![](media/image1.jpeg){width="6.489583333333333in"
height="1.15625in"}**Legislative
Bulletin...........................................March 14, 2007**

> **Contents:**
>
> **H.R. 1309** --- The Freedom of Information Act Amendments of 2007
>
> **H.R. 1255** --- Presidential Records Act Amendments of 2007
>
> **H.R. 1254** --- Presidential Library Donation Reform Act of 2007
>
> **H.R. 985** --- Whistleblower Protection Enhancement Act of 2007

H.R. 1309 --- The Freedom of Information Act Amendments of 2007

(*Clay, D-MO*)

**[Order of Business]{.underline}:** The bill is scheduled for
consideration on Wednesday, March 14, 2007, under a motion to suspend
the rules and pass the bill.

**[Summary]{.underline}:** H.R. 1309 would amend and expand the Freedom
of Information Act (FOIA)

to prohibit federal agencies from denying a requester status as a news
media representative (for purposes of determining FOIA request
processing fees) solely on the absence of institutional association, to
require agencies to develop a system to track FOIA requests, and to
modify various other requirements and regulations. The specific
provisions of the bill are as follows:

-   Contains a number of findings, including the following:

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-   "the Freedom of Information Act establishes a 'strong presumption in
    favor of disclosure' as noted by the United States Supreme Court in
    United States Department of State v. Ray (502 U.S. 164 (1991)), a
    presumption that applies to all agencies governed by that Act;

-   "'disclosure, not secrecy, is the dominant objective of the Act,' as
    noted by the United States Supreme Court in Department of Air
    Force v. Rose (425 U.S. 352 (1976)); and

-   "in practice, the Freedom of Information Act has not always lived up
    to the ideals of that Act."

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```
-   Prohibits an agency, when making a determination whether to deny fee
    waivers (for a FOIA request) for a news media representative, from
    denying the representative's status solely on the basis of the
    absence of institutional associations of the requester (i.e. -- the
    requestor is not associated with a specific organization). This
    provision requires the agency to consider prior publication history
    of the requestor (including books, articles, media broadcasts,
    etc.). If no prior publication history exists, it requires the
    agency to consider the requester's stated intent to distribute
    information to a "reasonably broad audience," though this term is
    not defined in the bill or U.S. Code.

-   Declares that, regarding the recovery of attorney fees and other
    litigation costs, the requesters have "substantially prevailed" (in
    FOIA litigation) when they have obtained relief either through 1) a
    judicial order or administrative action, or 2) a voluntary or
    unilateral change in position by the opposing party (the agency).
    The committee report states that the purpose of this provision is to
    ensure that requesters are eligible for attorney fees and other
    litigation costs "if they obtain relief from the agency during the
    litigation."

-   Requires the Attorney General (AG) to notify the Special Counsel
    regarding each civil action taken against government officials who
    "arbitrarily and capriciously" deny records to FOIA requesters, and
    requires to AG to submit an annual report to Congress on the number
    of these actions taken, as well as the action taken by the Special
    Counsel on these civil actions.

-   Requires that the 20-day statutory clock (in current law) to begin
    once the agency has receipt of the FOIA request *and* has obtained
    the consent of the requesting party. The provision also prohibits an
    agency from charging a requester fees if the above time limit for
    the request is not met.

-   Requires each agency to create a system to assign individual
    tracking numbers for each FOIA request. This provision also requires
    the agency to provide the tracking number to the requester within 10
    days of receiving the request, and establish a telephone line or
    internet service that provides status information to the requester.
    It states these provisions must be implemented within one year of
    enactment, and will apply to all requests made after the effective
    date.

-   Stipulates that Congress can not create new statutory exemptions
    under FOIA, unless it explicitly does so by citing section 552(b) of
    the code and establishing the "particular criteria for withholding
    (the requested information) or referring to particular types of
    matters to be withheld" from a FOIA request.

