[Congressional Record Volume 155, Number 46 (Tuesday, March 17, 2009)]
[House]
[Pages H3464-H3467]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             REDUCING INFORMATION CONTROL DESIGNATIONS ACT

  Mr. CLAY. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 1323) to require the Archivist of the United States to promulgate 
regulations regarding the use of information control designations, and 
for other purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 1323

       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 Information Control 
     Designations Act''.

     SEC. 2. PURPOSE.

       The purpose of this Act is to increase Governmentwide 
     information sharing and the availability of information to 
     the public by standardizing and limiting the use of 
     information control designations.

     SEC. 3. REGULATIONS RELATING TO INFORMATION CONTROL 
                   DESIGNATIONS WITHIN THE FEDERAL GOVERNMENT.

       (a) Requirement To Reduce and Minimize Information Control 
     Designations.--Each Federal agency shall reduce and minimize 
     its use of information control designations on information 
     that is not classified.
       (b) Archivist Responsibilities.--
       (1) Regulations.--The Archivist of the United States shall 
     promulgate regulations regarding the use of information 
     control designations.
       (2) Requirements.--The regulations under this subsection 
     shall address, at a minimum, the following:
       (A) Standards for utilizing the information control 
     designations in a manner that is narrowly tailored to 
     maximize public access to information.
       (B) The process by which information control designations 
     will be removed.
       (C) Procedures for identifying, marking, dating, and 
     tracking information assigned the information control 
     designations, including the identity of officials making the 
     designations.
       (D) Provisions to ensure that the use of information 
     control designations is minimized and cannot be used on 
     information--
       (i) to conceal violations of law, inefficiency, or 
     administrative error;
       (ii) to prevent embarrassment to Federal, State, local, 
     tribal, or territorial governments or any official, agency, 
     or organization thereof; any agency; or any organization;

[[Page H3465]]

       (iii) to improperly or unlawfully interfere with 
     competition in the private sector;
       (iv) to prevent or delay the release of information that 
     does not require such protection;
       (v) if it is required to be made available to the public; 
     or
       (vi) if it has already been released to the public under 
     proper authority.
       (E) Provisions to ensure that the presumption shall be that 
     information control designations are not necessary.
       (F) Methods to ensure that compliance with this Act 
     protects national security and privacy rights.
       (G) The establishment of requirements that Federal 
     agencies, subject to chapter 71 of title 5, United States 
     Code, implement the following:
       (i) A process whereby an individual may challenge without 
     retribution the application of information control 
     designations by another individual.
       (ii) A method for informing individuals that repeated 
     failure to comply with the policies, procedures, and programs 
     established under this section could subject them to a series 
     of penalties.
       (iii) Penalties for individuals 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.
       (H) Procedures for members of the public to be heard 
     regarding improper applications of information control 
     designations.
       (I) A procedure to ensure that all agency policies and 
     standards for utilizing information control designations that 
     are issued pursuant to subsection (c) be provided to the 
     Archivist and that such policies and standards are made 
     publicly available on the website of the National Archives 
     and Records Administration.
       (3) Consultation.--In promulgating the regulations, the 
     Archivist shall consult with the heads of Federal agencies 
     and with representatives of State, local, tribal, and 
     territorial governments; law enforcement entities; 
     organizations with expertise in civil rights, employee and 
     labor rights, civil liberties, and government oversight; and 
     the private sector, as appropriate.
       (c) Agency Responsibilities.--The head of each Federal 
     agency shall implement the regulations promulgated by the 
     Archivist under subsection (b) in the agency in a manner that 
     ensures that--
       (1) information can be shared within the agency, with other 
     agencies, and with State, local, tribal, and territorial 
     governments, the private sector, and the public, as 
     appropriate;
       (2) all policies and standards for utilizing information 
     control designations are consistent with such regulations;
       (3) the number of individuals with authority to apply 
     information control designations is limited; and
       (4) information control designations may be placed only on 
     the portion of information that requires control and not on 
     the entire material.

     SEC. 4. ENFORCEMENT OF INFORMATION CONTROL DESIGNATION 
                   REGULATIONS WITHIN THE FEDERAL GOVERNMENT.

