What is the Presidential Records Act?

The Presidential Records Act arose directly from the constitutional and political crisis of the Watergate era. Before 1978, presidential records were generally treated as the personal property of the president under a tradition dating to the founding -- George Washington removed his papers from the executive mansion when he left office, and subsequent presidents and their heirs retained, donated, or in some cases destroyed official papers at will. President Nixon's effort to claim personal ownership of White House tape recordings and other records related to the Watergate investigation prompted Congress to respond with two laws. The first, the Presidential Recordings and Materials Preservation Act (Pub. L. 93-526, enacted December 19, 1974), was an emergency measure specific to Nixon's records: it required immediate deposit of Nixon's tape recordings, documents, and other materials with the General Services Administration and declared them property of the United States. The Supreme Court upheld that law in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), rejecting Nixon's claims that the seizure violated the constitutional separation of powers and his privacy rights. The Presidential Records Act of 1978 (Pub. L. 95-591) then established a permanent, prospective framework for all future presidents, beginning with President Ronald Reagan on January 20, 1981.

The PRA defines 'presidential records' at 44 U.S.C. Section 2201(2) as documentary materials created or received by the President, the President's immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities that relate to or have an effect upon the carrying out of the constitutional, statutory, executive, or other official or ceremonial duties of the President. The definition is broad and encompasses papers, maps, photographs, machine-readable materials, and electronic records. The PRA expressly excludes 'personal records' under 44 U.S.C. Section 2201(3): diaries and journals not prepared or circulated in the course of transacting government business; materials relating to private political associations that have no effect on official duties; and correspondence relating to private political associations with no connection to official functions. The distinction between official presidential records (owned by the United States) and personal records (the president's own property) has been a recurring source of legal dispute, because many presidential communications blend official and personal subject matter, and a document's character as presidential or personal is determined by its function and content rather than its physical location.

During the administration, the PRA imposes two key obligations on the president. First, under 44 U.S.C. Section 2203(a), 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 the President's constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records.' This documentation duty covers the full range of presidential activities -- not just formal actions such as signing bills and executive orders, but also the deliberative process through which decisions are reached. Second, under 44 U.S.C. Section 2203(c), the president may not dispose of any presidential records unless the Archivist of the United States first concurs or Congress receives 60 days advance written notice of the proposed disposal. Records for which the Archivist makes a written determination that they have no administrative, historical, informational, or evidentiary value may be disposed of in accordance with NARA-approved procedures. The PRA does not itself impose criminal penalties for unauthorized removal or destruction of presidential records; criminal liability for unauthorized destruction of federal records flows from separate statutes including 18 U.S.C. Section 2071 (mutilation or destruction of federal records) and 18 U.S.C. Section 1519 (obstruction of federal proceedings by destruction of documents).

Upon leaving office, all presidential records must be transferred to the Archivist of the United States under 44 U.S.C. Section 2203(g)(1). The Archivist then administers the records through NARA. Public access is initially restricted: under 44 U.S.C. Section 2204(c)(1), within five years after the conclusion of the president's term or last term, NARA must make available to the public all presidential records not subject to a restriction specified by the former president. Before leaving office, a president may designate restriction periods -- of no more than 12 years -- for records falling into the categories enumerated at 44 U.S.C. Section 2204(a): records containing information relating to national defense or foreign policy; records specifically authorized by statute to be withheld; records relating to open law enforcement investigations; records covered by the deliberative process or presidential communications privilege; records containing trade secrets or confidential commercial or financial information; and records whose disclosure would constitute an unwarranted invasion of personal privacy. The incumbent president may waive any restriction imposed by a former president and direct NARA to provide access notwithstanding the former president's designation (44 U.S.C. Section 2205(3)). FOIA applies to presidential records in NARA's custody, with the PRA's own restriction framework governing access during restriction periods.

For the 2028 presidential election, the PRA means that all records of the incumbent administration created from January 20, 2025 through January 19, 2029 -- including communications, policy memoranda, executive orders, daily briefings, emails and other electronic records of the President and immediate staff created in the course of official duties -- will transfer to NARA at the January 20, 2029 inauguration. Unrestricted records, and records for which any former-president restriction period has expired, will become available for FOIA access beginning January 20, 2034 (five years after the end of the administration). Records for which the outgoing president designates restriction periods under 44 U.S.C. Section 2204(a) could remain restricted for up to 12 years -- until January 20, 2041 -- for the categories the former president specifies. Vice presidential records are treated identically to presidential records: 44 U.S.C. Section 2207 applies the PRA's ownership, custody, and access provisions to the vice president's records created in the course of official duties, so that the vice president's official records also transfer to NARA at the inauguration and are administered by the Archivist under the same five-year and 12-year frameworks.