[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1233 Introduced in House (IH)]
113th CONGRESS
1st Session
H. R. 1233
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, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 18, 2013
Mr. Cummings 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, 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Presidential and
Federal Records Act Amendments of 2013''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Presidential records.
Sec. 3. National Archives and Records Administration.
Sec. 4. Records management by Federal agencies.
Sec. 5. Disposal of records.
Sec. 6. Procedures to prevent unauthorized removal of classified
records from National Archives.
Sec. 7. Repeal of provisions related to the National Study Commission
on Records and Documents of Federal
Officials.
Sec. 8. Pronoun amendments.
Sec. 9. Records management by the Archivist.
SEC. 2. PRESIDENTIAL RECORDS.
(a) Procedures for Consideration of Claims of Constitutionally
Based Privilege Against Disclosure.--
(1) Amendment.--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 any 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.''.
(2) Conforming amendments.--(A) Section 2204(d) of title
44, United States Code, is amended by inserting ``, except
section 2208,'' after ``chapter''.
(B) Section 2205 of title 44, United States Code, is
amended--
(i) in the matter preceding paragraph (1), by
striking ``section 2204'' and inserting ``sections 2204
and 2208 of this title''; and
(ii) in paragraph (2)(A), by striking ``subpena''
and inserting ``subpoena''.
(C) Section 2207 of title 44, United States Code, is
amended in the second sentence by inserting ``, except section
2208,'' after ``chapter''.
(3) 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.''.
(4) Rule of construction.--Nothing in the amendment made by
paragraph (2)(C) shall be construed to--
(A) 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
(B) affect any claim of constitutionally based
privilege by a President or former President with
respect to a Vice Presidential record.
(b) Definitions.--Section 2201 of title 44, United States Code, is
amended--
(1) in paragraph (1)--
(A) by striking ``memorandums'' and inserting
``memoranda'';
(B) by striking ``audio, audiovisual'' and
inserting ``audio and visual records''; and
(C) by inserting ``, whether in analog, digital, or
any other form'' after ``mechanical recordations''; and
(2) in paragraph (2), by striking ``advise and assist'' and
inserting ``advise or assist''.
(c) Management and Custody of Presidential Records.--Section 2203
of title 44, United States Code, is amended--
(1) in subsection (a), by striking ``maintained'' and
inserting ``preserved and maintained'';
(2) in subsection (b), by striking ``advise and assist''
and inserting ``advise or assist'';
(3) by redesignating subsection (f) as subsection (g);
(4) by inserting after subsection (e) the following new
subsection:
``(f) During a President's term of office, the Archivist may
maintain and preserve Presidential records on behalf of the President,
including records in digital or electronic form. The President shall
remain exclusively responsible for custody, control, and access to such
Presidential records. The Archivist may not disclose any such records,
except under direction of the President, until the conclusion of a
President's term of office, if a President serves consecutive terms
upon the conclusion of the last term, or such other period provided for
under section 2204 of this title.''; and
(5) in subsection (g)(1), as so redesignated, by striking
``Act'' and inserting ``chapter''.
(d) Restrictions on Access to Presidential Records.--Section 2204
of title 44, United States Code, 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) of this title if that individual has been convicted of a crime
relating to the review, retention, removal, or destruction of records
of the Archives.''.
SEC. 3. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION.
