[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6193 Referred in Senate (RFS)]

  2d Session
                                H. R. 6193


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 31, 2008

Received; read twice and referred to the Committee on Homeland Security 
                        and Governmental Affairs

_______________________________________________________________________

                                 AN ACT


 
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, 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.

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 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').''.

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 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.''.

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 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.''.

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:

``Sec. 210F. Controlled unclassified information framework 
                            implementation program.
``Sec. 210G. Enforcement of controlled unclassified information 
                            framework implementation programs.
``Sec. 210H. Definitions.''.

            Passed the House of Representatives July 30, 2008.

            Attest:

                                            LORRAINE C. MILLER,

                                                                 Clerk.