[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3071 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 3071

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.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 29, 2011

  Mr. Towns (for himself, Mr. Cummings, Mrs. Maloney, Ms. Norton, Mr. 
Kucinich, Mr. Tierney, Mr. Clay, Mr. Lynch, Mr. Cooper, Mr. Connolly of 
 Virginia, Mr. Quigley, Mr. Davis of Illinois, Mr. Braley of Iowa, Mr. 
    Welch, Mr. Yarmuth, Mr. Murphy of Connecticut, and Ms. Speier) 
 introduced the following bill; which was referred to the Committee on 
                    Oversight and Government Reform

_______________________________________________________________________

                                 A BILL


 
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,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Presidential Records Act Amendments 
of 2011''.

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 60-day 
period under subparagraph (A), or any extension of that period under 
subparagraph (B), would otherwise expire during the 6-month period 
after the incumbent President first takes office, then that 60-day 
period or extension, respectively, shall expire at the end of that 6-
month period.
    ``(b)(1) For purposes of this section, the decision to assert any 
claim of constitutionally based privilege against disclosure of a 
Presidential record (or reasonably segregable part of a record) must be 
made 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 on 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 or by a court order in another action in Federal court.
    ``(d) 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--
            ``(1) the incumbent President withdraws the privilege 
        claim; or
            ``(2) the Archivist is otherwise directed by a final court 
        order that is not subject to appeal.
    ``(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 2205 of title 44, United States Code, is amended by 
inserting ``and 2208'' after ``2204''.
    (3) 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.''.
    (e) Rule of Construction.--Nothing in the amendment made by 
subsection (c)(3) shall be construed to--
            (1) affect the requirement of section 2207 of title 44, 
        United States Code, that Vice Presidential records shall be 
        subject to chapter 22 of that title in the same manner as 
        Presidential records; or
            (2) affect any claim of constitutionally based privilege by 
        a President or former President with respect to a Vice 
        Presidential record.
                                 <all>