[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5073 Introduced in House (IH)]






108th CONGRESS
  2d Session
                                H. R. 5073

    To restore and strengthen the laws that provide for an open and 
                    transparent Federal Government.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 14, 2004

 Mr. Waxman (for himself, Mr. Sanders, Mrs. Maloney, Mr. Cummings, Mr. 
 Kucinich, Mr. Clay, Mr. Van Hollen, Ms. Norton, Ms. McCollum, and Mr. 
  McDermott) introduced the following bill; which was referred to the 
                     Committee on Government Reform

_______________________________________________________________________

                                 A BILL


 
    To restore and strengthen the laws that provide for an open and 
                    transparent Federal Government.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Restore Open Government Act of 
2004''.

SEC. 2. TABLE OF CONTENTS.

    The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of Contents.
                    TITLE I--FREEDOM OF INFORMATION

Sec. 101. Revocation of the Ashcroft Memo and the Card Memo.
Sec. 102. Findings and policy relating to disclosure of information 
                            under the Freedom of Information Act.
Sec. 103. Protection of voluntarily furnished confidential information.
                     TITLE II--PRESIDENTIAL RECORDS

Sec. 201. Revocation of Executive Order of November 1, 2001.
                     TITLE III--ADVISORY COMMITTEES

Sec. 301. Presidential inter-agency advisory committees.
                TITLE IV--CLASSIFICATION OF INFORMATION

Sec. 401. Reducing excessive classification of information.
                       TITLE V--OTHER PROVISIONS

Sec. 501. Citizen actions.

                    TITLE I--FREEDOM OF INFORMATION

SEC. 101. REVOCATION OF THE ASHCROFT MEMO AND THE CARD MEMO.

    The ``Memorandum for Heads of all Federal Departments and 
Agencies'' on ``The Freedom of Information Act'' issued by Attorney 
General John Ashcroft on October 12, 2001, and the ``Memorandum for the 
Heads of Executive Department and Agencies'' on ``Action to Safeguard 
Information Regarding Weapons of Mass Destruction and Other Sensitive 
Documents Related to Homeland Security'' issued by Andrew H. Card, Jr., 
Assistant to the President and Chief of Staff on March 19, 2002, shall 
have no force or effect.

SEC. 102. FINDINGS AND POLICY RELATING TO DISCLOSURE OF INFORMATION 
              UNDER THE FREEDOM OF INFORMATION ACT.

    (a) Findings.--Congress finds the following:
            (1) Public access to information held by the Federal 
        Government is vitally important to the functioning of a 
        democratic society.
            (2) The Freedom of Information Act was enacted to ensure 
        such public access to information.
            (3) The Freedom of Information Act specifies limited 
        exemptions to the general requirement for disclosure, where 
        disclosure could potentially threaten other important public 
        policy goals.
            (4) In establishing the categories of exempt information 
        under the Freedom of Information Act, Congress allowed agencies 
        to withhold information in those categories, but did not in any 
        way mandate or encourage such withholding.
    (b) Policy.--The policy of the Federal Government is to release 
information to the public in response to a request under the Freedom of 
Information Act--
            (1) if such release is required by law; or
            (2) if such release is allowed by law and the agency 
        concerned does not reasonably foresee that disclosure would be 
        harmful to an interest protected by an applicable exemption.
    (c) Guidance.--All guidance provided to Federal Government 
employees responsible for carrying out the Freedom of Information Act 
shall be consistent with the policy set forth in subsection (b).

SEC. 103. PROTECTION OF VOLUNTARILY FURNISHED CONFIDENTIAL INFORMATION.

    (a) In General.--Title II of the Homeland Security Act of 2002 
(Public Law 107-296) is amended by striking subtitle B and inserting 
the following:

    ``Subtitle B--Protection of Voluntarily Furnished Confidential 
                              Information

``SEC. 211. PROTECTION OF VOLUNTARILY FURNISHED CONFIDENTIAL 
              INFORMATION.

