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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 35 Referred in Senate (RFS)]

111th CONGRESS
  1st Session
                                 H. R. 35

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            January 8, 2009

Received; read twice and referred to the Committee on Homeland Security 
                        and Governmental Affairs

_______________________________________________________________________

                                 AN ACT

 
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.

    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 
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.

            Passed the House of Representatives January 7, 2009.

            Attest:

                                            LORRAINE C. MILLER,

                                                                 Clerk.
```