[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 5059 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
2d Session
S. 5059
To amend chapter 22 of title 44, United States Code, to ensure
Presidential records are preserved, duly created when non-official
electronic messaging accounts are used, and made available to the
public and the next administration in a timely fashion to advance
national security and accountability, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 17, 2020
Mr. Murphy introduced the following bill; which was read twice and
referred to the Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To amend chapter 22 of title 44, United States Code, to ensure
Presidential records are preserved, duly created when non-official
electronic messaging accounts are used, and made available to the
public and the next administration in a timely fashion to advance
national security and accountability, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Promoting Accountability and
Security in Transitions Act of 2020'' or the ``PAST Act''.
SEC. 2. SENSE OF CONGRESS.
The sense of Congress is the following:
(1) The preservation of Presidential records (as defined in
section 2201 of title 44, United States Code) is a legal
obligation for every Presidential administration, as
Presidential records are the most important and widely used
source for studying how the executive branch of the Federal
Government works, how it has changed over time, and how it
might evolve to serve the needs of a new era.
(2) The preservation of Presidential records is therefore
vital for--
(A) the public to be able to understand and learn
from the past;
(B) future policymaking to build on the past
administration's successes and experience;
(C) ensuring accountability for results,
performance, and conduct; and
(D) other purposes that serve to strengthen
American democracy.
(3) Any effort to destroy, alter, or remove Presidential
records in violation of chapter 22 of title 44, United States
Code--
(A) threatens the values described in paragraph
(2); and
(B) may subject a person engaging in such efforts
to other criminal penalties under section 641 or 2071
of title 18, United States Code.
(4) The lawful disposal of Presidential records that no
longer have administrative, historical, informational, or
evidentiary value must follow a process as described in section
2203 of title 44, United States Code.
(5) What constitutes a Presidential record is determined
solely by whether the record relates to the ``carrying out of
constitutional, statutory, or other official or ceremonial
duties of the President'', as indicated in the definition of
the term ``Presidential records'' in section 2201 of title 44,
United States Code, and by the content of the information
contained in the record.
(6) For communication between agencies and the Executive
Office of the President, the copy of the record belonging to
the agency is retained as an agency record pursuant to section
3301 of title 44, United States Code.
(7) Consistent with section 2203 of title 44, United States
Code, any Presidential records created with non-official
electronic media shall be ``preserved'', which includes a
comprehensive documentation of all records and associated
metadata and attachments.
(8) Applications or software with an automatic deleting
functionality are antithetical to the legal and historical
obligations described under chapter 22 of title 44, United
States Code.
(9) Periods of Presidential transition are moments where
the national security of the United States is most vulnerable,
necessitating an early, good faith, and consistent commitment
by the outgoing administration to ensure continuity of
operations as it relates to national security and protecting
critical infrastructure, among other reasons.
(10) Agencies and the Executive Office of the President are
required by law to cooperate with the Archivist of the United
States and the Federal Transition Coordinator of the General
Service Administration, who is tasked with ensuring agencies
comply with all statutory requirements relating to transition
planning under section 4(c) of the Presidential Transition Act
of 1963 (3 U.S.C. 102 note).
(11) During a Presidential transition, Presidential
records, which contain valuable information regarding
agreements or negotiations with foreign governments and
international organizations and the actions and beliefs of
foreign nations or actors are of enormous value to the national
security.
(12) Any effort to delay briefings, coordination, and
sharing information regarding key national security
relationships, threats, and operations with an incoming
administration or the destruction, removal, or alteration of
Presidential records that attest to the information described
in this section could pose a grave danger to the national
security.
(13) An expeditious ascertainment of the plausible
President-elect and Vice-President-elect by the Administrator
of General Services plays a vital role in ensuring continuity
of Government and protecting national security such that the
risk of redundant expenditure is overwhelmed by the advantages
of an early access to transition resources to allow for
transition planning.
(14) The National Archives and Records Administration plays
an essential role in ensuring the official proceedings of
Government are documented to improve democracy in the United
States, protect national security, provide continuity of
Government during a transition, and promote accountability for
actions taking during a Presidency.
