. 2202.
\5\See id. at Sec. 2203.
\6\See id. at Sec. 2204 and Sec. 2205.
\7\See id. at Sec. 2206. The PRA also provides that the same rules
governing the collection, storage, and preservation of presidential
records govern the collection, storage, and preservation of vice
presidential records. See id. at Sec. 2207.
---------------------------------------------------------------------------
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\ To
definitively address this issue, H.R. 1233 would create a
framework that would enable former presidents to request
continued restricted access on a very narrow basis, effectively
in accord with the Reagan and Obama Administration frameworks.
---------------------------------------------------------------------------
\8\In 1989, President Reagan--who was the first president to be
subject to the PRA--issued Executive Order 12667 to establish such a
procedure. In 2001, President George W. Bush issued Executive Order
13233, which dramatically increased the scope of former presidents'
abilities to request and receive continued restricted access to their
presidential records. In 2009, President Obama issued Executive Order
13489, which rescinded President Bush's expansive executive order and
effectively restored President Reagan's request framework. See
generally Exec. Order No. 13489, 74 Fed. Reg. 4669 (Jan. 26, 2009).
---------------------------------------------------------------------------
In other areas, both the PRA and the FRA have become
increasingly antiquated, particularly in regard to electronic
information. Despite the rapid migration over the last several
decades toward electronic communication and recordkeeping,
federal recordkeeping laws are still focused on the media in
which a record is preserved, not the information that
constitutes the record itself. To correct this flaw, this
legislation will shift the onus of recordkeeping onto the
record and not the media it is contained in as a way to better
enable NARA, and other agencies, to handle growing amounts of
electronic communication. Additionally, the bill helps address
a number of potential records security issues by further
restricting access to presidential records for those convicted
of an Archives-related crime and by explicitly codifying
requirements for federal employees to file electronic
communications regarding official business done through
personal messaging accounts with their agency. Finally, the
legislation makes changes that streamline and modernize title
44, such as repealing defunct provisions and striking
unnecessary statutory references to the General Services
Administration.
LEGISLATIVE HISTORY
H.R. 1233, the Presidential and Federal Records Act
Amendments of 2013, was introduced on March 18, 2013, and
referred to the House Committee on Oversight and Government
Reform. In the 112th Congress, the provisions contained within
the introduced version of H.R. 1233 were included in H.R. 3071,
as amended and ordered reported by voice vote by the Oversight
Committee.
At a business meeting on March 20, 2013, the Committee
considered H.R. 1233 and ordered the bill to be reported by
voice vote.
Section-by-Section
Section 1. Short title; Table of contents
Section 1 establishes the bill's short title as the
``Presidential and Federal Records Act Amendments of 2013'' and
provides the legislation's table of contents.
Section 2. Presidential records
Subsection (a) creates 44 U.S.C. Sec. 2208 which
establishes a clear appeals procedure by which a former
president can request that an incumbent president maintain the
privileged status of records of that former president that have
yet to be released to the public by the Archivist.
Subsection (b) makes technical corrections to modernize a
number of definitions contained in 44 U.S.C. Sec. 2201.
Subsection (c) modifies 44 U.S.C. Sec. 2203 to give
presidential administrations the option to, in effect, allow
pre-accession of physical and electronic records.
Subsection (d) amends 44 U.S.C. Sec. 2204 to bar designated
presidential representatives who have previously been convicted
of a National Archives record-related crime from access to NARA
facilities or records.
Subsection (e) creates 44 U.S.C. Sec. 2209 which requires
federal employees who create or send a Presidential record from
a non-official electronic messaging account to forward a
complete copy of the record to an official electronic messaging
account within five days. In cases of intentional violation of
this disclosure requirement, the section authorizes
disciplinary action as determined by the appropriate
supervisor, in accordance with subchapter I, II, or V of
chapter 75 of title 5, U.S. Code.
Section 3. National Archives and Records Administration
Subsection (a) amends 44 U.S.C. Sec. 2107 to outline the
federal agency option of ``pre-accessioning,'' or the transfer
of agency documents to NARA for processing and release in
advance of the statutorily required date for doing so.
Subsection (b) amends 44 U.S.C. Sec. 2111 to shift NARA's
duty to receive ``recorded information'' generally, rather than
to receive any specific media containing information.
Subsection (c) amends provisions in 44 U.S.C. Sec. 2114 to
modernize terminology addressing the audio and visual records
that NARA is likely to receive for deposit.
Subsection (d) amends 44 U.S.C. Sec. 2116 to include
digital reproductions among the categories of reproductions
that federal agencies may keep when they are statutorily
required to maintain copies of documents indefinitely.
Section 4. Records management by Federal agencies
Section 4 amends 44 U.S.C. Sec. 3016 to expand the types of
destruction that can be carried out to destroy federal records.
The changes are intended to list damage actions that are
specific to electronic records, such as ``corruption,''
deletion,'' and ``erasure,'' that may not be covered under the
current statutory language.
Section 5. Disposal of records
Subsection (a) amends 44 U.S.C. 3301 to adjust the federal
definition of ``records'' to shift the emphasis to the
information being stored in a given record, rather than any
specific media used to store information and gives NARA the
authority to define the term ``record'' as it applies to
federal agencies, which, in effect, gives NARA the ability to
issue binding regulations governing agencies' record
preservation, maintenance, and transfer requirements.
Subsections (b), (c), (e) amend 44 U.S.C. Sec. 3302(3),
Sec. 3303(1), and Sec. 3312, respectively, to add digitization
language to provisions dealing with the scheduled disposal and
evidentiary validity of federal records.
Subsection (d) amends 44 U.S.C. Sec. 3303a(c) to update the
language regarding the respective House and Senate
congressional committees of jurisdiction.
Section 6. Procedures to prevent unauthorized removal of classified
records from National Archives
This section creates new statutory rules governing access
to NARA facilities and NARA records. It is intended to ensure
against the theft of or damage to classified records under
NARA's control and limit regular access to appropriate NARA
officials and employees.
