44 U.S.C. § 2203 — Management and custody of Presidential

Page 105 TITLE 44—PUBLIC PRINTING AND DOCUMENTS § 2203 1 See References in Text note below. 2 So in original. Probably should be ‘‘thereof,’’. agency (as defined in section 552(e) 1 of title 5, United States Code); (ii) personal records; (iii) stocks of publications and stationery; or (iv) extra copies of documents produced only for convenience of reference, when such cop- ies are clearly so identified. (3) The term ‘‘personal records’’ means all documentary materials, or any reasonably segregable portion therof,2 of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes— (A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business; (B) materials relating to private political associations, and having no relation to or di- rect effect upon the carrying out of constitu- tional, statutory, or other official or cere- monial duties of the President; and (C) materials relating exclusively to the President’s own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial du- ties of the President. (4) The term ‘‘Archivist’’ means the Archi- vist of the United States. (5) The term ‘‘former President’’, when used with respect to Presidential records, means the former President during whose term or terms of office such Presidential records were created. (Added Pub. L. 95–591, § 2(a), Nov. 4, 1978, 92 Stat. 2523; amended Pub. L. 113–187, §§ 2(b), 8(2), Nov. 26, 2014, 128 Stat. 2005, 2011.) Editorial Notes REFERENCES IN TEXT Section 552(e) of title 5, referred to in par. (2)(B)(i), was redesignated section 552(f) of title 5 by section 1802(b) of Pub. L. 99–570. AMENDMENTS 2014—Par. (1). Pub. L. 113–187, § 2(b)(1), substituted ‘‘memoranda’’ for ‘‘memorandums’’ and ‘‘audio and vis- ual records’’ for ‘‘audio, audiovisual’’ and inserted ‘‘, whether in analog, digital, or any other form’’ after ‘‘mechanical recordations’’. Par. (2). Pub. L. 113–187, § 8(2), substituted ‘‘the Presi- dent’s’’ for ‘‘his’’ in introductory provisions and in sub- par. (A). Pub. L. 113–187, § 2(b)(2), substituted ‘‘advise or assist’’ for ‘‘advise and assist’’ in introductory provisions. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 95–591, § 3, Nov. 4, 1978, 92 Stat. 2528, provided that: ‘‘The amendments made by this Act [enacting this chapter, amending sections 2111 and 2112 of this title, and enacting provisions set out as notes under this section] shall be effective with respect to any Pres- idential records (as defined in section 2201(2) of title 44, as amended by section 2 of this Act) created during a term of office of the President beginning on or after January 20, 1981.’’ SHORT TITLE OF 1978 AMENDMENT For short title of Pub. L. 95–591, which enacted this chapter, as the ‘‘Presidential Records Act of 1978’’, see section 1 of Pub. L. 95–591, set out as a note under sec- tion 101 of this title. SEPARABILITY Pub. L. 95–591, § 4, Nov. 4, 1978, 92 Stat. 2528, provided that: ‘‘If any provision of this Act [enacting this chap- ter, amending sections 2107 and 2108 of this title and en- acting provisions set out as notes under this section] is held invalid for any reason by any court, the validity and legal effect of the remaining provisions shall not be affected thereby.’’ § 2202. Ownership of Presidential records The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter. (Added Pub. L. 95–591, § 2(a), Nov. 4, 1978, 92 Stat. 2524.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective with respect to Presidential records created during a term of office of President beginning on or after Jan. 20, 1981, see section 3 of Pub. L. 95–591, set out as a note under section 2201 of this title. § 2203. Management and custody of Presidential records (a) Through the implementation of records management controls and other necessary ac- tions, 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 constitu- tional, statutory, or other official or ceremonial duties are adequately documented and that such records are preserved and maintained as Presi- dential records pursuant to the requirements of this section and other provisions of law. (b) Documentary materials produced or re- ceived by the President, the President’s staff, or units or individuals in the Executive Office of the President the function of which is to advise or assist the President, shall, to the extent prac- ticable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately. (c) During the President’s term of office, the President may dispose of those Presidential records of such President that no longer have administrative, historical, informational, or evi- dentiary value if— (1) the President obtains the views, in writ- ing, of the Archivist concerning the proposed disposal of such Presidential records; and (2) the Archivist states that the Archivist does not intend to take any action under sub- section (e) of this section. Page 106 TITLE 44—PUBLIC PRINTING AND DOCUMENTS § 2203 (d) In the event the Archivist notifies the President under subsection (c) that the Archi- vist does intend to take action under subsection (e), the President may dispose of such Presi- dential records if copies of the disposal schedule are submitted to the appropriate Congressional Committees at least 60 calendar days of contin- uous session of Congress in advance of the pro- posed disposal date. For the purpose of this sec- tion, continuity of session is broken only by an adjournment of Congress sine die, and