(15) The robust funding of the National Archives and
Records Administration and protection of its officers and
employees from political interference is a national imperative
and must be a priority for Congress.
SEC. 3. DEFINITIONS.
Section 2201 of title 44, United States Code, is amended--
(1) in paragraph (1), by inserting ``, and includes the
metadata associated with all such material'' before the period;
and
(2) by adding at the end the following:
``(6) The term `electronic messaging account' includes
electronic mail, chat or instant messaging, text messaging,
voicemail messaging, and other messaging platforms or apps,
such as social media or mobile applications, among other
applications.
``(7) The term `official electronic messaging account'
includes electronic messaging accounts provided by an executive
agency or the Executive Office of the President.
``(8) The term `dispose', with respect to documentary
material, means to remove, deface, alter, corrupt, delete,
erase, or otherwise destroy the documentary material.''.
SEC. 4. MANAGEMENT AND CUSTODY OF PRESIDENTIAL RECORDS.
(a) In General.--Section 2203 of title 44, United States Code, is
amended--
(1) by redesignating subsections (e), (f), and (g) as
subsections (g), (h), and (i), respectively;
(2) by redesignating subsection (d) as subsection (e);
(3) by striking subsection (c) and inserting the following:
``(c) The President shall obtain the advice of the Archivist in
applying standards, procedures, and techniques designed to--
``(1) improve the management of records;
``(2) promote the maintenance and security of records
determined appropriate for preservation; and
``(3) facilitate the segregation and disposal of records of
temporary value.
``(d)(1) During the President's term of office, if the President
wishes to dispose of those Presidential records of such President that
no longer have administrative, historical, informational, or
evidentiary value--
``(A) the President shall request, in writing, the views of
the Archivist concerning the proposed disposal of such
Presidential records; and
``(B) the Archivist shall indicate, in writing, whether the
Archivist intends to take any action under subsection (g) of
this section with respect to the Presidential records.
``(2) Not later than 5 business days after the date on which the
Archivist provides a written indication under paragraph (1)(B), the
Archivist shall make publicly available on a website any communications
received or sent by the Archivist regarding the potential disposal of
Presidential records under paragraph (1).'';
(4) in subsection (e), as so redesignated--
(A) by striking ``subsection (c)'' and inserting
``subsection (d)''; and
(B) by striking ``subsection (e)'' and inserting
``subsection (g)''; and
(5) by inserting after subsection (e), as so redesignated,
the following:
``(f) In January of each even-numbered year, the Archivist shall,
in coordination with the Office of Administration of the Executive
Office of the President, submit to the Chairman and Ranking Member of
each committee of jurisdiction of either House of Congress, of the
Committee on Appropriations of the Senate, and of the Committee on
Appropriations of the House of Representatives and to the President a
report that--
``(1) is based on inspections conducted by the Archivist,
in coordination with the Office of Administration of the
Executive Office of the President, of the Presidential records
management programs of the Executive Office of the President;
and
``(2) evaluates--
``(A) the records management activities and
training conducted and standard operating procedures
and guidance issued pursuant to this section; and
``(B) responses to any recommendations resulting
from inspections or studies conducted under this
section.''.
(b) Conforming Amendments.--
(1) Section 2105(a)(2) of title 44, United States Code, is
amended by striking ``paragraph (f)(2)'' and inserting
``subsection (i)(2)''.
(2) Chapter 22 of title 44, United States Code, is
amended--
(A) in section 2204(b)(2)(A), by striking ``section
2203(d)(1)'' and inserting ``2203(i)(1)''; and
(B) in section 2206(1), by striking ``section
2203(f)(3)'' and inserting ``section 2203(i)(4)''.
SEC. 5. RESTRICTIONS ON ACCESS TO PRESIDENTIAL RECORDS.
