[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 553 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 553
To require the Secretary of Homeland Security to develop a strategy to
prevent the over-classification of homeland security and other
information and to promote the sharing of unclassified homeland
security and other information, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
January 15, 2009
Ms. Harman introduced the following bill; which was referred to the
Committee on Homeland Security
_______________________________________________________________________
A BILL
To require the Secretary of Homeland Security to develop a strategy to
prevent the over-classification of homeland security and other
information and to promote the sharing of unclassified homeland
security and other information, 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 Over-Classification Act of
2009''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) A key conclusion in the Final Report of the National
Commission on Terrorist Attacks Upon the United States
(commonly known as the ``9/11 Commission'') was the need to
prevent over-classification by the Federal Government.
(2) The 9/11 Commission and others have observed that the
over-classification of homeland security information interferes
with accurate, actionable, and timely homeland security
information sharing, increases the cost of information
security, and needlessly limits public access to information.
(3) The over-classification 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.
(4) Excessive government secrecy 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.
(5) 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'').
(6) 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 classification markings and the
United States National Archives and Records Administration
policies implementing them.
SEC. 3. OVER-CLASSIFICATION PREVENTION 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. OVER-CLASSIFICATION PREVENTION PROGRAM.
``(a) In General.--The Secretary shall develop and administer
policies, procedures, and programs within the Department to prevent the
over-classification 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 Reducing Over-Classification Act of 2009, 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, standard classified and unclassified formats for
finished intelligence products created by the Department,
consistent with any government-wide standards, practices or
procedures for similar products;
``(2) require that all finished intelligence products
created by the Department be simultaneously prepared in the
standard unclassified format, provided that such an
unclassified product would reasonably be expected to be of any
benefit to a State, local, tribal or territorial government,
law enforcement agency or other emergency response provider, or
the private sector, based on input provided by the Interagency
Threat Assessment and Coordination Group Detail established
under section 210D;
``(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, classified information from each component of the
Department that generates finished intelligence products to--
``(A) assess whether applicable classification
policies, procedures, rules, and regulations have been
followed;
``(B) describe any problems with the administration
of the applicable classification 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, the
Committee on Homeland Security and Governmental Affairs
of the Senate, and the public, in an appropriate
format, on the findings of the Inspector General's
audits under this section;
``(5) establish a process whereby employees may challenge
original classification decisions made by Department employees
or contractors and be rewarded with specific incentives for
successful challenges resulting in the removal of
classification markings or the downgrading of them;
``(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;
and
``(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.
``(c) Finished Intelligence Product Defined.--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. 4. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION 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 further amended by adding at the end the
following new section:
``SEC. 210G. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION 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 original
classification authority in order to--
``(A) track which documents have been classified by
a particular employee or contractor;
``(B) determine the circumstances when such
documents have been shared;
``(C) identify and address over-classification
problems, including the misapplication of
classification 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 Reducing Over-Classification Act of 2009,
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 classification authority or those
responsible for analysis, dissemination, preparation,
production, receiving, publishing, or otherwise communicating
written classified information, including training to--
``(A) educate each employee and contractor about--
``(i) the Department's requirement that all
classified finished intelligence products that
they create be simultaneously prepared in
unclassified form in a standard format
prescribed by the Department, provided that the
unclassified product would reasonably be
expected to be of any benefit to a State,
local, tribal, or territorial government, law
enforcement agency, or other emergency response
provider, or the private sector, based on input
provided by the Interagency Threat Assessment
and Coordination Group Detail established under
section 210D;
``(ii) the proper use of classification
markings, including portion markings; and
``(iii) the consequences of over-
classification and other improper uses of
classification markings, including the
misapplication of classification 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 classification 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
original classification authorities;
``(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 original classification authority; and
``(3) 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) Sunset of Detailee Program.--Except as otherwise provided by
law, subsection (c) shall cease to have effect on December 31, 2012.
``(e) Finished Intelligence Product Defined.--The term `finished
intelligence product' has the meaning given the term in section
210F(c).''.
SEC. 5. 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. Over-classification prevention program.
``Sec. 210G. Enforcement of over-classification prevention programs.''.
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