I 111th CONGRESS 1st Session S. 1285 IN THE HOUSE OF REPRESENTATIVES June 18, 2009 Referred to the Committee on Oversight and Government Reform, and in addition to the Committee on Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned AN ACT To provide that certain photographic records relating to the treatment of any individual engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside the United States shall not be subject to disclosure under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act), to amend section 552(b)(3) of title 5, United States Code (commonly referred to as the Freedom of Information Act) to provide that statutory exemptions to the disclosure requirements of that Act shall specifically cite to the provision of that Act authorizing such exemptions, to ensure an open and deliberative process in Congress by providing for related legislative proposals to explicitly state such required citations, and for other purposes.

1.

Detainee Photographic Records Protection

(a)

Short title

This section may be cited as the Detainee Photographic Records Protection Act of 2009. (b)

Definitions

In this section: (1)

Covered record

The term covered record means any record— (A)that is a photograph that— (i)was taken during the period beginning on September 11, 2001, through January 22, 2009; and (ii)relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States; and (B)for which a certification by the Secretary of Defense under subsection (c) is in effect. (2)

Photograph

The term photograph encompasses all photographic images, whether originals or copies, including still photographs, negatives, digital images, films, video tapes, and motion pictures. (c)

Certification

(1)

In General

For any photograph described under subsection (b)(1)(A), the Secretary of Defense shall certify, if the Secretary of Defense, in consultation with the Chairman of the Joint Chiefs of Staff, determines that the disclosure of that photograph would endanger — (A)citizens of the United States; or (B)members of the Armed Forces or employees of the United States Government deployed outside the United States. (2)

Certification expiration

A certification submitted under paragraph (1) and a renewal of a certification submitted under paragraph (3) shall expire 3 years after the date on which the certification or renewal, as the case may be, is submitted to the President. (3)

Certification renewal

The Secretary of Defense may submit to the President— (A)a renewal of a certification in accordance with paragraph (1) at any time; and (B)more than 1 renewal of a certification. (4)

Notice to Congress

A timely notice of the Secretary's certification shall be submitted to Congress. (d)

Nondisclosure of Detainee records

A covered record shall not be subject to— (1)disclosure under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act); or (2)disclosure under any proceeding under that section. (e)

Rule of construction

Nothing in this section shall be construed to preclude the voluntary disclosure of a covered record. (f)

Effective date

This section shall take effect on the date of enactment of this Act and apply to any photograph created before, on, or after that date that is a covered record.

2.

Open Freedom of Information Act

(a)

Short title

This section may be cited as the OPEN FOIA Act of 2009. (b)

Specific citations in statutory exemptions

Section 552(b) of title 5, United States Code, is amended by striking paragraph (3) and inserting the following: (3)specifically exempted from disclosure by statute (other than section 552b of this title), if that statute— (A) (i)requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii)establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B)if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph. .

Passed the Senate June 17, 2009. Nancy Erickson, Secretary