-   Imposes additional annual reporting requirements on FOIA activities
    to the AG, including:

    -   the average, median, and range in number of days the agency took
        to respond to requests (from the date the request was initially
        received);

    -   the number of occasions on which each statute was relied upon to
        deny a request;

    -   the number of requests the agency responded to with a
        determination within certain timeframes;

    -   specific data on agency responsiveness to administrative
        appeals;

    -   the number of expedited review requests received by the agency,
        the number that were granted, and the number that were denied,
        the average and median number of days for adjudicating expedited
        review requests, and the number of requests that were
        adjudicated within the required 10 days.

-   Stipulates that agency records, regardless of the format (e.g.,
    hardcopy or electronic), or who the records are maintained by
    (whether the agency or a private contractors), remain subject to
    FOIA.

-   Establishes a **new Office of Government Information Services** at
    the National Archives and Records Administration (NARA), and a **new
    director for the office to be known as the National Information
    Advocate**" (NIA) to "provide informal guidance to requesters and
    may provide fact-finding reviews and opinions to requesters." This
    provision tasks the NIA to review the policies and procedures of
    administrative agencies and recommend policy changes to Congress and
    the President to improve FOIA handing procedures.

-   Requires the Comptroller General to submit a report to Congress
    (each year for the following three years after enactment) on the
    implementation of the Critical Infrastructure Information (CII) Act
    of 2002, to include the number of private sector, state, and local
    agency submissions of CII data to the Homeland Security Department
    and the number of requests for access to records.

-   Requires the Office of Personnel Management (OPM) to submit a report
    to Congress that examines whether changes to executive branch
    personnel policies could be made that would a) provide "greater
    encouragement to all federal employees to fulfill their duties
    regarding FOIA requests, and b) enhance the stature of executive
    branch officials administering the FOIA program, among other items.

-   Declares that "the policy of the federal government is to release
    information to the public in response to a request under this
    section" if the release is required by law or if the release is
    allowed by law and the agency concerned does not "reasonably
    foresee" that disclosure would be harmful, and mandates that all
    guidance provided to federal employees be consistent with this
    codified presumption.

-   Requires agencies to note the specific exemption used to withhold
    information on the partial records that are released in response to
    a FOIA request, unless revealing the information would harm an
    interest protected by the exemption.

**[Additional Background]{.underline}:** The FOIA was originally signed
into law in 1966 by President Lyndon B. Johnson. FOIA is a federal law
(5 U.S.C. § 552) that establishes the public's right to obtain
information from federal government agencies. Any entity can file a FOIA
request, including U.S. citizens, foreign nationals, organizations,
associations, and universities. The Act was amended to force greater
agency compliance in 1974 following Watergate, and was also amended in
1996 to broaden access to electronic information. As noted in the
summary, there are certain limitations and exemptions related to
national security issues.

**[Possible Conservative Concerns]{.underline}:** Some conservatives may
be concerned with the increased regulations and reporting requirements
placed on the executive branch regarding FOIA requests, and some may
consider the amount and nature of these requirements to be onerous and
unduly burdensome. Conservatives may also be concerned with the fact
that this bill creates a new office at the National Archives and at
least one new position, and has an overall cost \$63 million over five
years.

Rep. Lamar Smith, RSC Member and Ranking Member on the Judiciary
Committee, has also stated serious concerns with the presumption of the
disclosure provision in this bill. According to his office, "This
provision would reverse the Freedom of Information Act (FOIA) guidelines
set out by former Attorney General John Ashcroft that stated FOIA should
be used to ensure an open and accountable system of government while
protecting national security and personal privacy.  Overturning the
Ashcroft presumption, as this provision would do, would allow documents
to be released that could have a serious impact on national security. 
Therefore, Congressman Smith urges all members to oppose H.R. 1309."

**[Committee Action]{.underline}:** H.R. 1309 was introduced on March 5,
2007, and referred to the Committee on Oversight and Government Reform's
Subcommittee on Information Policy, Census, and National Archives. It
was marked-up and forwarded to the full committee the next day, and then
marked-up and reported (amended) to the House on March 8 by a voice vote
(House Report
[110-45](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr045):)).

