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[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4806 Referred in Senate (RFS)]

  2d Session
                                H. R. 4806

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             July 31, 2008

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

_______________________________________________________________________

                                 AN ACT

 
To require the Secretary of Homeland Security to develop a strategy to 
    prevent the over-classification of homeland security and other 
    information and to promote the sharing of unclassified homeland 
        security and other information, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Reducing Over-Classification Act of 
2008''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) A key conclusion in the Final Report of the National 
        Commission on Terrorist Attacks Upon the United States 
        (commonly known as the ``9/11 Commission'') was the need to 
        prevent over-classification by the Federal Government.
            (2) The 9/11 Commission and others have observed that the 
        over-classification of homeland security information interferes 
        with accurate, actionable, and timely homeland security 
        information sharing, increases the cost of information 
        security, and needlessly limits public access to information.
            (3) The over-classification problem, which has worsened 
        since the 9/11 attacks, causes considerable confusion about 
        what information can be shared with whom both internally at the 
        Department of Homeland Security and with its external partners. 
        This problem negatively impacts the dissemination of homeland 
        security information to the Department's State, local, tribal, 
        and territorial homeland security and law enforcement partners, 
        private sector customers, and the public.
            (4) Excessive government secrecy stands in the way of a 
        safer and more secure homeland. This trend is antithetical to 
        the creation and operation of the information sharing 
        environment established under section 1016 of the Intelligence 
        Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), and 
        must be halted and reversed.
            (5) To do so, the Department should start with the 
        understanding that all departmental information that is not 
        properly classified, or marked as controlled unclassified 
        information and otherwise exempt from disclosure, should be 
        made available to members of the public pursuant to section 552 
        of title 5, United States Code (commonly referred to as the 
        ``Freedom of Information Act'').
            (6) The Department should also develop and administer 
        policies, procedures, and programs that promote compliance with 
        applicable laws, executive orders, and other authorities 
        pertaining to the proper use of classification markings and the 
        United States National Archives and Records Administration 
        policies implementing them.

SEC. 3. OVER-CLASSIFICATION PREVENTION WITHIN THE DEPARTMENT OF 
              HOMELAND SECURITY.

    Subtitle A of title II of the Homeland Security Act of 2002 (6 
U.S.C. 121 et seq.) is amended by adding at the end the following new 
section:

``SEC. 210F. OVER-CLASSIFICATION PREVENTION PROGRAM.

    ``(a) In General.--The Secretary shall develop and administer 
policies, procedures, and programs within the Department to prevent the 
over-classification of homeland security information, terrorism 
information, weapons of mass destruction information, and other 
information within the scope of the information sharing environment 
established under section 1016 of the Intelligence Reform and Terrorism 
Prevention Act of 2004 (6 U.S.C. 485) that must be disseminated to 
prevent and to collectively respond to acts of terrorism. The Secretary 
shall coordinate with the Archivist of the United States and consult 
with representatives of State, local, tribal, and territorial 
government and law enforcement, organizations with expertise in civil 
rights, civil liberties, and government oversight, and the private 
sector, as appropriate, to develop such policies, procedures, and 
programs.
    ``(b) Requirements.--Not later than one year after the date of the 
enactment of the Reducing Over-Classification Act of 2008, the 
Secretary, in administering the policies, procedures, and programs 
required under subsection (a), shall--
            ``(1) create, in consultation with the Archivist of the 
        United States, standard classified and unclassified formats for 
        finished intelligence products created by the Department, 
        consistent with any government-wide standards, practices or 
        procedures for similar products;
            ``(2) require that all finished intelligence products 
        created by the Department be simultaneously prepared in the 
        standard unclassified format, provided that such an 
        unclassified product would reasonably be expected to be of any 
        benefit to a State, local, tribal or territorial government, 
        law enforcement agency or other emergency response provider, or 
        the private sector, based on input provided by the Interagency 
        Threat Assessment and Coordination Group Detail established 
        under section 210D;
            ``(3) ensure that such policies, procedures, and programs 
        protect the national security as well as the information 
        privacy rights and legal rights of United States persons 
        pursuant to all applicable law and policy, including the 
        privacy guidelines for the information sharing environment 
        established pursuant to section 1016 of the Intelligence Reform 
        and Terrorism Prevention Act of 2004 (6 U.S.C. 485), as 
        appropriate;
            ``(4) establish an ongoing auditing mechanism administered 
        by the Inspector General of the Department or other appropriate 
        senior Department official that randomly selects, on a periodic 
        basis, classified information from each component of the 
        Department that generates finished intelligence products to--
                    ``(A) assess whether applicable classification 
                policies, procedures, rules, and regulations have been 
                followed;
                    ``(B) describe any problems with the administration 
                of the applicable classification policies, procedures, 
                rules, and regulations, including specific non-
                compliance issues;
                    ``(C) recommend improvements in awareness and 
                training to address any problems identified in 
                subparagraph (B); and
                    ``(D) report at least annually to the Committee on 
                Homeland Security of the House of Representatives, the 
                Committee on Homeland Security and Governmental Affairs 
                of the Senate, and the public, in an appropriate 
                format, on the findings of the Inspector General's 
                audits under this section;
            ``(5) establish a process whereby employees may challenge 
        original classification decisions made by Department employees 
        or contractors and be rewarded with specific incentives for 
        successful challenges resulting in the removal of 
        classification markings or the downgrading of them;
            ``(6) inform employees and contractors that failure to 
        comply with the policies, procedures, and programs established 
        under this section could subject them to a series of penalties; 
        and
            ``(7) institute a series of penalties for employees and 
        contractors who repeatedly fail to comply with the policies, 
        procedures, and programs established under this section after 
        having received both notice of their noncompliance and 
        appropriate training or re-training to address such 
        noncompliance.
    ``(c) Finished Intelligence Product Defined.--The term `finished 
intelligence product' means a document in which an intelligence analyst 
has evaluated, interpreted, integrated, or placed into context raw 
intelligence or information.''.