    ``(a) Definitions.--In this section:
            ``(1) Critical infrastructure.--The term `critical 
        infrastructure' has the meaning given that term in section 
        1016(e) of the USA PATRIOT ACT of 2001 (42 U.S.C. 5195c(e)).
            ``(2) Furnished voluntarily.--
                    ``(A) Definition.--The term `furnished voluntarily' 
                means a submission of a record that--
                            ``(i) is made to the Department in the 
                        absence of authority of the Department 
                        requiring that record to be submitted; and
                            ``(ii) is not submitted or used to satisfy 
                        any legal requirement or obligation or to 
                        obtain any grant, permit, benefit (such as 
                        agency forbearance, loans, or reduction or 
                        modifications of agency penalties or rulings), 
                        or other approval from the Government.
                    ``(B) Benefit.--In this paragraph, the term 
                `benefit' does not include any warning, alert, or other 
                risk analysis by the Department.
    ``(b) In General.--Notwithstanding any other provision of law, a 
record pertaining to the vulnerability of and threats to critical 
infrastructure (such as attacks, response, and recovery efforts) that 
is furnished voluntarily to the Department shall not be made available 
under section 552 of title 5, United States Code, if--
            ``(1) the provider would not customarily make the record 
        available to the public; and
            ``(2) the record is designated and certified by the 
        provider, in a manner specified by the Department, as 
        confidential and not customarily made available to the public.
    ``(c) Records Shared With Other Agencies.--
            ``(1) In general.--
                    ``(A) Response to request.--An agency in receipt of 
                a record that was furnished voluntarily to the 
                Department and subsequently shared with the agency 
                shall, upon receipt of a request under section 552 of 
                title 5, United States Code, for the record--
                            ``(i) not make the record available; and
                            ``(ii) refer the request to the Department 
                        for processing and response in accordance with 
                        this section.
                    ``(B) Segregable portion of record.--Any reasonably 
                segregable portion of a record shall be provided to the 
                person requesting the record after deletion of any 
                portion which is exempt under this section.
            ``(2) Disclosure of independently furnished records.--
        Notwithstanding paragraph (1), nothing in this section shall 
        prohibit an agency from making available under section 552 of 
        title 5, United States Code, any record that the agency 
        receives independently of the Department, regardless of whether 
        or not the Department has a similar or identical record.
    ``(d) Withdrawal of Confidential Designation.--The provider of a 
record that is furnished voluntarily to the Department under subsection 
(b) may at any time withdraw, in a manner specified by the Department, 
the confidential designation.
    ``(e) Procedures.--The Secretary shall prescribe procedures for--
            ``(1) the acknowledgement of receipt of records furnished 
        voluntarily;
            ``(2) the designation, certification, and marking of 
        records furnished voluntarily as confidential and not 
        customarily made available to the public;
            ``(3) the care and storage of records furnished 
        voluntarily;
            ``(4) the protection and maintenance of the confidentiality 
        of records furnished voluntarily; and
            ``(5) the withdrawal of the confidential designation of 
        records under subsection (d).
    ``(f) Effect on State and Local Law.--Nothing in this section shall 
be construed as preempting or otherwise modifying State or local law 
concerning the disclosure of any information that a State or local 
government receives independently of the Department.
    ``(g) Report.--
            ``(1) Requirement.--Not later than 18 months after the date 
        of the enactment of the Restore Open Government Act of 2004, 
        the Comptroller General of the United States shall submit to 
        the committees of Congress specified in paragraph (2) a report 
        on the implementation and use of this section, including--
                    ``(A) the number of persons in the private sector, 
                and the number of State and local agencies, that 
                furnished voluntarily records to the Department under 
                this section;
                    ``(B) the number of requests for access to records 
                granted or denied under this section; and
                    ``(C) such recommendations as the Comptroller 
                General considers appropriate regarding improvements in 
                the collection and analysis of sensitive information 
                held by persons in the private sector, or by State and 
                local agencies, relating to vulnerabilities of and 
                threats to critical infrastructure, including the 
                response to such vulnerabilities and threats.
            ``(2) Committees of congress.--The committees of Congress 
        specified in this paragraph are--
                    ``(A) the Committees on the Judiciary and 
                Governmental Affairs of the Senate; and
                    ``(B) the Committees on the Judiciary and 
                Government Reform and Oversight of the House of 
                Representatives.
            ``(3) Form.--The report shall be submitted in unclassified 
        form, but may include a classified annex.''.
    (b) Technical and Conforming Amendment.--The table of contents for 
the Homeland Security Act of 2002 (Public Law 107-296) is amended by 
striking the items relating to subtitle B of title II and sections 211 
through 215 and inserting the following:

