Improving Public Access to Documents Act of 2008

[Congressional Bills 110th Congress]
[From the U.S. Government Printing Office]
[H.R. 6193 Introduced in House (IH)]

110th CONGRESS
  2d Session
                                H. R. 6193

To require the Secretary of Homeland Security to develop and administer
policies, procedures, and programs to promote the implementation of the
      Controlled Unclassified Information Framework applicable to
    unclassified information that is homeland security information,
  terrorism information, weapons of mass destruction information and
     other information within the scope of the information sharing
 environment established under section 1016 of the Intelligence Reform
  and Terrorism Prevention Act of 2004 (6 U.S.C. 485), and for other
                               purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                              June 5, 2008

Ms. Harman (for herself, Mr. Reichert, Mr. Thompson of Mississippi, Mr.
  Langevin, Ms. Norton, Mr. Carney, Mr. Dicks, and Ms. Jackson-Lee of
    Texas) introduced the following bill; which was referred to the
                     Committee on Homeland Security

_______________________________________________________________________

                                 A BILL

To require the Secretary of Homeland Security to develop and administer
policies, procedures, and programs to promote the implementation of the
      Controlled Unclassified Information Framework applicable to
    unclassified information that is homeland security information,
  terrorism information, weapons of mass destruction information and
     other information within the scope of the information sharing
 environment established under section 1016 of the Intelligence Reform
  and Terrorism Prevention Act of 2004 (6 U.S.C. 485), 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.

    This Act may be cited as the ``Improving Public Access to Documents
Act of 2008''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) The proliferation and widespread use of ``sensitive but
        unclassified'' (SBU) control markings by the Federal government
        interferes with accurate, actionable and timely homeland
        security information sharing, increases the cost of information
        security, and needlessly limits public access to information.
            (2) The control markings problem, which has worsened since
        the 9/11 attacks, causes considerable confusion about what
        information can be shared with whom both internally at the
        Department of Homeland Security and with its external partners.
        This problem negatively impacts the dissemination of homeland
        security information to the Department's State, local, and
        tribal homeland security, law enforcement, and private sector
        customers, and the public.
            (3) Overuse of ``sensitive but unclassified'' markings
        stands in the way of a safer and more secure homeland. This
        trend is antithetical to the creation and operation of the
        information sharing environment established under section 1016
        of the Intelligence Reform and Terrorism Prevention Act of 2004
        (6 U.S.C. 485), and must be halted and reversed.
            (4) To do so, the Department should start with the
        presumption that all homeland security information that is not
        properly classified, or marked as controlled unclassified
        information and otherwise exempt from disclosure, should be
        shared with the public pursuant to section 552 of title 5,
        United States Code (commonly referred to as the ``Freedom of
        Information Act'').
            (5) The Department should also develop and administer
        policies, procedures, and programs that promote compliance with
        applicable laws, executive orders, and other authorities
        pertaining to the proper use of controlled unclassified
        information markings and the United States National Archives
        and Records Administration policies implementing them.

SEC. 3. CONTROLLED UNCLASSIFIED INFORMATION FRAMEWORK IMPLEMENTATION
              WITHIN THE DEPARTMENT OF HOMELAND SECURITY.

    Subtitle A of title II of the Homeland Security Act of 2002 (6
U.S.C. 121 et seq.) is amended by adding at the end the following new
section:

``SEC. 210F. CONTROLLED UNCLASSIFIED INFORMATION FRAMEWORK
              IMPLEMENTATION PROGRAM.