Section 2204 of title 44, United States Code, is amended--
(1) in subsection (b)(3), by striking ``shall not be
subject to judicial review, except as provided'' and inserting
``shall be subject to judicial review, including as provided'';
and
(2) in subsection (e)--
(A) by inserting ``(1)'' before ``The United
States''; and
(B) by adding at the end the following:
``(2)(A) A person seeking access to a Presidential record to which
access is restricted under subsection (a) may file an action in the
United States District Court for the District of Columbia seeking
release of the Presidential record.
``(B) In an action filed under subparagraph (A), the court shall
direct the release of a Presidential record, or a reasonably segregable
portion thereof, if the court determines that the Presidential record,
or the reasonably segregable portion thereof, is not within any of the
categories specified in subsection (a) and there is not a valid claim
of constitutionally based privilege against disclosure.''.
SEC. 6. EXCEPTIONS TO RESTRICTED ACCESS.
Section 2205(2)(C) of title 44, United States Code, is amended--
(1) by striking ``to any committee or subcommittee
thereof'' and inserting ``upon request by the Chairman or
Ranking Member of a committee or subcommittee thereof, to such
Chairman or ranking member,''; and
(2) by striking ``its business'' and inserting ``the
business of the committee or subcommittee''.
SEC. 7. REGULATIONS.
Section 2206 of title 44, United States Code, is amended--
(1) by inserting ``(a)'' before ``The Archivist'';
(2) in subsection (a), as so designated--
(A) in paragraph (3), by striking ``and'' at the
end;
(B) in paragraph (4), by striking the period and
inserting a semicolon; and
(C) by adding at the end the following:
``(5) provisions--
``(A) for what constitutes official and non-
official electronic messaging accounts; and
``(B) establishing procedures for documenting--
``(i) Presidential records created on non-
official electronic messaging accounts
(including emerging technologies, applications,
and platforms); and
``(ii) required metadata;
``(6) provisions for the preservation of digital media,
including from social media accounts, that may appear to be
personal records or private property but the preservation of
which may be required under this chapter; and
``(7) provisions for the appropriate circumstances and
controls for the use of messaging applications and software
with automatic deleting or other similar functionalities.'';
and
(3) by adding at the end the following:
``(b) The Archivist shall issue, and shall annually update,
implementation guidance with respect to the regulations described in
paragraphs (5) and (6) of subsection (a).''.
SEC. 8. DISCLOSURE REQUIREMENT FOR OFFICIAL BUSINESS CONDUCTED USING
NON-OFFICIAL ELECTRONIC MESSAGING ACCOUNTS.
(a) In General.--Section 2209(a) of title 44, United States Code,
is amended--
(1) in the matter preceding paragraph (1), by striking
``create or send'' and inserting ``create, send, or receive'';
(2) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively, and adjusting the
margin accordingly; and
(3) by striking ``The President,'' and inserting the
following:
``(1) Limitations.--Not later than 90 days after assuming
office, the President shall publicly release guidelines for
officers and employees of the Executive Office of the President
who create or receive documentary material that--
``(A) prohibit the use of non-official electronic
messaging accounts that cannot be easily copied or
forwarded to an official electronic messaging account
for official business; and
``(B) prohibit the use of messaging accounts or
software with automatic deleting or other similar
functionalities.
``(2) Requirements for use.--The President,''.
SEC. 9. PRESIDENTIAL TRANSITION ACT OF 1963.
The Presidential Transition Act of 1963 (3 U.S.C. 102 note) is
amended--
(1) in section 3--
(A) in subsection (a)(8)(A), by striking clause (v)
and inserting the following:
``(v)(I)(aa) Activities under this paragraph shall include the
preparation of a detailed classified, compartmented summary by the
relevant outgoing executive branch officials of--
``(AA) specific strategic, tactical, and operational
threats to national security;
``(BB) major military or covert operations; and
``(CC) pending decisions on possible uses of military force
or covert actions.
``(bb) The summary prepared under item (aa) shall be provided to
the President-elect and members of office staff with appropriate
clearances that are designated by the President-elect as soon as
possible after the date of the general elections held to determine the
electors of President and Vice President under section 1 or 2 of title
3, United States Code.
