PAST Act

II 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 adminis- tration in a timely fashion to advance national security and account- ability, 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 adminis- tration in a timely fashion to advance national security and accountability, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Promoting Account- 4 ability and Security in Transitions Act of 2020’’ or the 5 ‘‘PAST Act’’. 6 VerDate Sep 11 2014 22:10 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S5059.IS S5059 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 5059 IS SEC. 2. SENSE OF CONGRESS. 1 The sense of Congress is the following: 2 (1) The preservation of Presidential records (as 3 defined in section 2201 of title 44, United States 4 Code) is a legal obligation for every Presidential ad- 5 ministration, as Presidential records are the most 6 important and widely used source for studying how 7 the executive branch of the Federal Government 8 works, how it has changed over time, and how it 9 might evolve to serve the needs of a new era. 10 (2) The preservation of Presidential records is 11 therefore vital for— 12 (A) the public to be able to understand 13 and learn from the past; 14 (B) future policymaking to build on the 15 past administration’s successes and experience; 16 (C) ensuring accountability for results, 17 performance, and conduct; and 18 (D) other purposes that serve to strength- 19 en American democracy. 20 (3) Any effort to destroy, alter, or remove Pres- 21 idential records in violation of chapter 22 of title 44, 22 United States Code— 23 (A) threatens the values described in para- 24 graph (2); and 25 VerDate Sep 11 2014 22:10 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S5059.IS S5059 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 5059 IS (B) may subject a person engaging in such 1 efforts to other criminal penalties under section 2 641 or 2071 of title 18, United States Code. 3 (4) The lawful disposal of Presidential records 4 that no longer have administrative, historical, infor- 5 mational, or evidentiary value must follow a process 6 as described in section 2203 of title 44, United 7 States Code. 8 (5) What constitutes a Presidential record is 9 determined solely by whether the record relates to 10 the ‘‘carrying out of constitutional, statutory, or 11 other official or ceremonial duties of the President’’, 12 as indicated in the definition of the term ‘‘Presi- 13 dential records’’ in section 2201 of title 44, United 14 States Code, and by the content of the information 15 contained in the record. 16 (6) For communication between agencies and 17 the Executive Office of the President, the copy of 18 the record belonging to the agency is retained as an 19 agency record pursuant to section 3301 of title 44, 20 United States Code. 21 (7) Consistent with section 2203 of title 44, 22 United States Code, any Presidential records created 23 with non-official electronic media shall be ‘‘pre- 24 served’’, which includes a comprehensive documenta- 25 VerDate Sep 11 2014 22:10 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S5059.IS S5059 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 5059 IS tion of all records and associated metadata and at- 1 tachments. 2 (8) Applications or software with an automatic 3 deleting functionality are antithetical to the legal 4 and historical obligations described under chapter 22 5 of title 44, United States Code. 6 (9) Periods of Presidential transition are mo- 7 ments where the national security of the United 8 States is most vulnerable, necessitating an early, 9 good faith, and consistent commitment by the out- 10 going administration to ensure continuity of oper- 11 ations as it relates to national security and pro- 12 tecting critical infrastructure, among other reasons. 13 (10) Agencies and the Executive Office of the 14 President are required by law to cooperate with the 15 Archivist of the United States and the Federal 16 Transition Coordinator of the General Service Ad- 17 ministration, who is tasked with ensuring agencies 18 comply with all statutory requirements relating to 19 transition planning under section 4(c) of the Presi- 20 dential Transition Act of 1963 (3 U.S.C. 102 note). 21 (11) During a Presidential transition, Presi- 22 dential records, which contain valuable information 23 regarding agreements or negotiations with foreign 24 governments and international organizations and the 25 VerDate Sep 11 2014 22:10 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S5059.IS S5059 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 5059 IS actions and beliefs of foreign nations or actors are 1 of enormous value to the national security. 