Section 7. Repeal of provisions related to the National Study
Commission on Records and Documents of Federal Officials
Section 7 repeals provisions of Chapter 33 of title 44
governing the now-defunct National Study Commission on Records
and Documents of Federal Officials.
Section 8. Pronoun amendments
Section 8 removes pronouns throughout title 44 and replaces
them with gender-neutral references to the Archivist, former
President, incumbent President, or other official, as
appropriate.
Section 9. Records management by the Archivist
Subsection (a) amends 44 U.S.C. Sec. 2902 to require NARA
promote and pursue electronic recordkeeping and receipt of
electronic records from federal agencies.
Subsection (b) amends 44 U.S.C. Sec. 2907 to provide the
Archivist with the authority to establish and use records
centers with the capability of digitizing records in the same
way that NARA would capture records on microfilm or other
photographic processes.
Subsection (c) amends 44 U.S.C. Sec. 2904 to delete
vestigial language regarding the General Services
Administration (GSA) and its Administrator.
Subsection (d) amends 44 U.S.C. Sec. 2906 to clarify NARA's
ability to inspect federal agencies' records for the purpose of
ensuring their historical value.
Subsections (e), (f), and (g) amend 44 U.S.C. Sec. 2115,
the heading for chapter 29, of title 44, U.S.C., and 44 U.S.C.
Sec. 3102(2), respectively, to delete additional vestigial
references to GSA and its Administrator.
Section 10. Disclosure requirement for official business conducted
using non-official electronic messaging account
Section 10 creates 44 U.S.C. Sec. 2911 which requires
federal employees who create or send a federal record from a
non-official electronic messaging account to forward a complete
copy of the record to an official electronic messaging account
within five days. In cases of intentional violation of this
disclosure requirement, the section authorizes disciplinary
action as determined by the appropriate supervisor, in
accordance with subchapter I, II, or V of chapter 75 of title
5, U.S. Code.
Explanation of Amendments
The provisions of the legislation as ordered reported are
explained in this report.
Committee Consideration
On March 20, 2013, the Committee met in open session and
ordered reported favorably the bill, H.R. 1233, as amended, by
voice vote, a quorum being present.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill codifies an executive order to fill an executive
privilege related gap in the Presidential Records Act while
also streamlining outdated statutory recordkeeping language and
making additional changes to improve the federal government's
ability to capture and archive electronic records. As such this
bill does not relate to employment or access to public services
and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
Duplication of Federal Programs
No provision of H.R. 1233 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
H.R. 1233 requires the Archivist to promulgate regulations
requiring all Federal agencies to transfer all digital or
electronic records to the National Archives in digital or
electronic form to the greatest extent possible.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement the Committee has
received a letter from the Congressional Budget Office included
herein.
Earmark Identification
H.R. 1233 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 1233. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 1233 from the Director of
Congressional Budget Office:
May 20, 2013.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform, House of
Representatives, Washington, DC,
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1233, the
Presidential and Federal Records Act Amendments of 2013.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 1233--Presidential and Federal Records Act Amendments of 2013
H.R. 1233 would amend federal law regarding the
preservation, storage, and management of federal records. The
legislation would amend the Presidential Records Act to
establish a process for reviewing Presidential records. The
bill also would update archival laws to accommodate the
government's use of electronic and digital communications.
Finally, H.R. 1233 would require the National Archives and
Records Administration (NARA) to prevent unauthorized access or
removal of government records.
According to NARA, most provisions in the bill would codify
and expand current practices. Executive Orders and Presidential
memoranda have directed NARA and agencies to better manage
government records. Consequently, CBO estimates that
implementing H.R. 1233 would have no significant cost over the
next five years. The bill could affect direct spending by
agencies not funded through annual appropriations; therefore,
pay-as-you-go procedures apply. CBO estimates, however, that
any net increase in spending by those agencies would not be
significant. Enacting H.R. 1233 would not affect revenues.
H.R. 1233 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 44, UNITED STATES CODE
TITLE 44--PUBLIC PRINTING AND DOCUMENTS
Chap. Sec.
Joint Committee on Printing....................................101
* * * * * * *
Records Management by the Archivist of the United States [and by .
the Administrator of General Services]......................2901
* * * * * * *
CHAPTER 21--NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
Sec.
2101. Definitions.
* * * * * * *
[2114. Preservation of motion-picture films, still pictures, and sound
recordings.]
2114. Preservation of audio and visual records.
* * * * * * *
[Sec. 2107. Acceptance of records for historical preservation
[When it appears to the Archivist to be in the public
interest, he may--
[(1) accept for deposit with the National Archives of
the United States the records of a Federal agency, the
Congress, the Architect of the Capitol, or the Supreme
Court determined by the Archivist of the United States
to have sufficient historical or other value to warrant
their continued preservation by the United States
Government;
[(2) direct and effect the transfer to the National
Archives of the United States of records of a Federal
agency that have been in existence for more than thirty
years and determined by the Archivist of the United
States to have sufficient historical or other value to
warrant their continued preservation by the United
States Government, unless the head of the agency which
has custody of them certified in writing to the
Archivist that they must be retained in his custody for
use in the conduct of the regular current business of
the agency;
[(3) direct and effect, with the approval of the head
of the originating agency, or if the existence of the
agency has been terminated, then with the approval of
his successor in function, if any, the transfer of
records, deposited or approved for deposit with the
National Archives of the United States to public or
educational institutions or associations; title to the
records to remain vested in the United States unless
otherwise authorized by Congress; and
[(4) transfer materials from private sources
authorized to be received by the Archivist by section
2111 of this title.]
