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Text of the Presidential Records Act Amendments of 2009

This bill was introduced in a previous session of Congress and was passed by the House on January 7, 2009 but was never passed by the Senate. The text of the bill below is as of May 19, 2009 (Reported by Senate Committee).

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II

Calendar No. 64

111th CONGRESS

1st Session

H. R. 35

[Report No. 111–21]

IN THE SENATE OF THE UNITED STATES

January 8, 2009

Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs

May 19, 2009

Reported by , with an amendment

Strike out all after the enacting clause and insert the part printed in italic

AN ACT

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.

1.

Short title

This Act may be cited as the Presidential Records Act Amendments of 2009.

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:

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 20-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 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 20 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 period under subparagraph (A), or any extension of that period under subparagraph (B), 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, respectively, shall expire on July 20 of that year.

(b)
(1)

For purposes of this section, any claim of constitutionally based privilege against disclosure must be asserted 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 paragraph (1).

(c)
(1)

The Archivist shall not make publicly available a Presidential record that is subject to a privilege claim asserted by a former President until the expiration of the 20-day period (excluding Saturdays, Sundays, and legal public holidays) beginning on the date the Archivist is notified of the claim.

(2)

Upon the expiration of such period the Archivist shall make the record publicly available unless otherwise directed by a court order in an action initiated by the former President under section 2204(e).

(d)
(1)

The Archivist shall not make publicly available a Presidential record that is subject to a privilege claim asserted by the incumbent President unless—

(A)

the incumbent President withdraws the privilege claim; or

(B)

the Archivist is otherwise directed by a final court order that is not subject to appeal.

(2)

This subsection shall not apply with respect to any Presidential record required to be made available under section 2205(2)(A) or (C).

(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 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.

.

3.

Executive order of November 1, 2001

Executive Order No. 13233, dated November 1, 2001 (66 Fed. Reg. 56025), shall have no force or effect.

1.

Short title

This Act may be cited as the Presidential Records Act Amendments of 2009.

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:

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 period under subparagraph (A), or any extension of that period under subparagraph (B), 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, respectively, shall expire on July 20 of that year.

(b)
(1)

For purposes of this section, any claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) must be asserted 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 of 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.

(d)
(1)

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—

(A)

the incumbent President withdraws the privilege claim; or

(B)

the Archivist is otherwise directed by a final court order that is not subject to appeal.

(2)

This subsection shall not apply with respect to any Presidential record required to be made available under section 2205(2)(A) or (C) of this title.

(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 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.

.

3.

Treatment of Executive Orders 13233 and 12667

Executive Order No. 13233, dated November 1, 2001 (66 Fed. Reg. 56025), and Executive Order No. 12667, dated January 1, 1989 (54 Fed. Reg. 3403), shall have no force or effect.

May 19, 2009

Reported with an amendment