           Applicability of the Presidential Records Act to the
                       White House Usher’s Office
Because the White House Usher’s Office is part of the President’s “immediate staff” or, alternatively,
  would be “a unit . . . of the Executive Office of the President whose function is to advise and assist
  the President,” any documentary materials “created or received [by the Office] in the course of
  conducting activities which relate to or have an effect upon the carrying out of constitutional,
  statutory, or other official or ceremonial duties of the President” constitute “Presidential records”
  under the Presidential Records Act, 44 U.S.C. § 2201(2).

                                                                                        July 13, 2007

            MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

    You have asked whether the Usher’s Office is subject to the recordkeeping re-
quirements of the Presidential Records Act (“PRA” or “Act”), 44 U.S.C. §§ 2201–
2207 (2006). As discussed below, we believe that, for the purposes of the PRA, the
Usher’s Office is either part of the “immediate staff” of the President or is “a unit . . .
of the Executive Office of the President whose function is to advise and assist the
President.” Id. § 2201(2). Therefore, records of the Usher’s Office are subject to the
Act to the extent that they are “created or received . . . in the course of conducting
activities which relate to or have an effect upon the carrying out of constitutional,
statutory, or other official or ceremonial duties of the President.” Id.

                                                  I.

   You have informed us that the Usher’s Office is generally responsible for man-
aging and operating the Executive Residence of the President—a function that
includes preparing and serving meals to the First Family and their guests, perform-
ing housekeeping and maintenance services on the Executive Residence, providing
curatorial services, greeting visitors, and assisting the President in his performance
of certain official and ceremonial duties. Letter for Steven G. Bradbury, Principal
Deputy Assistant Attorney General, Office of Legal Counsel, from Fred F.
Fielding, Counsel to the President at 1 (June 6, 2007). In performing its functions,
the Usher’s Office generates and receives various paper and electronic materials,
including “the daily diary of the First Family, First Family personal access lists,
event guest lists, equipment, staffing, and food/beverage orders and invoices, and
Executive Residence project work orders and invoices.” Id. Furthermore, the
Usher’s Office is operationally part of the Executive Residence and supervises the
staff of the Executive Residence. Because the Executive Residence is an entity
within the Executive Office of the President, see Memorandum for Gary Walters,
Chief Usher of the Executive Residence, from Andrew H. Card, Jr., White House
Chief of Staff (June 11, 2002), the Usher’s Office is as well.




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   Congress enacted the PRA in 1978 in order to preserve and make publicly
available certain official records generated or received by the President and certain
individuals in his service. See H.R. Rep. No. 95-1487, at 2 (1978). Accordingly,
the Act mandates the preservation of “Presidential records,” which are defined as:

       documentary materials, or any reasonably segregable portion thereof,
       created or received by the President, his immediate staff, or a unit or
       individual of the Executive Office of the President whose function is
       to advise and assist the President, in the course of conducting activi-
       ties which relate to or have an effect upon the carrying out of consti-
       tutional, statutory, or other official or ceremonial duties of the Presi-
       dent.

44 U.S.C. § 2201(2). Excluded from the definition of presidential records are
“diaries, journals, or other personal notes . . . which are not prepared or utilized for,
or circulated or communicated in the course of, transacting Government business.”
Id. § 2201(3)(A). Also excluded are “materials relating to private political associa-
tions,” id. § 2201(3)(B), “materials relating exclusively to the President’s own
election[,] . . . and materials directly relating to the election of a particular individual
or individuals,” id. § 2201(3)(C), that have “no relation to or direct effect upon the
carrying out of constitutional, statutory, or other official or ceremonial duties of the
President,” id. § 2201(3)(B), (3)(C).
    The PRA also explicitly excludes from its coverage any “documentary materials”
that are “official records of an agency,” as the term “agency” is defined in the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(f)(1) (2006). 44 U.S.C.
§ 2201(2)(B)(i). Such records are covered instead by FOIA and the Federal Records
Act (“FRA”), 44 U.S.C. §§ 3101–3107, 3301–3314 (2006), which operate in tandem
to complement the PRA. Specifically, the FRA requires federal agencies to preserve
certain agency records and FOIA requires federal agencies to make such records
publicly available subject to application of various statutory exemptions. As the
Court of Appeals for the D.C. Circuit has explained, “the coverage of the FRA is
coextensive with the definition of ‘agency’ in the FOIA . . . . As a result, . . . ‘[t]he
FRA describes a class of materials that are federal records subject to its provisions,
and the PRA describes another, mutually exclusive set of materials that are subject to
a different . . . regime.’” Armstrong v. Exec. Office of the President, 90 F.3d 553,
556 (D.C. Cir. 1996) (quoting Armstrong v. Exec. Office of the President, 1 F.3d
1274, 1293 (D.C. Cir. 1993)). Congress applied the PRA to the President and those
Executive Office of the President (“EOP”) entities that are not “agencies” subject to
FOIA and the FRA, see H.R. Rep. No. 95-1487, at 3 (1978), and the Supreme Court
has held that FOIA—and by implication the FRA—does not apply to “‘the Presi-
dent’s immediate personal staff or units in the Executive Office whose sole function
is to advise and assist the President.’” Kissinger v. Reporters Comm. for Freedom of
the Press, 445 U.S. 136, 156 (1980) (quoting H.R. Conf. Rep. No. 93-1380, at 15



