I 

111TH CONGRESS 

1ST SESSION S. 1285 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 18, 2009 

Referred to the Committee on Oversight and Government Reform, and in addition to the Committee on Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such 

provisions as fall within the jurisdiction of the committee concerned 

AN ACT 

To provide that certain photographic records relating to the 

treatment of any individual engaged, captured, or detained after September 11, 2001, by the Armed Forces 

of the United States in operations outside the United 

States shall not be subject to disclosure under section 

552 of title 5, United States Code (commonly referred 

to as the Freedom of Information Act), to amend section 

552(b)(3) of title 5, United States Code (commonly referred to as the Freedom of Information Act) to provide 

that statutory exemptions to the disclosure requirements 

of that Act shall specifically cite to the provision of 

that Act authorizing such exemptions, to ensure an open 

and deliberative process in Congress by providing for 

related legislative proposals to explicitly state such required citations, and for other purposes. 


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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. DETAINEE PHOTOGRAPHIC RECORDS PROTEC4 TION. 

5 (a) SHORT TITLE.—This section may be cited as the 

6 ‘‘Detainee Photographic Records Protection Act of 2009’’. 

7 (b) DEFINITIONS.—In this section: 

8 (1) COVERED RECORD.—The term ‘‘covered 

9 record’’ means any record— 

10 (A) that is a photograph that— 

11 (i) was taken during the period begin12 ning on September 11, 2001, through Jan13 uary 22, 2009; and 

14 (ii) relates to the treatment of individ15 uals engaged, captured, or detained after 

16 September 11, 2001, by the Armed Forces 

17 of the United States in operations outside 

18 of the United States; and 

19 (B) for which a certification by the Sec20 retary of Defense under subsection (c) is in ef21 fect. 

22 (2) PHOTOGRAPH.—The term ‘‘photograph’’ en23 compasses all photographic images, whether origi24 nals or copies, including still photographs, negatives, 


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1 digital images, films, video tapes, and motion pic2 tures. 

3 (c) CERTIFICATION.— 

4 (1) IN GENERAL.—For any photograph de5 scribed under subsection (b)(1)(A), the Secretary of 

6 Defense shall certify, if the Secretary of Defense, in 

7 consultation with the Chairman of the Joint Chiefs 

8 of Staff, determines that the disclosure of that pho9 tograph would endanger — 

10 (A) citizens of the United States; or 

11 (B) members of the Armed Forces or em12 ployees of the United States Government de13 ployed outside the United States. 

14 (2) CERTIFICATION EXPIRATION.—A certifi15 cation submitted under paragraph (1) and a renewal 

16 of a certification submitted under paragraph (3) 

17 shall expire 3 years after the date on which the cer18 tification or renewal, as the case may be, is sub19 mitted to the President. 

20 (3) CERTIFICATION RENEWAL.—The Secretary 

21 of Defense may submit to the President— 

22 (A) a renewal of a certification in accord23 ance with paragraph (1) at any time; and 

24 (B) more than 1 renewal of a certification. 


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1 (4) NOTICE TO CONGRESS.—A timely notice of 

2 the Secretary’s certification shall be submitted to 

3 Congress. 

4 (d) NONDISCLOSURE OF DETAINEE RECORDS.—A 

5 covered record shall not be subject to— 

6 (1) disclosure under section 552 of title 5, 

7 United States Code (commonly referred to as the 

8 Freedom of Information Act); or 

9 (2) disclosure under any proceeding under that 

10 section. 

11 (e) RULE OF CONSTRUCTION.—Nothing in this sec12 tion shall be construed to preclude the voluntary disclosure 

13 of a covered record. 

14 (f) EFFECTIVE DATE.—This section shall take effect 

15 on the date of enactment of this Act and apply to any 

16 photograph created before, on, or after that date that is 

17 a covered record. 

18 SEC. 2. OPEN FREEDOM OF INFORMATION ACT. 

19 (a) SHORT TITLE.—This section may be cited as the 

20 ‘‘OPEN FOIA Act of 2009’’. 

21 (b) SPECIFIC CITATIONS IN STATUTORY EXEMP22 TIONS.—Section 552(b) of title 5, United States Code, is 

23 amended by striking paragraph (3) and inserting the fol24 lowing: 


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1 ‘‘(3) specifically exempted from disclosure by 

2 statute (other than section 552b of this title), if that 

3 statute— 

4 ‘‘(A)(i) requires that the matters be with5 held from the public in such a manner as to 

6 leave no discretion on the issue; or 

7 ‘‘(ii) establishes particular criteria for 

8 withholding or refers to particular types of mat9 ters to be withheld; and 

10 ‘‘(B) if enacted after the date of enactment 

11 of the OPEN FOIA Act of 2009, specifically 

12 cites to this paragraph.’’. 

Passed the Senate June 17, 2009. 

Attest: NANCY ERICKSON, 

Secretary. 


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