**[Administration Policy]{.underline}:** No Statement of Administration
Policy was available as of press time.

**[Cost to Taxpayers]{.underline}:** CBO estimates that enacting **H.R.
1309 would increase direct spending by \$6 million in 2008 and \$63
million over the 2008-2017 period, "**to reimburse citizens making FOIA
requests for attorneys' fees and litigation cost payments." **CBO also
estimates that enacting H.R. 1309 would result in a loss of fees of \$10
million over the 2008-2017 period** (since fees are recorded in the
budget as revenues). In addition, the Majority is circumventing its own
pay-as-you-go (PAYGO) rules by scheduling FOIA on the suspension
calendar.  As noted above, the bill costs 63 million over ten years, and
includes a revenue loss of \$10 million over the same period. As a
result, if the bill were considered under regular order (without
suspending the rules of the House), both a PAYGO point of order and a
Budget Act point of order (for consideration of a spending bill before
the adoption of a budget resolution) would lie against the legislation. 
However, by moving the bill on the suspension calendar, the Majority
avoids these two points of order.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}:** No.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}:** No.

**[Constitutional Authority]{.underline}:** The Oversight and Government
Reform Committee, in House Report
[110-45](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr045):),
cites constitutional authority in Article I, Section 8, Clause 18 (to
make all laws necessary and proper to carry out the *foregoing* powers),
**but fails to cite a foregoing power or another specific enumerated
clause.**

House Rule XIII, Section 3(d)(1), requires that all committee reports
contain "a statement citing the *specific* powers granted to Congress in
the Constitution to enact the law proposed by the bill or joint
resolution." *\[emphasis added\]*

**[RSC Staff Contact]{.underline}:** Derek V. Baker;
[derek.baker@mail.house.gov](mailto:Derek.baker@mail.house.gov);
202-226-8585

H.R. 1255 --- Presidential Records Act Amendments of 2007

(*Waxman, D-CA*)

**[Order of Business]{.underline}:** The bill is scheduled for
consideration on Wednesday, March 14, 2007, under a motion to suspend
the rules and pass the bill.

**[Summary]{.underline}:** H.R. 1255 would modify and expand current
procedures for requesting and releasing presidential records. The bill
would stipulate certain deadlines by which records must be made publicly
available, requires notice to be given to presidents and former
presidents just prior to release of presidential records, and requires
that presidents and former presidents notify the Archivist and Congress
simultaneously when asserting constitutional privilege against
disclosure of certain records. The specific provisions of the bill are
as follows:

-   Establishes how records will be reviewed by a former or current
    president prior to the public release under the Presidential Records
    Act. It requires the Archivist, when determining to make
    presidential records available to the public (that were not
    previously available) to promptly provide notice of this
    determination to the former president (during whose term the records
    were created), the current president, and the public 20 days prior
    to release of the information.

-   Allows a current or former president to extend the initial notice
    period once, for an additional 20 days.

-   Directs the Archivist, upon expiration of the 20-day notice, to make
    the applicable records public, except those records which the
    Archivist receives a claim of constitutionally based privilege
    against disclosure from a current or former president.

-   Stipulates that the deadline for making the records public will not
    expire before July 20^th^ of the year the incumbent president first
    takes office.

-   Requires that any claim of constitutionally based privilege against
    disclosure must be asserted "personally" by an incumbent or former
    president.

-   Requires an incumbent or former president to notify the Archivist,
    the House Oversight and Government Reform Committee, the Senate
    Homeland Security and Governmental Affairs Committee of a privilege
    claim on the *same day* that the claim is asserted to the Archivist.

-   Requires the Archivist to make presidential records publicly
    available that are subject to a privilege claim asserted by a former
    president after the expiration of the 20-day period (not
    withstanding or despite the existing privilege claim), unless the
    Archivist is directed by court order initiated by the former
    president to not release the records.

-   Requires the Archivist to *not* make presidential records publicly
    available that are subject to a privilege claim asserted by the
    incumbent president, unless the president withdraws the privilege
    claim, or the Archivist is directed by a final court order that is
    not subject to appeal.