2 (12) Any effort to delay briefings, coordination, 3 and sharing information regarding key national se- 4 curity relationships, threats, and operations with an 5 incoming administration or the destruction, removal, 6 or alteration of Presidential records that attest to 7 the information described in this section could pose 8 a grave danger to the national security. 9 (13) An expeditious ascertainment of the plau- 10 sible President-elect and Vice-President-elect by the 11 Administrator of General Services plays a vital role 12 in ensuring continuity of Government and protecting 13 national security such that the risk of redundant ex- 14 penditure is overwhelmed by the advantages of an 15 early access to transition resources to allow for tran- 16 sition planning. 17 (14) The National Archives and Records Ad- 18 ministration plays an essential role in ensuring the 19 official proceedings of Government are documented 20 to improve democracy in the United States, protect 21 national security, provide continuity of Government 22 during a transition, and promote accountability for 23 actions taking during a Presidency. 24 VerDate Sep 11 2014 22:10 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S5059.IS S5059 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 5059 IS (15) The robust funding of the National Ar- 1 chives and Records Administration and protection of 2 its officers and employees from political interference 3 is a national imperative and must be a priority for 4 Congress. 5 SEC. 3. DEFINITIONS. 6 Section 2201 of title 44, United States Code, is 7 amended— 8 (1) in paragraph (1), by inserting ‘‘, and in- 9 cludes the metadata associated with all such mate- 10 rial’’ before the period; and 11 (2) by adding at the end the following: 12 ‘‘(6) The term ‘electronic messaging account’ 13 includes electronic mail, chat or instant messaging, 14 text messaging, voicemail messaging, and other mes- 15 saging platforms or apps, such as social media or 16 mobile applications, among other applications. 17 ‘‘(7) The term ‘official electronic messaging ac- 18 count’ includes electronic messaging accounts pro- 19 vided by an executive agency or the Executive Office 20 of the President. 21 ‘‘(8) The term ‘dispose’, with respect to docu- 22 mentary material, means to remove, deface, alter, 23 corrupt, delete, erase, or otherwise destroy the docu- 24 mentary material.’’. 25 VerDate Sep 11 2014 22:10 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S5059.IS S5059 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 5059 IS SEC. 4. MANAGEMENT AND CUSTODY OF PRESIDENTIAL 1 RECORDS. 2 (a) IN GENERAL.—Section 2203 of title 44, United 3 States Code, is amended— 4 (1) by redesignating subsections (e), (f), and 5 (g) as subsections (g), (h), and (i), respectively; 6 (2) by redesignating subsection (d) as sub- 7 section (e); 8 (3) by striking subsection (c) and inserting the 9 following: 10 ‘‘(c) The President shall obtain the advice of the Ar- 11 chivist in applying standards, procedures, and techniques 12 designed to— 13 ‘‘(1) improve the management of records; 14 ‘‘(2) promote the maintenance and security of 15 records determined appropriate for preservation; and 16 ‘‘(3) facilitate the segregation and disposal of 17 records of temporary value. 18 ‘‘(d)(1) During the President’s term of office, if the 19 President wishes to dispose of those Presidential records 20 of such President that no longer have administrative, his- 21 torical, informational, or evidentiary value— 22 ‘‘(A) the President shall request, in writing, the 23 views of the Archivist concerning the proposed dis- 24 posal of such Presidential records; and 25 VerDate Sep 11 2014 22:10 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S5059.IS S5059 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 5059 IS ‘‘(B) the Archivist shall indicate, in writing, 1 whether the Archivist intends to take any action 2 under subsection (g) of this section with respect to 3 the Presidential records. 