[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 35 Reported in Senate (RS)]

                                                        Calendar No. 64
111th CONGRESS
  1st Session
                                 H. R. 35

                          [Report No. 111-21]


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 8, 2009

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

                              May 19, 2009

              Reported by Mr. Lieberman, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 AN ACT


 
To amend chapter 22 of title 44, United States Code, popularly known as 
     the Presidential Records Act, to establish procedures for the 
  consideration of claims of constitutionally based privilege against 
                  disclosure of Presidential records.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Presidential Records Act 
Amendments of 2009''.</DELETED>

<DELETED>SEC. 2. PROCEDURES FOR CONSIDERATION OF CLAIMS OF 
              CONSTITUTIONALLY BASED PRIVILEGE AGAINST 
              DISCLOSURE.</DELETED>

<DELETED>    (a) In General.--Chapter 22 of title 44, United States 
Code, is amended by adding at the end the following:</DELETED>
<DELETED>``Sec. 2208. Claims of constitutionally based privilege 
              against disclosure</DELETED>
<DELETED>    ``(a)(1) When the Archivist determines under this chapter 
to make available to the public any Presidential record that has not 
previously been made available to the public, the Archivist shall--
</DELETED>
        <DELETED>    ``(A) promptly provide notice of such 
        determination to--</DELETED>
                <DELETED>    ``(i) the former President during whose 
                term of office the record was created; and</DELETED>
                <DELETED>    ``(ii) the incumbent President; 
                and</DELETED>
        <DELETED>    ``(B) make the notice available to the 
        public.</DELETED>
<DELETED>    ``(2) The notice under paragraph (1)--</DELETED>
        <DELETED>    ``(A) shall be in writing; and</DELETED>
        <DELETED>    ``(B) shall include such information as may be 
        prescribed in regulations issued by the Archivist.</DELETED>
<DELETED>    ``(3)(A) Upon the expiration of the 20-day period 
(excepting Saturdays, Sundays, and legal public holidays) beginning on 
the date the Archivist provides notice under paragraph (1)(A), the 
Archivist shall make available to the public the record covered by the 
notice, except any record (or reasonably segregable part of a record) 
with respect to which the Archivist receives from a former President or 
the incumbent President notification of a claim of constitutionally 
based privilege against disclosure under subsection (b).</DELETED>
<DELETED>    ``(B) A former President or the incumbent President may 
extend the period under subparagraph (A) once for not more than 20 
additional days (excepting Saturdays, Sundays, and legal public 
holidays) by filing with the Archivist a statement that such an 
extension is necessary to allow an adequate review of the 
record.</DELETED>
<DELETED>    ``(C) Notwithstanding subparagraphs (A) and (B), if the 
period under subparagraph (A), or any extension of that period under 
subparagraph (B), would otherwise expire after January 19 and before 
July 20 of the year in which the incumbent President first takes 
office, then such period or extension, respectively, shall expire on 
July 20 of that year.</DELETED>
<DELETED>    ``(b)(1) For purposes of this section, any claim of 
constitutionally based privilege against disclosure must be asserted 
personally by a former President or the incumbent President, as 
applicable.</DELETED>
<DELETED>    ``(2) A former President or the incumbent President shall 
notify the Archivist, the Committee on Oversight and Government Reform 
of the House of Representatives, and the Committee on Homeland Security 
and Governmental Affairs of the Senate of a privilege claim under 
paragraph (1) on the same day that the claim is asserted under 
paragraph (1).</DELETED>
<DELETED>    ``(c)(1) The Archivist shall not make publicly available a 
Presidential record that is subject to a privilege claim asserted by a 
former President until the expiration of the 20-day period (excluding 
Saturdays, Sundays, and legal public holidays) beginning on the date 
the Archivist is notified of the claim.</DELETED>
<DELETED>    ``(2) Upon the expiration of such period the Archivist 
shall make the record publicly available unless otherwise directed by a 
court order in an action initiated by the former President under 
section 2204(e).</DELETED>
<DELETED>    ``(d)(1) The Archivist shall not make publicly available a 
Presidential record that is subject to a privilege claim asserted by 
the incumbent President unless--</DELETED>
        <DELETED>    ``(A) the incumbent President withdraws the 
        privilege claim; or</DELETED>
        <DELETED>    ``(B) the Archivist is otherwise directed by a 
        final court order that is not subject to appeal.</DELETED>
<DELETED>    ``(2) This subsection shall not apply with respect to any 
Presidential record required to be made available under section 
2205(2)(A) or (C).</DELETED>
<DELETED>    ``(e) The Archivist shall adjust any otherwise applicable 
time period under this section as necessary to comply with the return 
date of any congressional subpoena, judicial subpoena, or judicial 
process.''.</DELETED>
<DELETED>    (b) Restrictions.--Section 2204 of title 44, United States 
Code (relating to restrictions on access to presidential records) is 
amended by adding at the end the following new subsection:</DELETED>
<DELETED>    ``(f) The Archivist shall not make available any original 
presidential records to any individual claiming access to any 
presidential record as a designated representative under section 
2205(3) if that individual has been convicted of a crime relating to 
the review, retention, removal, or destruction of records of the 
Archives.''.</DELETED>
<DELETED>    (c) Conforming Amendments.--(1) Section 2204(d) of title 
44, United States Code, is amended by inserting ``, except section 
2208,'' after ``chapter''.</DELETED>
<DELETED>    (2) Section 2207 of title 44, United States Code, is 
amended in the second sentence by inserting ``, except section 2208,'' 
after ``chapter''.</DELETED>
<DELETED>    (d) Clerical Amendment.--The table of sections at the 
beginning of chapter 22 of title 44, United States Code, is amended by 
adding at the end the following:</DELETED>

