The White House staffer asked, “Should you be doing that?” as he passed me in a hallway in the building adjacent to the West Wing. I was using a pallet jack to move to a staging area a pallet of cartons of White House records.
I showed him the two badges I wore together around my neck, one my National Archives badge, the other a White House Complex badge. “I’m a member of the National Archives team working with you here on the records move.” He nodded and I continued down the hallway.
My Office of Presidential Libraries colleagues included men and women assigned as detailees to the White House to take custody of the records of a one-term president. We worked with departing White House staff, lawyers, and records officers to bring presidential materials to the National Archives. The coordinator often sent men to move loaded pallets from the hallways outside offices where we helped pack records. I occasionally volunteered to do so when others were busy.
Credentials, motives, values, goals, processes, people, and labor aren’t always visible outside workplace teams of academic, corporate, or government archivists, including those within the National Archives and Records Administration (NARA). So you want to make sure people feel it’s ok to ask questions, as the White House staffer did long ago. What containers hold has changed. Recent moves involve mostly electronic records (95% for Obama, 99% for his successor.)
Packing up servers and working with White House data center career staff (or with cloud accounts) now is a major part of end of term transitions. So, too, statutorily preserving Social Media accounts for which NARA usually receives passwords from outgoing officials. That Twitter and Facebook suddenly banned the then-president’s personal and official accounts shortly before January 20, 2021 created unique challenges which the National Archives began working through immediately.
The first photo shows members of NARA’s transition team during the Obama move out, the second my earlier move team on the steps of the National Archives. Some archivists and archives specialists work with the records later as members of a National Archives presidential libraries unit. Others return to work in their NARA home units. But as the National Archives’ General Counsel, Gary M. Stern, has noted, preparing for a transition starts from the day a President takes office.
Gary, who once was a lawyer with the American Civil Liberties Union, sued the government successfully in 1989 for electronic preservation of White House Professional Office System records. Some related to the Iran Contra investigations. Since joining NARA as a Federal lawyer in 1998, Stern has worked with White House Counsel’s office representatives during each administration.
The National Archives has featured Gary Stern and other officials in many public programs (still open to view) since 2010. Gary noted during a panel in 2015 that outside advocates sometimes choose litigation. But he urged, “come talk to us,” before choosing that option. During an information sharing panel in 2018, John Laster, NARA’s senior archival White House liaison official, offered a powerful affirmation that the staff of the National Archives has a passionate, authentic commitment to its access mission.
The Presidential Records Act (PRA) gives a president nearly unfettered records management authority over covered White House records until he leaves office. NARA does not swoop in suddenly at the end of an administration as it gains control over an outgoing president’s records. Every WH administration (and the Biden transition team and administration) welcomed NARA contact although doing so is voluntary.
As Gary said in a recent webinar, he usually communicates with designated White House lawyers almost daily, “certainly once a week.” As Stern has explained, because the White House has limited space for storing physical records, NARA takes in some, initially for “courtesy storage,” during each administration, up to and including 2017-2021.
Last month, NARA officials welcomed opportunities from the American Historical Association (AHA) and the Organization of American Historians (OAH) to talk about “Preserving Records: Archives and Presidential Transitions” (29 January 2021) and “Records in Transition: A Conversation with NARA Leaders” (21 January 2021). Both webinars included audience Q&A via chat functions. These connected speakers to questions and perceptions from the public.
Participants included NARA General Counsel Gary M. Stern (both panels). Former Acting U.S. Archivist Trudy H. Peterson and Professor Richard Immerman joined Gary on the AHA panel. Two other NARA officials, Chief Records Officer Laurence Brewer and external liaison and outreach official Meg Phillips, participated with Gary on the OAH panel.
Whether you work in government, academic, or corporate jobs in knowledge professions, your employer relies on legal experts who provide guidance on what to do and why. For NARA, the Federal Records Act (FRA) and the PRA, statutes with different frameworks and authorities for the National Archives and the Archivist of the United States, control its acquisition of historically valuable materials. A combined summary of the OAH and AHA sessions follows with brackets indicating my annotations.
The Federal Records Act (1950) covers the executive branch but excludes the President who manages his records through designees in the White House. The FRA established a framework in which records creating agencies and departments work with NARA through their Agency Records Officers (AROs). Senior Agency Officials for Records Management (SAORMs), a new function first established in 2012, also work with NARA on FRA implementation. As CRO, Brewer meets with SAORMs so they can discuss or share concerns about their work with agency and department heads.
While the AROs and the SAORMs usually are career employees, they work for agencies and departments with political appointees who often outrank them. Can inappropriate pressure from the latter occur? Laurence Brewer says it can and that there are agency options for dealing with it, including turning to NARA or working internally with their Inspectors General. NARA posts public lists of “unauthorized disposition cases,” some based on news reports, others raised by government employees or the public. It notes “unfounded,” “founded,” or under investigation. (More shortly on why this structure does not apply to White House PRA records.)
What about Hillary Clinton, who became Secretary of State in January 2009, before the Obama administration began an initiative with NARA to modernize federal records management? Gary Stern observed that,
Hillary Clinton did that unbeknownst…to us and even to her own records officer…for years. [As] the Secretary of State she used a personal email account, which was a really…dumb idea. And of course, it may have cost her an election to do it. [Proper email use is] the number one advice we give to every incoming official in the White House and every agency.
The Archivist of the United States sends transition guidance to senior government officials. NARA discourages all government employees from using personal email accounts or third party non-governmental apps. If they do use them, they legally have 20 days to forward or copy emails from personal to government accounts for inclusion in the official record keeping system.
