[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6193 Introduced in House (IH)]







110th CONGRESS
  2d Session
                                H. R. 6193

To require the Secretary of Homeland Security to develop and administer 
policies, procedures, and programs to promote the implementation of the 
      Controlled Unclassified Information Framework applicable to 
    unclassified information that is 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), and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              June 5, 2008

Ms. Harman (for herself, Mr. Reichert, Mr. Thompson of Mississippi, Mr. 
  Langevin, Ms. Norton, Mr. Carney, Mr. Dicks, and Ms. Jackson-Lee of 
    Texas) introduced the following bill; which was referred to the 
                     Committee on Homeland Security

_______________________________________________________________________

                                 A BILL


 
To require the Secretary of Homeland Security to develop and administer 
policies, procedures, and programs to promote the implementation of the 
      Controlled Unclassified Information Framework applicable to 
    unclassified information that is 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), and for other 
                               purposes.

    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 ``Improving Public Access to Documents 
Act of 2008''.

SEC. 2. 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, and 
        tribal homeland security, law enforcement, and 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 
        presumption that all homeland security information that is not 
        properly classified, or marked as controlled unclassified 
        information and otherwise exempt from disclosure, should be 
        shared with 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 United States National Archives 
        and Records Administration policies implementing them.

SEC. 3. 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:

``SEC. 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 in order to maximize 
the disclosure to the public of, and to standardize the use of 
controlled unclassified information control markings on, 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 National 
Archives and Records Administration and consult with representatives of 
State, local, and tribal government; 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.--Within 180 days of the enactment of this Act, 
the Secretary, in administering the policies, procedures, and programs 
required under subsection (a), shall--
            ``(1) create 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, whenever possible;
            ``(3) ensure that such polices, procedures, and programs 
        protect 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 that generates unclassified finished 
        intelligence products to--
                    ``(A) assess, on an individualized basis, 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 with individuals engaged 
                in this work;
                    ``(C) recommend improvements in awareness and 
                training to address them;
                    ``(D) report at least annually to the Committee on 
                Homeland Security of the House of Representatives and 
                the Homeland Security and Government Affairs Committee 
                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 and be 
        rewarded with specific incentives for successful challenges 
        resulting in the removal of controlled unclassified information 
        markings;
            ``(6) institute a series of penalties, up to and including 
        termination, for employees and contractors who fail to comply 
        with the policies, procedures, and programs established under 
        this section; and
            ``(7) maintain a publicly available list of documents 
        designated and marked, in whole or in part, as controlled 
        unclassified information, indicating which 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 create a process through which the 
        public may seek the removal of such a designation and marking.
    ``(c) Implementation.--In furtherance of the requirements in 
paragraphs (a) and (b), the Secretary shall ensure that:
            ``(1) information shall be designated as controlled 
        unclassified information and include an authorized controlled 
        unclassified information marking only if:
                    ``(A) a statute 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 the provisions contained in paragraph 
        (c)(1), information shall not be designated as controlled 
        unclassified information--
                    ``(A) to conceal violations of law, inefficiency, 
                or administrative error;
                    ``(B) to prevent embarrassment to the Federal 
                Government or any Federal official, any organization, 
                or agency;
                    ``(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) controlled unclassified information can be 
                shared within the Department and with State, local, and 
                tribal 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;
                    ``(C) the number of Department employees and 
                contractors with original and derivative controlled 
                unclassified information designation authority is 
                limited appropriately as determined through 
                consultation with the parties identified in paragraph 
                (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;
                    ``(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 the public, pursuant to an appropriate request 
under section 552 of title 5, United States Code (commonly referred to 
as the `Freedom of Information Act'), all controlled unclassified 
information and other unclassified information in its possession.''.

SEC. 4. 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:

``SEC. 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 or 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;
                    ``(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 within 180 days of the enactment of this 
        legislation, whichever is sooner, the Secretary shall provide a 
        copy of the plan to the Committee on Homeland Security of the 
        House of Representatives and the Homeland Security and 
        Government Affairs Committee 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 
        or contractor with controlled unclassified information 
        designation authority and who are 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 United States 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;
            ``(2) ensure that the program established under paragraph 
        (1) includes at least one individual for each Department office 
        with delegated controlled unclassified information designation 
        authority; and
            ``(3) in coordination with the Archivist of the United 
        States, report to Congress no later than 90 days after the 
        conclusion of the first year of the program established under 
        paragraph (1), on the advisability of expanding the program on 
        a government-wide basis, whereby other departments and agencies 
        would send detailees to the United States National Archives and 
        Records Administration. Such report shall also include the 
        administrative and monetary costs of full compliance with this 
        section.
    ``(d) In General.--Except as otherwise provided by law, subsection 
(c) shall cease to have effect on December 31, 2012.''.

SEC. 5. 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:

``SEC. 210H. DEFINITIONS.

    ``In this Act:
            ``(1) Controlled unclassified information.--The term 
        `controlled unclassified information' means a categorical 
        designation that refers to unclassified homeland security 
        information; law enforcement information relating to terrorism; 
        and information, as defined in the Implementing Recommendations 
        of the 9/11 Commission Act of 2007, Public Law 110-53, section 
        504; 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 United States 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).
            ``(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.''.

SEC. 6. 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:

``210F. Controlled unclassified information framework implementation 
                            program.
``210G. Enforcement of over-classification prevention and controlled 
                            unclassified information framework 
                            implementation programs.
``210H. Definitions.''.
                                 <all>