-   Requires the Archivist to "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."

-   Prohibits the Archivist from making any original presidential
    records available to an individual claiming access to the records as
    a designated representative, if that individual has been convicted
    of a crime relating to the review, retention, removal, or
    destruction of records of the Archives. This was an amendment by
    Rep. Tom Davis that was accepted in committee.

-   Repeals Executive Order number
    [13233](http://www.whitehouse.gov/news/releases/2001/11/20011101-12.html),
    dated November 1, 2001, the Presidential Records Act Executive
    Order. This executive order stipulates the right of the president to
    make privilege claims against the release of records to current and
    former vice presidents. It also requires the concurrence of the
    incumbent and former president prior to release of the requested
    records.

**[Additional Background]{.underline}:** The Presidential Records Act
(PRA) of 1978 (44 U.S.C. § 2201-2207) governs the official records of
presidents and vice presidents. The PRA transferred legal ownership of
the official records of the president from private to public: "The
United States shall reserve and retain complete ownership, possession,
and control of Presidential records; and such records shall be
administered in accordance with the provisions of this chapter." (44
U.S.C. § 2202).

**[Possible Conservative Concerns]{.underline}:** Some conservatives may
be concerned by the significant burden certain provisions place on
current and former presidents, under which they must assert a claim of
privilege within a fixed time period of no more than 40 days if they do
not wish the records to become publicly available immediately after the
deadline expires. Presidential records requests can number in the
thousands of pages and, as the President's SAP notes, this creates an
incentive for incumbent and former presidents to assert sweeping,
blanket claims of privilege over large quantities of material (for lack
of time to adequately review the material in question and assert claims
on only the relevant sections).

Also, some conservatives may be concerned by the implication of
separation of powers issues presented with certain provisions that
impose burdens or requirements on presidents regarding the presidential
records of their administration.

**[Committee Action]{.underline}:** H.R. 1255 was introduced on March 1,
2007, and referred to the Committee on Oversight and Government Reform's
Subcommittee on Information Policy, Census, and National Archives. It
was marked-up and forwarded to the full committee the next day, and then
marked-up and reported (amended) to the House on March 8 by a voice vote
(House Report
[110-44](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr044))).

**[Administration Policy]{.underline}:** The Administration strongly
opposes passage of H.R. 1255 and released a Statement of Administration
Policy (SAP) on March 13, 2007, which included the following statement:

> **The Administration strongly opposes House passage of H.R. 1255
> because it would be counterproductive and invite unnecessary
> litigation**, is misguided, and would improperly impinge on the
> President's constitutional authority, in violation of settled
> separation of powers principles.  Although the Administration is
> otherwise willing to work with interested parties to strike a
> meaningful balance of competing interests, **[if H.R. 1255 were to be
> presented to the President, his senior advisors would recommend that
> he veto the bill]{.underline}**. (bold emphasis added).

**[Cost to Taxpayers]{.underline}:** CBO estimates that implementing
H.R. 1255 "would have no significant impact on federal spending. In
addition, the legislation would not affect direct spending or revenues."

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}:** No.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}:** According to CBO, H.R. 1255
"would impose private-sector mandates, as defined by UMRA \[Unfunded
Mandates Reform Act\], on former Presidents, their designees and
families, and former vice presidents by changing the procedure or
eliminating the ability to claim constitutionally based privileges
related to the disclosure of Presidential or Vice-Presidential records,"
but these costs would be minimal and well below the annual threshold
established by UMRA.

**[Constitutional Authority]{.underline}:** The Oversight and Government
Reform Committee, in House Report
[110-44](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr044)),
cites constitutional authority in Article I, Section 8, Clause 18 (to
make all laws necessary and proper to carry out the *foregoing* powers),
**but fails to cite a foregoing power or another specific enumerated
clause.**

House Rule XIII, Section 3(d)(1), requires that all committee reports
contain "a statement citing the *specific* powers granted to Congress in
the Constitution to enact the law proposed by the bill or joint
resolution." *\[emphasis added\]*

**[RSC Staff Contact]{.underline}:** Derek V. Baker;
[derek.baker@mail.house.gov](mailto:Derek.baker@mail.house.gov);
202-226-8585

H.R. 1254 --- Presidential Library Donation Reform Act of 2007

(*Waxman, D-CA*)

**[Order of Business]{.underline}:** The bill is scheduled for
consideration on Wednesday, March 14, 2007, under a motion to suspend
the rules and pass the bill.