Sec. 2107. Acceptance of records for historical preservation
(a) In General.--When it appears to the Archivist to be in
the public interest, the Archivist may--
(1) accept for deposit with the National Archives of
the United States the records of a Federal agency, the
Congress, the Architect of the Capitol, or the Supreme
Court determined by the Archivist to have sufficient
historical or other value to warrant their continued
preservation by the United States Government;
(2) direct and effect the transfer of records of a
Federal agency determined by the Archivist to have
sufficient historical or other value to warrant their
continued preservation by the United States Government
to the National Archives of the United States, as soon
as practicable, and at a time mutually agreed upon by
the Archivist and the head of that Federal agency not
later than thirty years after such records were created
or received by that agency, unless the head of such
agency has certified in writing to the Archivist that
such records must be retained in the custody of such
agency for use in the conduct of the regular business
of the agency;
(3) direct and effect, with the approval of the head
of the originating Federal agency, or if the existence
of the agency has been terminated, with the approval of
the head of that agency's successor in function, if
any, the transfer of records, deposited or approved for
deposit with the National Archives of the United States
to public or educational institutions or associations;
title to the records to remain vested in the United
States unless otherwise authorized by Congress; and
(4) transfer materials from private sources
authorized to be received by the Archivist by section
2111 of this title.
(b) Early Transfer of Records.--The Archivist--
(1) in consultation with the head of the originating
Federal agency, is authorized to accept a copy of the
records described in subsection (a)(2) that have been
in existence for less than thirty years; and
(2) may not disclose any such records until the
expiration of--
(A) the thirty-year period described in
paragraph (1);
(B) any longer period established by the
Archivist by order; or
(C) any shorter period agreed to by the
originating Federal agency.
* * * * * * *
[Sec. 2111. Material accepted for deposit
[When the Archivist considers it to be in the public interest
he may accept for deposit--
[(1) the papers and other historical materials of a
President or former President of the United States, or
other official or former official of the Government,
and other papers relating to and contemporary with a
President or former President of the United States,
subject to restrictions agreeable to the Archivist as
to their use; and
[(2) documents, including motion-picture films, still
pictures, and sound recordings, from private sources
that are appropriate for preservation by the Government
as evidence of its organization, functions, policies,
decisions, procedures, and transactions.
This section shall not apply in the case of any Presidential
records which are subject to the provisions of chapter 22 of
this title.]
Sec. 2111. Material accepted for deposit
(a) In General.--When the Archivist considers it to be in the
public interest the Archivist may accept for deposit--
(1) the papers and other historical materials of a
President or former President of the United States, or
other official or former official of the Government,
and other papers relating to and contemporary with a
President or former President of the United States,
subject to restrictions agreeable to the Archivist as
to their use; and
(2) recorded information (as such term is defined in
section 3301(a)(2) of this title) from private sources
that are appropriate for preservation by the Government
as evidence of its organization, functions, policies,
decisions, procedures, and transactions.
(b) Exception.--This section shall not apply in the case of
any Presidential records which are subject to the provisions of
chapter 22 of this title.
* * * * * * *
[Sec. 2114. Preservation of motion-picture films, still pictures, and
sound recordings
[The Archivist may make and preserve motion-picture films,
still pictures, and sound recordings pertaining to and
illustrative of the historical development of the United States
Government and its activities, and provide for preparing,
editing, titling, scoring, processing, duplicating,
reproducing, exhibiting, and releasing for non-profit
educational purposes, motion-picture films, still pictures, and
sound recordings in his custody.]
Sec. 2114. Preservation of audio and visual records
The Archivist may make and preserve audio and visual records,
including motion-picture films, still photographs, and sound
recordings, in analog, digital, or any other form, pertaining
to and illustrative of the historical development of the United
States Government and its activities, and provide for
preparing, editing, titling, scoring, processing, duplicating,
reproducing, exhibiting, and releasing for non-profit
educational purposes, motion-picture films, still photographs,
and sound recordings in the Archivist's custody.
Sec. 2115. Reports; correction of violations
(a) In carrying out [their respective] the duties and
responsibilities under chapters 21, 25, 29, 31, and 33 of this
title, the Archivist [and the Administrator] may [each] obtain
reports from any Federal agency on such agency's activities
under such chapters.
(b) When [either] the Archivist [or the Administrator] finds
that a provision of any such chapter has been or is being
violated, the Archivist [or the Administrator] shall (1) inform
in writing the head of the agency concerned of the violation
and make recommendations for its correction; and (2) unless
satisfactory corrective measures are [inaugurated] demonstrably
commenced within a reasonable time, submit a written report of
the matter to the President and the Congress.
Sec. 2116. Legal status of reproductions; official seal; fees for
copies and reproductions
(a) When records that are required by statute to be retained
indefinitely have been reproduced by photographic,
microphotographic, digital, or other processes, in accordance
with standards established by the Archivist the indefinite
retention by the photographic, microphotographic, digital, or
other reproductions constitutes compliance with the statutory
requirement for the indefinite retention of the original
records. The reproductions, as well as reproductions made under
regulations to carry out chapter 21, 29, 31, and 33 of this
title, shall have the same legal status as the originals.
* * * * * * *
(c) The Archivist may charge a fee set to recover the costs
for making or authenticating copies or reproductions of
materials transferred to [his] the Archivist's custody. Such
fee shall be fixed by the Archivist at a level which will
recover, so far as practicable, all elements of such costs, and
may, in the Archivist's discretion, include increments for the
estimated replacement cost of equipment. Such fees shall be
paid into, administered, and expended as a part of the National
Archives Trust Fund. The Archivist may not charge for making or
authenticating copies or reproductions of materials for
official use by the United States Government unless
appropriations available to the Archivist for this purpose are
insufficient to cover the cost of performing the work.
* * * * * * *
CHAPTER 22--PRESIDENTIAL RECORDS
Sec.
2201. Definitions.
* * * * * * *
2208. Claims of constitutionally based privilege against disclosure.
2209. Disclosure requirement for official business conducted using non-
official electronic messaging accounts.
Sec. 2201. Definitions
As used in this chapter--
(1) The term ``documentary material'' means all
books, correspondence, [memorandums] memoranda,
documents, papers, pamphlets, works of art, models,
pictures, photographs, plats, maps, films, and motion
pictures, including, but not limited to, [audio,
audiovisual] audio and visual records, or other
electronic or mechanical recordations, whether in
analog, digital, or any other form.
