What Happens to VP Biden’s Senate Office Documents When He Leaves?

Here’s a random thought. Vice President Biden maintains an office in the United States Senate, where he serves as President of the Senate. It is a good sized office — the Senate’s statement of expenditures (p. B-65) indicates it has a $2.5 million annual budget and more than 30 staff who play policy, communications, and logistical roles.

Is that office subject to FOIA? The Presidential Records Act? What will happen to its records when Vice President Biden leaves offices? Under law, are its records treated as part of the Executive or Legislative branches, both, or something else? Vice President Biden played a major role as the president’s ambassador to Congress. His work and the work of his team could shed interesting new light on the administration’s efforts to work with Congress and its role in policy development, especially as Congress is not subject to FOIA and committee records are locked down for decades.

There are rumors that former Vice President Dick Cheney wiped the servers maintained by the Senate upon his departure. At the time, Cheney was described, tongue-in-cheek, as the fourth branch of government — and notoriously took every effort to avoid oversight and accountability.

Fortunately for our country, there’s no doubt that Vice President Biden is no Dick Cheney. The Obama administration’s position on FOIA, while not as good as it might first appear, still was much better than the Bush administration, and I suspect the same is true for its records retention policy (with certain obvious exceptions).

This is not an area of my expertise. Maybe someone out there knows?

• • •

According to CRS:

[T]he Vice President has discretion to determine which of his records qualify as presidential records under the PRA. 44 U.S.C. Section 2204 explicitly places the same recordkeeping duties and responsibilities on the Vice President as are placed on the President. The PRA does not explicitly define vice presidential records, but the record-preservation policies governing the Vice President’s records have prompted controversy. On January 19, 2009, a federal district court judge In Washington, DC, found that Citizens for Responsibility and Ethics in Washington (CREW), which had sued then-Vice President Richard B. Cheney to preserve records he claimed were subject to his control, could not demonstrate that the Vice President failed to comply with his obligations under the PRA. In a previous motion, attorneys for the Vice President asserted that the Vice President alone may determine what constitutes vice presidential records or personal records, and that their creation, maintenance and disposal were actions committed to his discretion by law. The court’s decision accepted former Vice President Cheney’s claim that he should have discretion over which of his records are to be preserved and released to the public. The court also found that vice presidential records were, pursuant to 44 U.S.C. Section 2207, to be preserved in the same manner as presidential records. See Citizens for Responsibility and Ethics in Washington v. Cheney, 2009 U.S. Dist. LEXIS 3113 (D.D.C. 2009).

This is not comforting.

— Written by Daniel Schuman