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H.R. 35 (111th): Presidential Records Act Amendments of 2009
- Introduced:
- Jan 06, 2009 (111th Congress, 2009–2010)
- Sponsor:
- Rep. Edolphus “Ed” Towns [D-NY10]
- Status:
- Died (Passed House)
- See Instead:
- This bill was re-introduced as H.R. 3071 (112th) on Sep 29, 2011.
The bill’s title was written by the bill’s sponsor. H.R. stands for House of Representatives bill.
Library of Congress Summary
The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress.
5/19/2009.
Section
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Amends the Presidential Records Act to require the Archivist of the United States, when making available any presidential record not previously made available publicly, to:
(1) promptly provide written notice of such determination to the former President during whose term of office the record was created and the incumbent President; and
(2) make the notice available to the public.
Requires such a record to be made available upon the expiration of the 60-day period after the Archivist provides notice, except any record with respect to which the Archivist receives notification of a claim of constitutionally based privilege against disclosure from a former or incumbent President. Authorizes a former or an incumbent President to extend the period for not more than 30 additional days by filing a statement that such an extension is necessary to allow an adequate review of the record.
Provides that if the period, or any extension of that period, would otherwise expire after January 19 and before July 20 of the year in which the incumbent President first takes office, then such period or extension shall expire on July 20 of that year.
Requires that:
(1) any claim of constitutionally based privilege against disclosure of a presidential record must be asserted personally by a former or incumbent President; and
(2) a former or incumbent President must notify the Archivist and specified congressional committees of a privilege claim on the day it is asserted.
Requires the Archivist to:
(1) consult with the incumbent President to determine whether the incumbent President will uphold any claim of constitutionally based privilege against disclosure made by a former President; and
(2) notify the former President and the public regarding such determination.
Prohibits the Archivist from making publicly available a presidential record that is subject to a privilege claim asserted by a former President until the expiration of the 90-day period beginning on the date the Archivist is notified of the claim.
Requires the Archivist, upon the expiration of such period, to make the record publicly available unless otherwise directed by a court order in an action initiated by the former President. Prohibits the Archivist from making publicly available a presidential 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.
Makes this provision inapplicable with respect to any presidential record required to be made available:
(1) pursuant to a subpoena or other judicial process issued by a court for purposes of a civil or criminal investigation; or
(2) to either House of Congress because such records contain information needed for the conduct of business that is otherwise not available.
Directs the Archivist to adjust any otherwise applicable time period as necessary to comply with the return date of any congressional subpoena, judicial subpoena, or judicial process.
Prohibits the Archivist from making available any original presidential records to anyone claiming access to them as a designated representative of a President or former President if that individual has been convicted of a crime relating to the review, removal, or destruction of the Archives' records.
Section
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Nullifies Executive Orders 12667, dated January 1, 1989, and 13233, dated November 1, 2001 (both establishing a process for review of presidential records and assertion of privilege claims).
House Republican Conference Summary
The summary below was written by the House Republican Conference, which is the caucus of Republicans in the House of Representatives.
This summary can be found at http://www.gop.gov/bill/111/1/hr35.
Background
Virtually identical legislation to the bill now under consideration, H.R. 1255, was passed by the House in the 110th Congress, but was never considered in the Senate. According to a March 13, 2007, Statement of Administration Policy, the White House opposed that bill on grounds that it "would be counterproductive and invite unnecessary litigation, is misguided, and would improperly impinge on the President's constitutional authority, in violation of settled separation of powers principles."
The Presidential Records Act of 1978 transferred ownership of Presidential records to the National Archives. The legislation allowed the President to establish time periods, not to exceed 12 years, for information to become public.
The legislation now under consideration by the House would essentially revoke an Executive Order, E.O. 13233, which was issued by President George W. Bush on November 1, 2001. Executive Order 13233 allows an incumbent President to withhold the public disclosure of records of recent former Presidents and Vice President or to delay their release indefinitely. The Executive Order also allows the Archivist of the United States to resume control of access to the records of recent former Presidents. President Bush issued E.O. 13233 in large part to prevent the release of records containing national security secrets, Presidential communications, legal advice, and sensitive details of Presidential deliberations with advisers.
Summary
.R. 35 nullifies President George W. Bush's Executive Order 13233 and establishes procedures for the consideration of privilege claims by a former or incumbent President regarding disclosure of Presidential records.
Claims of privilege against disclosure:When the Archivist of the United States decides to make publicly available any Presidential record, the Archivist is directed to inform both the incumbent President and the former President during whose term of office the record was created.
This bill directs the Archivist to then make the records publicly available within 20 days, unless the incumbent or former President asserts a privilege claim against making the records public. The former or incumbent President may extend the deadline to decide whether to make a privilege claim for an additional 20 days by filing an extension with the Archivist. A deadline for review may not expire before July 20th of the year that an incumbent President first takes office.
A privilege claim must be made personally by either a President or former President. If a former President makes a privilege claim, the Archivist is directed to hold off on releasing the records to the public for 20 days. After 20 days, the Archivist is directed to release the records, notwithstanding the incumbent President's privilege claim, unless a court rules otherwise.
If the incumbent President makes a privilege claim, the Archivist is directed to hold off on releasing the records until either the President withdraws the claim or a final court decision directs that the records be released. This provision does not apply to records required to be made available in connection with judicial or Congressional proceedings.
No individual may claim access to original Presidential records as a representative of a President, if he or she was convicted of a crime involving the review, retention, removal, or destruction of Presidential records.
Repeal of Executive Order: The bill repeals President George W. Bush's executive order issued on November 1, 2001. This executive order extended the right to make privilege claims against the release of records to current and former Vice Presidents and established a process requiring the concurrence of the incumbent and former President for records to be released.
Cost
There is no current Congressional Budget Office cost estimate available for H.R. 35, but last year's version of the bill was not expected to affect spending or revenues.
House Democratic Caucus Summary
The House Democratic Caucus does not provide summaries of bills.
So, yes, we display the House Republican Conference’s summaries when available even if we do not have a Democratic summary available. That’s because we feel it is better to give you as much information as possible, even if we cannot provide every viewpoint.
We’ll be looking for a source of summaries from the other side in the meanwhile.
The bill contains the following citations to other parts of U.S. law:
United States Code
The United States Code is the compilation of permanent laws enacted by Congress. Temporary and other non-permanent laws do not appear in the United States Code. (About half of the United States Code is the law itself, called positive law. The other half is merely a compilation of the laws but has no legal significance.)
- Title 44: PUBLIC PRINTING AND DOCUMENTS
- Chapter 22: PRESIDENTIAL RECORDS
- Section 2204: Restrictions on access to Presidential records
- Section 2207: Vice-Presidential records
Other Citations
- 44 U.S.C. Chapter 22