the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of the days in which Congress is in continuous ses- sion. (e) The Archivist shall request the advice of the Committee on Rules and Administration and the Committee on Governmental Affairs of the Senate and the Committee on House Oversight and the Committee on Government Operations of the House of Representatives with respect to any proposed disposal of Presidential records whenever the Archivist considers that— (1) these particular records may be of special interest to the Congress; or (2) consultation with the Congress regarding the disposal of these particular records is in the public interest. (f) During a President’s term of office, the Ar- chivist may maintain and preserve Presidential records on behalf of the President, including records in digital or electronic form. The Presi- dent shall remain exclusively responsible for custody, control, and access to such Presidential records. The Archivist may not disclose any such records, except under direction of the President, until the conclusion of a President’s term of office, if a President serves consecutive terms upon the conclusion of the last term, or such other period provided for under section 2204 of this title. (g)(1) Upon the conclusion of a President’s term of office, or if a President serves consecu- tive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and pres- ervation of, and access to, the Presidential records of that President. The Archivist shall have an affirmative duty to make such records available to the public as rapidly and com- pletely as possible consistent with the provi- sions of this chapter. (2) The Archivist shall deposit all such Presi- dential records in a Presidential archival deposi- tory or another archival facility operated by the United States. The Archivist is authorized to designate, after consultation with the former President, a director at each depository or facil- ity, who shall be responsible for the care and preservation of such records. (3) When the President considers it practicable and in the public interest, the President shall include in the President’s budget transmitted to Congress, for each fiscal year in which the term of office of the President will expire, such funds as may be necessary for carrying out the au- thorities of this subsection. (4) The Archivist is authorized to dispose of such Presidential records which the Archivist has appraised and determined to have insuffi- cient administrative, historical, informational, or evidentiary value to warrant their continued preservation. Notice of such disposal shall be published in the Federal Register at least 60 days in advance of the proposed disposal date. Publication of such notice shall constitute a final agency action for purposes of review under chapter 7 of title 5, United States Code. (Added Pub. L. 95–591, § 2(a), Nov. 4, 1978, 92 Stat. 2524; amended Pub. L. 104–186, title II, § 223(9), Aug. 20, 1996, 110 Stat. 1752; Pub. L. 113–187, §§ 2(c), 8(3), Nov. 26, 2014, 128 Stat. 2006, 2011; Pub. L. 114–136, § 3, Mar. 18, 2016, 130 Stat. 305.) Editorial Notes AMENDMENTS 2016—Subsec. (g)(3), (4). Pub. L. 114–136 added par. (3) and redesignated former par. (3) as (4). 2014—Subsec. (a). Pub. L. 113–187, § 8(3)(A), substituted ‘‘the President’s’’ for ‘‘his’’. Pub. L. 113–187, § 2(c)(1), substituted ‘‘preserved and maintained’’ for ‘‘maintained’’. Subsec. (b). Pub. L. 113–187, § 8(3)(B), substituted ‘‘the President’s’’ for ‘‘his’’. Pub. L. 113–187, § 2(c)(2), substituted ‘‘advise or assist’’ for ‘‘advise and assist’’. Subsec. (c). Pub. L. 113–187, § 8(3)(C)(i), substituted ‘‘the President’s’’ for ‘‘his’’ and ‘‘those Presidential records of such President’’ for ‘‘those of his Presi- dential records’’ in introductory provisions. Subsec. (c)(2). Pub. L. 113–187, § 8(3)(C)(ii), substituted ‘‘the Archivist does’’ for ‘‘he does’’. Subsec. (d). Pub. L. 113–187, § 8(3)(D), substituted ‘‘the Archivist does’’ for ‘‘he does’’. Subsec. (e). Pub. L. 113–187, § 8(3)(E), substituted ‘‘the Archivist considers’’ for ‘‘he considers’’ in introductory provisions. Subsec. (f). Pub. L. 113–187, § 2(c)(4), added subsec. (f). Former subsec. (f) redesignated (g). Subsec. (g). Pub. L. 113–187, § 2(c)(3), redesignated sub- sec. (f) as (g). Subsec. (g)(1). Pub. L. 113–187, § 2(c)(5), substituted ‘‘this chapter’’ for ‘‘this Act’’. Subsec. (g)(3). Pub. L. 113–187, § 8(3)(F), substituted ‘‘the Archivist has’’ for ‘‘he has’’. 1996—Subsec. (e). Pub. L. 104–186 substituted ‘‘House Oversight’’ for ‘‘House Administration’’. Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Gov- ernmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Con- gress, Oct. 9, 2004. Committee on House Oversight of House of Rep- resentatives changed to Committee on House Adminis- tration of House of Representatives by House Resolu- tion No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Operations of House of Representatives treated as referring to Committee on Government Reform and Oversight of House of Rep- resentatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Rep- resentatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of Page 107 TITLE 44—PUBLIC PRINTING AND DOCUMENTS § 2204 1 So in original. Probably should be ‘‘2203(g)(1);’’. House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Com- mittee on Oversight and Reform of House of Represent- atives changed to Committee on Oversight and Ac- countability of