    ``Subtitle B--Protection of Voluntarily Furnished Confidential 
                              Information

``Sec. 211. Protection of voluntarily furnished confidential 
                            information.''.

                     TITLE II--PRESIDENTIAL RECORDS

SEC. 201. REVOCATION OF EXECUTIVE ORDER OF NOVEMBER 1, 2001.

    Executive Order number 13233, dated November 1, 2001 (66 Fed. Reg. 
56025), shall have no force or effect, and Executive Order number 
12667, dated January 18, 1989 (54 Fed. Reg. 3403), shall apply by its 
terms.

                     TITLE III--ADVISORY COMMITTEES

SEC. 301. PRESIDENTIAL INTER-AGENCY ADVISORY COMMITTEES.

    (a) Definition.--The term ``Presidential inter-agency advisory 
committee'' is any committee or task force that--
            (1) is composed wholly of full-time, or permanent part-
        time, officers or employees of the Federal Government;
            (2) includes officers or employees of at least two separate 
        Federal agencies;
            (3) is established or utilized to provide advice, ideas, or 
        recommendations to the President or Vice President on a 
        specified topic or topics; and
            (4) has at least one officer or employee assigned full-time 
        as a staff member of the committee to support the functions of 
        the committee.
    (b) Requirements.--
            (1) The President shall ensure that the names of the 
        members of the committee are published in the Federal Register.
            (2) The committee must make public each substantive contact 
        between the advisory committee, or individual members of the 
        advisory committee acting on the committee's behalf, and any 
        person who is not a full-time or permanent part-time officer or 
        employee of the Federal Government, including--
                    (A) the date of the contact;
                    (B) the form of the contact (in person, by 
                telephone, by e-mail, or in writing);
                    (C) the names and affiliations of the parties 
                involved; and
                    (D) the substance of the communication and the 
                communication itself, if in electronic or written form.
            (3) For purposes of this subsection, a contact shall be 
        considered substantive if the information conveyed influenced 
        or was reflected in any way in the committee's advice, 
        recommendations, or report to the President or Vice President.

                TITLE IV--CLASSIFICATION OF INFORMATION

SEC. 401. REDUCING EXCESSIVE CLASSIFICATION OF INFORMATION.

    As soon as possible, but in no event later than 180 days after the 
date of the enactment of this Act, the President shall require Federal 
departments and agencies to promote a culture of information sharing by 
reducing disincentives to information sharing, including 
overclassification of information and unnecessary requirements for 
originator approval.

                       TITLE V--OTHER PROVISIONS

SEC. 501. CITIZEN ACTIONS.

    Section 552(a)(4)(E) of title 5, United States Code, is amended--
            (1) by inserting ``, or in any case seeking information 
        from a Federal agency or official under any other Federal 
        law,'' after ``case under this section''; and
            (2) by adding at the end the following: ``For purposes of 
        this section, a complainant has `substantially prevailed' if 
        the complainant has obtained some of its requested relief 
        through a judicial or administrative order or an enforceable 
        written agreement, or if the complainant's pursuit of a 
        nonfrivolous claim or defense has been a catalyst for a 
        voluntary or unilateral change in position by the opposing 
        party that provides any significant part of the relief 
        sought.''.
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