(2) The term ``Presidential records'' means
documentary materials, or any reasonably segregable
portion thereof, created or received by the President,
[his] the President's immediate staff, or a unit or
individual of the Executive Office of the President
whose function is to [advise and assist] advise or
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] the President's
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
* * * * * * *
Sec. 2203. Management and custody of Presidential records
(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] the President's constitutional, statutory,
or other official or ceremonial duties are adequately
documented and that such records are [maintained] preserved and
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] the President's staff, or units or individuals
in the Executive Office of the President the function of which
is to [advise and assist] advise or 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] the President's term of office, the
President may dispose of [those of his Presidential records]
those Presidential records of such President that no longer
have administrative, historical, informational, or evidentiary
value if--
(1) * * *
(2) the Archivist states that [he] the Archivist does
not intend to take any action under subsection (e) of
this section.
(d) In the event the Archivist notifies the President under
subsection (c) that [he] the Archivist 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 Oversight and
the Committee on Government Operations of the House of
Representatives with respect to any proposed disposal of
Presidential records whenever [he] the Archivist considers
that--
(1) * * *
* * * * * * *
(f) During a President's term of office, the Archivist may
maintain and preserve Presidential records on behalf of the
President, including records in digital or electronic form. The
President shall remain exclusively responsible for custody,
control, and access to such Presidential records. The Archivist
may not disclose any such records, except under direction of
the President, until the conclusion of a President's term of
office, if a President serves consecutive terms upon the
conclusion of the last term, or such other period provided for
under section 2204 of this title.
[(f)] (g)(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] chapter.
* * * * * * *
(3) The Archivist is authorized to dispose of such
Presidential records which [he] the Archivist 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.
Sec. 2204. Restrictions on access to Presidential records
(a) Prior to the conclusion of [his] a President's 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) * * *
* * * * * * *
(5) confidential communications requesting or
submitting advice, between the President and [his] the
President's advisers, or between such advisers; or
* * * * * * *
(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) * * *
(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]
the President's agents.
* * * * * * *
(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]
the Archivist's 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] the Archivist's designee, within 30 working days
after receipt of such an appeal, setting forth the basis for
such determination.
* * * * * * *
(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, except section 2208,
shall be exercised by the Archivist unless otherwise previously
provided by the President or former President in a written
notice to the Archivist.
* * * * * * *
(f) The Archivist shall not make available any original
Presidential records to any individual claiming access to any
Presidential record as a designated representative under
section 2205(3) of this title if that individual has been
convicted of a crime relating to the review, retention,
removal, or destruction of records of the Archives.
Sec. 2205. Exceptions to restricted access
Notwithstanding any restrictions on access imposed pursuant
to [section 2204] sections 2204 and 2208 of this title--
(1) * * *
(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] subpoena 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] the
incumbent President's office and that is not
otherwise available; and
* * * * * * *
(3) the Presidential records of a former President
shall be available to such former President or [his]
the former President's designated representative.
* * * * * * *
Sec. 2207. Vice-Presidential records
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,
except section 2208, 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.
Sec. 2208. Claims of constitutionally based privilege against
disclosure
(a)(1) When the Archivist determines under this chapter to
make available to the public any Presidential record that has
not previously been made available to the public, the Archivist
shall--
(A) promptly provide notice of such determination
to--
(i) the former President during whose term of
office the record was created; and
(ii) the incumbent President; and
(B) make the notice available to the public.
(2) The notice under paragraph (1)--
(A) shall be in writing; and
(B) shall include such information as may be
prescribed in regulations issued by the Archivist.
(3)(A) Upon the expiration of the 60-day period (excepting
Saturdays, Sundays, and legal public holidays) beginning on the
date the Archivist provides notice under paragraph (1)(A), the
Archivist shall make available to the public the Presidential
record covered by the notice, except any record (or reasonably
segregable part of a record) with respect to which the
Archivist receives from a former President or the incumbent
President notification of a claim of constitutionally based
privilege against disclosure under subsection (b).
(B) A former President or the incumbent President may extend
the period under subparagraph (A) once for not more than 30
additional days (excepting Saturdays, Sundays, and legal public
holidays) by filing with the Archivist a statement that such an
extension is necessary to allow an adequate review of the
record.
(C) Notwithstanding subparagraphs (A) and (B), if the 60-day
period under subparagraph (A), or any extension of that period
under subparagraph (B), would otherwise expire during the 6-
month period after the incumbent President first takes office,
then that 60-day period or extension, respectively, shall
expire at the end of that 6-month period.
(b)(1) For purposes of this section, the decision to assert
any claim of constitutionally based privilege against
disclosure of a Presidential record (or reasonably segregable
part of a record) must be made personally by a former President
or the incumbent President, as applicable.
(2) A former President or the incumbent President shall
notify the Archivist, the Committee on Oversight and Government
Reform of the House of Representatives, and the Committee on
Homeland Security and Governmental Affairs of the Senate of a
privilege claim under paragraph (1) on the same day that the
claim is asserted under such paragraph.
(c)(1) If a claim of constitutionally based privilege against
disclosure of a Presidential record (or reasonably segregable
part of a record) is asserted under subsection (b) by a former
President, the Archivist shall consult with the incumbent
President, as soon as practicable during the period specified
in paragraph (2)(A), to determine whether the incumbent
President will uphold the claim asserted by the former
President.
(2)(A) Not later than the end of the 30-day period beginning
on the date of which the Archivist receives notification from a
former President of the assertion of a claim of
constitutionally based privilege against disclosure, the
Archivist shall provide notice to the former President and the
public of the decision of the incumbent President under
paragraph (1) regarding the claim.
(B) If the incumbent President upholds the claim of privilege
asserted by the former President, the Archivist shall not make
the Presidential record (or reasonably segregable part of a
record) subject to the claim publicly available unless--
(i) the incumbent President withdraws the decision
upholding the claim of privilege asserted by the former
President; or
(ii) the Archivist is otherwise directed by a final
court order that is not subject to appeal.
(C) If the incumbent President determines not to uphold the
claim of privilege asserted by the former President, or fails
to make the determination under paragraph (1) before the end of
the period specified in subparagraph (A), the Archivist shall
release the Presidential record subject to the claim at the end
of the 90-day period beginning on the date on which the
Archivist received notification of the claim, unless otherwise
directed by a court order in an action initiated by the former
President under section 2204(e) of this title or by a court
order in another action in any Federal court.