**[Summary]{.underline}:** H.R. 1254 would amend the Presidential
Libraries act and impose additional reporting requirements on donations
to presidential library funding organizations, require public disclosure
of donation records, and imposes civil penalties for violations. The
specific provisions of the bill are as follows:

-   Require presidential library funding organizations to submit to
    Congress (on a quarterly basis) information on every contributor who
    donated \$200 or more to the organized in a quarterly period. The
    information required is the amount and source of each contribution,
    the address of the contributor, and the occupation of the
    contributor if an individual.

-   Requires this information to be submitted until either the Archivist
    has accepted, taken title to, or entered into an agreement to use
    any land or facility for the archival depository, or the president
    whose archives are contained in the depository no longer is the
    incumbent president *and* a four-year period has elapsed.

-   Requires that the Archivist make the contributor/contribution
    information submitted available over the internet "as soon as is
    practicable" (without charge) after each quarterly filing.

-   Prohibits any person making a contribution from knowingly and
    willfully submitting false information or omitting information
    regarding their contribution, and prohibits any presidential library
    fundraising organization from knowingly or willingly submitting
    false information or omitting information. This provision subjects
    violators to either a fine of up to \$10,000, imprisonment up to
    five years, or both.

-   Prohibits any person from making a contribution to the presidential
    library in the name of another person, or to allow his or her name
    to be used for a contribution that is not their own.

-   Requires the Archivist to promulgate regulations to carry out the
    above provisions.

**[Additional Background]{.underline}:** In 1955, Congress passed the
Presidential Libraries Act (PLA), establishing a system of privately
erected and federally maintained libraries. According to the National
Archives, this Act encouraged other Presidents to donate their
historical materials to the government and ensured the preservation of
Presidential papers and their availability to the American people. For
additional information on the Presidential Libraries Act, please visit
the [National Archives
website](http://www.archives.gov/presidential-libraries/laws/1955-act.html).

**[Possible Conservative Concerns]{.underline}:** Some conservatives may
find the restrictions and public disclosure on private contributions to
a presidential library (and, as such, an entity that is not an elected
official and subject to the same strict scrutiny as those in political
office) intrusive and potentially unconstitutional. These regulations
may also have the effect of reducing the number and amount of
contributions to future presidential libraries.

**[Committee Action]{.underline}:** H.R. 1255 was introduced on March 1,
2007, and referred to the Committee on Oversight and Government Reform.
It was marked-up and reported to the House on March 8 by a voice vote
(House Report
[110-43](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr043):)).

**[Administration Policy]{.underline}:** No Statement of Administration
Policy was available as of press time.

**[Cost to Taxpayers]{.underline}:** CBO estimates that implementing
**H.R. 1254 would cost \$1 million in 2008 and about \$5 million over
the 2008-2012 period.** CBO estimates that NARA would need **\$800,000
annually** to update and maintain the database after it is established.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}:** No.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}:** No.

**[Constitutional Authority]{.underline}:** The Oversight and Government
Reform Committee, in House Report
[110-43](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr043):),
cites constitutional authority in Article I, Section 8, Clause 18 (to
make all laws necessary and proper to carry out the *foregoing* powers),
**but fails to cite a foregoing power or another specific enumerated
clause.**

House Rule XIII, Section 3(d)(1), requires that all committee reports
contain "a statement citing the *specific* powers granted to Congress in
the Constitution to enact the law proposed by the bill or joint
resolution." *\[emphasis added\]*

**[RSC Staff Contact]{.underline}:** Derek V. Baker;
[derek.baker@mail.house.gov](mailto:Derek.baker@mail.house.gov);
202-226-8585

H.R. 985 --- Whistleblower Protection Enhancement Act (*Waxman, D-CA*)

**[Order of Business]{.underline}:** The bill is scheduled for
consideration on Wednesday, March 14, 2007, subject to a structured rule
([H.Res.
239](http://www.rules.house.gov/SpecialRules_details.aspx?NewsID=2544)).
Amendment summaries are below.

