Short title

This Act may be cited as the

Improving Public Access to Documents Act of 2008

Findings

Congress finds the following: (1)The proliferation and widespread use of sensitive but unclassified (SBU) control markings by the Federal Government interferes with accurate, actionable, and timely homeland security information sharing, increases the cost of information security, and needlessly limits public access to information. (2)The control markings problem, which has worsened since the 9/11 attacks, causes considerable confusion about what information can be shared with whom both internally at the Department of Homeland Security and with its external partners. This problem negatively impacts the dissemination of homeland security information to the Department’s State, local, tribal, and territorial homeland security and law enforcement partners, private sector customers, and the public. (3)Overuse of sensitive but unclassified markings stands in the way of a safer and more secure homeland. This trend is antithetical to the creation and operation of the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), and must be halted and reversed. (4)To do so, the Department should start with the understanding that all departmental information that is not properly classified, or marked as controlled unclassified information and otherwise exempt from disclosure, should be made available to members of the public pursuant to section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act). (5)The Department should also develop and administer policies, procedures, and programs that promote compliance with applicable laws, executive orders, and other authorities pertaining to the proper use of controlled unclassified information markings and the National Archives and Records Administration policies implementing them.

Controlled unclassified information framework implementation within the department of homeland security

Subtitle A of title II of the Homeland Security Act of 2002 (6 U.S.C. 121 et seq.) is amended by adding at the end the following new section:

210F.

Controlled unclassified information framework implementation program

(a)

In general

The Secretary shall develop and administer policies, procedures, and programs within the Department to implement the controlled unclassified information framework to standardize the use of controlled unclassified markings on, and to maximize the disclosure to the public of, homeland security information, terrorism information, weapons of mass destruction information, and other information within the scope of the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485) that must be disseminated to prevent and to collectively respond to acts of terrorism. The Secretary shall coordinate with the Archivist of the United States and consult with representatives of State, local, tribal, and territorial government and law enforcement, organizations with expertise in civil rights, civil liberties, and government oversight, and the private sector, as appropriate, to develop such policies, procedures, and programs. (b)

Requirements

Not later than one year after the date of the enactment of the Improving Public Access to Documents Act of 2008, the Secretary, in administering the policies, procedures, and programs required under subsection (a), shall— (1)create, in consultation with the Archivist of the United States, a standard format for unclassified finished intelligence products created by the Department that have been designated as controlled unclassified information, consistent with any government-wide standards, practices or procedures for similar products; (2)require that all unclassified finished intelligence products created by the Department that have been designated as controlled unclassified information be prepared in the standard format; (3)ensure that such policies, procedures, and programs protect the national security as well as the information privacy rights and legal rights of United States persons pursuant to all applicable law and policy, including the privacy guidelines for the information sharing environment established pursuant to section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), as appropriate; (4)establish an ongoing auditing mechanism administered by the Inspector General of the Department or other appropriate senior Department official that randomly selects, on a periodic basis, controlled unclassified information from each component of the Department, including all Department components that generate unclassified finished intelligence products, to— (A)assess whether applicable controlled unclassified information policies, procedures, rules, and regulations have been followed; (B)describe any problems with the administration of the applicable controlled unclassified information policies, procedures, rules and regulations, including specific non-compliance issues; (C)recommend improvements in awareness and training to address any problems identified in subparagraph (B); and (D)report at least annually to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate, and the public on the findings of the Inspector General’s audits under this section; (5)establish a process whereby employees may challenge the use of controlled unclassified information markings by Department employees or contractors and be rewarded with specific incentives for successful challenges resulting in— (A)the removal of controlled unclassified information markings; or (B)the correct application of appropriate controlled unclassified information markings; (6)inform employees and contractors that failure to comply with the policies, procedures, and programs established under this section could subject them to a series of penalties; (7)institute a series of penalties for employees and contractors who repeatedly fail to comply with the policies, procedures, and programs established under this section after having received both notice of their noncompliance and appropriate training or re-training to address such noncompliance; (8)maintain a publicly available list of all documents designated, in whole or in part, as controlled unclassified information by Department employees or contractors that— (A)have been withheld in response to a request made pursuant to section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act); and (B)includes for each such withheld document a summary of the request and a statement that identifies the exemption under section 552(b) of title 5, United States Code (commonly referred to as the Freedom of Information Act) that justified the withholding; and (9)create a process through which the public can notify the Inspector General of the Department of any concerns regarding the implementation of the controlled unclassified information framework, including the withholding of controlled unclassified information pursuant to section 552(b) of title 5, United States Code (commonly referred to as the Freedom of Information Act), which shall be considered as part of the audit described in paragraph (4). (c)

