[Congressional Record: January 7, 2009 (House)]
[Page H42-H45]
PRESIDENTIAL RECORDS ACT AMENDMENTS OF 2009
Mr. TOWNS. Madam Speaker, I move to suspend the rules and pass the
bill (H.R. 35) 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.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 35
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 2009''.
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 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
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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.''.
SEC. 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.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from New
York (Mr. Towns) and the gentleman from California (Mr. Issa) each will
control 20 minutes.
The Chair recognizes the gentleman from New York.
General Leave
Mr. TOWNS. Madam Speaker, I ask unanimous consent that all Members
have 5 legislative days in order to revise and extend their remarks.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from New York?
There was no objection.
Mr. TOWNS. Madam Speaker, I yield myself such time as I may consume.
H.R. 35, the Presidential Records Act Amendments of 2009, will
restore public access to Presidential records. Identical legislation
was introduced in the last Congress and passed the House with strong
bipartisan support.
The Presidential Records Act of 1978 established that the records of
the President belong to the American people, not to the President. It
also ensured that these records would be released to historians and to
the public in a timely manner.
In an executive order issued in November 2001, President Bush
reversed the presumption of disclosure in the Presidential Records Act.
The order gave Presidents and former Presidents the ability to delay
the public release of records even long after their own deaths. For the
first time, it gave former Presidents the ability to assert privilege
over their own records.
Today's legislation restores the intent of the Presidential Records
Act. It makes clear that only Presidents and former Presidents, not
former Vice Presidents or the descendents of Presidents, can make
assertions of privilege over records. It gives former Presidents the
authority to assert privilege over their own records, but it requires a
sitting President or a court to agree with the assertions in order for
those records to be withheld from the public, and it sets strict
deadlines for the President and former Presidents to review records
before they release them to the public. This legislation will prevent
former Presidents from withholding embarrassing records, and will allow
historians to tell a complete story about Presidential administrations.
I would like to thank the ranking member, of course, from California,
Mr. Issa, for his cooperation in moving this measure to the floor very
quickly. I would like to thank him for that. I know that we share the
same goals of making government more open and less wasteful, and we
plan to work together on those goals in a bipartisan manner.
I also thank the previous chairman, Congressman Waxman, for his work
in the last Congress, who did a marvelous job. Of course, that's the
reason why we are able to move very quickly, because of some of the
work that he was able to do in the last Congress.
Madam Speaker, I reserve the balance of my time.
Mr. ISSA. Madam Speaker, I yield myself such time as I may consume.
The new chairman and I both are assuming these positions after a long
period of time of serving in lesser positions on Government Reform, and
we come to it, I think, equally with the same vigor, with a vigor to
make this committee a bipartisan committee, a committee that works
openly between the majority and minority for the purpose of making sure
that government works openly for the people who we serve.
{time} 1030
I want to thank the chairman today because as we bring three votes
from our committee, each of these was shared with the other in
consultation, each of them was agreed were necessary and could be moved
in a timely fashion today. Each of them will be presented to our
conferences as noncontroversial, and in fact, ones that should pass
unanimously or near unanimously. This is a great start.
I'm particularly pleased with the chairman and myself to be able to
offer the first pieces of legislation of the 111th Congress because I
expect that this committee will be the most productive committee of the
Congress. It is the committee that has the greatest responsibility, as
President-elect Obama has said, to make government accountable. We are
that committee.
I look forward to it. As the chairman said, this piece of legislation
does restore a balance. It is not a balance that's without controversy,
but it is a balance that I believe is appropriate.
Additionally, to what is in the language of the bill, which the
chairman did a good job of explaining, there is, in fact, a final
holdback which is any President asserting some Presidential secret or
particular current damage to the government would be able to overcome
this legislation, but it will be the burden of the current President,
and as the chairman said, the burden of the previous President to make
a case for why records should not be made public rather than the other
way around.
I look forward to a floor vote on this on a bipartisan basis and urge
passage of this bill.
I yield back the balance of my time.
Mr. TOWNS. Madam Speaker, I yield 1 minute to the gentleman from Ohio
(Mr. Kucinich).
Mr. KUCINICH. Thank you very much, Mr. Chairman.
I look forward to working with you in this upcoming session of
Congress and working with Mr. Issa.
I want to thank you for bringing this bill forward. If we truly have
government of the people, then there has to be transparency. And not
only must
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Presidents be accountable, but former Presidents must be accountable.
And a system of transparency will ensure accountability, particularly
with respect to Presidential records.
Now this legislation will make it impossible for Presidential records
to be buried. It's going to set strict time frames in which information
has to be released to the public. It is not going to permit former
Presidents to have unlimited, broad authority to be able to claim
through the existing President executive privilege, and it is not going
to enable designees of Presidents to assert claims of executive
privilege after the death of a former President.
So this is a very important moment where transparency in government
trumps the assertion of executive privilege. That can only be good for
democracy.
I want to thank once again Mr. Towns for his leadership in bringing
this forward as one of the first bills of the 111th Congress.
Mr. TOWNS. Madam Speaker, I yield 1 minute to the gentleman from
Missouri (Mr. Clay).
Mr. CLAY. I thank the chairman for yielding.
I look forward to working with Chairman Towns, the new Chair of the
Oversight and Government Reform Committee, as well as the ranking
member, Mr. Issa.
Let me also say, as an original cosponsor of H.R. 35 and chairman of
the Oversight Subcommittee, I am pleased to see the measure presented
for consideration by the House today.
Introduced by Chairman Towns, this bipartisan bill is intended to
promote the timely release of Presidential records under the
Presidential Records Act of 1978 by rescinding Executive Order 13233.
