Frequently Asked Questions Concerning the Presidential Records Act and Requests by the Public and Congress
Media Alert · Saturday, September 2, 2023
The National Archives and Records Administration (NARA) is a non-partisan, independent agency charged with preserving, protecting, and providing access to the records of the United States.
At the end of a Presidential administration, NARA receives the records of that administration under the Presidential Records Act (PRA), 44 U.S.C. 2201-2209. Many of the older records in NARA’s presidential libraries are open and available to the public without restriction. However, more recent records may be restricted in accordance with the PRA and the Freedom of Information Act (FOIA).
NARA routinely receives FOIA requests and congressional “special access requests” for these closed records of former Presidents and Vice-Presidents. NARA responds to requests from Congress and the public for Presidential – and Vice-Presidential – records as quickly as possible, while meeting the full requirements established in the Presidential Records Act and the Freedom of Information Act.
How does NARA make Presidential and Vice-Presidential records available to the public?
Under the PRA, 44 U.S.C. 2201-2209, Presidential -- and Vice Presidential -- records are generally not available to the public for the first five years after the end of the administration. After five years, the public may make FOIA requests for access to those records that are not exempt from disclosure under specified PRA and FOIA exemptions. FOIA requests for Presidential records are governed by section 2208 of the PRA. NARA began accepting FOIA requests for the records of the Obama/Biden administration on January 20, 2022.
FOIA requires each agency to post released records on its websites whenever it receives three or more requests for the same records. See the following links for examples of the thousands of pages of Presidential and Vice-Presidential records NARA has made publicly available:
How long does it take for NARA to respond to FOIA requests for Presidential records?
The PRA process has several steps that must be followed, including what can be a time-consuming, line-by-line review requirement. As required by law, NARA processes FOIA requests in the order they are received, and which queue the request is in. Depending on the number of requests and their complexity, there can be a multi-year backlog for requests.
Once a request reaches the front of the queue, NARA must identify which records are actually responsive to the request and exclude any “personal records” (as defined by the PRA), and then conduct a page-by-page review to determine if any sensitive information must be withheld from public release, including national security, law enforcement, and personal privacy information.
Then NARA is required to provide notification to the former and incumbent presidents of the intent to release records. They have 60 working days to review the records, but this can be extended, by statute, for up to 90 days. The purpose of the notification is to allow all parties to review for privileged information.
How does a FOIA lawsuit change the normal process?
Under the law, FOIA requesters have the right to file a lawsuit in federal court if an agency does not substantively respond to a request within 20 working days. When this type of FOIA lawsuit is filed, it is normal for the agency and the requester to reach an agreement to speed up the review and release of records. These court-approved agreements often result in those records being processed ahead of FOIA requests not in litigation. Such FOIA lawsuits have become more common due to large backlogs across government agencies.
Does the FOIA process under the PRA apply to requests from Congress?
In addition to responding to FOIA requests, NARA also responds to “special access requests” for Presidential Records, which can be made by the current administration, the Courts, or a congressional committee chair. These requests may be made at any time -- even before the records are publicly available under FOIA. The privilege review period for special access requests is generally 30 days. NARA does not make records released in response to special access requests publicly available, unless there has been a separate FOIA review.
This page was last reviewed on September 2, 2023.
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