IIB 

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. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Presidential Records 

3 Act Amendments of 2009’’. 

4 SEC. 2. PROCEDURES FOR CONSIDERATION OF CLAIMS OF 

5 CONSTITUTIONALLY BASED PRIVILEGE 

6 AGAINST DISCLOSURE. 

7 (a) IN GENERAL.—Chapter 22 of title 44, United 

8 States Code, is amended by adding at the end the fol9 lowing: 

10 ‘‘§ 2208. Claims of constitutionally based privilege 

11 against disclosure 

12 ‘‘(a)(1) When the Archivist determines under this 

13 chapter to make available to the public any Presidential 

14 record that has not previously been made available to the 

15 public, the Archivist shall— 

16 ‘‘(A) promptly provide notice of such deter17 mination to— 

18 ‘‘(i) the former President during whose 

19 term of office the record was created; and 

20 ‘‘(ii) the incumbent President; and 

21 ‘‘(B) make the notice available to the public. 

22 ‘‘(2) The notice under paragraph (1)— 

23 ‘‘(A) shall be in writing; and 

24 ‘‘(B) shall include such information as may be 

25 prescribed in regulations issued by the Archivist. 


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1 ‘‘(3)(A) Upon the expiration of the 20-day period (ex2 cepting Saturdays, Sundays, and legal public holidays) be3 ginning on the date the Archivist provides notice under 

4 paragraph (1)(A), the Archivist shall make available to the 

5 public the record covered by the notice, except any record 

6 (or reasonably segregable part of a record) with respect 

7 to which the Archivist receives from a former President 

8 or the incumbent President notification of a claim of con9 stitutionally based privilege against disclosure under sub10 section (b). 

11 ‘‘(B) A former President or the incumbent President 

12 may extend the period under subparagraph (A) once for 

13 not more than 20 additional days (excepting Saturdays, 

14 Sundays, and legal public holidays) by filing with the Ar15 chivist a statement that such an extension is necessary 

16 to allow an adequate review of the record. 

17 ‘‘(C) Notwithstanding subparagraphs (A) and (B), if 

18 the period under subparagraph (A), or any extension of 

19 that period under subparagraph (B), would otherwise ex20 pire after January 19 and before July 20 of the year in 

21 which the incumbent President first takes office, then such 

22 period or extension, respectively, shall expire on July 20 

23 of that year. 

24 ‘‘(b)(1) For purposes of this section, any claim of 

25 constitutionally based privilege against disclosure must be 


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HR 35 RFS 

1 asserted personally by a former President or the incum2 bent President, as applicable. 

3 ‘‘(2) A former President or the incumbent President 

4 shall notify the Archivist, the Committee on Oversight and 

5 Government Reform of the House of Representatives, and 

6 the Committee on Homeland Security and Governmental 

7 Affairs of the Senate of a privilege claim under paragraph 

8 (1) on the same day that the claim is asserted under para9 graph (1). 

10 ‘‘(c)(1) The Archivist shall not make publicly avail11 able a Presidential record that is subject to a privilege 

12 claim asserted by a former President until the expiration 

13 of the 20-day period (excluding Saturdays, Sundays, and 

14 legal public holidays) beginning on the date the Archivist 

15 is notified of the claim. 

16 ‘‘(2) Upon the expiration of such period the Archivist 

17 shall make the record publicly available unless otherwise 

18 directed by a court order in an action initiated by the 

19 former President under section 2204(e). 

20 ‘‘(d)(1) The Archivist shall not make publicly avail21 able a Presidential record that is subject to a privilege 

22 claim asserted by the incumbent President unless— 

23 ‘‘(A) the incumbent President withdraws the 

24 privilege claim; or 


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1 ‘‘(B) the Archivist is otherwise directed by a 

2 final court order that is not subject to appeal. 

3 ‘‘(2) This subsection shall not apply with respect to 

4 any Presidential record required to be made available 

5 under section 2205(2)(A) or (C). 

6 ‘‘(e) The Archivist shall adjust any otherwise applica7 ble time period under this section as necessary to comply 

8 with the return date of any congressional subpoena, judi9 cial subpoena, or judicial process.’’. 

10 (b) RESTRICTIONS.—Section 2204 of title 44, United 

11 States Code (relating to restrictions on access to presi12 dential records) is amended by adding at the end the fol13 lowing new subsection: 

14 ‘‘(f) The Archivist shall not make available any origi15 nal presidential records to any individual claiming access 

16 to any presidential record as a designated representative 

17 under section 2205(3) if that individual has been convicted 

18 of a crime relating to the review, retention, removal, or 

19 destruction of records of the Archives.’’. 

20 (c) CONFORMING AMENDMENTS.—(1) Section 

21 2204(d) of title 44, United States Code, is amended by 

22 inserting ‘‘, except section 2208,’’ after ‘‘chapter’’. 

23 (2) Section 2207 of title 44, United States Code, is 

24 amended in the second sentence by inserting ‘‘, except sec25 tion 2208,’’ after ‘‘chapter’’. 


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1 (d) CLERICAL AMENDMENT.—The table of sections 

2 at the beginning of chapter 22 of title 44, United States 

3 Code, is amended by adding at the end the following: 

‘‘2208. Claims of constitutionally based privilege against disclosure.’’. 

4 SEC. 3. EXECUTIVE ORDER OF NOVEMBER 1, 2001. 

5 Executive Order No. 13233, dated November 1, 2001 

6 (66 Fed. Reg. 56025), shall have no force or effect. 

Passed the House of Representatives January 7, 

2009. 

Attest: LORRAINE C. MILLER, 

Clerk. 


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