I 

112TH CONGRESS 

1ST SESSION H. R. 1144 

To increase the transparency of the Federal Government, and for other 

purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 17, 2011 

Mr. CUMMINGS (for himself, Mr. TOWNS, Mr. CLAY, Mrs. MALONEY, Ms. 

NORTON, Mr. KUCINICH, Mr. TIERNEY, Mr. LYNCH, Mr. COOPER, Mr. 

CONNOLLY of Virginia, Mr. QUIGLEY, Mr. DAVIS of Illinois, Mr. BRALEY

of Iowa, Mr. WELCH, Mr. YARMUTH, Mr. MURPHY of Connecticut, and 

Ms. SPEIER) introduced the following bill; which was referred to the Committee on Oversight and Government Reform 

A BILL 

To increase the transparency of the Federal Government, 

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. SHORT TITLE. 

4 This Act may be cited as the ‘‘Transparency and 

5 Openness in Government Act’’. 

6 SEC. 2. TABLE OF CONTENTS. 

7 The table of contents for this Act is as follows: 

Sec. 1. Short title. 

Sec. 2. Table of contents. 


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TITLE I—FEDERAL ADVISORY COMMITTEE ACT AMENDMENTS 

Sec. 101. Ensuring independent advice and expertise. 

Sec. 102. Preventing efforts to circumvent the Federal Advisory Committee Act 

and public disclosure. 

Sec. 103. Increasing transparency of advisory committees. 

Sec. 104. Comptroller General review and reports. 

Sec. 105. Application of Federal Advisory Committee Act to Trade Advisory 

Committees. 

Sec. 106. Definitions. 

Sec. 107. Effective date. 

TITLE II—PRESIDENTIAL RECORDS ACT AMENDMENTS 

Sec. 201. Procedures for consideration of claims of constitutionally based privilege against disclosure. 

TITLE III—PRESIDENTIAL LIBRARY DONATION REFORM 

Sec. 301. Presidential libraries. 

TITLE IV—ELECTRONIC MESSAGE PRESERVATION 

Sec. 401. Preservation of electronic messages. 

Sec. 402. Presidential records. 

Sec. 403. Procedures to prevent unauthorized removal of classified records from 

National Archives. 

Sec. 404. Restrictions on access to presidential records. 

TITLE V—GOVERNMENT ACCOUNTABILITY OFFICE 

IMPROVEMENT 

Sec. 501. Authority to obtain information. 

Sec. 502. Administering oaths. 

Sec. 503. Agency reports. 

1 TITLE I—FEDERAL ADVISORY 

2 COMMITTEE ACT AMENDMENTS 

3 SEC. 101. ENSURING INDEPENDENT ADVICE AND EXPER4 TISE. 

5 (a) BAR ON POLITICAL LITMUS TESTS.—Section 9 

6 of the Federal Advisory Committee Act (5 U.S.C. App.) 

7 is amended— 

8 (1) in the section heading by inserting ‘‘MEM9 BERSHIP;’’ after ‘‘ADVISORY COMMITTEES;’’; 


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1 (2) by redesignating subsections (b) and (c) as 

2 subsections (e) and (f), respectively; and 

3 (3) by inserting after subsection (a) the fol4 lowing: 

5 ‘‘(b) APPOINTMENTS MADE WITHOUT REGARD TO

6 POLITICAL AFFILIATION OR ACTIVITY.—All appointments 

7 to advisory committees shall be made without regard to 

8 political affiliation or political activity, unless required by 

9 Federal statute.’’. 

10 (b) MINIMIZING CONFLICTS OF INTEREST.—Section 

11 9 of the Federal Advisory Committee Act (5 U.S.C. App.) 

12 is further amended by inserting after subsection (b) (as 

13 added by subsection (a)) the following: 

14 ‘‘(c) PUBLIC NOMINATIONS OF COMMITTEE MEM15 BERS.—Prior to appointing members to an advisory com16 mittee, the head of an agency shall give interested persons 

17 an opportunity to suggest potential committee members. 

18 The agency shall include a request for comments in the 

19 Federal Register notice required under subsection (a) and 

20 provide a mechanism for interested persons to comment 

21 through the official Web site of the agency. The agency 

22 shall consider any comments submitted under this sub23 section in selecting the members of an advisory committee. 

24 ‘‘(d) DESIGNATION OF COMMITTEE MEMBERS.— 


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1 ‘‘(1) An individual appointed to an advisory 

2 committee who is not a full-time or permanent part3 time officer or employee of the Federal Government 

4 shall be designated as— 

5 ‘‘(A) a special government employee, if the 

6 individual is providing advice based on the indi7 vidual’s expertise or experience; or 

8 ‘‘(B) a representative, if the individual is 

9 representing the views of an entity or entities 

10 outside of the Federal Government. 

11 ‘‘(2) An agency may not designate committee 

12 members as representatives to avoid subjecting them 

13 to Federal ethics rules and requirements. 

14 ‘‘(3) The designated agency ethics official for 

15 each agency shall review the members of each advi16 sory committee that reports to the agency to deter17 mine whether each member’s designation is appro18 priate, and to redesignate members if appropriate. 