``(II) The Archivist of the United States shall collaborate with
the Federal Transition Coordinator and agencies, including the
Executive Office of the President, to ensure that the President-elect
and members of office staff with appropriate clearances that are
designated by the President-elect can easily access national security
information (including documents, videos, audio, and briefings) created
by the previous administration after the inauguration of the President-
elect.
``(III) The Archivist of the United States shall submit to the
Chairman and Ranking Member of each committee of jurisdiction of either
House of Congress, of the Committee on Appropriations of the Senate,
and of the Committee on Appropriations of the House of Representatives
a report if the Archivist of the United States believes there appears
to be noncompliance with the requirements under this clause.''; and
(B) in subsection (c)--
(i) by inserting ``(1)'' before ``The
terms''; and
(ii) by adding at the end the following:
``(2)(A) Not later than 6 days after the date of a general election
described in paragraph (1), the Administrator shall make the
ascertainment described in paragraph (1) without any interference or
undue pressure from the President or a candidate for President, or any
representative thereof, based on provisional results from State
election officials and expert analysis of results.
``(B) Given the imperatives of an orderly transition, if there is a
plausible chance that the apparent successful candidate for the office
of President and Vice President, respectively, are not the incumbent,
or if the incumbent was not a candidate, the Administrator shall
provide a portion of the services and facilities authorized to be
provided under this section to all parties with a plausible chance of
being the successful candidate.''; and
(2) in section 4--
(A) in subsection (d)--
(i) in paragraph (2)--
(I) in subparagraph (B), by
striking ``and'' at the end;
(II) in subparagraph (C), by
striking the period at the end and
inserting ``; and''; and
(III) by adding at the end the
following:
``(D) under the guidance of the Archivist of the
United States, monitor compliance with chapter 22 of
title 44, United States Code, including the
preservation of all records and prevention of any
records from being disposed unless done in accordance
with such chapter.'';
(ii) in paragraph (3)--
(I) by redesignating subparagraphs
(C) and (D) as subparagraphs (D) and
(E), respectively; and
(II) by inserting after
subparagraph (B) the following:
``(C) the Archivist of the United States;''; and
(iii) by adding at the end the following:
``(5) Role of the archivist.--
``(A) In general.--Not later than 120 days before
the date of a Presidential election, the Archivist of
the United States shall send a written communication to
all officers and employees of the Executive Office of
the President who create or receive documentary
material (as defined under section 2201 of title 44,
United States Code)--
``(i) describing the requirements under
chapter 22 of title 44, United States Code; and
``(ii) establishing a timeline for
cooperation with the Archivist of the United
States to ensure an orderly and timely
transition of records subject to such chapter
if there is a Presidential transition.
``(B) Reporting.--
``(i) In general.--Not later than 30 days
after the date of a Presidential election which
results in a Presidential transition, the
Archivist of the United States, in coordination
with the Federal Transition Coordinator, shall
submit to the Chairman and Ranking Member of
each committee of jurisdiction of either House
of Congress, of the Committee on Appropriations
of the Senate, and of the Committee on
Appropriations of the House of Representatives
a report discussing the status of the
transition activities of the White House
Transition Coordinating Council and identifying
concerns, if any, regarding compliance with
chapter 22 of title 44, United States Code.
``(ii) Noncompliance.--The Archivist of the
United States shall submit to the Chairman and
Ranking Member of each committee of
jurisdiction of either House of Congress, of
the Committee on Appropriations of the Senate,
and of the Committee on Appropriations of the
House of Representatives a report if the
Archivist of the United States believes there
appears to be noncompliance with the
requirements or timeline described in
subparagraph (A).'';
(B) in subsection (e)(2)--
(i) in subparagraph (D), by striking
``and'' at the end;
(ii) in subparagraph (E), by striking the
period at the end and inserting ``; and''; and
(iii) by adding at the end the following:
``(F) under the guidance of the Archivist of the
United States, monitor compliance with chapter 22 of
title 44, United States Code, including the
preservation of all records and prevention of any
records from being disposed unless done in accordance
with such chapter.'';
(C) by redesignating subsection (i) as subsection
(j); and
(D) by inserting after subsection (h) the
following:
``(i) Role of the Archivist.--
``(1) In general.--Not later than 120 days before the date
of a Presidential election, the Archivist of the United States
shall send a written communication to the head of each agency--
``(A) describing the requirements under chapter 33
of title 44, United States Code; and
``(B) establishing a timeline for cooperation with
the Archivist of the United States to ensure an orderly
and timely transition of records subject to such
chapter if there is a Presidential transition.
