Sun Investigates

Cummings bill strengthens murky law on presidential records

WASHINGTON — Four years after White House documents revealed the extent of the Watergate scandal, Congress passed a law that requires the preservation of presidential records and sets the process for making the documents public.

But the 1978 Presidential Records Act allows varying interpretations, and its implementation has changed from administration to administration. Modern forms of communication have complicated things further: No one in the Carter administration had to worry about the challenges involved in archiving a tweet, for instance.


Into this fluid and controversial process this year came a little-noticed bill from Democratic Rep. Elijah E. Cummings. The legislation, which won unanimous approval in the House last week and now goes to President Barack Obama, is likely to speed the release of many records.

Under current law, White House records that don't fall under a specific exemption — say, for national security — are supposed to be released 12 years after a president leaves office. But the law allows former presidents to claim executive privilege beyond that time — and it gives the current president an essentially unlimited amount of time to review the records.


Cummings' bill, the Presidential and Federal Records Act Amendments, would set a clear deadline by which a former president must assert executive privilege — no more than 90 days — after which the documents would automatically become public.

The legislation received little attention but has been praised by historians and transparency groups.

"It's trying to bring some predictability to the process and strengthen it so that it cannot be indefinitely delayed," said Lee White, executive director of the National Coalition for History.

Advocates were particularly concerned about an executive order signed by President George W. Bush in 2001 that gave former presidents — and their families — the authority to deny access to certain records indefinitely. Obama overturned many of those provisions by executive order in 2009.

But executive orders can change with each new president. A law would be more durable.

Cummings' bill would require federal employees who use personal email addresses for official business to copy or forward their messages to their government accounts for archiving purposes. The provision follows scandals in both the Bush and Obama administrations involving employees who used their non-government email for work.

The measure is a rare example of a policy that has won bipartisan support in the current Congress. The only person who has yet to take a position is one of the few who could be affected by it: President Obama. The White House has not yet said whether he will sign it.