(a) Acceptance of Records for Historical Preservation.--Section
2107 of title 44, United States Code, is amended to read as follows:
``Sec. 2107. Acceptance of records for historical preservation
``(a) In General.--When it appears to the Archivist to be in the
public interest, the Archivist may--
``(1) accept for deposit with the National Archives of the
United States the records of a Federal agency, the Congress,
the Architect of the Capitol, or the Supreme Court determined
by the Archivist to have sufficient historical or other value
to warrant their continued preservation by the United States
Government;
``(2) direct and effect the transfer of records of a
Federal agency determined by the Archivist to have sufficient
historical or other value to warrant their continued
preservation by the United States Government to the National
Archives of the United States, as soon as practicable, and at a
time mutually agreed upon by the Archivist and the head of that
Federal agency not later than thirty years after such records
were created or received by that agency, unless the head of
such agency has certified in writing to the Archivist that such
records must be retained in the custody of such agency for use
in the conduct of the regular business of the agency;
``(3) direct and effect, with the approval of the head of
the originating Federal agency, or if the existence of the
agency has been terminated, with the approval of the head of
that agency's successor in function, if any, the transfer of
records, deposited or approved for deposit with the National
Archives of the United States to public or educational
institutions or associations; title to the records to remain
vested in the United States unless otherwise authorized by
Congress; and
``(4) transfer materials from private sources authorized to
be received by the Archivist by section 2111 of this title.
``(b) Early Transfer of Records.--The Archivist--
``(1) in consultation with the head of the originating
Federal agency, is authorized to accept for deposit the records
described in subsection (a)(2) that have been in existence for
less than thirty years; and
``(2) may not disclose any such records until the
expiration of--
``(A) the thirty-year period described in paragraph
(1);
``(B) any longer period established by the
Archivist by order; or
``(C) any shorter period agreed to by the
originating Federal agency.''.
(b) Material Accepted for Deposit.--Section 2111 of title 44,
United States Code, is amended to read as follows:
``Sec. 2111. Material accepted for deposit
``(a) In General.--When the Archivist considers it to be in the
public interest the Archivist may accept for deposit--
``(1) the papers and other historical materials of a
President or former President of the United States, or other
official or former official of the Government, and other papers
relating to and contemporary with a President or former
President of the United States, subject to restrictions
agreeable to the Archivist as to their use; and
``(2) recorded information (as such term is defined in
section 3301(a)(2) of this title) from private sources that are
appropriate for preservation by the Government as evidence of
its organization, functions, policies, decisions, procedures,
and transactions.
``(b) Exception.--This section shall not apply in the case of any
Presidential records which are subject to the provisions of chapter 22
of this title.''.
(c) Preservation of Audio and Visual Records.--
(1) In general.--Section 2114 of title 44, United States
Code, is amended to read as follows:
``Sec. 2114. Preservation of audio and visual records
``The Archivist may make and preserve audio and visual records,
including motion-picture films, still photographs, and sound
recordings, in analog, digital, or any other form, pertaining to and
illustrative of the historical development of the United States
Government and its activities, and provide for preparing, editing,
titling, scoring, processing, duplicating, reproducing, exhibiting, and
releasing for non-profit educational purposes, motion-picture films,
still photographs, and sound recordings in the Archivist's custody.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 21 of title 44, United States Code, is
amended by striking the item for section 2114 and inserting the
following:
``2114. Preservation of audio and visual records.''.
(d) Legal Status of Reproductions; Official Seal; Fees for Copies
and Reproductions.--Section 2116(a) of title 44, United States Code, is
amended by inserting ``digital,'' after ``microphotographic,'', each
place it appears.
SEC. 4. RECORDS MANAGEMENT BY FEDERAL AGENCIES.
Section 3106 of title 44, United States Code, is amended to read as
follows:
``Sec. 3106. Unlawful removal, destruction of records
``(a) Federal Agency Notification.--The head of each Federal agency
shall notify the Archivist of any actual, impending, or threatened
unlawful removal, defacing, alteration, corruption, deletion, erasure,
or other destruction of records in the custody of the agency, and with
the assistance of the Archivist shall initiate action through the
Attorney General for the recovery of records the head of the Federal
agency knows or has reason to believe have been unlawfully removed from
that agency, or from another Federal agency whose records have been
transferred to the legal custody of that Federal agency.
``(b) Archivist Notification.--In any case in which the head of a
Federal agency does not initiate an action for such recovery or other
redress within a reasonable period of time after being notified of any
such unlawful action described in subsection (a), or is participating
in, or believed to be participating in any such unlawful action, the
Archivist shall request the Attorney General to initiate such an
action, and shall notify the Congress when such a request has been
made.''.