<DELETED>``2208. Claims of constitutionally based privilege against 
                            disclosure.''.

<DELETED>SEC. 3. EXECUTIVE ORDER OF NOVEMBER 1, 2001.</DELETED>

<DELETED>    Executive Order No. 13233, dated November 1, 2001 (66 Fed. 
Reg. 56025), shall have no force or effect.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Presidential Records Act Amendments 
of 2009''.

SEC. 2. PROCEDURES FOR CONSIDERATION OF CLAIMS OF CONSTITUTIONALLY 
              BASED PRIVILEGE AGAINST DISCLOSURE.

    (a) In General.--Chapter 22 of title 44, United States Code, is 
amended by adding at the end the following:
``Sec. 2208. Claims of constitutionally based privilege against 
              disclosure
    ``(a)(1) When the Archivist determines under this chapter to make 
available to the public any Presidential record that has not previously 
been made available to the public, the Archivist shall--
            ``(A) promptly provide notice of such determination to--
                    ``(i) the former President during whose term of 
                office the record was created; and
                    ``(ii) the incumbent President; and
            ``(B) make the notice available to the public.
    ``(2) The notice under paragraph (1)--
            ``(A) shall be in writing; and
            ``(B) shall include such information as may be prescribed 
        in regulations issued by the Archivist.
    ``(3)(A) Upon the expiration of the 60-day period (excepting 
Saturdays, Sundays, and legal public holidays) beginning on the date 
the Archivist provides notice under paragraph (1)(A), the Archivist 
shall make available to the public the Presidential record covered by 
the notice, except any record (or reasonably segregable part of a 
record) with respect to which the Archivist receives from a former 
President or the incumbent President notification of a claim of 
constitutionally based privilege against disclosure under subsection 
(b).
    ``(B) A former President or the incumbent President may extend the 
period under subparagraph (A) once for not more than 30 additional days 
(excepting Saturdays, Sundays, and legal public holidays) by filing 
with the Archivist a statement that such an extension is necessary to 
allow an adequate review of the record.
    ``(C) Notwithstanding subparagraphs (A) and (B), if the period 
under subparagraph (A), or any extension of that period under 
subparagraph (B), would otherwise expire after January 19 and before 
July 20 of the year in which the incumbent President first takes 
office, then such period or extension, respectively, shall expire on 
July 20 of that year.
    ``(b)(1) For purposes of this section, any claim of 
constitutionally based privilege against disclosure of a Presidential 
record (or reasonably segregable part of a record) must be asserted 
personally by a former President or the incumbent President, as 
applicable.
    ``(2) A former President or the incumbent President shall notify 
the Archivist, the Committee on Oversight and Government Reform of the 
House of Representatives, and the Committee on Homeland Security and 
Governmental Affairs of the Senate of a privilege claim under paragraph 
(1) on the same day that the claim is asserted under such paragraph.
    ``(c)(1) If a claim of constitutionally based privilege against 
disclosure of a Presidential record (or reasonably segregable part of a 
record) is asserted under subsection (b) by a former President, the 
Archivist shall consult with the incumbent President, as soon as 
practicable during the period specified in paragraph (2)(A), to 
determine whether the incumbent President will uphold the claim 
asserted by the former President.
    ``(2)(A) Not later than the end of the 30-day period beginning on 
the date of which the Archivist receives notification from a former 
President of the assertion of a claim of constitutionally based 
privilege against disclosure, the Archivist shall provide notice to the 
