By Elizabeth Holland
Just before Thanksgiving, President Barack Obama signed into law H.R. 1233, the Presidential and Federal Records Act Amendments of 2014. This set of amendments is the first statutory change to the Federal Records Act (FRA) since it was passed in 1950 and implements the important modernization of the definition of a federal record to include electronic records. It also makes several updates to the Presidential Records Act (PRA) to improve access.
H.R. 1233 complements ongoing efforts by the National Archives and Records Administration (NARA) and the Office of Management and Budget to implement President Obama’s 2011 Memorandum on Managing Government Records. Among several key provisions, the new law codifies the procedures by which former and incumbent presidents review presidential records for constitutional privileges and establishes a reasonable standard for release of records. Formerly, this process was controlled by an Executive Order and subject to change under different administrations. The current president and affected former president will have 60 business days to review records the Archives declares an intention to make public, and that period can be extended only once, by 30 business days. Under an executive order issued by President Obama in 2009 and a previous order by President George W. Bush, there was effectively no time limit on such reviews.
H.R. 1233 also increases the transparency of the process by requiring the Archives to make public notices of planned openings of presidential records at the same time they are sent to the White House and a former president’s representative. The Archivist of the United States is now authorized to make the final determination as to what constitutes a federal record.
AALL has worked in support of changes to the FRA and PRA that would restore the balance between a president’s ability to withhold certain records for a limited time period and the public’s right to access them for many years. We are pleased to see these important updates codified.