SEC. 5. DISPOSAL OF RECORDS.
(a) Definition of Records.--Section 3301 of title 44, United States
Code, is amended to read as follows:
``Sec. 3301. Definition of records
``(a) Records Defined.--
``(1) In general.--As used in this chapter, the term
`records'--
``(A) includes all recorded information, regardless
of form or characteristics, made or received by a
Federal agency under Federal law or in connection with
the transaction of public business and preserved or
appropriate for preservation by that agency or its
legitimate successor as evidence of the organization,
functions, policies, decisions, procedures, operations,
or other activities of the United States Government or
because of the informational value of data in them; and
``(B) does not include--
``(i) library and museum material made or
acquired and preserved solely for reference or
exhibition purposes; or
``(ii) duplicate copies of records
preserved only for convenience.
``(2) Recorded information defined.--For purposes of
paragraph (1), the term `recorded information' includes all
traditional forms of records, regardless of physical form or
characteristics, including information created, manipulated,
communicated, or stored in digital or electronic form.
``(b) Determination of Definition.--The Archivist's determination
whether recorded information, regardless of whether it exists in
physical, digital, or electronic form, is a record as defined in
subsection (a) shall be binding on all Federal agencies.''.
(b) Regulations Covering Lists of Records for Disposal, Procedure
for Disposal, and Standards for Reproduction.--Section 3302(3) of title
44, United States Code, is amended by striking ``photographic or
microphotographic processes'' and inserting ``photographic,
microphotographic, or digital processes''.
(c) Lists and Schedules of Records To Be Submitted to the Archivist
by Head of Each Government Agency.--Section 3303(1) of title 44, United
States Code, is amended by striking ``photographed or
microphotographed'' and inserting ``photographed, microphotographed, or
digitized''.
(d) Examination by Archivist of Lists and Schedules of Records
Lacking Preservation Value; Disposal of Records.--Section 3303a(c) of
title 44, United States Code, is amended by striking ``the Committee on
Rules and Administration of the Senate and the Committee on House
Oversight of the House of Representatives'' and inserting ``the
Committee on Oversight and Government Reform of the House of
Representatives and the Committee on Homeland Security and Governmental
Affairs of the Senate''.
(e) Photographs or Microphotographs of Records Considered as
Originals; Certified Reproductions Admissible in Evidence.--Section
3312 of title 44, United States Code, is amended--
(1) in the first sentence, by striking ``Photographs and
microphotographs of records'' and inserting ``Photographs,
microphotographs of records, or digitized records''; and
(2) in the second sentence, by striking ``photographs or
microphotographs'' and inserting ``photographs,
microphotographs, or digitized records'', each place it
appears.
SEC. 6. PROCEDURES TO PREVENT UNAUTHORIZED REMOVAL OF CLASSIFIED
RECORDS FROM NATIONAL ARCHIVES.
(a) Classified Records.--Not later than 90 days after the date of
the enactment of this Act, the Archivist shall prescribe internal
procedures to prevent the unauthorized removal of classified records
from the National Archives and Records Administration or the
destruction or damage of such records, including when such records are
accessed or searched electronically. Such procedures shall include, at
a minimum, the following prohibitions:
(1) An individual, other than covered personnel, may not
view classified records in any room that is not secure, except
in the presence of National Archives and Records Administration
personnel or under video surveillance.
(2) An individual, other than covered personnel, may not be
left alone with classified records, unless that individual is
under video surveillance.
(3) An individual, other than covered personnel, may not
review classified records while possessing any cellular phone,
electronic personal communication device, or any other devices
capable of photographing, recording, or transferring images or
content.
(4) An individual seeking access to review classified
records, as a precondition to such access, must consent to a
search of their belongings upon conclusion of their records
review.