    ``(a) In General.--The Secretary shall develop and administer
policies, procedures, and programs within the Department to implement
the controlled unclassified information framework in order to maximize
the disclosure to the public of, and to standardize the use of
controlled unclassified information control markings on, homeland
security information, terrorism information, weapons of mass
destruction information, and other information within the scope of the
information sharing environment established under section 1016 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485)
that must be disseminated to prevent and to collectively respond to
acts of terrorism. The Secretary shall coordinate with the National
Archives and Records Administration and consult with representatives of
State, local, and tribal government; organizations with expertise in
civil rights, civil liberties, and government oversight; and the
private sector, as appropriate, to develop such policies, procedures,
and programs.
    ``(b) Requirements.--Within 180 days of the enactment of this Act,
the Secretary, in administering the policies, procedures, and programs
required under subsection (a), shall--
            ``(1) create a standard format for unclassified finished
        intelligence products created by the Department that have been
        designated as controlled unclassified information, consistent
        with any government-wide standards, practices or procedures for
        similar products;
            ``(2) require that all unclassified finished intelligence
        products created by the Department that have been designated as
        controlled unclassified information be prepared in the standard
        format, whenever possible;
            ``(3) ensure that such polices, procedures, and programs
        protect the information privacy rights and legal rights of
        United States persons pursuant to all applicable law and
        policy, including the privacy guidelines for the information
        sharing environment established pursuant to section 1016 of the
        Intelligence Reform and Terrorism Prevention Act of 2004 (6
        U.S.C. 485), as appropriate;
            ``(4) establish an ongoing auditing mechanism administered
        by the Inspector General of the Department or other appropriate
        senior Department official that randomly selects, on a periodic
        basis, controlled unclassified information from each component
        of the Department that generates unclassified finished
        intelligence products to--
                    ``(A) assess, on an individualized basis, whether
                applicable controlled unclassified information
                policies, procedures, rules, and regulations have been
                followed;
                    ``(B) describe any problems with the administration
                of the applicable controlled unclassified information
                policies, procedures, rules and regulations, including
                specific non-compliance issues with individuals engaged
                in this work;
                    ``(C) recommend improvements in awareness and
                training to address them;
                    ``(D) report at least annually to the Committee on
                Homeland Security of the House of Representatives and
                the Homeland Security and Government Affairs Committee
                of the Senate, and the public on the findings of the
                Inspector General's audits under this section;
            ``(5) establish a process whereby employees may challenge
        the use of controlled unclassified information markings and be
        rewarded with specific incentives for successful challenges
        resulting in the removal of controlled unclassified information
        markings;
            ``(6) institute a series of penalties, up to and including
        termination, for employees and contractors who fail to comply
        with the policies, procedures, and programs established under
        this section; and
            ``(7) maintain a publicly available list of documents
        designated and marked, in whole or in part, as controlled
        unclassified information, indicating which have been withheld
        in response to a request made pursuant to section 552 of title
        5, United States Code (commonly referred to as the `Freedom of
        Information Act'), and create a process through which the
        public may seek the removal of such a designation and marking.
    ``(c) Implementation.--In furtherance of the requirements in
paragraphs (a) and (b), the Secretary shall ensure that:
            ``(1) information shall be designated as controlled
        unclassified information and include an authorized controlled
        unclassified information marking only if:
                    ``(A) a statute requires or authorizes such a
                designation and marking; or
                    ``(B) the Secretary, through regulations,
                directives or other specific guidance to the agency
                that have been submitted to and approved by the
                Archivist of the United States, determines that the
                information is controlled unclassified information
                based on mission requirements, business prudence, legal
                privilege, the protection of personal or commercial
                rights, safety, or security;
            ``(2) notwithstanding the provisions contained in paragraph
        (c)(1), information shall not be designated as controlled
        unclassified information--
                    ``(A) to conceal violations of law, inefficiency,
                or administrative error;
                    ``(B) to prevent embarrassment to the Federal
                Government or any Federal official, any organization,
                or agency;
                    ``(C) to improperly or unlawfully interfere with
                competition in the private sector;
                    ``(D) to prevent or delay the release of
                information that does not require such protection;
                    ``(E) if it is required to be made available to the
                public; or
                    ``(F) if it has already been released to the public
                under proper authority; and
            ``(3) the controlled unclassified information framework is
        administered in a manner that ensures that--
                    ``(A) controlled unclassified information can be
                shared within the Department and with State, local, and
                tribal governments, the private sector, and the public,
                as appropriate;
                    ``(B) all policies and standards for the
                designation, marking, safeguarding, and dissemination
                of controlled unclassified information are consistent
                with the controlled unclassified information framework
                and any other policies, guidelines, procedures,
                instructions, or standards established by the
                President;
                    ``(C) the number of Department employees and
                contractors with original and derivative controlled
                unclassified information designation authority is
                limited appropriately as determined through
                consultation with the parties identified in paragraph
                (a);
                    ``(D) controlled unclassified information markings
                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');
                    ``(E) controlled unclassified information markings
                are placed on archived or legacy material whenever
                circulated, consistent with the controlled unclassified
                information framework and any other policies,
                guidelines, procedures, instructions, or standards
                established by the President;
                    ``(F) all controlled unclassified information
                portions of classified documents are marked as
                controlled unclassified information; and
                    ``(G) it supersedes any pre-existing policies and
                procedures relating to the creation, control, and
                sharing of sensitive but unclassified information
                generated by the Department, except where otherwise
                provided by law.
    ``(d) Public Access to Unclassified Information.--The Secretary
shall make available to the public, pursuant to an appropriate request
under section 552 of title 5, United States Code (commonly referred to
as the `Freedom of Information Act'), all controlled unclassified
information and other unclassified information in its possession.''.