**[Summary]{.underline}:** H.R. 985 would modify and expand the current
federal definition of "whistleblowing." Whistleblower protections allow
for employees to disclose information that the employee reasonably
believes is "in violation of law, rule, regulation, gross mismanagement,
a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health and safety," hereafter referred to as
gross mismanagement.

This bill would extend employee protections to Transportation Security
Administration (TSA) employees, federal contractors, and certain federal
employees involved in national security issues. The specific provisions
of the bill are as follows:

-   Expands current regulations regarding communications by current or
    former federal employees to include any disclosure "without
    restriction as to time, place, form, motive, context, or prior
    disclosure." In other words, employee disclosures are covered
    regardless of when, where or in what context they took place (i.e.
    -- not just formal communications are covered). Thus, an employer is
    forbidden to take punitive action against an employee because that
    employee disclosed gross mismanagement, regardless of the mode of
    that communication.

> Note: The committee report states this provision is in response to
> recent federal circuit decisions that have limited the scope of
> disclosures to formal communications.

-   Broadens current protections and the new provisions described below
    to also include former employees and prospective employees where
    applicable (in addition to current employees), hereafter referred to
    as employees.

-   Defines the term "employee disclosure" to mean a formal or informal
    communication, but does *not* include a communication concerning
    "policy decisions that lawfully exercise discretionary authority
    unless employee providing the disclosure reasonably believes the
    disclosure" is an example of gross mismanagement. In other words, a
    legitimate "disclosure" (under which the employee is protected from
    reprisal) does *not* include a policy disagreement.

-   Codifies what is called a "reasonable belief test" for all
    whistleblower employee disclosures. To determine if an employee
    "reasonably believes" he or she disclosed information that
    represents gross mismanagement (et al.), it will be determined
    whether a disinterested observer with knowledge of the essential
    facts could reasonably conclude that the actions of the government
    show evidence of such mismanagement.

-   Allows for any presumption relating to the performance of a public
    official whose misconduct has been disclosed by the whistleblower to
    rebut the presumption by "substantial evidence." The committee
    report noted that a federal circuit court has required a standard of
    "irrefragable proof" in a previous decision, so this provision
    lowers that standard.

-   Adds to the list of prohibited personnel practices "the
    implementation or enforcement of any nondisclosure policy, form, or
    agreement" that does not include specific language notifying the
    employee of their rights.

-   Prohibits the investigation of any employee due to any activity
    protected by the whistleblower provisions (5 U.S.C. § 2302).

-   Requires that any agency that is removed from whistleblower
    protection by the President (which conducts foreign intelligence
    activities) must be removed *prior* to any personnel action being
    taken against a whistleblower of that agency. It designates five
    federal agencies that are automatically not part of or subject to
    whistleblower protection regulations: FBI, CIA, DIA, National
    Geospatial-Intelligence Agency, and the National Security Agency.

-   Allows the Merit System Protection Board (MSPB) to take disciplinary
    action against an employee if it finds that the protected activity
    was a "primary motivating factor" in the employee's action. In order
    words, if an employee commits a prohibited personnel practice
    *primarily motivated* by the fact that they will be protected
    against discipline due to the whistleblower protections (and not
    because they were reporting a violation of law or example of gross
    mismanagement), they can be disciplined accordingly. This provision
    is intended to prohibit employees from conducting prohibited
    activities and hiding behind the whistleblower protection provisions
    to escape punishment.

-   Requires the GAO to conduct a study of security clearance
    revocations since 1996, and report the findings to the relevant
    House and Senate Committees, in order to find whether a link exists
    between revocations and whistleblower claims.

