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Dec 2 / Amy Greschaw

Presidents, Papers and the Public: The Policy and Principles of the Presidential Records Act

By Cindy Wyckoff

The ownership and privacy of the records and documents, both official and personal, of the presidents of the United States have been debated for at least a century and a half.  This argument dates back to 1841, in Folsomv. Marsh, which was sparked by the question of copyright of the writings of former President George Washington.  This United States Circuit Court in Massachusetts’ lawsuit provided presidents with the legal right to declare that any documents drafted while in office were considered private (Folsom v. Marsh, 1841).

Later, former Presidents Grover Cleveland and Howard Taft were outspoken with their insistence that the papers of the president were not public.  President Cleveland believed that, “the papers and documents withheld and addressed to [him] or intended for [his] use and action [were] purely unofficial and private, not infrequently confidential, and having reference to the performance of a duty [were] exclusively [his]” (Cook, 1975, p. 310).  President Cleveland further stated that presidential documents were “deposited there for [his] convenience, remaining still completely under [his] control […]” (Cook, 1975, p. 310).  Former President William Taft “compared a President’s files to the correspondence of a British ambassador, which remains with the individual after his retirement instead of being transferred to the Foreign Office” (Cook, 1975, p. 310).

The basis of the controversy over the privacy of the documents of a president lies within the “confidentiality, separation of powers, and partisanship” of such records (Smith, N.K. & Stern, G.M., 2006, p 81).  In order to carry out the responsibilities of the office, such as “receiv[ing] frank advice on a variety of sensitive issues, including appointments and foreign policy,” presidents have felt it necessary to keep these documents classified (Smith, N.K. & Stern, G.M., 2006, p 81).  In addition, presidents felt these records were personal property.  Federal judges and Congressmen also kept their papers private for the preservation of “the constitutional separation of powers” (Smith, N.K. & Stern, G.M., 2006, p 81).

The question of whether the presidents’ papers are owned and accessible by the public or are private records continued into the 20th century.  “By the late 1930s, the Library of Congress held the papers of 22 Presidents” (Cox, 2002, p. 47).  Then, in 1941, the opening of the first Presidential Library, that of Franklin D. Roosevelt, eventually led to the enactment of the Presidential Libraries Act of 1955 (Cox, 2002).

Prior to the enactment of the Presidential Libraries Act, as a president completed his term in office, “it had been customary for Presidents to take the records with them as their personal property” frequently transferring the documents “from one generation to the next with little concern for their value to the history of the nation” (Geselbracht, R. & Walch, T., 2005).  The Presidential Libraries Act, which became law on August 12, 1955, was ratified with pressure from the National Archives and Records Administration and with the anticipation it would end the debate of whether presidential documents were private or publicly owned (Geselbracht, R. & Walch, T., 2005).

The Presidential Libraries Act was an important step toward the principles of the Presidential Records Act with its allowance of “the orderly transfer of presidential papers and memorabilia to the federal government” (Geselbracht, R. & Walch, T., 2005).  The Presidential Libraries Act mandated the Administrator of General Services to accept, maintain and make available to the public any presidential papers received for archiving in a depository, which was gifted to the United States government (U.S. National Archives, n.d.b).  The Presidential Libraries Act had a shortcoming, however, which Raymond Geselbracht and Timothy Walch (2005) discuss in the article, “The Presidential Libraries Act after 50 Years”:

“[T]he Presidential Libraries Act did not require that a President donate his official papers to the National Archives, and therefore did nothing to prevent a former President from asserting personal property rights in presidential materials, such as by destroying or not donating some or all of the materials.”

The deficiency of the Presidential Libraries Act was realized on August 8, 1974 when former President Richard Nixon “announced his intention to resign from office”[1] (Cook, 1975, p. 313).  The same day, the former president instructed the General Services Administration to seal “all of the pre-presidential papers deeded in 1968-69, not until the end of his administration as the original deed of gift states, but until 1985” (Cook, 1975, p. 313).  The debate of whether presidential documents, or in this case audio recordings, were private or public and whether the public should have access to them was, once again, renewed.

