I 

111TH CONGRESS 

1ST SESSION H. R. 35 

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. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 6, 2009 

Mr. TOWNS (for himself, Mr. ISSA, Mr. WAXMAN, Mr. BURTON of Indiana, 

Mr. CLAY, and Mr. SHERMAN) introduced the following bill; which was 

referred to the Committee on Oversight and Government Reform 

A BILL 

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, 

3 SECTION 1. SHORT TITLE. 

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

5 Act Amendments of 2009’’. 


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1 SEC. 2. PROCEDURES FOR CONSIDERATION OF CLAIMS OF 

2 CONSTITUTIONALLY BASED PRIVILEGE 

3 AGAINST DISCLOSURE. 

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

5 States Code, is amended by adding at the end the fol6 lowing: 

7 ‘‘§ 2208. Claims of constitutionally based privilege 

8 against disclosure 

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

10 chapter to make available to the public any Presidential 

11 record that has not previously been made available to the 

12 public, the Archivist shall— 

13 ‘‘(A) promptly provide notice of such deter14 mination to— 

15 ‘‘(i) the former President during whose 

16 term of office the record was created; and 

17 ‘‘(ii) the incumbent President; and 

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

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

20 ‘‘(A) shall be in writing; and 

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

22 prescribed in regulations issued by the Archivist. 

23 ‘‘(3)(A) Upon the expiration of the 20-day period (ex24 cepting Saturdays, Sundays, and legal public holidays) be25 ginning on the date the Archivist provides notice under 

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


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

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

3 to which the Archivist receives from a former President 

4 or the incumbent President notification of a claim of con5 stitutionally based privilege against disclosure under sub6 section (b). 

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

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

9 not more than 20 additional days (excepting Saturdays, 

10 Sundays, and legal public holidays) by filing with the Ar11 chivist a statement that such an extension is necessary 

12 to allow an adequate review of the record. 

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

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

15 that period under subparagraph (B), would otherwise ex16 pire after January 19 and before July 20 of the year in 

17 which the incumbent President first takes office, then such 

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

19 of that year. 

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

21 constitutionally based privilege against disclosure must be 

22 asserted personally by a former President or the incum23 bent President, as applicable. 

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

25 shall notify the Archivist, the Committee on Oversight and 


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1 Government Reform of the House of Representatives, and 

2 the Committee on Homeland Security and Governmental 

3 Affairs of the Senate of a privilege claim under paragraph 

4 (1) on the same day that the claim is asserted under para5 graph (1). 

6 ‘‘(c)(1) The Archivist shall not make publicly avail7 able a Presidential record that is subject to a privilege 

8 claim asserted by a former President until the expiration 

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

10 legal public holidays) beginning on the date the Archivist 

11 is notified of the claim. 

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

13 shall make the record publicly available unless otherwise 

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

15 former President under section 2204(e). 

16 ‘‘(d)(1) The Archivist shall not make publicly avail17 able a Presidential record that is subject to a privilege 

18 claim asserted by the incumbent President unless— 

19 ‘‘(A) the incumbent President withdraws the 

20 privilege claim; or 

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

22 final court order that is not subject to appeal. 

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

24 any Presidential record required to be made available 

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


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1 ‘‘(e) The Archivist shall adjust any otherwise applica2 ble time period under this section as necessary to comply 

3 with the return date of any congressional subpoena, judi4 cial subpoena, or judicial process.’’. 

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

6 States Code (relating to restrictions on access to presi7 dential records) is amended by adding at the end the fol8 lowing new subsection: 

9 ‘‘(f) The Archivist shall not make available any origi10 nal presidential records to any individual claiming access 

11 to any presidential record as a designated representative 

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

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

14 destruction of records of the Archives.’’. 

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

16 2204(d) of title 44, United States Code, is amended by 

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

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

19 amended in the second sentence by inserting ‘‘, except sec20 tion 2208,’’ after ‘‘chapter’’. 

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

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

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

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


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

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

3 (66 Fed. Reg. 56025), shall have no force or effect. 

Æ 


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