``(2) Reporting.--
``(A) In general.--Not later than 30 days after the
date of a Presidential election which results in a
Presidential transition, the Archivist of the United
States, in coordination with the Federal Transition
Coordinator, shall submit to the Chairman and Ranking
Member of each committee of jurisdiction of either
House of Congress, of the Committee on Appropriations
of the Senate, and of the Committee on Appropriations
of the House of Representatives a report discussing the
status of the transition activities of agencies and
identifying concerns, if any, regarding compliance with
chapter 33 of title 44, United States Code.
``(B) Noncompliance.--The Archivist of the United
States shall submit to the Chairman and Ranking Member
of each committee of jurisdiction of either House of
Congress, of the Committee on Appropriations of the
Senate, and of the Committee on Appropriations of the
House of Representatives a report if the Archivist of
the United States believes there appears to be
noncompliance with the requirements or timeline
described in paragraph (1).''.
SEC. 10. FORMER PRESIDENTS.
The Act entitled ``An Act to provide retirement, clerical
assistants, and free mailing privileges to former Presidents of the
United States, and for other purposes'', approved August 25, 1958
(commonly known as the ``Former Presidents Act of 1958'') (3 U.S.C. 102
note), is amended by adding at the end the following:
``(h) If the Archivist of the United States determines that a
former President did not comply with major requirements under chapter
22 of title 44, United States Code, or the Presidential Transition Act
of 1963 (3 U.S.C. 102 note), the monetary amounts described in
subsections (a) and (b) shall be withheld until the later of--
``(1) 1 year after the date on which the Archivist makes
that determination; or
``(2) the date on which the Archivist determines the former
President has adequately complied with the requirements.''.
SEC. 11. PRESIDENTIAL ARCHIVAL DEPOSITORY.
Section 2112 of title 44, United States Code, is amended--
(1) in subsection (b)--
(A) by striking ``When the Archivist'' and
inserting ``(1) Subject to paragraph (2), when the
Archivist''; and
(B) by adding at the end the following:
``(2) The Archivist may not deposit papers, documents, or
other historical materials accepted under section 2111 of this
title or other Federal records appropriate for preservation in
a Presidential archival depository relating to a former
President under paragraph (1) until after the date on which the
Archivist determines that the former President has adequately
complied with the requirements under chapter 22 relating to
Presidential records (as defined in section 2201).'';
(2) in subsection (g), by adding at the end the following:
``(6)(A) Notwithstanding paragraphs (3), (4), and (5) (to the
extent that such paragraphs are inconsistent with this paragraph), this
subsection shall be administered in accordance with this paragraph with
respect to any Presidential archival depository created as a depository
for the papers, documents, and other historical materials and
Presidential records pertaining to any President who takes any action,
including destruction, alteration, concealment, or removal, that
threatens or damages the integrity and statutory preservation
requirements under chapter 22 for Presidential records (as defined in
section 2201).
``(B) For purposes of subparagraphs (A)(ii), (B)(i)(II), and
(B)(ii)(II) of paragraph (3) the percentage of 100 percent shall apply
instead of 60 or 20 percent.''; and
(3) by adding at the end the following:
``(h) None of the funds in the account in the National Archives
Trust Fund that may be expended for the benefit and in the interest of
a Presidential archival depository relating to a former President may
be used for the cost of digitizing records the former President wishes
to deposit in and make available through the Presidential archival
depository.''.
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