-   Allows employees seeking corrective action, based on an alleged
    prohibited personnel practice, to bring an action in U.S. District
    Court for a trial by jury, if no final order or decision has been
    made within 180 days following the employee's request for corrective
    action. In other words, the provision allows the employee to seek
    redress in court (to get back pay, for example) if the MSPB does not
    act swiftly enough to resolve the matter.

-   Prohibits relevant employees (those within an agency covered by the
    whistleblower protections) from being fired or otherwise
    discriminated against in retaliation for making a covered disclosure
    (discussed above) to an authorized Member of Congress, executive
    agency official, Department of Justice official, or the Inspector
    General of the respective covered agency.

-   Prohibits employers from firing or otherwise discriminating against
    employees for making a covered disclosure (discussed above) to an
    authorized Member of Congress, executive agency official, Department
    of Justice official, or the relevant Inspector General (IG) of the
    covered agency. The provision also allows employees who believe they
    have been retaliated against to submit a complaint to the IG and the
    relevant agency's head, and stipulates procedures for resolution of
    the complaint, including the ability of the employee to appeal a
    decision to a U.S. district court of appeals.

-   Requires that an agency head make a determination, within 180 days
    after a complaint is submitted, whether a contractor has subjected a
    contractor employee to retaliation for a covered disclosure. If the
    agency head does not resolve the issue within 180 days, the
    provision allows the contractor employee to bring an action in
    district court to seek compensatory and other relief.

-   Grants employees at the Transportation Security Administration (TSA)
    the same whistleblower protections as other federal employees.
    According to the committee report, this provision is in response to
    the court case of Schott v. Department of Homeland Security where
    the MSPB ruled TSA screeners did not have whistleblower rights.

-   Expands the definition of "abuse of authority" (used in 5 U.S.C. §
    2302(b)(8)) to include "any action that compromises the validity or
    accuracy of federal funded research or analysis" and "the
    dissemination of false or misleading scientific, medical, or
    technical information."

-   Stipulates that all of the provisions above will take effect 30 days
    after the date of enactment.

**[Additional Background]{.underline}:** Federal whistleblower
protections were originally passed as part of the Civil Service Reform
Act of 1978, signed into law by President Jimmy Carter and addressed a
campaign promise of Carter's to reform the federal civil service and
protect federal employees who "blew the whistle" on government
misconduct and fraud. In 1989, Congress passed the Whistleblower
Protection Act in to broaden statutory protections for federal employees
who identify fraud, waste, abuse, illegality, and corruption. The Office
of Special Counsel (OSC) currently serves as the repository for
whistleblower disclosures (from current and former federal employees and
applicants for federal employment) covered under the Whistleblower
Protection Act (5 U.S.C. § 1213).

**[Possible Conservative Concerns]{.underline}:** As noted above, and
highlighted in the Administration's SAP (below), this bill would expand
whistleblower protections to employees at national security agencies.
Some conservatives suggest that this expansion and subsequent
disclosures of this kind could have grave national security concerns,
since these independent disclosures could occur without regard larger
national security issues. Some conservatives may also be concerned about
the expansive nature of several of the provisions, hindering executive
branch managers to effectively manage staff and significantly increasing
regulations and compliance issues with regard to whistleblower protected
allegations, regardless of the mode or manner of the communication.
Also, some conservatives may be concerned with included provisions that
would allow whistleblowers to have their claims heard.

H.R. 985 also would permit employees to engage in judicial forum
shopping for having their claims resolved.  Whistleblowers already have
the right to seek corrective action for an unlawful personnel action
from the Merit Systems Protection Board, and are afforded judicial
review before the Federal Circuit.  H.R. 985 would allow employees to
have their claims heard initially in any federal district court. As the
Administration asserts, this may result in two trials instead of one,
and thus increase litigation.

**[Amendments]{.underline}:** Below are the summaries of the five
amendments made in order under the rule. [Note]{.underline}: Summaries
are based on RSC staff's review of actual amendment text.

