II 

111TH CONGRESS 

1ST SESSION S. 1285 

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. 

IN THE SENATE OF THE UNITED STATES 

JUNE 17, 2009 

Mr. LIEBERMAN (for himself and Mr. GRAHAM) introduced the following bill; 

which was read twice, considered, read the third time, and passed 

A BILL 

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 


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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. 

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 


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1 (B) for which a certification by the Sec2 retary of Defense under subsection (c) is in ef3 fect. 

4 (2) PHOTOGRAPH.—The term ‘‘photograph’’ en5 compasses all photographic images, whether origi6 nals or copies, including still photographs, negatives, 

7 digital images, films, video tapes, and motion pic8 tures. 

9 (c) CERTIFICATION.— 

10 (1) IN GENERAL.—For any photograph de11 scribed under subsection (b)(1)(A), the Secretary of 

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

13 consultation with the Chairman of the Joint Chiefs 

14 of Staff, determines that the disclosure of that pho15 tograph would endanger — 

16 (A) citizens of the United States; or 

17 (B) members of the Armed Forces or em18 ployees of the United States Government de19 ployed outside the United States. 

20 (2) CERTIFICATION EXPIRATION.—A certifi21 cation submitted under paragraph (1) and a renewal 

22 of a certification submitted under paragraph (3) 

23 shall expire 3 years after the date on which the cer24 tification or renewal, as the case may be, is sub25 mitted to the President. 


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1 (3) CERTIFICATION RENEWAL.—The Secretary 

2 of Defense may submit to the President— 

3 (A) a renewal of a certification in accord4 ance with paragraph (1) at any time; and 

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

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

7 the Secretary’s certification shall be submitted to 

8 Congress. 

9 (d) NONDISCLOSURE OF DETAINEE RECORDS.—A 

10 covered record shall not be subject to— 

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

12 United States Code (commonly referred to as the 

13 Freedom of Information Act); or 

14 (2) disclosure under any proceeding under that 

15 section. 

16 (e) RULE OF CONSTRUCTION.—Nothing in this sec17 tion shall be construed to preclude the voluntary disclosure 

18 of a covered record. 

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

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

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

22 a covered record. 

23 SEC. 2. OPEN FREEDOM OF INFORMATION ACT. 

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

25 ‘‘OPEN FOIA Act of 2009’’. 


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1 (b) SPECIFIC CITATIONS IN STATUTORY EXEMP2 TIONS.—Section 552(b) of title 5, United States Code, is 

3 amended by striking paragraph (3) and inserting the fol4 lowing: 

5 ‘‘(3) specifically exempted from disclosure by 

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

7 statute— 

8 ‘‘(A)(i) requires that the matters be with9 held from the public in such a manner as to 

10 leave no discretion on the issue; or 

11 ‘‘(ii) establishes particular criteria for 

12 withholding or refers to particular types of mat13 ters to be withheld; and 

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

15 of the OPEN FOIA Act of 2009, specifically 

16 cites to this paragraph.’’. 

Æ 


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