In the wake of the Watergate scandal, Congress passed the Presidential Records Act (“PRA”) of 1978, which made ownership of Presidential records public rather than private and mandated that the records be adequately documented. See http://www.archives.gov/presidential-libraries/laws/1978-act.html. The PRA covers documentary materials created or received not just by the President, but also by his staff and others in the Executive Office who advise the President. 44 U.S.C. § 2201(2). Vice Presidential records are to be treated in like manner. 44 U.S.C. § 2207. The PRA allows public access to these Presidential records, via a Freedom of Information Act (“FOIA”) request, five years after the end of the relevant Administration, with some restrictions available by the President’s invocation for up to twelve years. 44 U.S.C. § 2204.

Administration officials’ use of non-governmental email accounts became an issue in 2007, after President George W. Bush’s administration terminated several U.S. Attorneys. Certain officials had used Republican National Committee (“RNC”) accounts to send emails discussing a plan to dismiss the U.S. Attorneys. Those accounts, however, were supposed to be used only for campaign-related work; emails sent or received from the RNC accounts were not captured by the White House archiving system, and many were lost. See, e.g., Sheryl Gay Stolberg, Advisers’ E-mail Accounts May Have Mixed Politics and Business, White House Says, N.Y. Times (Apr. 12, 2007). During the subsequent Congressional investigation, the administration was unable to produce these emails. Eventually, approximately 14 million emails were recovered at a cost of more than 10 million dollars. Kara Rowland, Issa Seeks Clarity on Archiving E-Mails, Washington Times (Feb. 19, 2009).

More recently, additional controversies have arisen regarding the PRA and email retention. In January 2009, the U.S. District Court for the District of Columbia held that judicial oversight of the PRA is limited only to determining whether administration officials are aware of the proper guidelines of which emails and other documents are required to be archived under the PRA, reflecting a Congressional assumption that Presidents and Vice Presidents would comply with the Act in good faith. See Citizens for Responsibility & Ethics in Wash. v. Cheney, 593 F. Supp. 2d 194, 198 (D.D.C. Jan. 19, 2009). The court found that because administration officials asserted that the Vice President’s office understood its responsibility to preserve its emails in accordance with the PRA and there was no evidence that those officials were not doing so, the Citizens for Responsibility and Ethics in Washington’s challenge could not survive summary judgment. Id. at 205-06.

This past February, Representative Daryl Issa, the ranking Republican on the House Oversight and Government Reform Committee, raised concerns that because staffers in President Obama’s administration used personal email accounts to conduct business during the time between the inauguration and when they were issued official government accounts, these emails would be lost in violation of the PRA. See Rowland, supra. In a letter to the White House general counsel, Rep. Issa noted, “The challenges posed by retaining email as required under the PRA have proved vexing for the last two White Houses. . . . The use of personal email accounts, such as Gmail, to conduct official business raises the prospect that presidential records will not be captured by the White House email archiving system.” Id. The Obama administration responded that, while the officials did use personal email accounts to conduct official business, they knew of their responsibilities under the PRA and had been instructed to forward the emails to their government accounts. Id.

With the use of email and other forms of electronic communication becoming the norm — there has been no shortage of media coverage on President Obama’s unprecedented use of a Blackberry — compliance with the PRA will only grow more complicated. Indeed, Congress may be forced to legislate further in order to provide clarity and to ensure the availability of these documents for future generations. The government, like litigants, must adapt to our increasingly electronic environment.