4 ‘‘(2) Not later than 5 business days after the date 5 on which the Archivist provides a written indication under 6 paragraph (1)(B), the Archivist shall make publicly avail- 7 able on a website any communications received or sent by 8 the Archivist regarding the potential disposal of Presi- 9 dential records under paragraph (1).’’; 10 (4) in subsection (e), as so redesignated— 11 (A) by striking ‘‘subsection (c)’’ and in- 12 serting ‘‘subsection (d)’’; and 13 (B) by striking ‘‘subsection (e)’’ and in- 14 serting ‘‘subsection (g)’’; and 15 (5) by inserting after subsection (e), as so re- 16 designated, the following: 17 ‘‘(f) In January of each even-numbered year, the Ar- 18 chivist shall, in coordination with the Office of Administra- 19 tion of the Executive Office of the President, submit to 20 the Chairman and Ranking Member of each committee of 21 jurisdiction of either House of Congress, of the Committee 22 on Appropriations of the Senate, and of the Committee 23 on Appropriations of the House of Representatives and to 24 the President a report that— 25 VerDate Sep 11 2014 22:10 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S5059.IS S5059 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 5059 IS ‘‘(1) is based on inspections conducted by the 1 Archivist, in coordination with the Office of Admin- 2 istration of the Executive Office of the President, of 3 the Presidential records management programs of 4 the Executive Office of the President; and 5 ‘‘(2) evaluates— 6 ‘‘(A) the records management activities 7 and training conducted and standard operating 8 procedures and guidance issued pursuant to 9 this section; and 10 ‘‘(B) responses to any recommendations 11 resulting from inspections or studies conducted 12 under this section.’’. 13 (b) CONFORMING AMENDMENTS.— 14 (1) Section 2105(a)(2) of title 44, United 15 States Code, is amended by striking ‘‘paragraph 16 (f)(2)’’ and inserting ‘‘subsection (i)(2)’’. 17 (2) Chapter 22 of title 44, United States Code, 18 is amended— 19 (A) in section 2204(b)(2)(A), by striking 20 ‘‘section 2203(d)(1)’’ and inserting 21 ‘‘2203(i)(1)’’; and 22 (B) in section 2206(1), by striking ‘‘sec- 23 tion 2203(f)(3)’’ and inserting ‘‘section 24 2203(i)(4)’’. 25 VerDate Sep 11 2014 22:10 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S5059.IS S5059 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 5059 IS SEC. 5. RESTRICTIONS ON ACCESS TO PRESIDENTIAL 1 RECORDS. 2 Section 2204 of title 44, United States Code, is 3 amended— 4 (1) in subsection (b)(3), by striking ‘‘shall not 5 be subject to judicial review, except as provided’’ and 6 inserting ‘‘shall be subject to judicial review, includ- 7 ing as provided’’; and 8 (2) in subsection (e)— 9 (A) by inserting ‘‘(1)’’ before ‘‘The United 10 States’’; and 11 (B) by adding at the end the following: 12 ‘‘(2)(A) A person seeking access to a Presidential 13 record to which access is restricted under subsection (a) 14 may file an action in the United States District Court for 15 the District of Columbia seeking release of the Presi- 16 dential record. 17 ‘‘(B) In an action filed under subparagraph (A), the 18 court shall direct the release of a Presidential record, or 19 a reasonably segregable portion thereof, if the court deter- 20 mines that the Presidential record, or the reasonably seg- 21 regable portion thereof, is not within any of the categories 22 specified in subsection (a) and there is not a valid claim 23 of constitutionally based privilege against disclosure.’’. 24 VerDate Sep 11 2014 22:10 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S5059.IS S5059 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 5059 IS SEC. 6. EXCEPTIONS TO RESTRICTED ACCESS. 1 Section 2205(2)(C) of title 44, United States Code, 2 is amended— 3 (1) by striking ‘‘to any committee or sub- 4 committee thereof’’ and inserting ‘‘upon request by 5 the Chairman or Ranking Member of a committee or 6 subcommittee thereof, to such Chairman or ranking 7 member,’’; and 8 (2) by striking ‘‘its business’’ and inserting 9 ‘‘the business of the committee or subcommittee’’. 10 SEC. 7. REGULATIONS. 11 Section 2206 of title 44, United States Code, is 12 amended— 13 (1) by inserting ‘‘(a)’’ before ‘‘The Archivist’’; 14 (2) in subsection (a), as so designated— 15 (A) in paragraph (3), by striking ‘‘and’’ at 16 the end; 17 (B) in paragraph (4), by striking the pe- 18 riod and inserting a semicolon; and 19 (C) by adding at the end the following: 20 ‘‘(5) provisions— 21 ‘‘(A) for what constitutes official and non- 22 official electronic messaging accounts; and 23 ‘‘(B) establishing procedures for docu- 24 menting— 25 VerDate Sep 11 2014 22:10 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S5059.IS S5059 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 5059 IS ‘‘(i) Presidential records created on 1 non-official electronic messaging accounts 2 (including emerging technologies, applica- 3 tions, and platforms); and 4 ‘‘(ii) required metadata; 5 ‘‘(6) provisions for the preservation of digital 6 media, including from social media accounts, that 7 may appear to be personal records or private prop- 8 erty but the preservation of which may be [Text truncated for display. 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