I 

109TH CONGRESS 

1ST SESSION H. R. 2331 

To restore and strengthen the laws that provide for an open and transparent 

Federal Government. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 12, 2005 

Mr. WAXMAN (for himself, Ms. PELOSI, Mr. CLAY, Mr. CONYERS, Mr. 

CUMMINGS, Mr. DOGGETT, Mr. KUCINICH, Mr. LANTOS, Mr. LYNCH, Ms. 

MCCOLLUM of Minnesota, Mr. MCDERMOTT, Mrs. MALONEY, Ms. NORTON, Ms. LINDA T. SA ́NCHEZ of California, Mr. SANDERS, Ms. 

SCHAKOWSKY, Ms. SLAUGHTER, Mr. STARK, Mr. VAN HOLLEN, and Ms. 

WOOLSEY) introduced the following bill; which was referred to the Committee on Government Reform, and in addition to the Committee on 

Homeland Security, for a period to be subsequently determined by the 

Speaker, in each case for consideration of such provisions as fall within 

the jurisdiction of the committee concerned 

A BILL 

To restore and strengthen the laws that provide for an 

open and transparent Federal Government. 

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 ‘‘Restore Open Govern5 ment Act of 2005’’. 
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1 SEC. 2. TABLE OF CONTENTS. 

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

Sec. 1. Short title. 

Sec. 2. Table of contents. 

Sec. 3. Promotion of public disclosure. 

Sec. 4. Revocation of the Ashcroft and Card Memoranda that encourage the 

withholding of information. 

Sec. 5. Elimination of unnecessary pseudo-classification. 

Sec. 6. Restoration of public access to presidential records. 

Sec. 7. Prohibition on secret advisory committees. 

Sec. 8. Promotion of timely declassification of Government documents. 

Sec. 9. Improvements to operation of Freedom of Information Act. 

3 SEC. 3. PROMOTION OF PUBLIC DISCLOSURE. 

4 (a) FINDINGS.—Congress finds the following: 

5 (1) Public access to information held by the 

6 Federal Government is vitally important to the func7 tioning of a democratic society. 

8 (2) The Freedom of Information Act was en9 acted to ensure such public access to information. 

10 (3) The Freedom of Information Act specifies 

11 limited exemptions to the general requirement for 

12 disclosure, where disclosure could potentially threat13 en other important public policy goals. 

14 (4) In establishing the categories of exempt in15 formation under the Freedom of Information Act, 

16 Congress allowed agencies to withhold information in 

17 those categories, but did not in any way mandate or 

18 encourage such withholding. 

19 (b) POLICY.—The policy of the Federal Government 

20 is to release information to the public in response to a 

21 request under the Freedom of Information Act— 
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1 (1) if such release is required by law; or 

2 (2) if such release is allowed by law and the 

3 agency concerned does not reasonably foresee that 

4 disclosure would be harmful to an interest protected 

5 by an applicable exemption. 

6 (c) GUIDANCE.—All guidance provided to Federal 

7 Government employees responsible for carrying out the 

8 Freedom of Information Act shall be consistent with the 

9 policy set forth in subsection (b). 

10 SEC. 4. REVOCATION OF THE ASHCROFT AND CARD MEMO11 RANDA THAT ENCOURAGE THE WITH12 HOLDING OF INFORMATION. 

13 The ‘‘Memorandum for Heads of all Federal Depart14 ments and Agencies’’ on ‘‘The Freedom of Information 

15 Act’’ issued by Attorney General John Ashcroft on Octo16 ber 12, 2001, and the ‘‘Memorandum for the Heads of 

17 Executive Department and Agencies’’ on ‘‘Action to Safe18 guard Information Regarding Weapons of Mass Destruc19 tion and Other Sensitive Documents Related to Homeland 

20 Security’’ issued by Andrew H. Card, Jr., Assistant to the 

21 President and Chief of Staff, on March 19, 2002, shall 

22 have no force or effect. 
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1 SEC. 5. ELIMINATION OF UNNECESSARY PSEUDO-CLASSI2 FICATION. 

