[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2331 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 2331

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


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 12, 2005

    Mr. Waxman (for himself, Ms. Pelosi, Mr. Clay, Mr. Conyers, Mr. 
    Cummings, Mr. Doggett, Mr. Kucinich, Mr. Lantos, Mr. Lynch, Ms. 
  McCollum of Minnesota, Mr. McDermott, Mrs. Maloney, Ms. Norton, Ms. 
   Linda T. Sanchez of California, Mr. Sanders, Ms. Schakowsky, Ms. 
 Slaughter, Mr. Stark, Mr. Van Hollen, and Ms. Woolsey) introduced the 
   following bill; which was referred to the Committee on Government 
 Reform, and in addition to the Committee on Homeland Security, for a 
 period to be subsequently determined by the Speaker, in each case for 
consideration of such provisions as fall within the jurisdiction of the 
                          committee concerned

_______________________________________________________________________

                                 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 
2005''.

SEC. 2. TABLE OF CONTENTS.

    The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Promotion of public disclosure.
Sec. 4. Revocation of the Ashcroft and Card Memoranda that encourage 
                            the withholding of information.
Sec. 5. Elimination of unnecessary pseudo-classification.
Sec. 6. Restoration of public access to presidential records.
Sec. 7. Prohibition on secret advisory committees.
Sec. 8. Promotion of timely declassification of Government documents.
Sec. 9. Improvements to operation of Freedom of Information Act.

SEC. 3. PROMOTION OF PUBLIC DISCLOSURE.

    (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. 4. REVOCATION OF THE ASHCROFT AND CARD MEMORANDA THAT ENCOURAGE 
              THE WITHHOLDING OF INFORMATION.

    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. 5. ELIMINATION OF UNNECESSARY PSEUDO-CLASSIFICATION.

    (a) Report on the Proliferating Use of Pseudo-Classification 
Designations.--
            (1) Report requirement.--Not later than nine months after 
        the date of the enactment of this Act, the Archivist of the 
        United States shall submit to the congressional committees 
        described in subsection (d) a report describing the use of 
        pseudo-classification designations.
            (2) Matters covered.--The Archivist shall report on, at a 
        minimum, the following:
                    (A) The number of pseudo-classification designation 
                policies used by Federal agencies, and a list of each 
                of the pseudo-classification designations that includes 
                the agency or agencies that use the designation.
                    (B) Any existing guidance, instruction, directive, 
                or regulations regarding each agency's use of the 
                pseudo-classification designations.
                    (C) The number of documents categorized by each 
                agency in each of the previous three fiscal years under 
                each designation.
                    (D) The number and level of experience and training 
                of Federal agency, office, and contractor personnel 
                authorized to make pseudo-classification designations.
                    (E) The cost of placing and maintaining information 
                under each pseudo-classification designation.
                    (F) The extent to which information placed under 
                pseudo-classification designations has subsequently 
                been released under section 552 of title 5, United 
                States Code (popularly known as the Freedom of 
                Information Act).
                    (G) The extent to which pseudo-classification 
                designations have been used to withhold from the public 
                information that is not authorized to be withheld by 
                Federal statute, or by an Executive order relating to 
                the classification of national security information.
                    (H) The statutory provisions described in 
                subsection (c).
            (3) Input from other federal agencies.--In order to report 
        on the use of pseudo-classification designations, the Archivist 
        shall solicit and consider input from Federal agencies, 
        offices, and contractors, and all federal agencies, offices, 
        and contractors shall cooperate fully and promptly with all 
        requests by the Archivist in the fulfillment of this section.
            (4)  notice and comment.--The Archivist shall provide 
        notice and an opportunity for public comment on the report.
    (b) Elimination of Unnecessary Pseudo-Classification 
Designations.--
            (1) Regulations.--Not later than 15 months after the date 
        of the enactment of this Act, the Archivist of the United 
        States shall promulgate regulations banning the use of 
        unnecessary pseudo-classification designations.
            (2) Standards for information control designations.--If the 
        Archivist determines that there is a need for some agencies to 
        use information control designations to safeguard information 
        prior to review for disclosure, beyond those designations 
        established by statute or by an Executive Order relating to the 
        classification of national security information, the 
        regulations under paragraph (1) shall establish standards for 
        the use of those designations by agencies. Such standards shall 
        address, at a minimum, the following issues:
                    (A) Standards for utilizing the information control 
                designations in a manner that is narrowly tailored to 
                maximize public access to information.
                    (B) Procedures for providing specified Federal 
                officials with authority to utilize the information 
                control designations, including training and 
                certification requirements.
                    (C) Categories of information that may be assigned 
                the information control designations.
                    (D) The duration of the information control 
                designations and the process by which they will be 
                removed.
                    (E) Procedures for identifying, marking, dating, 
                and tracking information assigned the information 
                control designations, including the identity of 
                officials making the designations.
                    (F) Specific limitations and prohibitions against 
                using the information control designations.
                    (G) Procedures for members of the public to 
                challenge the use of the information control 
                designations.
                    (H) The manner in which the use of the information 
                control designations relates to the procedures of each 
                agency or office under section 552 of title 5, United 
                States Code.
            (3) Regulation to constitute sole authority.--A regulation 
        promulgated pursuant to this subsection shall constitute the 
        sole authority by which Federal agencies, offices, or 
        contractors are permitted to control information for the 
        purposes of safeguarding information prior to review for 
        disclosure, other than authority granted by Federal statute or 
        by an Executive order relating to the classification of 
        national security information.
    (c) Review of Statutory Barriers to Public Access to Information.--
            (1) Review of statutes.--As part of the report required 
        under subsection (a), the Archivist shall examine existing 
        Federal statutes that allow Federal agencies, offices, or 
        contractors to control, protect, or otherwise withhold 
        information based on security concerns.
            (2) Recommendations.--The report shall make recommendations 
        on potential changes to the Federal statutes examined under 
        paragraph (1) that would improve public access to information 
        governed by such statutes.
    (d) Definitions.--In this section:
            (1) The term ``congressional committees'' means the 
        Committees on Government Reform, Judiciary, Homeland Security, 
        and Appropriations of the House of Representatives and the 
        Committees on Homeland Security and Governmental Affairs, 
        Judiciary, and Appropriations of the Senate.
            (2) The term ``pseudo-classification designations'' means 
        information control designations, including ``sensitive but 
        unclassified'' and ``for official use only,'' that are not 
        defined by Federal statute, or by an Executive order relating 
        to the classification of national security information, but 
        that are used to manage, direct, or route Government 
        information, or control the accessibility of Government 
        information, regardless of its form or format.