former President and the public of the decision of the incumbent 
President under paragraph (1) regarding the claim.
    ``(B) If the incumbent President upholds the claim of privilege 
asserted by the former President, the Archivist shall not make the 
Presidential record (or reasonably segregable part of a record) subject 
to the claim publicly available unless--
            ``(i) the incumbent President withdraws the decision 
        upholding the claim of privilege asserted by the former 
        President; or
            ``(ii) the Archivist is otherwise directed by a final court 
        order that is not subject to appeal.
    ``(C) If the incumbent President determines not to uphold the claim 
of privilege asserted by the former President, or fails to make the 
determination under paragraph (1) before the end of the period 
specified in subparagraph (A), the Archivist shall release the 
Presidential record subject to the claim at the end of the 90-day 
period beginning on the date of which the Archivist received 
notification of the claim, unless otherwise directed by a court order 
in an action initiated by the former President under section 2204(e) of 
this title.
    ``(d)(1) The Archivist shall not make publicly available a 
Presidential record (or reasonably segregable part of a record) that is 
subject to a privilege claim asserted by the incumbent President 
unless--
            ``(A) the incumbent President withdraws the privilege 
        claim; or
            ``(B) the Archivist is otherwise directed by a final court 
        order that is not subject to appeal.
    ``(2) This subsection shall not apply with respect to any 
Presidential record required to be made available under section 
2205(2)(A) or (C) of this title.
    ``(e) The Archivist shall adjust any otherwise applicable time 
period under this section as necessary to comply with the return date 
of any congressional subpoena, judicial subpoena, or judicial 
process.''.
    (b) Restrictions.--Section 2204 of title 44, United States Code 
(relating to restrictions on access to presidential records) is amended 
by adding at the end the following new subsection:
    ``(f) The Archivist shall not make available any original 
presidential records to any individual claiming access to any 
presidential record as a designated representative under section 
2205(3) if that individual has been convicted of a crime relating to 
the review, retention, removal, or destruction of records of the 
Archives.''.
    (c) Conforming Amendments.--(1) Section 2204(d) of title 44, United 
States Code, is amended by inserting ``, except section 2208,'' after 
``chapter''.
    (2) Section 2207 of title 44, United States Code, is amended in the 
second sentence by inserting ``, except section 2208,'' after 
``chapter''.
    (d) Clerical Amendment.--The table of sections at the beginning of 
chapter 22 of title 44, United States Code, is amended by adding at the 
end the following:

``2208. Claims of constitutionally based privilege against 
                            disclosure.''.

SEC. 3. TREATMENT OF EXECUTIVE ORDERS 13233 AND 12667.

    Executive Order No. 13233, dated November 1, 2001 (66 Fed. Reg. 
56025), and Executive Order No. 12667, dated January 1, 1989 (54 Fed. 
Reg. 3403), shall have no force or effect.
                                                        Calendar No. 64

111th CONGRESS

  1st Session

                                H. R. 35

                          [Report No. 111-21]

_______________________________________________________________________

                                 AN ACT

To amend chapter 22 of title 44, United States Code, popularly known as 
     the Presidential Records Act, to establish procedures for the 
  consideration of claims of constitutionally based privilege against 
                  disclosure of Presidential records.

_______________________________________________________________________

                              May 19, 2009

                       Reported with an amendment