3 (a) REPORT ON THE PROLIFERATING USE OF PSEU4 DO-CLASSIFICATION DESIGNATIONS.— 

5 (1) REPORT REQUIREMENT.—Not later than 

6 nine months after the date of the enactment of this 

7 Act, the Archivist of the United States shall submit 

8 to the congressional committees described in sub9 section (d) a report describing the use of pseudo10 classification designations. 

11 (2) MATTERS COVERED.—The Archivist shall 

12 report on, at a minimum, the following: 

13 (A) The number of pseudo-classification 

14 designation policies used by Federal agencies, 

15 and a list of each of the pseudo-classification 

16 designations that includes the agency or agen17 cies that use the designation. 

18 (B) Any existing guidance, instruction, di19 rective, or regulations regarding each agency’s 

20 use of the pseudo-classification designations. 

21 (C) The number of documents categorized 

22 by each agency in each of the previous three fis23 cal years under each designation. 

24 (D) The number and level of experience 

25 and training of Federal agency, office, and con-
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1 tractor personnel authorized to make pseudo2 classification designations. 

3 (E) The cost of placing and maintaining 

4 information under each pseudo-classification 

5 designation. 

6 (F) The extent to which information placed 

7 under pseudo-classification designations has 

8 subsequently been released under section 552 of 

9 title 5, United States Code (popularly known as 

10 the Freedom of Information Act). 

11 (G) The extent to which pseudo-classifica12 tion designations have been used to withhold 

13 from the public information that is not author14 ized to be withheld by Federal statute, or by an 

15 Executive order relating to the classification of 

16 national security information. 

17 (H) The statutory provisions described in 

18 subsection (c). 

19 (3) INPUT FROM OTHER FEDERAL AGENCIES.— 

20 In order to report on the use of pseudo-classification 

21 designations, the Archivist shall solicit and consider 

22 input from Federal agencies, offices, and contrac23 tors, and all federal agencies, offices, and contrac24 tors shall cooperate fully and promptly with all re-
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1 quests by the Archivist in the fulfillment of this sec2 tion. 

3 (4) NOTICE AND COMMENT.—The Archivist 

4 shall provide notice and an opportunity for public 

5 comment on the report. 

6 (b) ELIMINATION OF UNNECESSARY PSEUDO-CLAS7 SIFICATION DESIGNATIONS.— 

8 (1) REGULATIONS.—Not later than 15 months 

9 after the date of the enactment of this Act, the Ar10 chivist of the United States shall promulgate regula11 tions banning the use of unnecessary pseudo-classi12 fication designations. 

13 (2) STANDARDS FOR INFORMATION CONTROL

14 DESIGNATIONS.—If the Archivist determines that 

15 there is a need for some agencies to use information 

16 control designations to safeguard information prior 

17 to review for disclosure, beyond those designations 

18 established by statute or by an Executive Order re19 lating to the classification of national security infor20 mation, the regulations under paragraph (1) shall 

21 establish standards for the use of those designations 

22 by agencies. Such standards shall address, at a min23 imum, the following issues: 

24 (A) Standards for utilizing the information 

25 control designations in a manner that is nar-
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1 rowly tailored to maximize public access to in2 formation. 

3 (B) Procedures for providing specified 

4 Federal officials with authority to utilize the in5 formation control designations, including train6 ing and certification requirements. 

7 (C) Categories of information that may be 

8 assigned the information control designations. 

9 (D) The duration of the information con10 trol designations and the process by which they 

11 will be removed. 

12 (E) Procedures for identifying, marking, 

13 dating, and tracking information assigned the 

14 information control designations, including the 

15 identity of officials making the designations. 

16 (F) Specific limitations and prohibitions 

17 against using the information control designa18 tions. 

19 (G) Procedures for members of the public 

20 to challenge the use of the information control 

21 designations. 