19 The designated agency ethics official shall certify to 

20 the head of the agency that such review has been 

21 made— 

22 ‘‘(A) following the initial appointment of 

23 members; and 


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1 ‘‘(B) at the time a committee’s charter is 

2 renewed, or, in the case of a committee with an 

3 indefinite charter, every 2 years. 

4 ‘‘(4) The head of each agency shall inform each 

5 individual appointed to an advisory committee that 

6 reports to the agency whether the individual is ap7 pointed as a special government employee or as a 

8 representative. The agency head shall provide each 

9 committee member with an explanation of the dif10 ferences between special government employees and 

11 representatives and a summary of applicable ethics 

12 requirements. The agency head, acting through the 

13 designated agency ethics official, shall obtain signed 

14 and dated written confirmation from each committee 

15 member that the member received and reviewed the 

16 information required by this paragraph. 

17 ‘‘(5) The Director of the Office of Government 

18 Ethics shall provide guidance to agencies on what to 

19 include in the summary of ethics requirements re20 quired by paragraph (4). 

21 ‘‘(6) The head of each agency shall, to the ex22 tent practicable, develop and implement strategies to 

23 minimize the need for written determinations under 

24 section 208(b)(1) of title 18, United States Code. 

25 Strategies may include such efforts as improving 


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1 outreach efforts to potential committee members and 

2 seeking public input on potential committee mem3 bers.’’. 

4 (c) REGULATIONS IMPLEMENTING FACA.—Section 

5 7(c) of the Federal Advisory Committee Act (5 U.S.C. 

6 App.) is amended by inserting after ‘‘(c)’’ the following: 

7 ‘‘The Administrator shall promulgate regulations as nec8 essary to implement this Act.’’. 

9 SEC. 102. PREVENTING EFFORTS TO CIRCUMVENT THE 

10 FEDERAL ADVISORY COMMITTEE ACT AND 

11 PUBLIC DISCLOSURE. 

12 (a) DE FACTO MEMBERS.—Section 4 of the Federal 

13 Advisory Committee Act (5 U.S.C. App.) is amended by 

14 adding at the end the following: 

15 ‘‘(d) TREATMENT OF INDIVIDUAL AS MEMBER.—An 

16 individual who is not a full-time or permanent part-time 

17 officer or employee of the Federal Government shall be 

18 regarded as a member of a committee if the individual 

19 regularly attends and fully participates in committee meet20 ings as if the individual were a member, even if the indi21 vidual does not have the right to vote or veto the advice 

22 or recommendations of the advisory committee.’’. 

23 (b) SUBCOMMITTEES.—Section 4 of the Federal Ad24 visory Committee Act (5 U.S.C. App.) is amended by 

25 striking subsection (a) and inserting the following: 


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1 ‘‘(a) APPLICATION.—The provisions of this Act or of 

2 any rule, order, or regulation promulgated under this Act 

3 shall apply to each advisory committee, including any sub4 committee or subgroup thereof, except to the extent that 

5 any Act of Congress establishing any such advisory com6 mittee specifically provides otherwise. Any subcommittee 

7 or subgroup that reports to a parent committee estab8 lished under section 9(a) is not required to comply with 

9 section 9(f). In this subsection, the term ‘subgroup’ in10 cludes any working group, task force, or other entity 

11 formed for the purpose of assisting the committee or any 

12 subcommittee of the committee in its work.’’. 

13 (c) COMMITTEES CREATED UNDER CONTRACT.— 

14 Section 3(2) of the Federal Advisory Committee Act (5 

15 U.S.C. App.) is amended in the matter following subpara16 graph (C) by adding at the end the following: ‘‘An advi17 sory committee is considered to be established by an agen18 cy, agencies, or the President if it is formed, created, or 

19 organized under contract, other transactional authority, 

20 cooperative agreement, grant, or otherwise at the request 

21 or direction of an agency, agencies, or the President.’’. 

22 (d) ADVISORY COMMITTEES CONTAINING SPECIAL

23 GOVERNMENT EMPLOYEES.—Section 4 of the Federal Ad24 visory Committee Act (5 U.S.C. App.) is further amended 

25 by adding at the end the following new subsection: 


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1 ‘‘(e) SPECIAL GOVERNMENT EMPLOYEES.—Com2 mittee members appointed as special government employ3 ees shall not be considered full-time or permanent part4 time officers or employees of the Federal Government for 

5 purposes of determining the applicability of this Act under 

6 section 3(2).’’. 

