How President-Elect Biden Can Improve FOIA and Bolster the Presidential Records Act Against Future Abuse

Washington D.C., November 17, 2020 - The dust is settling on the 2020 presidential election and the Biden Transition Team - if the General Services Administration will comply - must quickly get to work with the business of assuming control of government.

The Biden administration faces two simultaneous challenges on the records preservation front: fixing a broken Freedom of Information Act (FOIA) system, and closing the loopholes to the Presidential Records Act (PRA) so they can’t be abused again.

Both of these challenges can be met, but it will take a combination of Day One and sustained action on the part of both the Biden administration and Congress to do so. (Some of the following recommendations, along with many others, are discussed in greater detail in Open The Government’s Accountability 2021 project, which the National Security Archive was pleased to help draft.)

On his first full day in office, President Biden should do the following:

Resume Posting the White House visitor logs.
- President Trump discontinued the Obama administration practice of posting the White House visitor logs immediately after entering office. While the Obama administration voluntarily posted the visitor logs online after a September 2009 settlement with Citizens for Responsibility and Ethics in Washington (CREW) - eventually posting nearly 6 million lines of data - the Trump administration claimed that doing so would compromise national security and immediately ended the practice. The move prompted a FOIA lawsuit brought by the National Security Archive, together with the Knight First Amendment Institute at Columbia University and CREW, which revealed that Trump actually ordered the Secret Service not to keep records of his visitors at the Trump properties like Mar-a-Lago.
- Troublingly, during the course of the suit, the Trump administration claimed that the logs - created by the Secret Service, which is a federal agency clearly subject to FOIA - were presidential records. A Biden administration should disavow this practice, and work with Congress to prohibit the Presidential Records Act from converting agency records to White House records.

Explicitly ban the use of disappearing messaging apps and mandate that messaging applications are only permissible if the technology automatically captures communications used in official business.
- In 2018, White House lawyers had to remind “President Trump’s staff not to use encrypted messaging apps for official government business”. The warning came while the administration sought to dismiss a lawsuit brought by the Archive and CREW accusing the administration - including prominent White House officials like Steve Bannon - of violating federal records laws by using applications that prevented documents from being preserved (the application of choice was Confide). President-Elect Biden should prohibit both White House and agency officials from using any similar applications.
Direct the Attorney General to both 1) instruct agencies to discontinue the use of the discretionary portions of FOIA exemptions 5 and 7 that have been increasingly abused to hide larger and larger swaths of information, and 2) instruct Justice Department personnel to review pending FOIA litigation to ensure that the merits of all cases comply with the standards mandated by the FOIA Improvement Act of 2016.

The Biden administration must also make long-term commitments to improve recordkeeping and declassification systems that are plagued by inadequate funding and backlogs. Long-standing analog archival and recordkeeping practices – conceived in a pen and paper world where records were stored in physical files and not in the cloud – are no longer adequate for either the government or the public seeking access to its records. Agencies’ recordkeeping ethos and capabilities vary wildly, and critical records are being lost and destroyed – or not even preserved in the first place.

The Biden administration has an opportunity to modernize recordkeeping practices and declassification to best serve both the national interest and the presidency itself. The following steps outline a way forward:

Use technology to improve declassification and make proactive disclosure the government’s default position.
- The Biden administration should work to reform technology acquisition to make archiving and declassification considerations a core part of IT requirements and procurements, and mandate that an automatic declassification date be embedded in newly created electronic records. Doing so would save considerable time and resources and enable agencies to actually adhere to automatic declassification guidelines.
- In addition to mandating that an automatic declassification date be embedded into documents, having an automated system that would post the documents to agency FOIA reading rooms after the appropriate date would eliminate the need for requesters to file records in the first place, thereby saving FOIA offices time and money and fulfilling the FOIA’s requirement for proactive disclosure of records likely to be of public interest.

Work to beef up the National Archive and Records Administration’s (NARA) budget.
- Many recordkeeping problems arise because the agency in charge of ensuring the government’s most important records are preserved for future generations, the National Archives and Records Administration, is understaffed and underfunded. If the status quo continues, and NARA’s budget does not increase, the agency will be unable to fulfill its mission. A presidential visit to NARA expressing the Executive’s support for the agency and its mission, as well as working with Congress to increase its budget, would allow the agency to perform its necessary work processing classified records, handling declassification requests and appeals, creating finding aids for new records, and developing the technological capacity for electronic records.

Finally, the Biden administration must work to strengthen the Presidential Records Act, which has proven to be toothless against a determined Chief Executive with little-to-no interest in preserving records. From high-level meetings with foreign leaders, to presidential transition materials used after the inauguration by the incoming Presidential Administration, more needs to be done to preserve these documents. The Biden administration should take the following steps:

Direct the Archivist of the United States to monitor, review and report on the Executive Office of the President’s compliance with PRA, and commit to getting the Archivist of the United States to sign off on White House record keeping guidelines and practices.
Require the White House Office of Administration to monitor and report on EOP compliance with PRA.
Commit to complying with House Oversight Committee requests that pertain to the PRA.

It’s not too late to ensure that the FOIA and the PRA are the robust, world-wide gold-standard access and preservation laws they have the potential to be, and there’s no better time for the Biden administration to start working towards that goal than right now.