**1. Stupak (D-MI).** Adds new language to section of the bill by
expanding the definition of "abuse of authority" (one of the covered
whistleblower protections), stating that any action restricting or
preventing an employee or person performing federally funded research or
analysis from publishing in peer-reviewed journals or making oral
presentations would be considered an abuse of authority.

[]{.mark}

**2. Platts (R-PA).** Expands the definition of "clear and convincing
evidence (with regard to an agency's case for personnel action and
burden of proof) to mean "evidence indicating that the matter to be
proved is highly probably or reasonably certain. In other words, the
agency must meet this slightly higher burden of proof (under the new
definition) when arguing that it would have taken the same personnel
action independent of an employee's protected whistleblower conduct.

[]{.mark}

**3. Platts (R-PA).** Stipulates that an otherwise protected disclosure
cannot be disqualified because of the forum or location in which it is
communicated. It also extends equal burdens of proof and individual
rights of action to those serving as witnesses in Inspector General or
Special Counsel investigations, as well as to those who allege
retaliation for refusing to violate the law.

[]{.mark}

**4. Sali (R-ID).** Strikes section 13 of the bill, removing the
provision that would make influencing federally funded scientific
research a prohibited personnel practice. The bill's provision stations
any action that compromises the validity or accuracy of federally funded
research or analysis is an "abuse of authority," but does not define, or
give an example for, an action that would be deemed to "compromise" the
validity of such research."

[]{.mark}

**5. Tierney (D-MA).** Provides for national security whistleblower
rights and extends protections to prohibit current or former employees
of a covered agency from being discriminated against (including denying
or revoking a security clearance); allows employees to submit complaints
to the IG if the employee feels they have been retaliated against, and
requires the IG to submit a report (for every such employee or former
employee complaint, unless the IG determines the complaint is frivolous)
of the findings within 120 days to the employee and the head of the
agency; modifies the underlying section regarding national security
whistleblowers to limit which members of Congress can receive
information about especially sensitive subjects, such as sources and
methods (to members of the respective House and Senate intelligence
committees) and special access programs (to defense committees), and for
other programs (to committees with oversight over the program in
question).

**[Committee Action]{.underline}:** H.R. 985 was introduced on February
12, 2007, and referred to the Committee on Oversight and Government
Reform. The bill was marked-up on February 14 and reported to the House
by unanimous consent the same day (House Report
[110-42](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr042):),
Part I).

**[Administration Policy]{.underline}:** The Administration strongly
opposes passage of H.R. 985 and released a Statement of Administration
Policy (SAP) on March 13, 2007, which included the following statement:

> The Administration supports accountability and transparency in the
> implementation of Federal programs.  **However, the Administration
> strongly opposes House passage of H.R. 985 because it could compromise
> national security, is unconstitutional, and is overly burdensome and
> unnecessary**.  Rather than promote and protect genuine disclosures of
> matters of real public concern, it would likely increase the number of
> frivolous complaints and waste resources.   **[If H.R. 985 were
> presented to the President, his senior advisors would recommend that
> he veto the bill.]{.underline}** (bold emphasis added).

**[Cost to Taxpayers]{.underline}:** CBO estimates that implementing
H.R. 985 would cost \$5 million a year and about **\$25 million over the
2008-2012 period.**

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}:** As noted above, the bill expands protections
for whistleblower employees, and increases regulations on federal
agencies in regard to employee communications and complaints protected
by whistleblower provisions.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}:** No.

**[Constitutional Authority]{.underline}:** The Oversight and Government
Reform Committee, in House Report
[110-42](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr042):),
cites constitutional authority in Article I, Section 8, Clause 18 (to
make all laws necessary and proper to carry out the *foregoing* powers),
but fails to cite a foregoing power or another specific enumerated
clause.

House Rule XIII, Section 3(d)(1), requires that all committee reports
contain "a statement citing the *specific* powers granted to Congress in
the Constitution to enact the law proposed by the bill or joint
resolution." *\[emphasis added\]*

**[RSC Staff Contact]{.underline}:** Derek V. Baker;
[derek.baker@mail.house.gov](mailto:Derek.baker@mail.house.gov);
202-226-8585

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