7 SEC. 103. INCREASING TRANSPARENCY OF ADVISORY COM8 MITTEES. 

9 (a) INFORMATION REQUIREMENT.—Section 11 of the 

10 Federal Advisory Committee Act (5 U.S.C. App.) is 

11 amended— 

12 (1) by striking the section designation and 

13 heading and inserting the following: 

14 ‘‘SEC. 11. DISCLOSURE OF INFORMATION.’’; 

15 (2) by redesignating subsection (a) as sub16 section (d) and in that subsection— 

17 (A) by inserting the following subsection 

18 heading: ‘‘AVAILABILITY OF PAPER COPIES OF

19 TRANSCRIPTS.—’’; and 

20 (B) by inserting after ‘‘duplication,’’ the 

21 following: ‘‘paper’’; 

22 (3) by striking ‘‘(b)’’ and inserting ‘‘(e) AGEN23 CY PROCEEDING DEFINED.—’’; and 


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1 (4) by inserting before subsection (d), as redes2 ignated by paragraph (2), the following new sub3 sections: 

4 ‘‘(a) IN GENERAL.—With respect to each advisory 

5 committee, the head of the agency to which the advisory 

6 committee reports shall make publicly available in accord7 ance with subsection (b) the following information: 

8 ‘‘(1) The charter of the advisory committee. 

9 ‘‘(2) A description of the process used to estab10 lish and appoint the members of the advisory com11 mittee, including the following: 

12 ‘‘(A) The process for identifying prospec13 tive members. 

14 ‘‘(B) The process of selecting members for 

15 balance of viewpoints or expertise. 

16 ‘‘(C) The reason each member was ap17 pointed to the committee. 

18 ‘‘(D) A justification of the need for rep19 resentative members, if any. 

20 ‘‘(3) A list of all current members, including, 

21 for each member, the following: 

22 ‘‘(A) The name of any person or entity 

23 that nominated the member. 


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1 ‘‘(B) Whether the member is designated as 

2 a special government employee or a representa3 tive. 

4 ‘‘(C) In the case of a representative, the 

5 individuals or entity whose viewpoint the mem6 ber represents. 

7 ‘‘(4) A list of all members designated as special 

8 government employees for whom written certifi9 cations were made under section 208(b) of title 18, 

10 United States Code, a copy of each such certifi11 cation, a summary description of the conflict necessi12 tating the certification, and the reason for granting 

13 the certification. 

14 ‘‘(5) Any recusal agreement made by a member 

15 or any recusal known to the agency that occurs dur16 ing the course of a meeting or other work of the 

17 committee. 

18 ‘‘(6) A summary of the process used by the ad19 visory committee for making decisions. 

20 ‘‘(7) Transcripts or audio or video recordings of 

21 all meetings of the committee. 

22 ‘‘(8) Any written determination by the Presi23 dent or the head of the agency to which the advisory 

24 committee reports, pursuant to section 10(d), to 


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1 close a meeting or any portion of a meeting and the 

2 reasons for such determination. 

3 ‘‘(9) Notices of future meetings of the com4 mittee. 

5 ‘‘(10) Any additional information considered 

6 relevant by the head of the agency to which the advi7 sory committee reports. 

8 ‘‘(b) MANNER OF DISCLOSURE.— 

9 ‘‘(1) Except as provided in paragraph (2), the 

10 head of an agency shall make the information re11 quired to be disclosed under this section available 

12 electronically on the official public Internet site of 

13 the agency at least 15 calendar days before each 

14 meeting of an advisory committee. If the head of the 

15 agency determines that such timing is not prac16 ticable for any required information, he shall make 

17 the information available as soon as practicable but 

18 no later than 48 hours before the next meeting of 

19 the committee. An agency may withhold from disclo20 sure any information that would be exempt from dis21 closure under section 552 of title 5, United States 

22 Code. 

23 ‘‘(2) The head of an agency shall make avail24 able electronically, on the official public Internet site 

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1 ing of each advisory committee meeting as required 

2 by subsection (a)(6) not later than 30 calendar days 

3 after the meeting. 

4 ‘‘(c) PROVISION OF INFORMATION BY ADMINIS5 TRATOR OF GENERAL SERVICES.—The Administrator of 

6 General Services shall provide, on the official public Inter7 net site of the General Services Administration, electronic 

8 access to the information made available by each agency 

9 under this section.’’. 

10 (b) CHARTER FILING.—Section 9(f) of the Federal 

11 Advisory Committee Act (5 U.S.C. App.), as redesignated 

12 by section 101, is amended— 

13 (1) by striking ‘‘with (1) the Administrator,’’ 

14 and all that follows through ‘‘, or’’ and inserting 

15 ‘‘(1) with the Administrator and’’; 

16 (2) by striking ‘‘and’’ at the end of subpara17 graph (I); 

18 (3) by striking the period and inserting a semi19 colon at the end of subparagraph (J); and 

20 (4) by adding at the end the following new sub21 paragraphs: 

22 ‘‘(K) the authority under which the committee 

23 is established; 


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1 ‘‘(L) the estimated number of members and a 

2 description of the expertise needed to carry out the 

3 objectives of the committee; 

4 ‘‘(M) a description of whether the committee 

5 will be composed of special government employees, 

6 representatives, or members from both categories; 

7 and 

8 ‘‘(N) whether the committee has the authority 

9 to create subcommittees and if so, the agency official 

10 authorized to exercise such authority.’’. 

11 SEC. 104. COMPTROLLER GENERAL REVIEW AND REPORTS. 

12 (a) REVIEW.—The Comptroller General of the United 

13 States shall review compliance by agencies with the Fed14 eral Advisory Committee Act, as amended by this title, 

15 including whether agencies are appropriately appointing 

16 advisory committee members as either special government 

17 employees or representatives. 