       (a)  Inspector General Responsibilities.--The Inspector 
     General of each Federal agency, in consultation with the 
     Archivist, shall randomly audit unclassified information with 
     information control designations. In conducting any such 
     audit, the Inspector General shall--
       (1) assess whether applicable policies, procedures, rules, 
     and regulations have been followed;
       (2) describe any problems with the administration of the 
     applicable policies, procedures, rules and regulations, 
     including specific non-compliance issues;
       (3) recommend improvements in awareness and training to 
     address any problems identified under paragraph (2); and
       (4) report to the Committee on Oversight and Government 
     Reform of the House of Representatives, the Committee on 
     Homeland Security and Governmental Affairs of the Senate, the 
     Archivist, and the public on the findings of the Inspector 
     General's audits under this section.
       (b) Personal Identifiers.--
       (1) In general.--For purposes described in paragraph (2), 
     the Archivist of the United States shall require that, at the 
     time of designation of information, the following shall 
     appear on the information:
       (A) The name or personal identifier of the individual 
     applying information control designations to the information.
       (B) The agency, office, and position of the individual.
       (2) Purposes.--The purposes described in this paragraph are 
     as follows:
       (A) To enable the agency to identify and address misuse of 
     information control designations, including the 
     misapplication of information control designations to 
     information that does not merit such markings.
       (B) To assess the information sharing impact of any such 
     problems or misuse.
       (c) Training.--The Archivist, subject to chapter 71 of 
     title 5, United States Code, and in coordination with the 
     heads of Federal agencies, shall--
       (1) require training as needed for each individual who 
     applies information control designations, including--
       (A) instruction on the prevention of the overuse of 
     information control designations;
       (B) the standards for applying information control 
     designations;
       (C) the proper application of information control 
     designations, including portion markings;
       (D) the consequences of repeated improper application of 
     information control designations, including the 
     misapplication of information control designations to 
     information that does not merit such markings, and of failing 
     to comply with the policies and procedures established under 
     or pursuant to this section; and
       (E) information relating to lessons learned about improper 
     application of information control designations, including 
     lessons learned pursuant to the regulations and Inspector 
     General audits required under this Act and any internal 
     agency audits; and
       (2) ensure that such program is conducted efficiently, in 
     conjunction with any other security, intelligence, or other 
     training programs required by the agency to reduce the costs 
     and administrative burdens associated with the additional 
     training required by this section.
       (d) Detailee Program.--
       (1) Requirement for program.--The Archivist, subject to 
     chapter 71 of title 5, United States Code, shall implement a 
     detailee program to detail Federal agency personnel, on a 
     nonreimbursable basis, to the National Archives and Records 
     Administration, for the purpose of--
       (A) training and educational benefit for agency personnel 
     assigned so that they may better understand the policies, 
     procedures, and laws governing information control 
     designations;
       (B) bolstering the ability of the National Archives and 
     Records Administration to conduct its oversight authorities 
     over agencies; and
       (C) ensuring that the policies and procedures established 
     by the agencies remain consistent with those established by 
     the Archivist of the United States.
       (2) Sunset of detailee program.--Except as otherwise 
     provided by law, this subsection shall cease to have effect 
     on December 31, 2012.

     SEC. 5. RELEASING INFORMATION PURSUANT TO THE FREEDOM OF 
                   INFORMATION ACT.

       (a) Agency Responsibilities.--The head of each Federal 
     agency shall ensure that--
       (1) information control designations are not a determinant 
     of public disclosure pursuant to section 552 of title 5, 
     United States Code (commonly referred to as the ``Freedom of 
     Information Act''); and
       (2) all information in the agency's possession that is 
     releasable is made available to members of the public 
     pursuant to an appropriate request under such section 552.
       (b) Rule of Construction.--Nothing in this Act shall be 
     construed to prevent or discourage any Federal agency from 
     voluntarily releasing to the public any unclassified 
     information that is not exempt from disclosure under section 
     552 of title 5, United States Code (commonly referred to as 
     the ``Freedom of Information Act'').

     SEC. 6. DEFINITIONS.

       In this Act:
       (1) Information control designations.--The term 
     ``information control designations'' means information 
     dissemination controls, not defined by Federal statute or by 
     an Executive order relating to the classification of national 
     security information, that are used to manage, direct, or 
     route information, or control the accessibility of 
     information, regardless of its form or format. The term 
     includes, but is not limited to, the designations of 
     ``controlled unclassified information'', ``sensitive but 
     unclassified'', and ``for official use only''.
       (2) Information.--The term ``information'' means any 
     communicable knowledge or documentary material, regardless of 
     its physical form or characteristics, that is owned by, is 
     produced by or for, or is under the control of the Federal 
     Government.
       (3) Federal agency.--The term ``Federal agency'' means--
       (A) any Executive agency, as that term is defined in 
     section 105 of title 5, United States Code;
       (B) any military department, as that term is defined in 
     section 102 of such title; and
       (C) any other entity within the executive branch that comes 
     into the possession of classified information.