22 (H) The manner in which the use of the 

23 information control designations relates to the 

24 procedures of each agency or office under sec25 tion 552 of title 5, United States Code. 
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1 (3) REGULATION TO CONSTITUTE SOLE AU2 THORITY.—A regulation promulgated pursuant to 

3 this subsection shall constitute the sole authority by 

4 which Federal agencies, offices, or contractors are 

5 permitted to control information for the purposes of 

6 safeguarding information prior to review for disclo7 sure, other than authority granted by Federal stat8 ute or by an Executive order relating to the classi9 fication of national security information. 

10 (c) REVIEW OF STATUTORY BARRIERS TO PUBLIC

11 ACCESS TO INFORMATION.— 

12 (1) REVIEW OF STATUTES.—As part of the re13 port required under subsection (a), the Archivist 

14 shall examine existing Federal statutes that allow 

15 Federal agencies, offices, or contractors to control, 

16 protect, or otherwise withhold information based on 

17 security concerns. 

18 (2) RECOMMENDATIONS.—The report shall 

19 make recommendations on potential changes to the 

20 Federal statutes examined under paragraph (1) that 

21 would improve public access to information governed 

22 by such statutes. 

23 (d) DEFINITIONS.—In this section: 

24 (1) The term ‘‘congressional committees’’ 

25 means the Committees on Government Reform, Ju-
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1 diciary, Homeland Security, and Appropriations of 

2 the House of Representatives and the Committees 

3 on Homeland Security and Governmental Affairs, 

4 Judiciary, and Appropriations of the Senate. 

5 (2) The term ‘‘pseudo-classification designa6 tions’’ means information control designations, in7 cluding ‘‘sensitive but unclassified’’ and ‘‘for official 

8 use only,’’ that are not defined by Federal statute, 

9 or by an Executive order relating to the classifica10 tion of national security information, but that are 

11 used to manage, direct, or route Government infor12 mation, or control the accessibility of Government 

13 information, regardless of its form or format. 

14 SEC. 6. RESTORATION OF PUBLIC ACCESS TO PRESI15 DENTIAL RECORDS. 

16 Executive Order number 13233, dated November 1, 

17 2001 (66 Fed. Reg. 56025), shall have no force or effect, 

18 and Executive Order number 12667, dated January 18, 

19 1989 (54 Fed. Reg. 3403), shall apply by its terms. 

20 SEC. 7. PROHIBITION ON SECRET ADVISORY COMMITTEES. 

21 (a) DEFINITION.—The term ‘‘Presidential inter22 agency advisory committee’’ is any committee or task force 

23 that— 
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1 (1) is composed wholly of full-time, or perma2 nent part-time, officers or employees of the Federal 

3 Government; 

4 (2) includes officers or employees of at least 

5 two separate Federal agencies; 

6 (3) is established or utilized to provide advice, 

7 ideas, or recommendations to the President or Vice 

8 President on a specified topic or topics; and 

9 (4) has at least one officer or employee as10 signed full-time as a staff member of the committee 

11 to support the functions of the committee. 

12 (b) REQUIREMENTS.— 

13 (1) The President shall ensure that the names 

14 of the members of the committee are published in 

15 the Federal Register. 

16 (2) The committee must make public each sub17 stantive contact between the advisory committee, or 

18 individual members of the advisory committee acting 

19 on the committee’s behalf, and any person who is 

20 not a full-time or permanent part-time officer or em21 ployee of the Federal Government, including— 

22 (A) the date of the contact; 

23 (B) the form of the contact (in person, by 

24 telephone, by e-mail, or in writing); 
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1 (C) the names and affiliations of the par2 ties involved; and 

3 (D) the substance of the communication 

4 and the communication itself, if in electronic or 

5 written form. 

6 (3) For purposes of this subsection, a contact 

7 shall be considered substantive if the information 

8 conveyed influenced or was reflected in any way in 

9 the committee’s advice, recommendations, or report 

10 to the President or Vice President. 

11 (c) APPLICABILITY.—The requirements of this sec12 tion do not apply to substantive contacts exclusively with 

13 the President or the Vice President or their immediate 

14 personal staff. 