18 (b) REPORT.—The Comptroller General shall submit 

19 to the committees described in subsection (c) two reports 

20 on the results of the review, as follows: 

21 (1) The first report shall be submitted not later 

22 than one year after the date of promulgation of reg23 ulations under section 101. 


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1 (2) The second report shall be submitted not 

2 later than five years after such date of promulgation 

3 of regulations. 

4 (c) COMMITTEES.—The committees described in this 

5 subsection are the Committee on Oversight and Govern6 ment Reform of the House of Representatives and the 

7 Committee on Homeland Security and Governmental Af8 fairs of the Senate. 

9 SEC. 105. APPLICATION OF FEDERAL ADVISORY COM10 MITTEE ACT TO TRADE ADVISORY COMMIT11 TEES. 

12 Section 135(f)(2)(A) of the Trade Act of 1974 (19 

13 U.S.C. 2155) is amended by striking ‘‘subsection (a) and 

14 (b) of sections 10 and 11 of the Federal Advisory Com15 mittee Act’’ and inserting ‘‘subsections (a) and (b) of sec16 tion 10 and subsections (a)(7), (a)(8), (a)(9), (d), and (e) 

17 of section 11 of the Federal Advisory Committee Act’’. 

18 SEC. 106. DEFINITIONS. 

19 Section 3 of the Federal Advisory Committee Act (5 

20 U.S.C. App.) is amended by adding at the end the fol21 lowing new paragraph: 

22 ‘‘(5) The term ‘special Government employee’ 

23 has the same meaning as in section 202(a) of title 

24 18, United States Code.’’. 


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1 SEC. 107. EFFECTIVE DATE. 

2 This title shall take effect 30 days after the date of 

3 the enactment of this Act. 

4 TITLE II—PRESIDENTIAL 

5 RECORDS ACT AMENDMENTS 

6 SEC. 201. PROCEDURES FOR CONSIDERATION OF CLAIMS 

7 OF CONSTITUTIONALLY BASED PRIVILEGE 

8 AGAINST DISCLOSURE. 

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

10 States Code, is amended by adding at the end the fol11 lowing: 

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 deter19 mination to— 

20 ‘‘(i) the former President during whose 

21 term 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 

10 President or the incumbent President notification of a 

11 claim of constitutionally based privilege against disclosure 

12 under subsection (b). 

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

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

15 not more than 30 additional days (excepting Saturdays, 

16 Sundays, and legal public holidays) by filing with the Ar17 chivist a statement that such an extension is necessary 

18 to allow an adequate review of the record. 

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

20 the 60-day period under subparagraph (A), or any exten21 sion of that period under subparagraph (B), would other22 wise expire during the 6-month period after the incumbent 

23 President first takes office, then that 60-day period or ex24 tension, respectively, shall expire at the end of that 6- 

25 month period. 


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1 ‘‘(b)(1) For purposes of this section, the decision to 

2 assert any claim of constitutionally based privilege against 

3 disclosure of a Presidential record (or reasonably seg4 regable part of a record) must be made personally by a 

5 former President or the incumbent President, as applica6 ble. 

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

8 shall notify the Archivist, the Committee on Oversight and 

9 Government Reform of the House of Representatives, and 

10 the Committee on Homeland Security and Governmental 

11 Affairs of the Senate of a privilege claim under paragraph 

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

13 paragraph. 

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

15 against disclosure of a Presidential record (or reasonably 

16 segregable part of a record) is asserted under subsection 

17 (b) by a former President, the Archivist shall consult with 

18 the incumbent President, as soon as practicable during the 

19 period specified in paragraph (2)(A), to determine whether 

20 the incumbent President will uphold the claim asserted by 

21 the former President. 

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

23 beginning on the date of which the Archivist receives noti24 fication from a former President of the assertion of a 

25 claim of constitutionally based privilege against disclosure, 


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1 the Archivist shall provide notice to the former President 

2 and the public of the decision of the incumbent President 

3 under paragraph (1) regarding the claim. 

4 ‘‘(B) If the incumbent President upholds the claim 

5 of privilege asserted by the former President, the Archivist 

6 shall not make the Presidential record (or reasonably seg7 regable part of a record) subject to the claim publicly 

8 available unless— 

9 ‘‘(i) the incumbent President withdraws the de10 cision upholding the claim of privilege asserted by 

11 the former President; or 

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

13 final court order that is not subject to appeal. 

14 ‘‘(C) If the incumbent President determines not to 

15 uphold the claim of privilege asserted by the former Presi16 dent, or fails to make the determination under paragraph 

17 (1) before the end of the period specified in subparagraph 

18 (A), the Archivist shall release the Presidential record sub19 ject to the claim at the end of the 90-day period beginning 

20 on the date on which the Archivist received notification 

21 of the claim, unless otherwise directed by a court order 

22 in an action initiated by the former President under sec23 tion 2204(e) of this title or by a court order in another 

24 action in Federal court. 