     SEC. 7. DEADLINE FOR REGULATIONS AND IMPLEMENTATION.

       Regulations shall be promulgated in final form under this 
     Act, and implementation of the requirements of this Act shall 
     begin, not later than 24 months after the date of the 
     enactment of this Act.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Missouri (Mr. Clay) and the gentleman from California (Mr. Issa) each 
will control 20 minutes.
  The Chair recognizes the gentleman from Missouri.


                             General Leave

  Mr. CLAY. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days in which to revise and extend their remarks.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Missouri?

[[Page H3466]]

  There was no objection.
  Mr. CLAY. Mr. Speaker, at this time I want to yield 3 minutes to the 
distinguished chairman of the House Oversight and Government Reform 
Committee, the gentleman from New York (Mr. Towns).
  Mr. TOWNS. I would like to thank the gentleman from Missouri for 
yielding me 3 minutes.
  Mr. Speaker, H.R. 1323, the Reducing Information Control Designations 
Act, introduced by Representative Driehaus, is an important piece of 
legislation that will improve public access to unclassified 
information. I am pleased to be a cosponsor of this bill.
  This week has been designated as Sunshine Week, and this bill will 
help bring more sunshine to the Federal Government. Our democracy 
requires that citizens be able to access information about how their 
government is working and how it is spending their tax dollars. This 
bill is the latest step that the Oversight Committee has taken to 
advance that goal.
  In January we passed bills to open up presidential records and 
information on presidential libraries. The stimulus package requires 
that all spending information be posted online at recovery.gov, and we 
are holding a hearing on Thursday to examine how the transparency 
provisions of the stimulus bill are being implemented. And we are 
moving forward to obtain information from all Wall Street banks that 
receive bailout money, including AIG, on how they are spending that 
money, especially the bonuses. What these Wall Street firms need to 
understand is that if they are being supported by the taxpayers, which 
they are, sunshine applies to them also, and we will make that happen.
  I would like to thank the gentleman from Ohio (Mr. Driehaus) for 
taking the lead on this bill and the Chair of the Information Policy 
Subcommittee, Mr. Clay, for all his work on bringing sunshine to the 
government. I also want to thank the ranking member, Mr. Issa, for 
working together with us on these sunshine bills.
  President Obama has indicated repeatedly that we need more 
transparency in our government. In almost every speech, he has 
indicated that. I agree with that goal. And this bill is an important 
step towards it.
  I urge my colleagues to support this legislation. And, of course, on 
that note I would like to just commend the gentleman from Missouri and, 
of course, the gentleman from California for their outstanding work.
  Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, often we bring a bill under suspension that's considered 
not to be overly important. This one is just the opposite. Transparency 
in government is an effort that has to be ongoing, and this is an 
important step. This solution has to be government-wide in order to be 
effective.
  For too long, Mr. Speaker, the Federal departments have insisted on 
treating information that develops within their agency in a restricted 
fashion. We need to have government-wide solutions that make the 
maximum amount of information possible available to the public, and 
even if it is not available to the public, it must be classified at the 
most appropriate and lowest level in order to ensure its sensitive 
treatment.
  For that reason I support, with the chairman, this piece of 
legislation that will reduce or eliminate the proliferation of terms 
such as ``sensitive but unclassified'' or ``for official use only,'' 
designations which essentially mean nothing but clearly cause 
trepidation in the release of documents. Many organizations under the 
Freedom of Information Act have had to deal with redaction of these 
comparatively and usually meaningless terms.
  So I join with the gentleman from Ohio, the chairman of the full 
committee, and the chairman of the subcommittee, Mr. Clay, in asking 
that this important piece of legislation be moved under suspension 
because, although important, it is not controversial and its time has 
come.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CLAY. I want to thank the ranking member, Mr. Issa, for his 
remarks.
  Mr. Speaker, I want to recognize one of our newest members on the 
committee, the gentleman from Ohio (Mr. Driehaus) for 5 minutes. And, 
by the way, this is his inaugural bill on the floor, so I want to 
congratulate him too.
  Mr. DRIEHAUS. A happy St. Patrick's Day to you, Mr. Speaker.
  I very much appreciate the comments of the gentleman from Missouri 
and certainly the comments of Mr. Issa from California as well as our 
chairman. This is an important issue, and I appreciate having the 
support of both the ranking member and the chairman of the committee as 
we move forward on the Government Reform and Oversight Committee in 
really looking at how documents are classified in the United States 
Government.
  As was mentioned by the chairman, this is Sunshine Week. And Sunshine 
Week is about shining the bright light on government to help people 
better understand what decisions are being made on their behalf because 
the information is the people's information.
  But when we look at the records and we look at the classification of 
documents in the Federal Government, we find confusion. Since 1979 
there have been six separate GAO reports talking about the over-
classification of documents; yet nothing has been done by Congress to 
address this growing problem. Today there are over 107 different 
classifications. Some of these are official classifications, some of 
these are pseudo-classifications of documents in every administrative 
body in the Federal Government.
  This bill is about the systemic issue of over-classification and the 
existence of these pseudo-classifications within the government. The 
citizens of our Nation have an inherent right to the information that 
the government collects so long as it's not of a sensitive nature. The 
bill promotes transparency and government efficiency by promoting a 
common language within government. It was introduced by Congressman 
Waxman last year, who was chairing the committee, and passed this House 
without objection.
  Specifically, the bill has several components. It instructs the 
Archivist to create regulations that control what is classified and how 
it would be classified with the input of agency stakeholders. It 
provides training for agency employees who classify information. It 
calls for random audits of these materials by Inspectors General to 
ensure compliance. It requires personal identifiers to be placed on 
classified information in order to track and uphold regulations. And it 
restricts information from being classified that is not of a sensitive 
nature.
  Essentially, Mr. Speaker, what this bill does is it allows the 
agencies of our government to not only talk with each other, but it 
allows the people to have access to the information and the decisions 
being made by their government.