As for WhatsApp, some diplomats have indicated reluctance to use email while abroad. They sometimes “insist they will only communicate on WhatsApp because they don’t trust their own official email accounts.” Gary explained State has a protocol for how those are “exported, downloaded and copied over to official systems. So it can be managed and has to be managed.”
[I would add that after the Hillary Clinton story broke in news reports in 2015, a State Department Inspector General review found that some employees expressed concern about using official record keeping systems. A few expressed concern about “snooping.” During the 2008 presidential campaign, Secretary of State Condoleezza Rice apologized to Barack Obama, John McCain, and Hillary Clinton after revelations that contract State Department employees had peeked at their passport files.
Executive department and agency histories and cultures vary and FRA covered employees sometimes focus selectively on past events or individual experiences. Agency Records Officers have regular contact with peer-level NARA staff appraisal archivists. They also attend (virtually at present) NARA events such as Bi-Monthly Records and Information Discussion Group (BRIDG) meetings.]
As Brewer described, NARA’s records management function includes four major program areas: (1) records retention scheduling and appraisal; (2) guidance and training for ensuring FRA compliance by Federal employees; (3) records management policy and standards (4) oversight and reporting. Information on all these areas available on NARA’s external website. You see below Laurence Brewer listening as Gary Stern spoke during the OAH webinar. And (left) in the second photo with AOTUS David Ferriero (right) and members of the NARA records and outreach teams.
The Freedom of Information Act (FOIA) applies to Federal Records Act materials while creating agencies and departments still hold them. For unreleased records, members of the public also can submit FOIA requests for the small percentage (1 to 3%) of FRA materials that NARA takes into its holdings as permanently valuable.
Other records–those of PRA-covered White House components–only can be requested by the general public using FOIA starting 5 years after a President leaves office. Meg Phillips described the number of requests NARA receives at the 5-year mark as “an avalanche.” Gary Stern noted this immediately creates a huge processing backlog which keeps increasing.
So let’s turn to what panelists in the AHA and OAH sessions said about the Presidential Records Act, its history, and NARA’s role in the 2017 and 2021 transitions. Although the Congress passed the Federal Records Act in 1950, it took no action at the time with presidential records. By custom, presidents from George Washington through Lyndon Johnson and Jimmy Carter treated their White House records as personal property. Richard Nixon, who succeeded Johnson as president, faced seizure of his records by the government when the Congress passed the Presidential Recordings and Materials Preservation Act (PRMPA) in 1974 due to ongoing Watergate investigations.
Trudy Peterson explained how the PRMPA and its implementing regulations included an archival obligation to separate governmental from personal information. This affected its work with the Nixon materials from 1977 to 2007. In upholding PRMPA, courts noted a president’s right to “private political association.” As Gary Stern said, a provision in the 1974 statute established a public documents commission which looked at the status of presidential, Congressional, and judicial records. Its work on the former played a part in passage of the Presidential Records Act in 1978.
The PRA gives the president nearly complete records management control while in office and virtually no role to NARA. NARA takes legal custody of PRA administered records at the moment a president leaves office. As Stern put it, unlike with the FRA, NARA has no role in overseeing or regulating how the President handles records during his administration. White House, not NARA, records staff recovered from trash bins and taped up documents torn up by the former president since January 20, 2017.
While individuals and groups sometimes file lawsuits over Federal Records Act compliance, Gary affirms that “it’s much harder to sue” under the PRA. As a result, courts have not really addressed record keeping challenges in the White House under current law. NARA gets what the White House gives it.
There is no appraisal at the time of creation of PRA covered materials; NARA takes in all of them. As with PRMPA implementation, the PRA recognizes that the president is both chief executive and leader of his political party. To preserve the court acknowledged right of private political association, White House officials with assigned political as well as policy roles must use different email accounts for the former and latter. Gary explained,
If they’re talking about fiscal policy, and then also asking, “How are the kids doing?” it’s considered a record. We might redact and withhold the personal stuff on a public access request and the FOI requests [once they’re in NARA’s legal custody], but it’s still a presidential record.
On the political, the way they’re supposed to do it and the way they do it…they have their political accounts, the RNC and the DNC. Folks in the White House who are engaged in political activities are supposed to have a separate account. That can be misused and abused.
And we know in the Bush 43 administration, folks were given RNC accounts and then did in fact, engage in official activities. In some cases, it seemed like they deliberately used their non official accounts to engage in official activities to…essentially get around the Presidential Records Act. That was exposed and they had to go back and recover those presidential records on their personal account.
The problem where we see that almost every day, sadly, across the government is when people use their personal phones and their personal email to do government business. It’s just as wrong to do that.
Historians have expressed thoughtful concerns about how to use the increasing volume of electronic records, which Gary said played a part in Barack Obama deciding to leave his records in NARA’s existing facilities rather than building a traditional presidential library. As Trudy Peterson noted, especially at the deed of gift presidential libraries (Hoover through Carter, excepting Nixon), donated materials from presidential associates form part of the collections. [Increased attention to FRA compliance may reduce the need for some but not all of that. Personal diaries and post-administration correspondence can provide insights on past actions]. In some cases departing officials, such as Secretary of State Henry Kissinger, walked away with materials that belonged in government custody.
Archival silences [and in my view, in some instances, chilling effects] will be a part of researching recent government records. The FRA depends on creation of “adequate and proper” documentation of government business. But as Gary noted, there is no clear definition of adequate or proper. And there is no way to force people to create records.
Let’s share reliable information in our communities and keep good conversations going. As Gary said of NARA, “come talk to us.” National Archives officials are accustomed to assessing situation appropriate solutions during ordinary and unprecedented times. And as seen here, open to talking and listening to all.