(d) The Archivist shall not make publicly available a
Presidential record (or reasonably segregable part of a record)
that is subject to a privilege claim asserted by the incumbent
President unless--
(1) the incumbent President withdraws the privilege
claim; or
(2) the Archivist is otherwise directed by a final
court order that is not subject to appeal.
(e) The Archivist shall adjust any otherwise applicable time
period under this section as necessary to comply with the
return date of any congressional subpoena, judicial subpoena,
or judicial process.
Sec. 2209. Disclosure requirement for official business conducted using
non-official electronic messaging accounts
(a) In General.--An officer or employee of an executive
agency may not create or send a Presidential record using a
non-official electronic messaging account unless such officer
or employee--
(1) copies an official electronic messaging account
of the officer or employee in the original creation or
transmission of the Presidential record; or
(2) forwards a complete copy of the Presidential
record to an official electronic messaging account of
the officer or employee within five days after the
original creation or transmission of the Presidential
record.
(b) Adverse Actions.--The intentional violation of subsection
(a) (including any rules, regulations, or other implementing
guidelines), as determined by the appropriate supervisor, shall
be a basis for disciplinary action in accordance with
subchapter I, II, or V of chapter 75 of title 5, as the case
may be.
(c) Definitions.--In this section:
(1) Electronic messages.--The term ``electronic
messages'' means electronic mail and other electronic
messaging systems that are used for purposes of
communicating between individuals.
(2) Electronic messaging account.--The term
``electronic messaging account'' means any account that
sends electronic messages.
(3) Executive agency.--The term ``executive agency''
has the meaning given that term in section 105 of title
5.
CHAPTER 29--RECORDS MANAGEMENT BY THE ARCHIVIST OF THE UNITED STATES
[AND BY THE ADMINISTRATOR OF GENERAL SERVICES]
Sec.
2901. Definitions.
* * * * * * *
2907. Records centers and centralized microfilming or digitization
services.
* * * * * * *
2911. Disclosure requirement for official business conducted using non-
official electronic messaging accounts.
Sec. 2901. Definitions
As used in this chapter, and chapters 21, 25, 31, and 33 of
this title--
(1) * * *
* * * * * * *
(11) the term ``National Archives of the United
States'' means those official records which have been
determined by the Archivist of the United States to
have sufficient historical or other value to warrant
their continued preservation by the Federal Government,
and which have been accepted by the Archivist for
deposit in [his] the Archivist's custody;
* * * * * * *
Sec. 2902. Objectives of records management
It is the purpose of this chapter, and chapters 21, 31, and
33 of this title, to require the establishment of standards and
procedures to assure efficient and effective records
management. Such records management standards and procedures
shall seek to implement the following goals:
(1) * * *
* * * * * * *
(4) Simplification of the activities, systems, and
processes of records [creation and of records
maintenance and use] creation, maintenance, transfer,
and use.
* * * * * * *
(6) Direction of continuing attention on records from
their initial creation to their final disposition, with
particular emphasis on the prevention of unnecessary
Federal paperwork and the transfer of records from
Federal agencies to the National Archives of the United
States in digital or electronic form to the greatest
extent possible.
(7) Establishment and maintenance of such other
systems or techniques as [the Administrator or] the
Archivist considers necessary to carry out the purposes
of this chapter, and chapters 21, 31, and 33 of this
title.
* * * * * * *
Sec. 2904. General responsibilities for records management
(a) * * *
(b) [The Administrator] The Archivist shall provide guidance
and assistance to Federal agencies to ensure economical and
effective records management by such agencies.
(c) In carrying out [their] the responsibilities under
[subsection (a) or (b), respectively] subsections (a) and (b),
the Archivist [and the Administrator] shall [each] have the
responsibility--
(1) * * *
* * * * * * *
(6) to conduct records management studies and, in
[his] the Archivist's discretion, designate the heads
of executive agencies to conduct records management
studies with respect to establishing systems and
techniques designed to save time and effort in records
management;
* * * * * * *
(8) to report to the appropriate oversight and
appropriations committees of the Congress and to the
Director of the Office of Management and Budget in
January of each year and at such other times as the
Archivist [or the Administrator (as the case may be)]
deems desirable--
(A) * * *
* * * * * * *
[(d) In addition, the Administrator, in carrying out
subsection (b), shall have the responsibility to promote
economy and efficiency in the selection and utilization of
space, staff, equipment, and supplies for records management.]
(d) The Archivist shall promulgate regulations requiring all
Federal agencies to transfer all digital or electronic records
to the National Archives of the United States in digital or
electronic form to the greatest extent possible.
Sec. 2905. Establishment of standards for selective retention of
records; security measures
(a) The Archivist shall establish standards for the selective
retention of records of continuing value, and assist Federal
agencies in applying the standards to records in their custody.
[He] The Archivist shall notify the head of a Federal agency of
any actual, impending, or threatened unlawful removal,
defacing, alteration, or destruction of records in the custody
of the agency that shall come to [his] the Archivist's
attention, and assist the head of the agency in initiating
action through the Attorney General for the recovery of records
unlawfully removed and for other redress provided by law. In
any case in which the head of the agency does not initiate an
action for such recovery or other redress within a reasonable
period of time after being notified of any such unlawful
action, the Archivist shall request the Attorney General to
initiate such an action, and shall notify the Congress when
such a request has been made.
* * * * * * *
Sec. 2906. Inspection of agency records
(a)(1) In carrying out [their respective] the duties and
responsibilities under this chapter, [the Administrator of
General Services and] the Archivist (or the [designee of
either] the Archivist's designee) may inspect the records or
the records management practices and programs of any Federal
agency [solely] for the purpose of rendering recommendations
for the improvement of records management practices and
programs and for determining whether the records of Federal
agencies have sufficient value to warrant continued
preservation or lack sufficient value to justify continued
preservation. Officers and employees of such agencies shall
cooperate fully in such inspections, subject to the provisions
of paragraphs (2) and (3) of this subsection.