(5) All notes and other writings prepared by an individual,
other than covered personnel, during the course of a review of
classified records shall be retained by the National Archives
and Records Administration in a secure facility until such
notes and other writings are determined to be unclassified, are
declassified, or are securely transferred to another secure
facility.
(b) Definitions.--In this section:
(1) Covered personnel.--The term ``covered personnel''
means any individual--
(A) who has an appropriate and necessary reason for
accessing classified records, as determined by the
Archivist; and
(B) who is either--
(i) an officer or employee of the United
States Government with appropriate security
clearances; or
(ii) any personnel with appropriate
security clearances of a Federal contractor
authorized in writing to act for purposes of
this section by an officer or employee of the
United States Government.
(2) Records.--The term ``records'' has the meaning given
that term under section 3301 of title 44, United States Code.
SEC. 7. REPEAL OF PROVISIONS RELATED TO THE NATIONAL STUDY COMMISSION
ON RECORDS AND DOCUMENTS OF FEDERAL OFFICIALS.
(a) In General.--Sections 3315 through 3324 of title 44, United
States Code, are repealed.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 33 of title 44, United States Code, is amended by striking the
items relating to sections 3315 through 3324.
SEC. 8. PRONOUN AMENDMENTS.
Title 44, United States Code, is amended--
(1) in section 2116(c), by striking ``his'' and inserting
``the Archivist's'';
(2) in section 2201(2), by striking ``his'' and inserting
``the President's'', each place it appears;
(3) in section 2203--
(A) in subsection (a), by striking ``his'' and
inserting ``the President's'';
(B) in subsection (b), by striking ``his'' and
inserting ``the President's'';
(C) in subsection (c)--
(i) in the matter preceding paragraph (1)--
(I) by striking ``his'' and
inserting ``the President's''; and
(II) by striking ``those of his
Presidential records'' and inserting
``those Presidential records of such
President''; and
(ii) in paragraph (2), by striking ``he''
and inserting ``the Archivist'';
(D) in subsection (d), by striking ``he'' and
inserting ``the Archivist'';
(E) in subsection (e), by striking ``he'' and
inserting ``the Archivist''; and
(F) in subsection (g), as so redesignated, by
striking ``he'' and inserting ``the Archivist'';
(4) in section 2204--
(A) in subsection (a)--
(i) in the matter preceding paragraph (1),
by striking ``his'' and inserting ``a
President's''; and
(ii) in paragraph (5), by striking ``his''
and inserting ``the President's''; and
(B) in subsection (b)--
(i) in paragraph (1)(B), by striking
``his'' and inserting ``the President's''; and
(ii) in paragraph (3)--
(I) by striking ``his'' and
inserting ``the Archivist's''; and
(II) by striking ``his designee''
and inserting ``the Archivist's
designee'';
(5) in section 2205--
(A) in paragraph (2)(B), by striking ``his'' and
inserting ``the incumbent President's''; and
(B) in paragraph (3), by striking ``his'' and
inserting ``the former President's'';
(6) in section 2901(11), by striking ``his'' and inserting
``the Archivist's'';
(7) in section 2904(c)(6), by striking ``his'' and
inserting ``the Archivist's'';
(8) in section 2905(a)--
(A) by striking ``He'' and inserting ``The
Archivist''; and
(B) by striking ``his'' and inserting ``the
Archivist's'';
(9) in section 3103, by striking ``he'' and inserting ``the
head of such agency'';
(10) in section 3104--
(A) by striking ``his'' and inserting ``such
official's''; and
(B) by striking ``him or his'' and inserting ``such
official or such official's'';
(11) in section 3105, by striking ``he'' and inserting
``the head of such agency'';
(12) in section 3302(1), by striking ``him'' and inserting
``the Archivist''; and
(13) in section 3303a--
(A) in subsection (a)--
(i) by striking ``him'' and inserting ``the
Archivist'', each place it appears; and
(ii) by striking ``he'' and inserting ``the
Archivist'';
(B) in subsection (c), by striking ``he'' and
inserting ``the Archivist'';
(C) in subsection (e), by striking ``his'' and
inserting ``the Archivist's''; and
(D) in subsection (f), by striking ``he'' and
inserting ``the Archivist''.