15 SEC. 8. PROMOTION OF TIMELY DECLASSIFICATION OF 

16 GOVERNMENT DOCUMENTS. 

17 (a) FUNDING.—Section 708 of the Public Interest 

18 Declassification Act of 2000 (title VII of Public Law 106– 

19 567; 50 U.S.C. 435 note; 114 stat. 2856) is amended by 

20 adding at the end the following new subsection: 

21 ‘‘(c) FUNDING.—For any fiscal year in which funds 

22 appropriated pursuant to the authorization in subsection 

23 (a) are insufficient, as determined by the Archivist of the 

24 United States, to support the activities of the Board, the 

25 Archivist shall levy from each agency, and may retain, a 
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1 fee of not more than $0.005 per page classified by each 

2 agency. The Archivist shall use the fees retained under 

3 this section to fund the activities of the Board. Fees re4 ceived in a fiscal year and retained under this section shall 

5 remain available for obligation until expended.’’. 

6 (b) SUNSET.—Subsection (b) of section 710 of such 

7 Act is amended to read as follows: 

8 ‘‘(b) SUNSET.—The provisions of this title shall ex9 pire 8 years after the date of the enactment of the Restore 

10 Open Government Act of 2005.’’. 

11 SEC. 9. IMPROVEMENTS TO OPERATION OF FREEDOM OF 

12 INFORMATION ACT. 

13 (a) RESTORATION OF THE INTEGRITY OF THE FREE14 DOM OF INFORMATION ACT BY LIMITING THE BROAD EX15 EMPTION FOR CRITICAL INFRASTRUCTURE INFORMATION

16 UNDER THE HOMELAND SECURITY ACT OF 2002.— 

17 (1) IN GENERAL.—Title II of the Homeland Se18 curity Act of 2002 (Public Law 107–296) is amend19 ed by striking subtitle B and inserting the following: 

20 ‘‘Subtitle B—Protection of Volun21 tarily Furnished Confidential 

22 Information 

23 ‘‘SEC. 211. PROTECTION OF VOLUNTARILY FURNISHED 

24 CONFIDENTIAL INFORMATION. 

25 ‘‘(a) DEFINITIONS.—In this section: 
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1 ‘‘(1) CRITICAL INFRASTRUCTURE.—The term 

2 ‘critical infrastructure’ has the meaning given that 

3 term in section 1016(e) of the USA PATRIOT ACT 

4 of 2001 (42 U.S.C. 5195c(e)). 

5 ‘‘(2) FURNISHED VOLUNTARILY.— 

6 ‘‘(A) DEFINITION.—The term ‘furnished 

7 voluntarily’ means a submission of a record 

8 that— 

9 ‘‘(i) is made to the Department in the 

10 absence of authority of the Department re11 quiring that record to be submitted; and 

12 ‘‘(ii) is not submitted or used to sat13 isfy any legal requirement or obligation or 

14 to obtain any grant, permit, benefit (such 

15 as agency forbearance, loans, or reduction 

16 or modifications of agency penalties or rul17 ings), or other approval from the Govern18 ment. 

19 ‘‘(B) BENEFIT.—In this paragraph, the 

20 term ‘benefit’ does not include any warning, 

21 alert, or other risk analysis by the Department. 

22 ‘‘(b) IN GENERAL.—Notwithstanding any other pro23 vision of law, a record pertaining to the vulnerability of 

24 and threats to critical infrastructure (such as attacks, re25 sponse, and recovery efforts) that is furnished voluntarily 
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1 to the Department shall not be made available under sec2 tion 552 of title 5, United States Code, if— 

3 ‘‘(1) the provider would not customarily make 

4 the record available to the public; and 

5 ‘‘(2) the record is designated and certified by 

6 the provider, in a manner specified by the Depart7 ment, as confidential and not customarily made 

8 available to the public. 

9 ‘‘(c) RECORDS SHARED WITH OTHER AGENCIES.— 

10 ‘‘(1) IN GENERAL.— 

11 ‘‘(A) RESPONSE TO REQUEST.—An agency 

12 in receipt of a record that was furnished volun13 tarily to the Department and subsequently 

14 shared with the agency shall, upon receipt of a 

15 request under section 552 of title 5, United 

16 States Code, for the record— 

17 ‘‘(i) not make the record available; 

18 and 

19 ‘‘(ii) refer the request to the Depart20 ment for processing and response in ac21 cordance with this section. 