(2) Records, the use of which is restricted by law or for
reasons of national security or the public interest, shall be
inspected, in accordance with regulations promulgated by [the
Administrator and] the Archivist, subject to the approval of
the head of the agency concerned or of the President. [The
regulations promulgated by the Administrator and the Archivist
under this paragraph shall, to the extent practicable, be
identical.]
(3) If [the Administrator or] the Archivist (or the [designee
of either] Archivist's designee) inspects a record, as provided
in this subsection, which is contained in a system of records
which is subject to section 552a of title 5, such record shall
be--
(A) maintained by [the Administrator, the Archivist,]
the Archivist or such designee as a record contained in
a system of records; or
* * * * * * *
(b) In conducting the inspection of agency records provided
for in subsection (a) of this section, [the Administrator and]
the Archivist (or the [designee of either] Archivist's
designee) shall, in addition to complying with the provisions
of law cited in subsection (a)(3), comply with all other
Federal laws and be subject to the sanctions provided therein.
Sec. 2907. Records centers and centralized microfilming or digitization
services
The Archivist may establish, maintain, and operate records
centers and centralized microfilming or digitization services
for Federal agencies.
* * * * * * *
Sec. 2911. Disclosure requirement for official business conducted using
non-official electronic messaging accounts
(a) In General.--An officer or employee of an executive
agency may not create or send a record using a non-official
electronic messaging account unless such officer or employee--
(1) copies an official electronic messaging account
of the officer or employee in the original creation or
transmission of the record; or
(2) forwards a complete copy of the record to an
official electronic messaging account of the officer or
employee within five days after the original creation
or transmission of the record.
(b) Adverse Actions.--The intentional violation of subsection
(a) (including any rules, regulations, or other implementing
guidelines), as determined by the appropriate supervisor, shall
be a basis for disciplinary action in accordance with
subchapter I, II, or V of chapter 75 of title 5, as the case
may be.
(c) Definitions.--In this section:
(1) Electronic messages.--The term ``electronic
messages'' means electronic mail and other electronic
messaging systems that are used for purposes of
communicating between individuals.
(2) Electronic messaging account.--The term
``electronic messaging account'' means any account that
sends electronic messages.
(3) Executive agency.--The term ``executive agency''
has the meaning given that term in section 105 of title
5.
CHAPTER 31--RECORDS MANAGEMENT BY FEDERAL AGENCIES
* * * * * * *
Sec. 3102. Establishment of program of management
The head of each Federal agency shall establish and maintain
an active, continuing program for the economical and efficient
management of the records of the agency. The program, among
other things, shall provide for
(1) * * *
(2) cooperation with [the Administrator of General
Services and] the Archivist in applying standards,
procedures, and techniques designed to improve the
management of records, promote the maintenance and
security of records deemed appropriate for
preservation, and facilitate the segregation and
disposal of records of temporary value; and
* * * * * * *
Sec. 3103. Transfer of records to records centers
When the head of a Federal agency determines that such action
may affect substantial economies or increased operating
efficiency, [he] the head of such agency shall provide for the
transfer of records to a records center maintained and operated
by the Archivist, or, when approved by the Archivist, to a
center maintained and operated by the head of the Federal
agency.
Sec. 3104. Certifications and determinations on transferred records
An official of the Government who is authorized to certify to
facts on the basis of records in [his] such official's custody,
may certify to facts on the basis of records that have been
transferred by [him or his] such official or such official's
predecessors to the Archivist, and may authorize the Archivist
to certify to facts and to make administrative determinations
on the basis of records transferred to the Archivist,
notwithstanding any other law.
Sec. 3105. Safeguards
The head of each Federal agency shall establish safeguards
against the removal or loss of records [he] the head of such
agency determines to be necessary and required by regulations
of the Archivist. Safeguards shall include making it known to
officials and employees of the agency--
(1) * * *
* * * * * * *
[Sec. 3106. Unlawful removal, destruction of records
[The head of each Federal agency shall notify the Archivist
of any actual, impending, or threatened unlawful removal,
defacing, alteration, or destruction of records in the custody
of the agency of which he is the head that shall come to his
attention, and with the assistance of the Archivist shall
initiate action through the Attorney General for the recovery
of records he knows or has reason to believe have been
unlawfully removed from his agency, or from another Federal
agency whose records have been transferred to his legal
custody. In any case in which the head of the agency does not
initiate an action for such recovery or other redress within a
reasonable period of time after being notified of any such
unlawful action, the Archivist shall request the Attorney
General to initiate such an action, and shall notify the
Congress when such a request has been made.]
Sec. 3106. Unlawful removal, destruction of records
(a) Federal Agency Notification.--The head of each Federal
agency shall notify the Archivist of any actual, impending, or
threatened unlawful removal, defacing, alteration, corruption,
deletion, erasure, or other destruction of records in the
custody of the agency, and with the assistance of the Archivist
shall initiate action through the Attorney General for the
recovery of records the head of the Federal agency knows or has
reason to believe have been unlawfully removed from that
agency, or from another Federal agency whose records have been
transferred to the legal custody of that Federal agency.
(b) Archivist Notification.--In any case in which the head of
a Federal agency does not initiate an action for such recovery
or other redress within a reasonable period of time after being
notified of any such unlawful action described in subsection
(a), or is participating in, or believed to be participating in
any such unlawful action, the Archivist shall request the
Attorney General to initiate such an action, and shall notify
the Congress when such a request has been made.
* * * * * * *
CHAPTER 33--DISPOSAL OF RECORDS
Sec.
3301. Definition of records.
* * * * * * *
[3315. Definitions.
[3316. Establishment of Commission.
[3317. Duties of Commission.
[3318. Membership.
[3319. Director and staff; experts and consultants.
[3320. Powers of Commission.
[3321. Support services.
[3322. Report.
[3323. Termination.
[3324. Authorization of appropriations.]