Implementation

In carrying out subsections (a) and (b), the Secretary shall ensure that— (1)information is designated as controlled unclassified information and includes an authorized controlled unclassified information marking only if— (A)a statute or executive order requires or authorizes such a designation and marking; or (B)the Secretary, through regulations, directives, or other specific guidance to the agency that have been submitted to and approved by the Archivist of the United States, determines that the information is controlled unclassified information based on mission requirements, business prudence, legal privilege, the protection of personal or commercial rights, safety, or security; (2)notwithstanding paragraph (1), information is not to be designated as controlled unclassified information— (A)to conceal violations of law, inefficiency, or administrative error; (B)to prevent embarrassment to Federal, State, local, tribal, or territorial governments or any official, agency, or organization thereof; any agency; or any organization; (C)to improperly or unlawfully interfere with competition in the private sector; (D)to prevent or delay the release of information that does not require such protection; (E)if it is required to be made available to the public; or (F)if it has already been released to the public under proper authority; and (3)the controlled unclassified information framework is administered in a manner that ensures that— (A)information can be shared within the Department and with State, local, tribal, and territorial governments, the private sector, and the public, as appropriate; (B)all policies and standards for the designation, marking, safeguarding, and dissemination of controlled unclassified information are consistent with the controlled unclassified information framework and any other policies, guidelines, procedures, instructions, or standards established by the President, including in any relevant future executive memoranda or executive orders; (C)the number of Department employees and contractors with controlled unclassified information designation authority is limited appropriately as determined in consultation with the parties referred to in subsection (a); (D)controlled unclassified information markings are not a determinant of public disclosure pursuant to section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act); (E)controlled unclassified information markings are placed on archived or legacy material whenever circulated, consistent with the controlled unclassified information framework and any other policies, guidelines, procedures, instructions, or standards established by the President, including in any relevant future executive memoranda or executive orders; (F)all controlled unclassified information portions of classified documents are marked as controlled unclassified information; and (G)it supersedes any pre-existing policies and procedures relating to the creation, control, and sharing of sensitive but unclassified information generated by the Department, except where otherwise provided by law. (d)

Public access to unclassified information

The Secretary shall make available to members of the public all controlled unclassified information and other unclassified information in its possession that is releasable pursuant to an appropriate request under section 552 of title 5, United States Code (commonly referred to as the ‘Freedom of Information Act’). (e)

Rule of construction

Nothing in this section shall be construed to prevent or discourage the Department from voluntarily releasing to the public any unclassified information that is not exempt from disclosure under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act).

Enforcement of controlled unclassified information framework implementation within the Department of Homeland Security

Subtitle A of title II of the Homeland Security Act of 2002 (6 U.S.C. 121 et seq.) is amended by adding at the end the following new section:

210G.

Enforcement of controlled unclassified information framework implementation programs

(a)

Personal identifiers

The Secretary shall— (1)assess the technologies available or in use at the Department by which an electronic personal identification number or other electronic identifying marker can be assigned to each Department employee and contractor with controlled unclassified information designation authority in order to— (A)track which documents have been designated as controlled unclassified information by a particular employee or contractor; (B)determine the circumstances when such documents have been shared; (C)identify and address misuse of controlled unclassified information markings, including the misapplication of controlled unclassified information markings to documents that do not merit such markings; and (D)assess the information sharing impact of any such problems or misuse; (2)develop an implementation plan for a Department standard for such technology with appropriate benchmarks, a timetable for its completion, and cost estimate for the creation and implementation of a system of electronic personal identification numbers or other electronic identifying markers for all relevant Department employees and contractors; and (3)upon completion of the implementation plan described in paragraph (2), or not later than 180 days after the date of the enactment of the Improving Public Access to Documents Act of 2008, whichever is earlier, the Secretary shall provide a copy of the plan to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate. (b)