SEC. 4. ENFORCEMENT OF CONTROLLED UNCLASSIFIED INFORMATION FRAMEWORK
              IMPLEMENTATION WITHIN THE DEPARTMENT OF HOMELAND
              SECURITY.

    Subtitle A of title II of the Homeland Security Act of 2002 (6
U.S.C. 121 et seq.) is amended by adding at the end the following new
section:

``SEC. 210G. ENFORCEMENT OF CONTROLLED UNCLASSIFIED INFORMATION
              FRAMEWORK IMPLEMENTATION PROGRAMS.

    ``(a) Personal Identifiers.--The Secretary shall--
            ``(1) assess the technologies available or in use at the
        Department by which an electronic personal identification
        number or other electronic identifying marker can be assigned
        to each Department employee or contractor with controlled
        unclassified information designation authority in order to--
                    ``(A) track which documents have been designated as
                controlled unclassified information by a particular
                employee;
                    ``(B) determine the circumstances when such
                documents have been shared;
                    ``(C) identify and address misuse of controlled
                unclassified information markings, including the
                misapplication of controlled unclassified information
                markings to documents that do not merit such markings;
                and
                    ``(D) assess the information sharing impact of any
                such problems or misuse;
            ``(2) develop an implementation plan for a Department
        standard for such technology with appropriate benchmarks, a
        timetable for its completion, and cost estimate for the
        creation and implementation of a system of electronic personal
        identification numbers or other electronic identifying markers
        for all relevant Department employees and contractors; and
            ``(3) upon completion of the implementation plan described
        in paragraph (2), or within 180 days of the enactment of this
        legislation, whichever is sooner, the Secretary shall provide a
        copy of the plan to the Committee on Homeland Security of the
        House of Representatives and the Homeland Security and
        Government Affairs Committee of the Senate.
    ``(b) Training.--The Secretary, in coordination with the Archivist
of the United States, shall--
            ``(1) require annual training for each Department employee
        or contractor with controlled unclassified information
        designation authority and who are responsible for analysis,
        dissemination, preparation, production, receiving, publishing,
        or otherwise communicating written controlled unclassified
        information. Such training shall:
                    ``(A) educate each employee and contractor about--
                            ``(i) the Department's requirement that all
                        unclassified finished intelligence products
                        that they create that have been designated as
                        controlled unclassified information be prepared
                        in a standard format prescribed by the
                        Department;
                            ``(ii) the proper use of controlled
                        unclassified information markings, including
                        portion markings; and
                            ``(iii) the consequences of improperly
                        using controlled unclassified information
                        markings, including the misapplication of
                        controlled unclassified information markings to
                        documents that do not merit such markings, and
                        of failing to comply with the Department's
                        policies and procedures established under or
                        pursuant to this section, including the
                        negative consequences for the individual's
                        personnel evaluation, homeland security,
                        information sharing, and the overall success of
                        the Department's missions;
                    ``(B) serve as a prerequisite, once completed
                successfully, as evidenced by an appropriate
                certificate, for:
                            ``(i) obtaining controlled unclassified
                        information designation authority; and
                            ``(ii) renewing such authority annually;
                        and
                    ``(C) count as a positive factor, once completed
                successfully, in the Department's employment,
                evaluation, and promotion decisions; and
            ``(2) ensure that such program is conducted efficiently, in
        conjunction with any other security, intelligence, or other
        training programs required by the Department to reduce the
        costs and administrative burdens associated with the additional
        training required by this section.
    ``(c) Detailee Program.--The Secretary shall--
            ``(1) implement a Departmental Detailee program to detail
        Departmental personnel to the United States National Archives
        and Records Administration for one year, for the purpose of--
                    ``(A) training and educational benefit for the
                Department personnel assigned so that they may better
                understand the policies, procedures and laws governing
                the controlled unclassified information framework;
                    ``(B) bolstering the ability of the National
                Archives and Records Administration to conduct its
                oversight authorities over the Department and other
                Departments and agencies; and
                    ``(C) ensuring that the policies and procedures
                established by the Secretary remain consistent with
                those established by the Archivist of the United
                States;
            ``(2) ensure that the program established under paragraph
        (1) includes at least one individual for each Department office
        with delegated controlled unclassified information designation
        authority; and
            ``(3) in coordination with the Archivist of the United
        States, report to Congress no later than 90 days after the
        conclusion of the first year of the program established under
        paragraph (1), on the advisability of expanding the program on
        a government-wide basis, whereby other departments and agencies
        would send detailees to the United States National Archives and
        Records Administration. Such report shall also include the
        administrative and monetary costs of full compliance with this
        section.
    ``(d) In General.--Except as otherwise provided by law, subsection
(c) shall cease to have effect on December 31, 2012.''.