[Sec. 3301. Definition of records
[As used in this chapter, ``records'' includes all books,
papers, maps, photographs, machine readable materials, or other
documentary materials, regardless of physical form or
characteristics, made or received by an agency of the United
States Government under Federal law or in connection with the
transaction of public business and preserved or appropriate for
preservation by that agency or its legitimate successor as
evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of the Government
or because of the informational value of data in them. Library
and museum material made or acquired and preserved solely for
reference or exhibition purposes, extra copies of documents
preserved only for convenience of reference, and stocks of
publications and of processed documents are not included.]
Sec. 3301. Definition of records
(a) Records Defined.--
(1) In general.--As used in this chapter, the term
``records''--
(A) includes all recorded information,
regardless of form or characteristics, made or
received by a Federal agency under Federal law
or in connection with the transaction of public
business and preserved or appropriate for
preservation by that agency or its legitimate
successor as evidence of the organization,
functions, policies, decisions, procedures,
operations, or other activities of the United
States Government or because of the
informational value of data in them; and
(B) does not include--
(i) library and museum material made
or acquired and preserved solely for
reference or exhibition purposes; or
(ii) duplicate copies of records
preserved only for convenience.
(2) Recorded information defined.--For purposes of
paragraph (1), the term ``recorded information''
includes all traditional forms of records, regardless
of physical form or characteristics, including
information created, manipulated, communicated, or
stored in digital or electronic form.
(b) Determination of Definition.--The Archivist's
determination whether recorded information, regardless of
whether it exists in physical, digital, or electronic form, is
a record as defined in subsection (a) shall be binding on all
Federal agencies.
Sec. 3302. Regulations covering lists of records for disposal,
procedure for disposal, and standards for
reproduction
The Archivist shall promulgate regulations, not inconsistent
with this chapter, establishing--
(1) procedures for the compiling and submitting to
[him] the Archivist of lists and schedules of records
proposed for disposal,
* * * * * * *
(3) standards for the reproduction of records by
[photographic or microphotographic processes]
photographic, microphotographic, or digital processes
with a view to the disposal of the original records.
Sec. 3303. Lists and schedules of records to be submitted to the
Archivist by head of each Government agency
The head of each agency of the United States Government shall
submit to the Archivist, under regulations promulgated as
provided by section 3302 of this title--
(1) lists of any records in the custody of the agency
that have been [photographed or microphotographed]
photographed, microphotographed, or digitized under the
regulations and that, as a consequence, do not appear
to have sufficient value to warrant their further
preservation by the Government;
* * * * * * *
Sec. 3303a. Examination by Archivist of lists and schedules of records
lacking preservation value; disposal of records
(a) The Archivist shall examine the lists and schedules
submitted to [him] the Archivist under section 3303 of this
title. If the Archivist determines that any of the records
listed in a list or schedule submitted to [him] the Archivist
do not, or will not after the lapse of the period specified,
have sufficient administrative, legal, research, or other value
to warrant their continued preservation by the Government, [he]
the Archivist may, after publication of notice in the Federal
Register and an opportunity for interested persons to submit
comment thereon--
(1) * * *
* * * * * * *
(c) The Archivist may request advice and counsel from [the
Committee on Rules and Administration of the Senate and the
Committee on House Oversight of the House of Representatives]
the Committee on Oversight and Government Reform of the House
of Representatives and the Committee on Homeland Security and
Governmental Affairs of the Senate with respect to the disposal
of any particular records under this chapter whenever [he] the
Archivist considers that--
(1) * * *
* * * * * * *
(e) The Archivist may approve and effect the disposal of
records that are in [his] the Archivist's legal custody,
provided that records that had been in the custody of another
existing agency may not be disposed of without the written
consent of the head of the agency.
(f) The Archivist shall make an annual report to the Congress
concerning the disposal of records under this chapter,
including general descriptions of the types of records disposed
of and such other information as [he] the Archivist considers
appropriate to keep the Congress fully informed regarding the
disposal of records under this chapter.
* * * * * * *
Sec. 3312. Photographs or microphotographs of records considered as
originals; certified reproductions admissible in
evidence
[Photographs or microphotographs of records] Photographs,
microphotographs of records, or digitized records made in
compliance with regulations under section 3302 of this title
shall have the same effect as the originals and shall be
treated as originals for the purpose of their admissibility in
evidence. Certified or authenticated reproductions of the
[photographs or microphotographs] photographs,
microphotographs, or digitized records shall be admitted in
evidence equally with the original [photographs or
microphotographs] photographs, microphotographs, or digitized
records.
* * * * * * *
[Sec. 3315. Definitions
[For purposes of this section and section 3316 through
section 3324 of this title--
[(1) the term ``Federal official'' means any
individual holding the office of President or Vice
President of the United States, or Senator or
Representative in, or Delegate or Resident Commissioner
to, the Congress of the United States, or any officer
of the executive, judicial, or legislative branch of
the Federal Government;
[(2) the term ``Commission'' means the National Study
Commission on Records and Documents of Federal
Officials; and
[(3) the term ``records and documents'' shall include
handwritten and typewritten documents, motion pictures,
television tapes and recordings, magnetic tapes,
automated data processing documentation in various
forms, and other records that reveal the history of the
Nation.
[Sec. 3316. Establishment of Commission
[There is established a commission to be known as the
National Study Commission on Records and Documents of Federal
Officials.
