[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.
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