SEC. 5. DEFINITIONS.

    Subtitle A of title II of the Homeland Security Act of 2002 (6
U.S.C. 121 et seq.) is further amended by adding at the end the
following new section:

``SEC. 210H. DEFINITIONS.

    ``In this Act:
            ``(1) Controlled unclassified information.--The term
        `controlled unclassified information' means a categorical
        designation that refers to unclassified homeland security
        information; law enforcement information relating to terrorism;
        and information, as defined in the Implementing Recommendations
        of the 9/11 Commission Act of 2007, Public Law 110-53, section
        504; that does not meet the standards of National Security
        Classification under Executive Order 12958, as amended, but is
        (i) pertinent to the national interests of the United States or
        to the important interests of entities outside the Federal
        Government, and (ii) under law or United States Archives and
        Records Administration policy requires safeguarding from
        unauthorized disclosure, special handling safeguards, or
        prescribed limits on exchanges or dissemination.
            ``(2) Controlled unclassified information framework.--The
        term `controlled unclassified information framework' means the
        single set of policies and procedures governing the
        designation, marking, safeguarding, and dissemination of
        terrorism-related controlled unclassified information that
        originates in departments and agencies, regardless of the
        medium used for the display, storage, or transmittal of such
        information, as set forth in the President's May 7, 2008
        Memorandum for the Heads of Executive Departments Regarding
        Designation and Sharing of controlled unclassified information
        (CUI).
            ``(3) Finished intelligence product.--The term `finished
        intelligence product' means a document in which an intelligence
        analyst has evaluated, interpreted, integrated, or placed into
        context raw intelligence.''.

SEC. 6. TECHNICAL AMENDMENT.

    The table of contents in section 1(b) of the Homeland Security Act
of 2002 (6 U.S.C. 101(b)) is amended by adding after the item relating
to section 210E the following new items:

``210F. Controlled unclassified information framework implementation
                            program.
``210G. Enforcement of over-classification prevention and controlled
                            unclassified information framework
                            implementation programs.
``210H. Definitions.''.
                                 <all>