The week after President Biden’s inauguration, Archivist of the United States (AOTUS) David S. Ferriero, who was hired by President Obama to transform the relationship between people and their government, and National Archives and Records Administration (NARA) General Counsel Gary M. Stern, previously a staff attorney with the American Civil Liberties Union (ACLU), spoke with Association of Research Libraries (ARL) members to answer questions about presidential and administration transitions. Read on for three takeaways from the conversation (and yes, those rumors about White House staff taping official Trump administration papers back together are true).
Federal records laws cover the White House and federal agencies
While the Federal Records Act (FRA) and Presidential Records Act (PRA) address the ownership, management, and transfer of records of federal agencies and presidents, respectively, records produced by Congress and the Supreme Court are not governed by federal records laws. Presidential records were the personal property of presidents from Washington through Carter (with the exception of Nixon), until the PRA took effect in 1978. Since the Reagan administration, presidential records have been considered public record by default, and the president must consult the archivist if he wishes to dispose of records.
There is a five-year wait to access presidential records
NARA takes legal possession of an outgoing administration’s presidential records the day that a new administration is sworn in. While NARA’s mission is, in part, to provide public access to high-value government records, NARA must abide by the PRA, which requires five years to pass before the general public can access presidential records through the Freedom of Information Act (FOIA). However, this waiting period does not apply to requests from government officials like the presidential administration or Congress. Another exception is information that has already lawfully been made public, such as tweets.
Starting with President Obama, there is a new model for presidential libraries
Franklin D. Roosevelt was the first president to donate his presidential (and personal) papers to the federal government. In 1955, Congress codified a system of presidential libraries that are privately built by presidential foundations, and donated to the federal government to be operated and maintained by NARA staff. President Obama broke with this tradition, opting for a fully digital presidential library. NARA will store and preserve official documents from the Obama administration in its existing facilities. NARA signed a memorandum of understanding with the Barack Obama Foundation that details shared responsibility for digitizing textual records (an estimated 95 percent of Obama administration records were “born digital”). The Obama Foundation will fund and build the Obama Presidential Center as a museum in Chicago, which will not be the repository for Obama’s records and will not be operated and maintained by NARA staff. On Inauguration Day 2021, NARA launched the Donald J. Trump Presidential Library website, including information on how, where, and when web and social media records and other records will be available. NARA will store and preserve the records of the Trump administration at NARA facilities in the National Capital Region.