II 

Calendar No. 64 

111TH CONGRESS 

1ST SESSION H. R. 35 

[Report No. 111–21] 

IN THE SENATE OF THE UNITED STATES 

JANUARY 8, 2009 

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

Governmental Affairs 

MAY 19, 2009 

Reported by Mr. LIEBERMAN, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

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, 

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. 

4 SECTION 1. SHORT TITLE. 

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

6 Amendments of 2009’’. 

7 SEC. 2. PROCEDURES FOR CONSIDERATION OF CLAIMS OF 

8 CONSTITUTIONALLY BASED PRIVILEGE 

9 AGAINST DISCLOSURE. 

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

11 States Code, is amended by adding at the end the following: 

12 ‘‘§ 2208. Claims of constitutionally based privilege 

13 against disclosure 

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

15 chapter to make available to the public any Presidential 

16 record that has not previously been made available to the 

17 public, the Archivist shall— 

18 ‘‘(A) promptly provide notice of such determina19 tion to— 

20 ‘‘(i) the former President during whose term 

21 of office the record was created; and 

22 ‘‘(ii) the incumbent President; and 

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

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

25 ‘‘(A) shall be in writing; and 


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

2 prescribed in regulations issued by the Archivist. 

3 ‘‘(3)(A) Upon the expiration of the 60-day period (ex4 cepting Saturdays, Sundays, and legal public holidays) be5 ginning on the date the Archivist provides notice under 

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

7 public the Presidential record covered by the notice, except 

8 any record (or reasonably segregable part of a record) with 

9 respect to which the Archivist receives from a former Presi10 dent or the incumbent President notification of a claim of 

11 constitutionally based privilege against disclosure under 

12 subsection (b). 

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

14 may extend the period under subparagraph (A) once for not 

15 more than 30 additional days (excepting Saturdays, Sun16 days, and legal public holidays) by filing with the Archivist 

17 a statement that such an extension is necessary to allow 

18 an adequate review of the record. 

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

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

21 period under subparagraph (B), would otherwise expire 

22 after January 19 and before July 20 of the year in which 

23 the incumbent President first takes office, then such period 

24 or extension, respectively, shall expire on July 20 of that 

25 year. 


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1 ‘‘(b)(1) For purposes of this section, any claim of con2 stitutionally based privilege against disclosure of a Presi3 dential record (or reasonably segregable part of a record) 

4 must be asserted personally by a former President or the 

5 incumbent President, as applicable. 

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

7 shall notify the Archivist, the Committee on Oversight and 

8 Government Reform of the House of Representatives, and 

9 the Committee on Homeland Security and Governmental 

10 Affairs of the Senate of a privilege claim under paragraph 

11 (1) on the same day that the claim is asserted under such 

12 paragraph. 

13 ‘‘(c)(1) If a claim of constitutionally based privilege 

14 against disclosure of a Presidential record (or reasonably 

15 segregable part of a record) is asserted under subsection (b) 

16 by a former President, the Archivist shall consult with the 

17 incumbent President, as soon as practicable during the pe18 riod specified in paragraph (2)(A), to determine whether 

19 the incumbent President will uphold the claim asserted by 

20 the former President. 

21 ‘‘(2)(A) Not later than the end of the 30-day period 

22 beginning on the date of which the Archivist receives notifi23 cation from a former President of the assertion of a claim 

24 of constitutionally based privilege against disclosure, the 

25 Archivist shall provide notice to the former President and 


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1 the public of the decision of the incumbent President under 

2 paragraph (1) regarding the claim. 

3 ‘‘(B) If the incumbent President upholds the claim of 

4 privilege asserted by the former President, the Archivist 

5 shall not make the Presidential record (or reasonably seg6 regable part of a record) subject to the claim publicly avail7 able unless— 

8 ‘‘(i) the incumbent President withdraws the deci9 sion upholding the claim of privilege asserted by the 

10 former President; or 

11 ‘‘(ii) the Archivist is otherwise directed by a 

12 final court order that is not subject to appeal. 

13 ‘‘(C) If the incumbent President determines not to up14 hold the claim of privilege asserted by the former President, 

15 or fails to make the determination under paragraph (1) be16 fore the end of the period specified in subparagraph (A), 

17 the Archivist shall release the Presidential record subject to 

18 the claim at the end of the 90-day period beginning on the 

19 date of which the Archivist received notification of the 

20 claim, unless otherwise directed by a court order in an ac21 tion initiated by the former President under section 2204(e) 

22 of this title. 

23 ‘‘(d)(1) The Archivist shall not make publicly available 

24 a Presidential record (or reasonably segregable part of a 


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1 record) that is subject to a privilege claim asserted by the 

2 incumbent President unless— 

3 ‘‘(A) the incumbent President withdraws the 

4 privilege claim; or 

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

6 final court order that is not subject to appeal. 

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

8 any Presidential record required to be made available under 

9 section 2205(2)(A) or (C) of this title. 

10 ‘‘(e) The Archivist shall adjust any otherwise applica11 ble time period under this section as necessary to comply 

12 with the return date of any congressional subpoena, judicial 

13 subpoena, or judicial process.’’. 

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

15 States Code (relating to restrictions on access to presi16 dential records) is amended by adding at the end the fol17 lowing new subsection: 

18 ‘‘(f) The Archivist shall not make available any origi19 nal presidential records to any individual claiming access 

20 to any presidential record as a designated representative 

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

22 of a crime relating to the review, retention, removal, or de23 struction of records of the Archives.’’. 


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1 (c) CONFORMING AMENDMENTS.—(1) Section 2204(d) 

2 of title 44, United States Code, is amended by inserting 

3 ‘‘, except section 2208,’’ after ‘‘chapter’’. 

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

5 amended in the second sentence by inserting ‘‘, except sec6 tion 2208,’’ after ‘‘chapter’’. 

7 (d) CLERICAL AMENDMENT.—The table of sections at 

8 the beginning of chapter 22 of title 44, United States Code, 

9 is amended by adding at the end the following: 

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

10 SEC. 3. TREATMENT OF EXECUTIVE ORDERS 13233 AND 

11 12667. 

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

13 (66 Fed. Reg. 56025), and Executive Order No. 12667, 

14 dated January 1, 1989 (54 Fed. Reg. 3403), shall have no 

15 force or effect. 


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Calendar No. 64 

111TH CONGRESS 

1ST SESSION H. R. 35 

[Report No. 111–21] 

AN ACT 

To amend chapter 22 of title 44, United States 

records. privilege against disclosure of Presidential sideration of claims of constitutionally based Records Act, to establish procedures for the conCode, popularly known as the Presidential 

MAY 19, 2009 

Reported with an amendment 


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