SEC. 9. RECORDS MANAGEMENT BY THE ARCHIVIST.
(a) Objectives of Records Management.--Section 2902 of title 44,
United States Code, is amended--
(1) in paragraph (4), by striking ``creation and of records
maintenance and use'' and inserting ``creation, maintenance,
transfer, and use'';
(2) in paragraph (6), by inserting after ``Federal
paperwork'' the following: ``and the transfer of records from
Federal agencies to the National Archives of the United States
in digital or electronic form to the greatest extent
possible''; and
(3) in paragraph (7), by striking ``the Administrator or''.
(b) Records Centers and Centralized Microfilming Services.--Section
2907 of title 44, United States Code, is amended--
(1) in the subject heading by inserting ``or digitization''
after ``microfilming''; and
(2) by inserting ``or digitization'' after
``microfilming''.
(c) General Responsibilities for Records Management.--Section 2904
of title 44, United States Code, is amended--
(1) in subsection (b), by striking ``The Administrator''
and inserting ``The Archivist'';
(2) in subsection (c)--
(A) in the matter preceding paragraph (1)--
(i) by striking ``their'' and inserting
``the'';
(ii) by striking ``subsection (a) or (b),
respectively'' and inserting ``subsections (a)
and (b)'';
(iii) by striking ``and the
Administrator''; and
(iv) by striking ``each''; and
(B) in paragraph (8), by striking ``or the
Administrator (as the case may be)''; and
(3) subsection (d) is amended to read as follows:
``(d) The Archivist shall promulgate regulations requiring all
Federal agencies to transfer all digital or electronic records to the
National Archives of the United States in digital or electronic form to
the greatest extent possible.''.
(d) Inspection of Agency Records.--Section 2906(a)(1) of title 44,
United States Code, is amended--
(1) in subsection (a)--
(A) in paragraph (1)--
(i) by striking ``their respective'' and
inserting ``the'';
(ii) by striking ``the Administrator of
General Services and'';
(iii) by striking ``designee of either''
and inserting ``the Archivist's designee'';
(iv) by striking ``solely''; and
(v) by inserting after ``for the
improvement of records management practices and
programs'' the following: ``and for determining
whether the records of Federal agencies have
sufficient value to warrant continued
preservation or lack sufficient value to
justify continued preservation'';
(B) in paragraph (2)--
(i) by striking ``the Administrator and'';
and
(ii) by striking the second sentence; and
(C) in paragraph (3)--
(i) in the matter preceding subparagraph
(A)--
(I) by striking ``the Administrator
or''; and
(II) by striking ``designee of
either'' and inserting ``Archivist's
designee''; and
(ii) in subparagraph (A), by striking ``the
Administrator, the Archivist,'' and inserting
``the Archivist''; and
(2) in subsection (b)--
(A) by striking ``the Administrator and''; and
(B) by striking ``designee of either'' and
inserting ``Archivist's designee''.
(e) Reports; Correction of Violations.--Section 2115 of title 44,
United States Code, is amended--
(1) in subsection (a)--
(A) by striking ``their respective'' and inserting
``the'';
(B) by striking ``and the Administrator''; and
(C) by striking ``each''; and
(2) in subsection (b)--
(A) by striking ``either'';
(B) by striking ``or the Administrator'', each
place it appears; and
(C) by striking ``inaugurated'' and inserting
``demonstrably commenced''.
(f) Records Management by the Archivist.--The heading for chapter
29 of title 44, United States Code, is amended by striking ``AND BY THE
ADMINISTRATOR OF GENERAL SERVICES''.
(g) Establishment of Program of Management.--Section 3102(2) of
title 44, United States Code, is amended by striking ``the
Administrator of General Services and''.
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