In response to the instruction of the General Services Administration to seal these papers, which became commonly known as the Nixon-Sampson Agreement, the Presidential Recordings and Materials Preservation Act of 1974 was signed into law by President Gerald R. Ford, who was sworn into office upon Nixon’s resignation (Geselbracht, R. & Walch, T., 2005).  This Act voided the agreement and allowed for the government to gain custody of and prevented the destruction of Nixon’s presidential records, including those involving the Watergate scandal (Smith & Stern, 2006, p. 88; Geselbracht, R. & Walch, T., 2005).

While the Presidential Recordings and Materials Preservation Act addressed the issues raised with the Nixon presidential records, legislation was needed to provide a more thorough set of standards for official presidential documents and determined the actual ownership of such documents.  Consequently, in 1978, President Jimmy Carter signed the Presidential Records Act (“PRA”), which “permanently changed the tradition of handling presidential papers, while at the same time incorporating checks and balances for the records of the highest official in the government” (Geselbracht, R. & Walch, T., 2005; Smith & Stern, p. 96).  The PRA also applied to vice presidential materials (Smith & Stern, p. 97).

The PRA mandates that all documents drafted or received by a president or the president’s staff is government property, not the personal property of the president (U.S. National Archives, n.d.a; McKay, 1982, pp. 38-39).  “The PRA also defines presidential “personal records” as documentary materials “of a purely private or nonpublic character which do not relate or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President” (Smith, N.K. & Stern, G.M., 2006, p. 96).

As with any law, the PRA is fluid and amendable by Congress or the president.  With several Executive Orders issued by recent Presidents Ronald Reagan, George W. Bush and Barrack Obama, public access to and timing of release of presidential records continues to be a controversial issue today.  Consequently, this flow of information — or lack thereof — between the office of the president and the public continues to be hindered, if not at least delayed.

 

References

Cook, J.F. (1975, July). “Private papers” of public officials. The American Archivist, 38(3), 299-324. Retrieved from http://www.jstor.org/stable/40291756

Cox, R.J. (2002). America’s pyramids: Presidents and their libraries. Government Information Quarterly, 19, 45-75. Retrieved from http://d-scholarship.pitt.edu/2693/1/cox-r-americas-pyramids2002.pdf

Folsom v. Marsh, 9 F. Cas. 342, 344-345 (Cir. Ct. Mass. 1841)

Geselbracht, R., & Walch, T. (2005). The Presidential Libraries Act after 50 years. Prologue, 37. Retrieved from http://www.archives.gov/publications/prologue/2005/summer/preslib.html

McKay, P.R. (1982, January). Presidential papers: A property issue. The Library Quarterly, 52(1), 21-40. Retrieved from http://www.jstor.org/stable/4307432

Smith, N.K. & Stern, G.M. (2006). A historical review of access to records in presidential libraries. The Public Historian, 28(3), 79-116. Retrieved from http://www.jstor.org/stable/10.1525/tph.2006.28.3.79

U.S. National Archives and Records Administration, The. (n.d.). About the Public Papers of the Presidents. Retrieved from http://www.archives.gov/federal-register/publications/presidential-papers.html#about

U.S. National Archives and Records Administration, The. (n.d.). Executive Order 12667–Presidential Records. Retrieved from http://www.archives.gov/federal-register/codification/executive-order/12667.html

Watergate scandal. (2012). In Encyclopædia Britannica. Retrieved from http://www.britannica.com/EBchecked/topic/637431/Watergate-scandal


[1] On August 9, 1974, former President Richard Nixon resigned as president following the threat of impeachment after the discovery of his concealed involvement in a burglary and destruction of evidence of a prior break-in at the Democratic National Committee headquarters in the Watergate office/hotel complex.  The political scandal quickly became commonly known as the “Watergate scandal” (Watergate scandal, 2012).