Records, Papers, Decisions: Kavanaugh Records and the Presidential Records Act

"Since Judge Brett Kavanaugh's nomination to be an Associate Justice of the Supreme Court was received on July 10, papers detailing his activities in the George W. Bush Administration and the Office of Independent Counsel Kenneth W. Starr have been the subject of ongoing congressional interest. Specifically, many Members of Congress have discussed the public release of Judge Kavanaugh's records and whether the scope and volume of records released is similar to the records of previous Supreme Court nominees.

The release and maintenance of records pertaining to Judge Kavanaugh's tenure in these offices is governed by the interaction of the Federal Records Act, the Presidential Records Act (PRA), and the Freedom of Information Act (FOIA). While the Federal Records Act applies to all federal records, such as Judge Kavanaugh's attorney work filesfrom his tenure with the Office of Independent Counsel, the PRA applies only to records created on behalf of a president, such as records created during the George W. Bush Administration.

After a President leaves office, the legal custody of presidential records transfers from the President to the Archivist of the National Archives and Records Administration (NARA), who oversees the custody, control, preservation, and access to presidential records.

PRA Restrictions

Presidential records are defined as "documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President's immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President." Presidential records meeting certain criteria may be subject to a withholding period of up to 12 years after the conclusion of the President's Administration.

The PRA allows the outgoing President to restrict access to six categories of presidential records for specified durations of time, not to exceed 12 years. The records categories for which a President can restrict access include the following:

• Records described in an executive order as in the interest of national defense or foreign policy or that are otherwise classified documents, 
• Records relating to appointments to federal office,
• Records specifically exempted from disclosure by statute, 
• Records that contain trade secrets and commercial or financial information, 
• Records of confidential communications requesting or submitting advice between the President and the President's advisers or between such advisers, and 
• Records of personnel and medical files whose disclosure would constitute an invasion of personal privacy...."
  Judge Brett Kavanaugh records