Issued by President Bush in November 2001, the executive order granted
new authority to Presidents, former Presidents, their heirs and
designees, and Vice Presidents, allowing them to withhold information
from public view unilaterally and indefinitely.
Executive Order 13233 undermines the Presidential Records Act by
removing discretion from the archivists of the United States and
delaying the release of records that are necessary to give historians
and the public a full picture of a President's tenure.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. TOWNS. I yield the gentleman 2 additional minutes.
Mr. CLAY. I thank the chairman for yielding.
Madam Speaker, the American people value the importance of
transparency and having an open government. Citizens have a right to
know how and why important decisions are made at the highest level of
government. This straightforward and bipartisan legislation would
ensure that this will be the case by requiring Presidential records to
be treated as the property of the American people.
I urge all of my colleagues to support the bill.
Mr. TOWNS. Madam Speaker, as we begin a new Congress and a new
Presidency, it is time to move away from the policy of secrecy. The
President-elect has spoken of a desire for more openness in government.
We in Congress share that goal, and this bill is an important step
towards a more transparent White House.
I want to thank my colleague from California and his staff and my
staff for the work that they've done on this bill. I urge all of my
colleagues to support this bill because this is definitely good
government, and I think that we need to be about good government
because we cannot afford the luxury of waste, fraud, and abuse.
Madam Speaker, I ask all of my colleagues to support this
legislation.
Ms. JACKSON-LEE of Texas. Madam Speaker, let me congratulate you for
your re-election as Speaker of the House. It is an honor that you have
served with great distinction and verve. I look forward to more of your
continued leadership in the 111th Congress.
Madam Speaker, I rise today in support of H.R. 35, the Presidential
Records Act Amendments, which amends 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.
H.R. 35 provides that when the Archivist determines to make available
to the public any Presidential record that has not previously been made
available to the public, and that is not subject to any claim of
constitutionally based privilege against disclosure, the Archivist
should provide notice of the determination to the former President
during whose term of office the record was created, the incumbent
President, and make the notice available to the public. The notice must
also be in writing. These amendments strengthen the underlying bill.
The Presidential Records Act itself governs the official records of
Presidents and Vice Presidents created or received after January 20,
1981, and mandates the preservation of all Presidential records. The
act changed the legal ownership of the official records of the
President from private to public, and established a new statutory
structure under which the President must manage their records.
Specifically, the Presidential Records Act:
Defines and states public ownership of the records.
Places the responsibility for the custody and management of incumbent
Presidential records with the President.
Allows the incumbent President to dispose of records that no longer
have administrative, historical, informational, or evidentiary value,
once he has obtained the views of the Archivist of the United States on
the proposed disposal.
Requires that the President and his staff take all practical steps to
file personal records separately from Presidential records.
Establishes a process for restriction and public access to these
records. Specifically, the PRA allows for public access to Presidential
records through the Freedom of Information Act (United States), FOIA,
beginning five years after the end of the Administration, but allows
the President to invoke as many as six specific restrictions to public
access for up to 12 years. The PRA also establishes procedures for
Congress, courts, and subsequent administrations to obtain special
access to records that remain closed to the public, following a 30-day
notice period to the former and current Presidents.
Requires that Vice-Presidential records are to be treated in the same
way as Presidential records.
This bill is important. It was under the Bush administration that the
e-mail controversy surfaced in 2007. During that controversy which
involved the dismissal of eight U.S. attorneys, congressional requests
for administration documents while investigating the dismissals of the
U.S. attorneys required the Bush administration to reveal that not all
internal White House e-mails were available, because they were sent via
a non-government domain hosted on an e-mail server not controlled by
the Federal Government. Conducting general government business in this
manner possibly implicates the Presidential Records Act. The Bush
administration e-mail controversy highlights the need for these
amendments and for the bill.
I urge my colleagues to support this bill.
Mr. WAXMAN. Madam Speaker, I thank Representative Towns for bringing
this bill to the floor. The outgoing Bush administration has an
obsession with secrecy that has led it to weaken many of this country's
open government laws. Our consideration of H.R. 35, the Presidential
Records Act Amendments of 2009, is one important step toward undoing
that damage. The bill revokes a Bush executive order, issued in
November 2001, which gave broad new authority to Presidents and former
Presidents to prevent the release of Presidential records. The order
gave former Presidents the ability to pick and choose the records
viewed by historians and to shape their legacy through the selective
withholding of information.
Under the Presidential Records Act of 1978, these records belong to
the American people, not to the president who created them. Today's
legislation restores the original intent of the Act and will lead to
greater openness and improved understanding of presidential decision-
making.
This is not a partisan issue. Similar legislation was first
introduced in 2001 by Rep. Burton. And two years ago, I introduced H.R.
1255 with Reps. Burton, Towns, and Platts. I thank them for working
with me. The House passed that bill with a strong bipartisan majority.
I urge all of my colleagues to support this bill today.
Mr. VAN HOLLEN. Madam Speaker, today, the House considers a bill that
amends the Presidential Records Act. This important piece of bi-
partisan legislation will help preserve open government, by reversing
an executive order issued in the early days of the Bush administration
that cut off access to Presidential records for historians and the
American public.
Under that executive order, former Presidents and their heirs were
given unprecedented authority to withhold or, indefinitely delay,
access to documents from the public. And, for the first time, the order
extended the authority to assert ``executive privilege'' to former Vice
Presidents.
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This legislation reverses that order by stating clearly that only
current and former Presidents may assert ``executive privilege.'' The
bill also grants current Presidents discretion over whether to support
a former President's assertion of privilege and places strict time
limits for the current and former President to review records before
they are released.
Mr. TOWNS. I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from New York (Mr. Towns) that the House suspend the rules
and pass the bill, H.R. 35.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. TOWNS. Madam Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this motion will be
postponed.
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