[Congressional Record: March 17, 2009 (House)]
[Page H3464-H3467]
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.
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