New Bill Would Increase Transparency of Presidential Records

A top House Democrat announced a new bill on Monday to increase transparency of presidential records.

Rep. Carolyn Maloney, D-N.Y., chair of the House Oversight and Reform Committee, will introduce the ‘‘Presidential Records Preservation Act,” which would update the “1978 Presidential Records Act” by requiring the president, vice president, and other senior White House officials to “make and preserve records” that document the president’s official activities. The “Federal Records Act,” which oversees record keeping in the executive and legislative agencies, the judiciary and a few executive offices, has a similar provision. 

Documents collected under the Presidential Records Act come from the White House Office, Office of the Vice President, Office of Policy Development, Council of Economic Advisors, National Security Council, President’s Foreign Intelligence Advisory Board, President’s Intelligence Oversight Board, National Economic Council and Office of Administration. 

Kel McClanahan, an attorney and executive director of National Security Counselors, a public interest law firm that specializes in national security, wrote in Just Security in March 2019 that the “Presidential Records Act regime is at its core an honor system,” because it gives the president “virtually unlimited discretion” in deciding what records to preserve. Unlike under the Federal Records Act, the National Archives and Records Administration does not have direct oversight authority under the Presidential Records Act. 

“The animating principle behind the discretion given to presidents is based on separation of powers, but I think it's become clear that carte blanche is not the way to go,” McClanahan told Government Executive. “Narrower, more targeted exceptions for only the most sensitive types of material will better balance the needs of posterity and presidential modesty."

The new bill would also require the president to create records management controls in order to make sure that electronic messages are preserved and able to be searched easily. 

“Special Counsel Robert Mueller’s investigation and the committee’s own oversight revealed that during the Trump administration senior advisors to the president deliberately conducted official business on private accounts to conceal their activities from the public record,” said Maloney in a statement. These proposed reforms would “strengthen the current law and improve transparency by requiring the president and the president’s senior advisors to document decisions.” 

Lawmakers––such as Maloney––and watchdog groups also raised concerns that both the Trump White House and federal agencies would not sufficiently preserve their records before and during the presidential transition.

As a result of the prolonged start for the formal transition, NARA was delayed in transferring the Trump presidential records into its custody. As of Feb. 1, NARA was still in the process of completing the transfer. A NARA spokesperson told Government Executive on Monday that they’ve “completed the move of all textual and audiovisual records on media as well as gifts,” but the “process of transferring electronic records is ongoing.”

Maloney announced the bill on Monday to kick off National Sunshine Week, which promotes the importance of an open and accessible government at all levels.

Besides the new bill, she said in a video message that her committee will also be releasing a report from the Government Accountability Office report on compliance with the Freedom of Information Act and introducing several bipartisan bills focused on increasing government transparency. 

“The Committee on Oversight and Reform knows open government is good government,” she stated. “And we’ll continue to fight for it for the American people every day.”