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

2 a Presidential record (or reasonably segregable part of a 

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

4 incumbent President unless— 

5 ‘‘(1) the incumbent President withdraws the 

6 privilege claim; or 

7 ‘‘(2) the Archivist is otherwise directed by a 

8 final court order that is not subject to appeal. 

9 ‘‘(e) The Archivist shall adjust any otherwise applica10 ble time period under this section as necessary to comply 

11 with the return date of any congressional subpoena, judi12 cial subpoena, or judicial process.’’. 

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

14 States Code (relating to restrictions on access to presi15 dential records) is amended by adding at the end the fol16 lowing new subsection: 

17 ‘‘(f) The Archivist shall not make available any origi18 nal presidential records to any individual claiming access 

19 to any presidential record as a designated representative 

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

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

22 destruction of records of the Archives.’’. 

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

24 2204(d) of title 44, United States Code, is amended by 

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


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1 (2) Section 2205 of title 44, United States Code, is 

2 amended by inserting ‘‘and 2208’’ after ‘‘2204’’, 

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

4 amended in the second sentence by inserting ‘‘, except sec5 tion 2208,’’ after ‘‘chapter’’. 

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

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

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

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

9 (e) RULE OF CONSTRUCTION.—Nothing in the 

10 amendment made by subsection (c)(3) shall be construed 

11 to— 

12 (1) affect the requirement of section 2207 of 

13 title 44, United States Code, that Vice Presidential 

14 records shall be subject to chapter 22 of that title 

15 in the same manner as Presidential records; or 

16 (2) affect any claim of constitutionally based 

17 privilege by a President or former President with re18 spect to a Vice Presidential record. 

19 TITLE III—PRESIDENTIAL 

20 LIBRARY DONATION REFORM 

21 SEC. 301. PRESIDENTIAL LIBRARIES. 

22 (a) IN GENERAL.—Section 2112 of title 44, United 

23 States Code, is amended by adding at the end the fol24 lowing new subsection: 


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1 ‘‘(h)(1) Any Presidential library fundraising organi2 zation shall submit on a quarterly basis, in accordance 

3 with paragraph (2), information with respect to every con4 tributor who gave the organization a contribution or con5 tributions (whether monetary or in-kind) totaling $200 or 

6 more for the quarterly period. 

7 ‘‘(2) For purposes of paragraph (1)— 

8 ‘‘(A) the entities to which information shall be 

9 submitted under that paragraph are the Administra10 tion, the Committee on Oversight and Government 

11 Reform of the House of Representatives, and the 

12 Committee on Homeland Security and Governmental 

13 Affairs of the Senate; 

14 ‘‘(B) the dates by which information shall be 

15 submitted under that paragraph are April 15, July 

16 15, October 15, and January 15 of each year and 

17 of the following year (for the fourth quarterly filing); 

18 ‘‘(C) the requirement to submit information 

19 under that paragraph shall continue until the later 

20 of the following occurs: 

21 ‘‘(i) The Archivist has accepted, taken title 

22 to, or entered into an agreement to use any 

23 land or facility for the archival depository. 

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1 fice of President and a period of four years has 

2 expired (beginning on the date the President 

3 left the Office). 

4 ‘‘(3) In this subsection: 

5 ‘‘(A) The term ‘Presidential library fundraising 

6 organization’ means an organization that is estab7 lished for the purpose of raising funds for creating, 

8 maintaining, expanding, or conducting activities at— 

9 ‘‘(i) a Presidential archival depository; or 

10 ‘‘(ii) any facilities relating to a Presidential 

11 archival depository. 

12 ‘‘(B) The term ‘information’ means the fol13 lowing: 

14 ‘‘(i) The amount or value of each contribu15 tion made by a contributor referred to in para16 graph (1) in the quarter covered by the submis17 sion. 

18 ‘‘(ii) The source of each such contribution, 

19 and the address of the entity or individual that 

20 is the source of the contribution. 

21 ‘‘(iii) If the source of such a contribution 

22 is an individual, the occupation of the indi23 vidual. 

24 ‘‘(iv) The date of each such contribution. 


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1 ‘‘(4) The Archivist shall make available to the public 

2 through the Internet (or a successor technology readily 

3 available to the public) as soon as is practicable after each 

4 quarterly filing any information that is submitted under 

5 paragraph (1). The information shall be made available 

6 without a fee or other access charge, in a searchable, sort7 able, and downloadable database. 

8 ‘‘(5)(A) It shall be unlawful for any person who 

9 makes a contribution described in paragraph (1) to know10 ingly and willfully submit false material information or 

11 omit material information with respect to the contribution 

12 to an organization described in such paragraph. 

13 ‘‘(B) The penalties described in section 1001 of title 

14 18, United States Code, shall apply with respect to a viola15 tion of subparagraph (A) in the same manner as a viola16 tion described in such section. 

17 ‘‘(6)(A) It shall be unlawful for any Presidential li18 brary fundraising organization to knowingly and willfully 

19 submit false material information or omit material infor20 mation under paragraph (1). 

21 ‘‘(B) The penalties described in section 1001 of title 

22 18, United States Code, shall apply with respect to a viola23 tion of subparagraph (A) in the same manner as a viola24 tion described in such section. 


