[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1323 Reported in House (RH)]

                                                  Union Calendar No. 11
111th CONGRESS
  1st Session
                                H. R. 1323

                          [Report No. 111-38]

To require the Archivist of the United States to promulgate regulations 
 regarding the use of information control designations, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 5, 2009

Mr. Driehaus (for himself and Mr. Towns) introduced the following bill; 
 which was referred to the Committee on Oversight and Government Reform

                             March 16, 2009

Committed to the Committee of the Whole House on the State of the Union 
                       and ordered to be printed

_______________________________________________________________________

                                 A BILL


 
To require the Archivist of the United States to promulgate regulations 
 regarding the use of information control designations, 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 ``Reducing Information Control 
Designations Act''.

SEC. 2. PURPOSE.

    The purpose of this Act is to increase Governmentwide information 
sharing and the availability of information to the public by 
standardizing and limiting the use of information control designations.

SEC. 3. REGULATIONS RELATING TO INFORMATION CONTROL DESIGNATIONS WITHIN 
              THE FEDERAL GOVERNMENT.

    (a) Requirement To Reduce and Minimize Information Control 
Designations.--Each Federal agency shall reduce and minimize its use of 
information control designations on information that is not classified.
    (b) Archivist Responsibilities.--
            (1) Regulations.--The Archivist of the United States shall 
        promulgate regulations regarding the use of information control 
        designations.
            (2) Requirements.--The regulations under this subsection 
        shall address, at a minimum, the following:
                    (A) Standards for utilizing the information control 
                designations in a manner that is narrowly tailored to 
                maximize public access to information.
                    (B) The process by which information control 
                designations will be removed.
                    (C) Procedures for identifying, marking, dating, 
                and tracking information assigned the information 
                control designations, including the identity of 
                officials making the designations.
                    (D) Provisions to ensure that the use of 
                information control designations is minimized and 
                cannot be used on information--
                            (i) to conceal violations of law, 
                        inefficiency, or administrative error;
                            (ii) to prevent embarrassment to Federal, 
                        State, local, tribal, or territorial 
                        governments or any official, agency, or 
                        organization thereof; any agency; or any 
                        organization;
                            (iii) to improperly or unlawfully interfere 
                        with competition in the private sector;
                            (iv) to prevent or delay the release of 
                        information that does not require such 
                        protection;
                            (v) if it is required to be made available 
                        to the public; or
                            (vi) if it has already been released to the 
                        public under proper authority.
                    (E) Provisions to ensure that the presumption shall 
                be that information control designations are not 
                necessary.
                    (F) Methods to ensure that compliance with this Act 
                protects national security and privacy rights.
                    (G) The establishment of requirements that Federal 
                agencies, subject to chapter 71 of title 5, United 
                States Code, implement the following:
                            (i) A process whereby an individual may 
                        challenge without retribution the application 
                        of information control designations by another 
                        individual and be rewarded with specific 
                        incentives for successful challenges resulting 
                        in--
                                    (I) the removal of improper 
                                information control designations; or
                                    (II) the correct application of 
                                appropriate information control 
                                designations.
                            (ii) A method for informing individuals 
                        that repeated failure to comply with the 
                        policies, procedures, and programs established 
                        under this section could subject them to a 
                        series of penalties.
                            (iii) Penalties for individuals 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.
                    (H) Procedures for members of the public to be 
                heard regarding improper applications of information 
                control designations.
                    (I) A procedure to ensure that all agency policies 
                and standards for utilizing information control 
                designations that are issued pursuant to subsection (c) 
                be provided to the Archivist and that such policies and 
                standards are made publicly available on the website of 
                the National Archives and Records Administration.
            (3) Consultation.--In promulgating the regulations, the 
        Archivist shall consult with the heads of Federal agencies and 
        with representatives of State, local, tribal, and territorial 
        governments; law enforcement entities; organizations with 
        expertise in civil rights, employee and labor rights, civil 
        liberties, and government oversight; and the private sector, as 
        appropriate.
    (c) Agency Responsibilities.--The head of each Federal agency shall 
implement the regulations promulgated by the Archivist under subsection 
(b) in the agency in a manner that ensures that--
            (1) information can be shared within the agency, with other 
        agencies, and with State, local, tribal, and territorial 
        governments, the private sector, and the public, as 
        appropriate;
            (2) all policies and standards for utilizing information 
        control designations are consistent with such regulations;
            (3) the number of individuals with authority to apply 
        information control designations is limited; and
            (4) information control designations may be placed only on 
        the portion of information that requires control and not on the 
        entire material.

SEC. 4. ENFORCEMENT OF INFORMATION CONTROL DESIGNATION REGULATIONS 
              WITHIN THE FEDERAL GOVERNMENT.

