From the AOTUS: NARA’s Role under the Presidential Records Act and the Federal Records Act
3/30/2017 | 12:30 PM
NARA’s Role under the Presidential Records Act and the Federal Records Act
By David S. Ferriero
Archivist of the United States
The peaceful transfer of executive power from one President to the next is a hallmark of our government. At the beginning of any new administration, though, questions often arise about recordkeeping. As we are now just a few months into a new Presidency, it is good time to go over our agency’s authority concerning Presidential and Federal records.
The National Archives and Records Administration (NARA) was founded to ensure that the permanent records of the Federal Government are preserved and made accessible to the public now and far into the future. To fulfill this mission, we work with the records creators before the records even come into our custody.
The scope and authority NARA has in carrying out this role in each of the three branches of government is influenced by the separation of powers defined in the U.S. Constitution.
For 200 years, the heads of each branch considered their documents as their personal papers and disposed of them as they wished. Today, two laws govern records created by the U.S. Government: The Federal Records Act (FRA) and the Presidential Records Act (PRA).
The Federal Records Act was enacted in 1950 and amended most recently in November 2014. The FRA gave the National Archives (then under the General Services Administration) responsibility to oversee recordkeeping in Federal agencies in the Executive branch. The FRA also gives NARA oversight authority over “Federal agencies” in the Judicial and Legislative branches of government, although it does not apply to the Supreme Court, the Senate, the House of Representatives, and the Architect of the Capitol.
The FRA gives NARA a direct, formal role in agencies’ records management: We advise agencies on appropriate recordkeeping practices, appraise their records, approve records disposition schedules, have inspection and oversight authority, and can even resolve whether a document is a Federal record. NARA helps agencies determine how long they must keep temporary records before they can be destroyed, and which they must eventually turn over to NARA for permanent preservation—less than 5 percent of the mountain of documents created by agencies every year comes to the Archives.
The FRA does not cover records created by U.S. Presidents, which, until 1978, were still considered their personal property. President Franklin Roosevelt started the tradition of donating Presidential papers to the National Archives when he founded the first Presidential library in 1940, and his successors (as well as his predecessor, Herbert Hoover) followed suit.
The Watergate scandal of 1972–74 changed all that. After resigning from office, President Richard Nixon wanted to destroy the White House tapes. Congress, backed up by the Supreme Court, then passed the Presidential Recordings and Materials Preservation Act (PRMPA) in 1974 to seize the Nixon tapes and papers and place them in the National Archives.
Four years later, Congress passed the Presidential Records Act of 1978 (also amended in 2014), which established government ownership of Presidential records, starting with the next President to take office (Ronald Reagan).
Unlike with Federal agency records under the FRA, NARA does not have direct oversight authority over the White House records program. Instead, because the Archivist reports to the President, NARA only provides advice and assistance to the White House on records management practices upon request. While only a small percentage of agency records permanent, all Presidential records are considered permanent, unless the President obtains the written views of the Archivist to dispose of particular records—e.g., public mail and routine administrative files.
Immediately after the President leaves office, the National Archives takes legal and physical custody of the outgoing administration’s records and then begins to work with the incoming White House staff to provide advice on appropriate records management.
Both the Federal Records Act and the Presidential Records Act govern the management of records created by the Executive branch, but the FRA gives NARA greater oversight authority than it has for Presidential records. That difference in the level of authority is dictated by the constitutional structure governing the three branches of our government.
NARA is privileged to work with the Presidents and agencies to ensure that the permanent records of our government are properly managed, preserved, and ultimately made available for research by the American people.