                              {time}  1415

  It is an important step in the right direction. I would only give you 
one example to prove the point.
  In 2008, and I think this was enlightening, there were over 362,000 
requests under the Freedom of Information Act to the Federal 
Government; 121,833 of those requests still remain to be processed, and 
that is because of overclassification of documents.
  It's not about documents of a sensitive nature not being turned over 
to the public, it is about making information available to the public 
in an easier fashion. That's what this bill is about.
  I appreciate the support of the chairman and the ranking member.
  Mr. ISSA. Mr. Speaker, I yield myself 2 minutes. I join with the 
gentleman in his comments and would only anecdotally tell you that this 
is the tip of the iceberg, and this committee is dedicated to drilling 
down deeply.
  We want to know where our money has gone for TARP, we want to know 
where stimulus money is spent, both at the contractor and subcontractor 
level and beyond. We want to make sure that America's taxpayer dollars 
are well taken care of and transparent.
  I will share with you something that perhaps you hadn't known, and 
that is that our government inflicts more wounds than you have yet 
seen, and you are going to see more in your time. Just last year I 
visited a location in Nevada, and since I was flying into Las Vegas 
people said, ``Oh, are you going to Area 51?'' I had been cautioned 
that I could not use that term, that that term was unacceptable. So I 
said, ``Well, I can't tell you. I am just going to Nevada.'' So then 
when I returned I

[[Page H3467]]

googled Area 51, and, of course, I saw detailed maps or detailed photos 
of everything, including the airfield that perhaps someone would land 
at, well into that Nevada test range which Google identifies as Area 
51.
  So I would say that if the gentleman and, of course, the Chair, would 
continue to work with us on all these matters, we will, on a bipartisan 
basis, drill down to try to prevent these prohibitions on that, which 
certainly flies in the face of common sense.
  I reserve the balance of my time.
  Mr. CLAY. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, as chairman of the Subcommittee on Information Policy, 
Census, and National Archives, I am pleased to join my colleagues in 
the consideration of H.R. 1323, the Reducing Information Control 
Designations Act.
  This bill is being considered with an amendment to address some 
concerns that have been raised with the provision in the bill requiring 
incentives for individuals who successfully challenge the information 
control designation. This amendment strikes the language requiring 
incentives but continues to require a process through which individuals 
can challenge the information control designation.
  Mr. Speaker, H.R. 1323 promotes transparency and government 
efficiency by promoting a common language within government. Therefore, 
I urge swift passage of the bill.
  Mr. ISSA. Mr. Speaker, I yield back the balance of my time.
  Mr. CLAY. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Missouri (Mr. Clay) that the House suspend the rules and 
pass the bill, H.R. 1323, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

                          ____________________