House of Representatives by House Res- olution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023. EFFECTIVE DATE Section effective with respect to Presidential records created during a term of office of President beginning on or after Jan. 20, 1981, see section 3 of Pub. L. 95–591, set out as a note under section 2201 of this title. Executive Documents CLASSIFIED NATIONAL SECURITY INFORMATION For provisions authorizing Archivist to review, down- grade, and declassify information of former Presidents under control of Archivist pursuant to this section, see Ex. Ord. No. 13526, § 3.5(b), Dec. 29, 2009, 75 F.R. 718, set out as a note under section 3161 of Title 50, War and Na- tional Defense. § 2204. Restrictions on access to Presidential records (a) Prior to the conclusion of a President’s term of office or last consecutive term of office, as the case may be, the President shall specify durations, not to exceed 12 years, for which ac- cess shall be restricted with respect to informa- tion, in a Presidential record, within one or more of the following categories: (1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) in fact properly classi- fied pursuant to such Executive order; (2) relating to appointments to Federal of- fice; (3) specifically exempted from disclosure by statute (other than sections 552 and 552b of title 5, United States Code), provided that such statute (A) requires that the material be withheld from the public in such a manner as to leave no discretion on the issue, or (B) es- tablishes particular criteria for withholding or refers to particular types of material to be withheld; (4) trade secrets and commercial or financial information obtained from a person and privi- leged or confidential; (5) confidential communications requesting or submitting advice, between the President and the President’s advisers, or between such advisers; or (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. (b)(1) Any Presidential record or reasonably segregable portion thereof containing informa- tion within a category restricted by the Presi- dent under subsection (a) shall be so designated by the Archivist and access thereto shall be re- stricted until the earlier of— (A)(i) the date on which the former Presi- dent waives the restriction on disclosure of such record, or (ii) the expiration of the duration specified under subsection (a) for the category of infor- mation on the basis of which access to such record has been restricted; or (B) upon a determination by the Archivist that such record or reasonably segregable por- tion thereof, or of any significant element or aspect of the information contained in such record or reasonably segregable portion there- of, has been placed in the public domain through publication by the former President, or the President’s agents. (2) Any such record which does not contain in- formation within a category restricted by the President under subsection (a), or contains in- formation within such a category for which the duration of restricted access has expired, shall be exempt from the provisions of subsection (c) until the earlier of— (A) the date which is 5 years after the date on which the Archivist obtains custody of such record pursuant to section 2203(d)(1); 1 or (B) the date on which the Archivist com- pletes the processing and organization of such records or integral file segment thereof. (3) During the period of restricted access speci- fied pursuant to subsection (b)(1), the deter- mination whether access to a Presidential record or reasonably segregable portion thereof shall be restricted shall be made by the Archi- vist, in the Archivist’s discretion, after con- sultation with the former President, and, during such period, such determinations shall not be subject to judicial review, except as provided in subsection (e) of this section. The Archivist shall establish procedures whereby any person denied access to a Presidential record because such record is restricted pursuant to a deter- mination made under this paragraph, may file an administrative appeal of such determination. Such procedures shall provide for a written de- termination by the Archivist or the Archivist’s designee, within 30 working days after receipt of such an appeal, setting forth the basis for such determination. (c)(1) Subject to the limitations on access im- posed pursuant to subsections (a) and (b), Presi- dential records shall be administered in accord- ance with section 552 of title 5, United States Code, except that paragraph (b)(5) of that sec- tion shall not be available for purposes of with- holding any Presidential record, and for the pur- poses of such section such records shall be deemed to be records of the National Archives and Records Administration. Access to such records shall be granted on nondiscriminatory terms. (2) Nothing in this Act shall be construed to confirm, limit, or expand any constitutionally- based privilege which may be available to an in- cumbent or former President. (d) Upon the death or disability of a President or former President, any discretion or authority the President or former President may have had under this chapter, except section 2208, shall be exercised by the Archivist unless otherwise pre- viously provided by the President or former President in a written notice to the Archivist. (e) The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President as- serting that a determination made by the Archi-