22 ‘‘(B) SEGREGABLE PORTION OF

23 RECORD.—Any reasonably segregable portion of 

24 a record shall be provided to the person re-
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1 questing the record after deletion of any portion 

2 which is exempt under this section. 

3 ‘‘(2) DISCLOSURE OF INDEPENDENTLY FUR4 NISHED RECORDS.—Notwithstanding paragraph (1), 

5 nothing in this section shall prohibit an agency from 

6 making available under section 552 of title 5, United 

7 States Code, any record that the agency receives 

8 independently of the Department, regardless of 

9 whether or not the Department has a similar or 

10 identical record. 

11 ‘‘(d) WITHDRAWAL OF CONFIDENTIAL DESIGNA12 TION.—The provider of a record that is furnished volun13 tarily to the Department under subsection (b) may at any 

14 time withdraw, in a manner specified by the Department, 

15 the confidential designation. 

16 ‘‘(e) PROCEDURES.—The Secretary shall prescribe 

17 procedures for— 

18 ‘‘(1) the acknowledgement of receipt of records 

19 furnished voluntarily; 

20 ‘‘(2) the designation, certification, and marking 

21 of records furnished voluntarily as confidential and 

22 not customarily made available to the public; 

23 ‘‘(3) the care and storage of records furnished 

24 voluntarily; 
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1 ‘‘(4) the protection and maintenance of the con2 fidentiality of records furnished voluntarily; and 

3 ‘‘(5) the withdrawal of the confidential designa4 tion of records under subsection (d). 

5 ‘‘(f) EFFECT ON STATE AND LOCAL LAW.—Nothing 

6 in this section shall be construed as preempting or other7 wise modifying State or local law concerning the disclosure 

8 of any information that a State or local government re9 ceives independently of the Department. 

10 ‘‘(g) REPORT.— 

11 ‘‘(1) REQUIREMENT.—Not later than 18 

12 months after the date of the enactment of the Re13 store Open Government Act of 2005, the Comp14 troller General of the United States shall submit to 

15 the committees of Congress specified in paragraph 

16 (2) a report on the implementation and use of this 

17 section, including— 

18 ‘‘(A) the number of persons in the private 

19 sector, and the number of State and local agen20 cies, that furnished voluntarily records to the 

21 Department under this section; 

22 ‘‘(B) the number of requests for access to 

23 records granted or denied under this section; 

24 and 
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1 ‘‘(C) such recommendations as the Comp2 troller General considers appropriate regarding 

3 improvements in the collection and analysis of 

4 sensitive information held by persons in the pri5 vate sector, or by State and local agencies, re6 lating to vulnerabilities of and threats to critical 

7 infrastructure, including the response to such 

8 vulnerabilities and threats. 

9 ‘‘(2) COMMITTEES OF CONGRESS.—The com10 mittees of Congress specified in this paragraph 

11 are— 

12 ‘‘(A) the Committees on the Judiciary and 

13 Homeland Security and Governmental Affairs 

14 of the Senate; and 

15 ‘‘(B) the Committees on the Judiciary and 

16 Government Reform of the House of Represent17 atives. 

18 ‘‘(3) FORM.—The report shall be submitted in 

19 unclassified form, but may include a classified 

20 annex.’’. 

21 (2) TECHNICAL AND CONFORMING AMEND22 MENT.—The table of contents for the Homeland Se23 curity Act of 2002 (Public Law 107–296) is amend24 ed by striking the items relating to subtitle B of title 
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1 II and sections 211 through 215 and inserting the 

2 following: 

‘‘Subtitle B—Protection of Voluntarily Furnished Confidential Information 

‘‘Sec. 211. Protection of voluntarily furnished confidential information.’’. 