Training

The Secretary, in coordination with the Archivist of the United States, shall— (1)require annual training for each Department employee and contractor with controlled unclassified information designation authority or those responsible for analysis, dissemination, preparation, production, receiving, publishing, or otherwise communicating written controlled unclassified information. Such training shall— (A)educate each employee and contractor about— (i)the Department’s requirement that all unclassified finished intelligence products that they create that have been designated as controlled unclassified information be prepared in a standard format prescribed by the Department; (ii)the proper use of controlled unclassified information markings, including portion markings; and (iii)the consequences of improperly using controlled unclassified information markings, including the misapplication of controlled unclassified information markings to documents that do not merit such markings, and of failing to comply with the Department’s policies and procedures established under or pursuant to this section, including the negative consequences for the individual’s personnel evaluation, homeland security, information sharing, and the overall success of the Department’s missions; (B)serve as a prerequisite, once completed successfully, as evidenced by an appropriate certificate, for— (i)obtaining controlled unclassified information designation authority; and (ii)renewing such authority annually; and (C)count as a positive factor, once completed successfully, in the Department’s employment, evaluation, and promotion decisions; and (2)ensure that such program is conducted efficiently, in conjunction with any other security, intelligence, or other training programs required by the Department to reduce the costs and administrative burdens associated with the additional training required by this section. (c)

Detailee program

The Secretary shall— (1)implement a Departmental detailee program to detail Departmental personnel to the National Archives and Records Administration for one year, for the purpose of— (A)training and educational benefit for the Department personnel assigned so that they may better understand the policies, procedures, and laws governing the controlled unclassified information framework; (B)bolstering the ability of the National Archives and Records Administration to conduct its oversight authorities over the Department and other Departments and agencies; and (C)ensuring that the policies and procedures established by the Secretary remain consistent with those established by the Archivist of the United States; and (2)in coordination with the Archivist of the United States, report to Congress not later than 90 days after the conclusion of the first year of the program established under paragraph (1), on— (A)the advisability of expanding the program on a government-wide basis, whereby other departments and agencies would send detailees to the National Archives and Records Administration; and (B)the administrative and monetary costs of full compliance with this section. (d)

Termination of detailee program

Except as otherwise provided by law, subsection (c) shall cease to have effect on December 31, 2012.

Definitions

Subtitle A of title II of the Homeland Security Act of 2002 (6 U.S.C. 121 et seq.) is further amended by adding at the end the following new section:

210H.

Definitions

In this Act: (1)

Controlled unclassified information

The term controlled unclassified information means a categorical designation that refers to unclassified information, including unclassified information within the scope of the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), including unclassified homeland security information, terrorism information, and weapons of mass destruction information (as defined in such section) and unclassified national intelligence (as defined in section 3(5) of the National Security Act of 1947 (50 U.S.C. 401a(5))), that does not meet the standards of National Security Classification under Executive Order 12958, as amended, but is (i) pertinent to the national interests of the United States or to the important interests of entities outside the Federal Government, and (ii) under law or National Archives and Records Administration policy requires safeguarding from unauthorized disclosure, special handling safeguards, or prescribed limits on exchanges or dissemination. (2)

Controlled unclassified information framework

The term controlled unclassified information framework means the single set of policies and procedures governing the designation, marking, safeguarding, and dissemination of terrorism-related controlled unclassified information that originates in departments and agencies, regardless of the medium used for the display, storage, or transmittal of such information, as set forth in the President’s May 7, 2008 Memorandum for the Heads of Executive Departments Regarding Designation and Sharing of controlled unclassified information (CUI), and in any relevant future executive memoranda, executive orders, or legislation. (3)

Finished intelligence product

The term finished intelligence product means a document in which an intelligence analyst has evaluated, interpreted, integrated, or placed into context raw intelligence or information.

Technical amendment

The table of contents in section 1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101(b)) is amended by adding after the item relating to section 210E the following new items:

Sec. 210F. Controlled unclassified information framework implementation program.

Sec. 210G. Enforcement of controlled unclassified information framework implementation programs.

Sec. 210H. Definitions.