    (a)  Inspector General Responsibilities.--The Inspector General of 
each Federal agency, in consultation with the Archivist, shall randomly 
audit unclassified information with information control designations. 
In conducting any such audit, the Inspector General shall--
            (1) assess whether applicable policies, procedures, rules, 
        and regulations have been followed;
            (2) describe any problems with the administration of the 
        applicable policies, procedures, rules and regulations, 
        including specific non-compliance issues;
            (3) recommend improvements in awareness and training to 
        address any problems identified under paragraph (2); and
            (4) report to the Committee on Oversight and Government 
        Reform of the House of Representatives, the Committee on 
        Homeland Security and Governmental Affairs of the Senate, the 
        Archivist, and the public on the findings of the Inspector 
        General's audits under this section.
    (b) Personal Identifiers.--
            (1) In general.--For purposes described in paragraph (2), 
        the Archivist of the United States shall require that, at the 
        time of designation of information, the following shall appear 
        on the information:
                    (A) The name or personal identifier of the 
                individual applying information control designations to 
                the information.
                    (B) The agency, office, and position of the 
                individual.
            (2) Purposes.--The purposes described in this paragraph are 
        as follows:
                    (A) To enable the agency to identify and address 
                misuse of information control designations, including 
                the misapplication of information control designations 
                to information that does not merit such markings.
                    (B) To assess the information sharing impact of any 
                such problems or misuse.
    (c) Training.--The Archivist, subject to chapter 71 of title 5, 
United States Code, and in coordination with the heads of Federal 
agencies, shall--
            (1) require training as needed for each individual who 
        applies information control designations, including--
                    (A) instruction on the prevention of the overuse of 
                information control designations;
                    (B) the standards for applying information control 
                designations;
                    (C) the proper application of information control 
                designations, including portion markings;
                    (D) the consequences of repeated improper 
                application of information control designations, 
                including the misapplication of information control 
                designations to information that does not merit such 
                markings, and of failing to comply with the policies 
                and procedures established under or pursuant to this 
                section; and
                    (E) information relating to lessons learned about 
                improper application of information control 
                designations, including lessons learned pursuant to the 
                regulations and Inspector General audits required under 
                this Act and any internal agency audits; and
            (2) ensure that such program is conducted efficiently, in 
        conjunction with any other security, intelligence, or other 
        training programs required by the agency to reduce the costs 
        and administrative burdens associated with the additional 
        training required by this section.
    (d) Detailee Program.--
            (1) Requirement for program.--The Archivist, subject to 
        chapter 71 of title 5, United States Code, shall implement a 
        detailee program to detail Federal agency personnel, on a 
        nonreimbursable basis, to the National Archives and Records 
        Administration, for the purpose of--
                    (A) training and educational benefit for agency 
                personnel assigned so that they may better understand 
                the policies, procedures, and laws governing 
                information control designations;
                    (B) bolstering the ability of the National Archives 
                and Records Administration to conduct its oversight 
                authorities over agencies; and
                    (C) ensuring that the policies and procedures 
                established by the agencies remain consistent with 
                those established by the Archivist of the United 
                States.
            (2) Sunset of detailee program.--Except as otherwise 
        provided by law, this subsection shall cease to have effect on 
        December 31, 2012.

SEC. 5. RELEASING INFORMATION PURSUANT TO THE FREEDOM OF INFORMATION 
              ACT.

    (a) Agency Responsibilities.--The head of each Federal agency shall 
ensure that--
            (1) information control designations 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''); and
            (2) all information in the agency's possession that is 
        releasable is made available to members of the public pursuant 
        to an appropriate request under such section 552.
    (b) Rule of Construction.--Nothing in this Act shall be construed 
to prevent or discourage any Federal agency 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. 6. DEFINITIONS.

    In this Act:
            (1) Information control designations.--The term 
        ``information control designations'' means information 
        dissemination controls, not defined by Federal statute or by an 
        Executive order relating to the classification of national 
        security information, that are used to manage, direct, or route 
        information, or control the accessibility of information, 
        regardless of its form or format. The term includes, but is not 
        limited to, the designations of ``controlled unclassified 
        information'', ``sensitive but unclassified'', and ``for 
        official use only''.
            (2) Information.--The term ``information'' means any 
        communicable knowledge or documentary material, regardless of 
        its physical form or characteristics, that is owned by, is 
        produced by or for, or is under the control of the Federal 
        Government.
            (3) Federal agency.--The term ``Federal agency'' means--
                    (A) any Executive agency, as that term is defined 
                in section 105 of title 5, United States Code;
                    (B) any military department, as that term is 
                defined in section 102 of such title; and
                    (C) any other entity within the executive branch 
                that comes into the possession of classified 
                information.

SEC. 7. DEADLINE FOR REGULATIONS AND IMPLEMENTATION.

    Regulations shall be promulgated in final form under this Act, and 
implementation of the requirements of this Act shall begin, not later 
than 24 months after the date of the enactment of this Act.
                                                  Union Calendar No. 11

111th CONGRESS

  1st Session

                               H. R. 1323

                          [Report No. 111-38]

_______________________________________________________________________

                                 A BILL

To require the Archivist of the United States to promulgate regulations 
 regarding the use of information control designations, and for other 
                               purposes.

_______________________________________________________________________

                             March 16, 2009

Committed to the Committee of the Whole House on the State of the Union 
                       and ordered to be printed