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1 ‘‘(7)(A) It shall be unlawful for a person to knowingly 

2 and willfully— 

3 ‘‘(i) make a contribution described in paragraph 

4 (1) in the name of another person; 

5 ‘‘(ii) permit his or her name to be used to effect 

6 a contribution described in paragraph (1); or 

7 ‘‘(iii) accept a contribution described in para8 graph (1) that is made by one person in the name 

9 of another person. 

10 ‘‘(B) The penalties set forth in section 309(d) of the 

11 Federal Election Campaign Act of 1971 (2 U.S.C. 

12 437g(d)) shall apply to a violation of subparagraph (A) 

13 in the same manner as if such violation were a violation 

14 of section 316(b)(3) of such Act (2 U.S.C. 441b(b)(3)). 

15 ‘‘(8) The Archivist shall promulgate regulations for 

16 the purpose of carrying out this subsection.’’. 

17 (b) APPLICABILITY.—Section 2112(h) of title 44, 

18 United States Code (as added by subsection (a))— 

19 (1) shall apply to an organization established 

20 for the purpose of raising funds for creating, main21 taining, expanding, or conducting activities at a 

22 Presidential archival depository or any facilities re23 lating to a Presidential archival depository before, 

24 on or after the date of the enactment of this Act; 

25 and 


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1 (2) shall only apply with respect to contribu2 tions (whether monetary or in-kind) made after the 

3 date of the enactment of this Act. 

4 TITLE IV—ELECTRONIC 

5 MESSAGE PRESERVATION 

6 SEC. 401. PRESERVATION OF ELECTRONIC MESSAGES. 

7 (a) REQUIREMENT FOR PRESERVATION OF ELEC8 TRONIC MESSAGES.— 

9 (1) IN GENERAL.—Chapter 29 of title 44, 

10 United States Code, is amended by adding at the 

11 end the following new section: 

12 ‘‘§ 2911. Electronic messages 

13 ‘‘(a) REGULATIONS REQUIRED.—Not later than 18 

14 months after the date of the enactment of this section, 

15 the Archivist shall promulgate regulations governing agen16 cy preservation of electronic messages that are records. 

17 Such regulations shall, at a minimum— 

18 ‘‘(1) require the electronic capture, manage19 ment, and preservation of such electronic records in 

20 accordance with the records disposition requirements 

21 of chapter 33 of this title; 

22 ‘‘(2) require that such electronic records are 

23 readily accessible for retrieval through electronic 

24 searches; 


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1 ‘‘(3) establish mandatory minimum functional 

2 requirements for electronic records management sys3 tems to ensure compliance with the requirements in 

4 paragraphs (1) and (2); 

5 ‘‘(4) establish a process to certify that Federal 

6 agencies’ electronic records management systems 

7 meet the functional requirements established under 

8 paragraph (3); and 

9 ‘‘(5) include timelines for agency compliance 

10 with the regulations that ensure compliance as expe11 ditiously as practicable but not later than four years 

12 after the date of the enactment of this section. 

13 ‘‘(b) COVERAGE OF OTHER ELECTRONIC

14 RECORDS.—To the extent practicable, the regulations pro15 mulgated under subsection (a) shall also include require16 ments for the capture, management, and preservation of 

17 other electronic records. 

18 ‘‘(c) COMPLIANCE BY FEDERAL AGENCIES.—Each 

19 Federal agency shall comply with the regulations promul20 gated under subsection (a). 

21 ‘‘(d) REVIEW OF REGULATIONS REQUIRED.—The 

22 Archivist shall periodically review and, as necessary, 

23 amend the regulations promulgated under this section. 

24 ‘‘(e) REPORTS ON IMPLEMENTATION OF REGULA25 TIONS.— 


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1 ‘‘(1) AGENCY REPORT TO ARCHIVIST.—Not 

2 later than four years after the date of the enactment 

3 of this section, the head of each Federal agency shall 

4 submit to the Archivist a report on the agency’s 

5 compliance with the regulations promulgated under 

6 this section. 

7 ‘‘(2) ARCHIVIST REPORT TO CONGRESS.—Not 

8 later than 90 days after receipt of all reports re9 quired by paragraph (1), the Archivist shall submit 

10 to the Committee on Homeland Security and Gov11 ernmental Affairs of the Senate and the Committee 

12 on Oversight and Government Reform of the House 

13 of Representatives a report on Federal agency com14 pliance with the regulations promulgated under this 

15 section.’’. 

16 (2) CLERICAL AMENDMENT.—The table of sec17 tions for chapter 29 of title 44, United States Code, 

18 is amended by adding after the item relating to sec19 tion 2910 the following new item: 

‘‘2911. Electronic messages.’’. 