3 (b) CREATION OF TRANSPARENCY IN AGENCY COM4 PLIANCE WITH THE FREEDOM OF INFORMATION ACT.— 

5 (1) ADDITIONAL MATTERS COVERED BY RE6 PORT.—Section 552(e)(1) of title 5, United States 

7 Code, is amended— 

8 (A) by striking ‘‘fiscal year and which’’ 

9 and inserting ‘‘fiscal year. Information in the 

10 report shall be expressed in terms of each prin11 cipal component of the agency and’’; 

12 (B) in subparagraph (E), by inserting be13 fore the semicolon ‘‘, based on the date on 

14 which the requests were originally filed with the 

15 agency’’; and 

16 (C) by redesignating subparagraphs (F) 

17 and (G) as subparagraphs (L) and (M), respec18 tively, and inserting after subparagraph (E) the 

19 following new subparagraphs: 

20 ‘‘(F) based on the number of business days 

21 that have elapsed since each request was origi22 nally filed with the agency— 

23 ‘‘(i) the number of requests for 

24 records for which the agency has re-
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1 sponded with a determination up to and 

2 including 20 days, and in 20 day incre3 ments up to and including 200 days; 

4 ‘‘(ii) the number of requests for 

5 records for which the agency has re6 sponded with a determination greater than 

7 200 days and less than 301 days; 

8 ‘‘(iii) the number of requests for 

9 records for which the agency has re10 sponded with a determination greater than 

11 300 days and less than 401 days; 

12 ‘‘(iv) the number of requests for 

13 records for which the agency has re14 sponded with a determination greater than 

15 400 days; 

16 ‘‘(v) the average number of days for 

17 the agency to respond to a request; 

18 ‘‘(G) data on the 10 requests for records 

19 with the earliest filing dates pending before the 

20 agency as of September 30 of the preceding 

21 year, including the number of business days 

22 that have elapsed since each of the requests was 

23 originally filed with the agency; 

24 ‘‘(H) data on the 10 active administrative 

25 appeals with the earliest filing dates pending 
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1 before the agency as of September 30 of the 

2 preceding year, including the number of busi3 ness days that have elapsed since the requests 

4 were originally filed with the agency; 

5 ‘‘(I) the median and average number of 

6 days for the agency to respond to administra7 tive appeals based on the date on which the ap8 peals originally were filed with the agency; the 

9 highest number of business days taken by the 

10 agency to respond to an administrative appeal; 

11 and the lowest number of business days taken 

12 by the agency to respond to an administrative 

13 appeal; 

14 ‘‘(J) the number of fee status requests 

15 that are granted and denied, and the average 

16 number of days for adjudicating fee status de17 terminations; 

18 ‘‘(K) the number of expedited review re19 quests that are granted and denied, and the av20 erage number of days for adjudicating expe21 dited review requests;’’. 

22 (2) NO AGGREGATION OF REPORTS.—Section 

23 552(e) of such title is further amended by adding at 

24 the end the following new paragraph: 
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1 ‘‘(6) The reports required by this section shall not 

2 aggregate requests for records to the agency made under 

3 subsection (a) with requests for records to the agency 

4 made by first parties under section 552a of this title.’’. 

5 (c) INCREASED FEASIBILITY OF CITIZEN GROUP

6 CHALLENGES TO IMPROPER WITHHOLDING OF GOVERN7 MENT INFORMATION.—Section 552(a)(4)(E) of title 5, 

8 United States Code, is amended— 

9 (1) by inserting ‘‘, or in any case seeking infor10 mation from a Federal agency or official under any 

11 other Federal law,’’ after ‘‘case under this section’’; 

12 and 

13 (2) by adding at the end the following: ‘‘For 

14 purposes of this section, a complainant has ‘substan15 tially prevailed’ if the complainant has obtained 

16 some of its requested relief through a judicial or ad17 ministrative order or an enforceable written agree18 ment, or if the complainant’s pursuit of a nonfrivo19 lous claim or defense has been a catalyst for a vol20 untary or unilateral change in position by the oppos21 ing party that provides any significant part of the 

22 relief sought.’’. 

Æ