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(1974)) (legislative history of 1974 amendments to FOIA); Armstrong, 1 F.3d at
1295; see also Meyer v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993).

                                         II.

   As discussed below, we conclude that records created or received by the Ush-
er’s Office are covered by the PRA because the Usher’s Office must be viewed
either as part of the “immediate staff” of the President or as “a unit . . . of the
Executive Office of the President whose function is to advise and assist the
President.” 44 U.S.C. § 2201(2).

                                         A.

   The PRA provides no definition of the President’s “immediate staff,” and we
are aware of no judicial decisions interpreting the term in the context of the PRA.
In enacting the PRA, however, Congress specifically relied upon and incorporated
the conference report on the 1974 amendments to FOIA, which had become law
only four years earlier. See H.R. Rep. No. 95-1487, at 11 (1978) (the term
“Executive Office of the President,” to which FOIA applies, “‘is not interpreted as
including the President’s immediate personal staff or units in the Executive Office
whose sole function is to advise and assist the President’”) (quoting H.R. Conf.
Rep. No. 93-1380, at 15 (1974)). Thus, in determining whether the Usher’s Office
is part of the President’s “immediate staff” for purposes of the PRA, we look to
how courts have interpreted the phrase “immediate personal staff” of the President
in cases involving the applicability of FOIA. See Smith v. City of Jackson, 544
U.S. 228, 233 (2005) (“[W]hen Congress uses the same language in two statutes
having similar purposes, particularly when one is enacted shortly after the other, it
is appropriate to presume that Congress intended that text to have the same
meaning in both statutes.”).
   No court has precisely described the composition of the President’s “immediate
staff” or “immediate personal staff.” The D.C. Circuit, however, has indicated that
in the FOIA context “immediate personal staff” includes “at least those . . .
individuals employed in the White House Office.” Meyer, 981 F.2d at 1293 n.3.
The court explained that “[p]roximity to the President, in the sense of continuing
interaction, is surely in part what Congress had in mind when it exempted the
President’s ‘immediate personal staff’ [from FOIA’s requirements] without
requiring a careful examination of its function.” Id. at 1293. Like the White House
Office staff, employees of the Usher’s Office directly interact with the President
on a continuing basis. The Usher’s Office manages the President’s official
residence and is closely involved in various daily activities—including preparing
the President’s food, greeting his guests, and helping him perform certain official
and ceremonial functions.




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   Moreover, the Executive Residence—which includes the Usher’s Office—and
the White House Office are treated similarly under federal law. Congress has granted
the President broad discretion in hiring the employees of both units. The President is
specifically authorized to “appoint and fix the pay of employees” in the White House
Office and the Executive Residence “without regard to any other provision of law
regulating the employment or compensation of persons in the Government service.”
3 U.S.C. §§ 105(a)(1), (b)(1) (2006). These provisions reflect Congress’s judgment
that the President should have complete discretion in hiring staff with whom he
interacts on a continuing basis. See Haddon v. Walters, 836 F. Supp. 1, 3 (D.D.C.
1993) (“Attempts to limit the President’s power to hire and fire those who work in
his own home must be carefully and thoughtfully drawn. We speak here of individu-
als who occupy positions in close physical proximity to the President.”); see also
S. Rep. No. 95-868, at 7 (1978) (explaining that section 105 of title 3 grants the
President “total discretion in the employment, removal, and compensation (within
the limits established by this bill) of all employees” in both the White House Office
and the Executive Residence). In addition, employees of both the White House
Office and the Executive Residence must “perform such official duties as the
President may prescribe.” 3 U.S.C. §§ 105(a)(1) & (b)(1). Due to the similar
proximity to the President shared by the White House Office and the Usher’s Office,
we conclude that the Usher’s Office falls within the President’s “immediate staff”
for purposes of the PRA.