20 (b) DEFINITIONS.—Section 2901 of title 44, United 

21 States Code, is amended— 

22 (1) by striking ‘‘and’’ at the end of paragraph 

23 (14); 

24 (2) by striking the period at the end of para25 graph (15) and inserting a semicolon; and 


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1 (3) by adding at the end the following new 

2 paragraphs: 

3 ‘‘(16) the term ‘electronic messages’ means 

4 electronic mail and other electronic messaging sys5 tems that are used for purposes of communicating 

6 between individuals; and 

7 ‘‘(17) the term ‘electronic records management 

8 system’ means software designed to manage elec9 tronic records, including by— 

10 ‘‘(A) categorizing and locating records; 

11 ‘‘(B) ensuring that records are retained as 

12 long as necessary; 

13 ‘‘(C) identifying records that are due for 

14 disposition; and 

15 ‘‘(D) ensuring the storage, retrieval, and 

16 disposition of records.’’. 

17 SEC. 402. PRESIDENTIAL RECORDS. 

18 (a) ADDITIONAL REGULATIONS RELATING TO PRESI19 DENTIAL RECORDS.— 

20 (1) IN GENERAL.—Section 2206 of title 44, 

21 United States Code, is amended— 

22 (A) by striking ‘‘and’’ at the end of para23 graph (3); 

24 (B) by striking the period at the end of 

25 paragraph (4) and inserting ‘‘; and’’; and 


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1 (C) by adding at the end the following: 

2 ‘‘(5) provisions for establishing standards nec3 essary for the economical and efficient management 

4 of electronic Presidential records during the Presi5 dent’s term of office, including— 

6 ‘‘(A) records management controls nec7 essary for the capture, management, and pres8 ervation of electronic messages; 

9 ‘‘(B) records management controls nec10 essary to ensure that electronic messages are 

11 readily accessible for retrieval through elec12 tronic searches; and 

13 ‘‘(C) a process to certify the electronic 

14 records management system to be used by the 

15 President for the purposes of complying with 

16 the requirements in subparagraphs (A) and 

17 (B).’’. 

18 (2) DEFINITION.—Section 2201 of title 44, 

19 United States Code, is amended by adding at the 

20 end the following new paragraphs: 

21 ‘‘(5) The term ‘electronic messages’ has the 

22 meaning provided in section 2901(16) of this title. 

23 ‘‘(6) The term ‘electronic records management 

24 system’ has the meaning provided in section 

25 2901(17) of this title.’’. 


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1 (b) CERTIFICATION OF PRESIDENT’S MANAGEMENT

2 OF PRESIDENTIAL RECORDS.— 

3 (1) CERTIFICATION REQUIRED.—Chapter 22 of 

4 title 44, United States Code, as amended by section 

5 201, is further amended by adding at the end the 

6 following new section: 

7 ‘‘§ 2209. Certification of the President’s management 

8 of Presidential records 

9 ‘‘(a) ANNUAL CERTIFICATION.—The Archivist shall 

10 annually certify whether the electronic records manage11 ment controls established by the President meet require12 ments under sections 2203(a) and 2206(5) of this title. 

13 ‘‘(b) REPORT TO CONGRESS.—The Archivist shall re14 port annually to the Committee on Homeland Security and 

15 Governmental Affairs of the Senate and the Committee 

16 on Oversight and Government Reform of the House of 

17 Representatives on the status of the certification.’’. 

18 (2) CLERICAL AMENDMENT.—The table of sec19 tions for chapter 22 of title 44, United States Code, 

20 as amended by section 201, is further amended by 

21 adding at the end the following new item: 

‘‘2209. Certification of the President’s management of Presidential records.’’. 

22 (c) REPORT TO CONGRESS.—Section 2203(f) of title 

23 44, United States Code, is amended by adding at the end 

24 the following: 


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1 ‘‘(4) One year following the conclusion of a Presi2 dent’s term of office, or if a President serves consecutive 

3 terms one year following the conclusion of the last term, 

4 the Archivist shall submit to the Committee on Homeland 

5 Security and Governmental Affairs of the Senate and the 

6 Committee on Oversight and Government Reform of the 

7 House of Representatives a report on— 

8 ‘‘(A) the volume and format of electronic Presi9 dential records deposited into that President’s Presi10 dential archival depository; and 

11 ‘‘(B) whether the electronic records manage12 ment controls of that President met the require13 ments under sections 2203(a) and 2206(5) of this 

14 title.’’. 

15 (d) EFFECTIVE DATE.—The amendments made by 

16 this section shall take effect one year after the date of 

17 the enactment of this Act. 

18 SEC. 403. PROCEDURES TO PREVENT UNAUTHORIZED RE19 MOVAL OF CLASSIFIED RECORDS FROM NA20 TIONAL ARCHIVES. 

21 (a) IN GENERAL.—The Archivist of the United 

22 States shall prescribe internal procedures to prevent the 

23 unauthorized removal of classified records from the Na24 tional Archives and Records Administration or the de25 struction or damage of such records, including when such 


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1 records are accessed or searched electronically. The proce2 dures shall apply to all National Archives and Records Ad3 ministration facilities authorized to store classified records 

4 and include the following prohibitions: 

5 (1) No person, other than covered personnel, 

6 shall view classified records in any room that is not 

7 secure except in the presence of National Archives 

8 and Records Administration personnel or under 

9 video surveillance. 