SEC. 6. RESTORATION OF PUBLIC ACCESS TO PRESIDENTIAL RECORDS.

    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.

SEC. 7. PROHIBITION ON SECRET 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.
    (c) Applicability.--The requirements of this section do not apply 
to substantive contacts exclusively with the President or the Vice 
President or their immediate personal staff.

SEC. 8. PROMOTION OF TIMELY DECLASSIFICATION OF GOVERNMENT DOCUMENTS.

    (a) Funding.--Section 708 of the Public Interest Declassification 
Act of 2000 (title VII of Public Law 106-567; 50 U.S.C. 435 note; 114 
stat. 2856) is amended by adding at the end the following new 
subsection:
    ``(c) Funding.--For any fiscal year in which funds appropriated 
pursuant to the authorization in subsection (a) are insufficient, as 
determined by the Archivist of the United States, to support the 
activities of the Board, the Archivist shall levy from each agency, and 
may retain, a fee of not more than $0.005 per page classified by each 
agency. The Archivist shall use the fees retained under this section to 
fund the activities of the Board. Fees received in a fiscal year and 
retained under this section shall remain available for obligation until 
expended.''.
    (b) Sunset.--Subsection (b) of section 710 of such Act is amended 
to read as follows:
    ``(b) Sunset.--The provisions of this title shall expire 8 years 
after the date of the enactment of the Restore Open Government Act of 
2005.''.

SEC. 9. IMPROVEMENTS TO OPERATION OF FREEDOM OF INFORMATION ACT.

    (a) Restoration of the Integrity of the Freedom of Information Act 
by Limiting the Broad Exemption for Critical Infrastructure Information 
Under the Homeland Security Act of 2002.--
            (1) 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 2005, 
        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 Homeland 
                Security and Governmental Affairs of the Senate; and
                    ``(B) the Committees on the Judiciary and 
                Government Reform of the House of Representatives.
            ``(3) Form.--The report shall be submitted in unclassified 
        form, but may include a classified annex.''.
            (2) 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.''.
    (b) Creation of Transparency in Agency Compliance With the Freedom 
of Information Act.--
            (1) Additional matters covered by report.--Section 
        552(e)(1) of title 5, United States Code, is amended--
                    (A) by striking ``fiscal year and which'' and 
                inserting ``fiscal year. Information in the report 
                shall be expressed in terms of each principal component 
                of the agency and'';
                    (B) in subparagraph (E), by inserting before the 
                semicolon ``, based on the date on which the requests 
                were originally filed with the agency''; and
                    (C) by redesignating subparagraphs (F) and (G) as 
                subparagraphs (L) and (M), respectively, and inserting 
                after subparagraph (E) the following new subparagraphs:
                    ``(F) based on the number of business days that 
                have elapsed since each request was originally filed 
                with the agency--
                            ``(i) the number of requests for records 
                        for which the agency has responded with a 
                        determination up to and including 20 days, and 
                        in 20 day increments up to and including 200 
                        days;
                            ``(ii) the number of requests for records 
                        for which the agency has responded with a 
                        determination greater than 200 days and less 
                        than 301 days;
                            ``(iii) the number of requests for records 
                        for which the agency has responded with a 
                        determination greater than 300 days and less 
                        than 401 days;
                            ``(iv) the number of requests for records 
                        for which the agency has responded with a 
                        determination greater than 400 days;
                            ``(v) the average number of days for the 
                        agency to respond to a request;
                    ``(G) data on the 10 requests for records with the 
                earliest filing dates pending before the agency as of 
                September 30 of the preceding year, including the 
                number of business days that have elapsed since each of 
                the requests was originally filed with the agency;
                    ``(H) data on the 10 active administrative appeals 
                with the earliest filing dates pending before the 
                agency as of September 30 of the preceding year, 
                including the number of business days that have elapsed 
                since the requests were originally filed with the 
                agency;
                    ``(I) the median and average number of days for the 
                agency to respond to administrative appeals based on 
                the date on which the appeals originally were filed 
                with the agency; the highest number of business days 
                taken by the agency to respond to an administrative 
                appeal; and the lowest number of business days taken by 
                the agency to respond to an administrative appeal;
                    ``(J) the number of fee status requests that are 
                granted and denied, and the average number of days for 
                adjudicating fee status determinations;
                    ``(K) the number of expedited review requests that 
                are granted and denied, and the average number of days 
                for adjudicating expedited review requests;''.
            (2) No aggregation of reports.--Section 552(e) of such 
        title is further amended by adding at the end the following new 
        paragraph:
    ``(6) The reports required by this section shall not aggregate 
requests for records to the agency made under subsection (a) with 
requests for records to the agency made by first parties under section 
552a of this title.''.
    (c) Increased Feasibility of Citizen Group Challenges to Improper 
Withholding of Government Information.--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.''.
                                 <all>