                                           B.

   Alternatively, if the staff of the Usher’s Office were not viewed as part of the
“immediate staff” of the President, we believe that it would constitute a “unit . . .
of the Executive Office of the President whose function is to advise and assist the
President.” 44 U.S.C. § 2201(2). This phrase, too, stems from the conference
report on the 1974 Freedom of Information Act Amendments, upon which
Congress specifically relied when it enacted the PRA. See H.R. Conf. Rep. No. 95-
1487, at 11 (1978) (FOIA “‘is not interpreted as including the President’s immedi-
ate personal staff or units in the Executive Office whose sole function is to advise
and assist the President’”) (quoting H.R. Rep. No. 93-1380, at 15 (1974)).
Congress intended for the PRA to apply to “all White House and Executive Office
records, except those of a purely private or nonpublic nature, which, as a conse-
quence of the Conference Report language, fall outside the scope of the FOIA
because they are not agency records.” H.R. Conf. Rep. No. 95-1487, at 11.
   The D.C. Circuit has held that the staff of the Executive Residence is not an
agency under FOIA because the sole function of the Executive Residence is to
advise and assist the President. See Sweetland v. Walters, 60 F.3d 852, 853–55
(D.C. Cir. 1995). The court explained that it reached this decision based on the
fact that the Executive Residence did not exercise any substantial authority




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independent of the President. Id. at 854 (“[E]very one of the EOP units that we
found to be subject to FOIA has wielded substantial authority independently of the
President. . . . The staff of the Executive Residence exercises none of the inde-
pendent authority that we found to be critical . . . .”). Because the Executive
Residence includes the Usher’s Office, under Sweetland the Usher’s Office is
likewise exempt from FOIA as part of an EOP unit whose sole function is to
advise and assist the President.
    The decision in Sweetland contains no discussion of whether the staff of the
Executive Residence functions to “advise” the President, strongly suggesting that
as long as a unit of the EOP exercises no substantial authority independently of the
President, it should be classified as a unit that functions to advise and assist the
President for purposes of being exempt from the FRA and FOIA—and, by
implication, being subject to the PRA—regardless of whether the unit in fact
“advises” the President on official or ceremonial matters. However, even if the
PRA requires that a unit of the EOP both “advise” and “assist” the President in
order to be covered by the Act, the Usher’s Office would still satisfy this test.
First, the Usher’s Office certainly assists the President. The core functions of the
Usher’s Office include “assisting the President in maintaining his home and
carrying out his various ceremonial duties.” Sweetland, 60 F.3d at 854. Second,
the Usher’s Office also advises the President in carrying out his ceremonial duties.
For example, the Usher’s Office advises the President on what food to serve and
what formalities to follow at an official White House state dinner depending, for
example, on cultural sensitivities and differences. Furthermore, the Chief Usher
advises the President by serving on the Committee for the Preservation of the
White House, which reports to the President recommendations regarding, inter
alia, the articles of furniture, fixtures, and decorative objects which shall be used
or displayed in certain areas of the White House. Exec. Order No. 11145, §§ 2–3,
3 C.F.R. 123, 123–24 (1964 Supp.).

                                          III.

    Because the Usher’s Office is thus part of the President’s “immediate staff” or,
alternatively, would be “a unit . . . of the Executive Office of the President whose
function is to advise and assist the President,” any documentary materials “created
or received [by the Office] in the course of conducting activities which relate to or
have an effect upon the carrying out of constitutional, statutory, or other official or
ceremonial duties of the President” constitute “Presidential records.” 44 U.S.C.
§ 2201(2). As noted above, we understand that the Usher’s Office does create and
receive documentary materials in the course of conducting activities related to the
President’s various official and ceremonial duties. Such materials constitute
“Presidential records” under the PRA, and, consequently, the Usher’s Office is




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     Applicability of the Presidential Records Act to the White House Usher’s Office


responsible for complying with the relevant recordkeeping provisions of the Act
with respect to those materials. See id. § 2203.

                                              STEVEN G. BRADBURY
                                      Principal Deputy Assistant Attorney General
                                                Office of Legal Counsel




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