In January, Representative Elijah Cummings (D-Md.) proposed a bill (H.R. 1233) that was recently signed by President Obama (on November 26th).  One significant change has to do with the definition of public records, a power that is now vested in the Archivist of the United States (AOTUS):

“The Archivist’s determination whether recorded information . . . is a record . . . shall be binding on all Federal agencies.”

This is a significant change from allowing Federal agencies to determine for themselves whether materials are appropriate to be preserved.  In writing about this bill, Douglas Cox, an attorney and Associate Law Library Professor at the City University of New York School of Law offered this analysis:

“To be clear, the Archivist neither has the funding, nor the personnel, nor the appetite to look over the shoulder of every federal employee to micromanage whether each email is, or is not, a record, but this bill, once signed by the President, will give the Archivist an important power that should not be left to rot on the vine.”

In the press release from the National Archives and Records Administration, there is no emphasis given to this new power granted to the Archivist of the United States, so it will be interesting to follow the progress of how AOTUS exercises this new authority.

This new law will also change the process of releasing the papers of former presidents, providing 60 days for review and allowing only one extension of 30 days.  This provision should dramatically alter the landscape of presidential documents that become public twelve years after the conclusion of an administration.

One other interesting provision mandates that emails that government employees send regarding government business must be preserved by official records systems, even if the emails originate in private accounts.  Of course, the mechanics for accomplishing this directive are not clear.  Another point to watch in the future.

 

 

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