[Sec. 3317. Duties of Commission
[It shall be the duty of the Commission to study problems and
questions with respect to the control, disposition, and
preservation of records and documents produced by or on behalf
of Federal officials, with a view toward the development of
appropriate legislative recommendations and other
recommendations regarding appropriate rules and procedures with
respect to such control, disposition, and preservation. Such
study shall include consideration of--
[(1) whether the historical practice regarding the
records and documents produced by or on behalf of
Presidents of the United States should be rejected or
accepted and whether such practice should be made
applicable with respect to all Federal officials;
[(2) the relationship of the findings of the
Commission to the provisions of chapter 19 of this
title, section 2101 through section 2108 of this title,
and other Federal laws relating to the control,
disposition, and preservation of records and documents
of Federal officials;
[(3) whether the findings of the Commission should
affect the control, disposition, and preservation of
records and documents of agencies within the Executive
Office of the President created for short-term purposes
by the President;
[(4) the recordkeeping procedures of the White House
Office, with a view toward establishing means to
determine which records and documents are produced by
or on behalf of the President;
[(5) the nature of rules and procedures which should
apply to the control, disposition, and preservation of
records and documents produced by Presidential task
forces, commissions, and boards;
[(6) criteria which may be used generally in
determining the scope of materials which should be
considered to be the records and documents of Members
of the Congress;
[(7) the privacy interests of individuals whose
communications with Federal officials, and with task
forces, commissions, and boards, are a part of the
records and documents produced by such officials, task
forces, commissions, and boards; and
[(8) any other problems, questions, or issues which
the Commission considers relevant to carrying out its
duties under section 3315 through section 3324 of this
title.
[Sec. 3318. Membership
[(a)(1) The Commission shall be composed of seventeen members
as follows:
[(A) one Member of the House of Representatives
appointed by the Speaker of the House upon
recommendation made by the majority leader of the
House;
[(B) one Member of the House of Representatives
appointed by the Speaker of the House upon
recommendation made by the minority leader of the
House;
[(C) one Member of the Senate appointed by the
President pro tempore of the Senate upon recommendation
made by the majority leader of the Senate;
[(D) one Member of the Senate appointed by the
President pro tempore of the Senate upon recommendation
made by the minority leader of the Senate;
[(E) one member of the Federal judiciary appointed by
the Chief Justice of the United States;
[(F) one person employed by the Executive Office of
the President or the White House Office, appointed by
the President;
[(G) three appointed by the President, by and with
the advice and consent of the Senate, from persons who
are not officers or employees of any government and who
are specially qualified to serve on the Commission by
virtue of their education, training, or experience;
[(H) one representative of the Department of State,
appointed by the Secretary of State;
[(I) one representative of the Department of Defense,
appointed by the Secretary of Defense;
[(J) one representative of the Department of Justice,
appointed by the Attorney General;
[(K) the Administrator of General Services (or his
delegate);
[(L) the Librarian of Congress;
[(M) one member of the American Historical
Association, appointed by the counsel of such
Association;
[(N) one member of the Society of American
Archivists, appointed by such Society; and
[(O) one member of the Organization of American
Historians, appointed by such Organization.
[(2) No more than two members appointed under paragraph
(1)(G) may be of the same political party.
[(b) A vacancy in the Commission shall be filled in the
manner in which the original appointment was made.
[(c) If any member of the Commission who was appointed to the
Commission as a Member of the Congress leave such office, or if
any member of the Commission who was appointed from persons who
are not officers or employees of any government becomes an
officer or employee of a government, he may continue as a
member of the Commission for no longer than the sixty-day
period beginning on the date he leaves such office or becomes
such an officer or employee, as the case may be.
[(d) Members shall be appointed for the life of the
Commission.
[(e)(1) Members of the Commission shall serve without pay.
[(2) While away from their homes or regular places of
business in the performance of services for the Commission,
members of the Commission shall be allowed travel expenses in
the same manner as persons employed intermittently in the
service of the Federal Government are allowed expenses under
section 5703 of title 5, United States Code, except that per
diem in lieu of subsistence shall be paid only to those members
of the Commission who are not full-time officers or employees
of the United States or Members of the Congress.
[(f) The Chairman of the Commission shall be designated by
the President from among members appointed under subsection
(a)(1)(G).
[(g) The Commission shall meet at the call of the Chairman or
a majority of its members.
[Sec. 3319. Director and staff; experts and consultants
[(a) The Commission shall appoint a Director who shall be
paid at a rate not to exceed the rate of basic pay in effect
for level V of the Executive Schedule (5 U.S.C. 5316).
[(b) The Commission may appoint and fix the pay of such
additional personnel as it deems necessary.
[(c)(1) The Commission may procure temporary and intermittent
services to the same extent as is authorized by section 3109(b)
of title 5, United States Code, but at rates for individuals
not to exceed the daily equivalent of the annual rate of basic
pay in effect for grade GS-15 of the General Schedule (5 U.S.C.
5332).
[(2) In procuring services under this subsection, the
Commission shall seek to obtain the advice and assistance of
constitutional scholars and members of the historical,
archival, and journalistic professions.
[(d) Upon request of the Commission, the head of any Federal
agency is authorized to detail, on a reimbursable basis, any of
the personnel of such agency to the Commission to assist it in
carrying out its duties under sections 3315 through 3324 of
this title.
[Sec. 3320. Powers of Commission
[(a) The Commission may, for the purpose of carrying out its
duties under sections 3315 through 3324 of this title, hold
such hearings, sit and act at such times and places, take such
testimony, and receive such evidence, as the Commission may
deem desirable.
[(b) When so authorized by the Commission, any member or
agent of the Commission may take any action which the
Commission is authorized to take by this section.
[(c) The Commission may secure directly from any department
or agency of the United States information necessary to enable
the Commission to carry out its duties under section 3315
through section 3324 of this title. Upon request of the
Chairman of the Commission, the head of such department or
agency shall furnish such information to the Commission.
[Sec. 3321. Support services
[(a) The Administrator of General Services shall provide to
the Commission on a reimbursable basis such administrative
support services and assistance as the Commission may request.
[(b) The Archivist of the United States shall provide to the
Commission on a reimbursable basis such technical and expert
advice, consultation, and support assistance as the Commission
may request.
[Sec. 3322. Report
[The Commission shall transmit to the President and to each
House of the Congress a report not later than March 31, 1977.
Such report shall contain a detailed statement of the findings
and conclusions of the Commission, together with its
recommendations for such legislation, administrative actions,
and other actions, as it deems appropriate.
[Sec. 3323. Termination
[The Commission shall cease to exist sixty days after
transmitting its report under section 3322 of this title.
[Sec. 3324. Authorization of appropriations
[There is authorized to be appropriated such sums as may be
necessary to carry out section 3315 through section 3324 of
this title.]
* * * * * * *