10 (2) No person, other than covered personnel, 

11 shall at any time be left alone with classified 

12 records, unless that person is under video surveil13 lance. 

14 (3) No person, other than covered personnel, 

15 shall conduct any review of classified records while 

16 in the possession of any cell phone or other personal 

17 communication device. 

18 (4) All persons seeking access to review classi19 fied records, as a precondition to such access, must 

20 consent to a search of their belongings upon conclu21 sion of their records review. 

22 (5) All notes and other writings prepared by 

23 persons other than covered personnel during the 

24 course of a review of classified records shall be re25 tained by the National Archives and Records AdminVerDate Mar 15 2010 04:50 Mar 18, 2011 Jkt 099200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\H1144.IH H1144

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1 istration in a secure facility until such notes and 

2 other writings are determined to be unclassified, are 

3 declassified, or are securely transferred to another 

4 secure facility. 

5 (b) DEFINITIONS.—In this section: 

6 (1) The term ‘‘records’’ has the meaning pro7 vided in section 3301 of title 44, United States 

8 Code. 

9 (2) The term ‘‘covered personnel’’ means any 

10 individual— 

11 (A) who has an appropriate and necessary 

12 reason for accessing classified records, as deter13 mined by the Archivist; and 

14 (B) who is either— 

15 (i) an officer or employee of the Fed16 eral Government with appropriate security 

17 clearances; or 

18 (ii) any personnel with appropriate se19 curity clearances of a Federal contractor 

20 authorized in writing to act for purposes of 

21 this section by an officer or employee of 

22 the Federal Government. 


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1 SEC. 404. RESTRICTIONS ON ACCESS TO PRESIDENTIAL 

2 RECORDS. 

3 Section 2204 of title 44, United States Code (relating 

4 to restrictions on access to presidential records) is amend5 ed by adding at the end the following new subsection: 

6 ‘‘(f) The Archivist shall not make available any origi7 nal presidential records to any individual claiming access 

8 to any presidential record as a designated representative 

9 under section 2205(3) of this title if that individual has 

10 been convicted of a crime relating to the review, retention, 

11 removal, or destruction of records of the Archives.’’. 

12 TITLE V—GOVERNMENT AC13 COUNTABILITY OFFICE IM14 PROVEMENT 

15 SEC. 501. AUTHORITY TO OBTAIN INFORMATION. 

16 (a) AUTHORITY TO OBTAIN RECORDS.—Section 716 

17 of title 31, United States Code, is amended in subsection 

18 (a)— 

19 (1) by striking ‘‘(a)’’ and inserting ‘‘(2)’’; and 

20 (2) by inserting after the section heading the 

21 following: 

22 ‘‘(a)(1) The Comptroller General is authorized to ob23 tain such agency records as the Comptroller General re24 quires to discharge his duties (including audit, evaluation, 

25 and investigative duties), including through the bringing 

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1 tion under this section, the court shall recognize the con2 tinuing force and effect of the authorization in the pre3 ceding sentence until such time as the authorization is re4 pealed pursuant to law.’’. 

5 (b) COPIES AND INTERVIEWS.—Section 716(a) of 

6 title 31, United States Code, as amended by subsection 

7 (a), is further amended in the second sentence of para8 graph (2) by striking ‘‘inspect an agency record’’ and in9 serting ‘‘inspect, and make and retain copies of, an agency 

10 record and interview agency officers and employees’’. 

11 (c) RULES OF CONSTRUCTION.—Section 716 of title 

12 31, United States Code, is amended by adding at the end 

13 the following new subsection: 

14 ‘‘(f) No provision of any law in existence on the date 

15 of the enactment of this section or enacted after such date 

16 shall be construed to limit, amend, or supersede the au17 thority of the Comptroller General to obtain any informa18 tion, to inspect any record, or to interview any officer or 

19 employee under this section, except to the extent such pro20 vision expressly and specifically refers to this section and 

21 provides for such limitation, amendment, or superses22 sion.’’. 

23 SEC. 502. ADMINISTERING OATHS. 

24 Paragraph (4) of section 711 of title 31, United 

25 States Code, is amended to read as follows: 


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1 ‘‘(4) administer oaths to witnesses, except that, 

2 in matters other than auditing and settling accounts, 

3 the authority of an officer or employee to administer 

4 oaths to witnesses pursuant to a delegation under 

5 paragraph (2) shall not be available without the 

6 prior express approval of the Comptroller General 

7 (or a designee).’’. 

8 SEC. 503. AGENCY REPORTS. 

9 Section 720(b) of title 31, United States Code, is 

10 amended— 

11 (1) in the matter preceding paragraph (1), by 

12 inserting ‘‘or planned’’ after ‘‘action taken’’; and 

13 (2) by amending paragraph (1) to read as fol14 lows: 

15 ‘‘(1) the Committee on Homeland Security and 

16 Governmental Affairs of the Senate, the Committee 

17 on Oversight and Government Operations of the 

18 House of Representatives, the congressional commit19 tees with jurisdiction over the agency program or ac20 tivity that is the subject of the recommendation, and 

21 the Government Accountability Office before the 

22 61st day after the date of the report; and’’. 

Æ 


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