SEC. 4. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION WITHIN THE 
              DEPARTMENT OF HOMELAND SECURITY.

    Subtitle A of title II of the Homeland Security Act of 2002 (6 
U.S.C. 121 et seq.) is further amended by adding at the end the 
following new section:

``SEC. 210G. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION PROGRAMS.

    ``(a) Personal Identifiers.--The Secretary shall--
            ``(1) assess the technologies available or in use at the 
        Department by which an electronic personal identification 
        number or other electronic identifying marker can be assigned 
        to each Department employee and contractor with original 
        classification authority in order to--
                    ``(A) track which documents have been classified by 
                a particular employee or contractor;
                    ``(B) determine the circumstances when such 
                documents have been shared;
                    ``(C) identify and address over-classification 
                problems, including the misapplication of 
                classification markings to documents that do not merit 
                such markings; and
                    ``(D) assess the information sharing impact of any 
                such problems or misuse;
            ``(2) develop an implementation plan for a Department 
        standard for such technology with appropriate benchmarks, a 
        timetable for its completion, and cost estimate for the 
        creation and implementation of a system of electronic personal 
        identification numbers or other electronic identifying markers 
        for all relevant Department employees and contractors; and
            ``(3) upon completion of the implementation plan described 
        in paragraph (2), or not later than 180 days after the date of 
        the enactment of the Reducing Over-Classification Act of 2008, 
        whichever is earlier, the Secretary shall provide a copy of the 
        plan to the Committee on Homeland Security of the House of 
        Representatives and the Committee on Homeland Security and 
        Governmental Affairs of the Senate.
    ``(b) Training.--The Secretary, in coordination with the Archivist 
of the United States, shall--
            ``(1) require annual training for each Department employee 
        and contractor with classification authority or those 
        responsible for analysis, dissemination, preparation, 
        production, receiving, publishing, or otherwise communicating 
        written classified information, including training to--
                    ``(A) educate each employee and contractor about--
                            ``(i) the Department's requirement that all 
                        classified finished intelligence products that 
                        they create be simultaneously prepared in 
                        unclassified form in a standard format 
                        prescribed by the Department, provided that the 
                        unclassified product would reasonably be 
                        expected to be of any benefit to a State, 
                        local, tribal, or territorial government, law 
                        enforcement agency, or other emergency response 
                        provider, or the private sector, based on input 
                        provided by the Interagency Threat Assessment 
                        and Coordination Group Detail established under 
                        section 210D;
                            ``(ii) the proper use of classification 
                        markings, including portion markings; and
                            ``(iii) the consequences of over-
                        classification and other improper uses of 
                        classification markings, including the 
                        misapplication of classification markings to 
                        documents that do not merit such markings, and 
                        of failing to comply with the Department's 
                        policies and procedures established under or 
                        pursuant to this section, including the 
                        negative consequences for the individual's 
                        personnel evaluation, homeland security, 
                        information sharing, and the overall success of 
                        the Department's missions;
                    ``(B) serve as a prerequisite, once completed 
                successfully, as evidenced by an appropriate 
                certificate, for--
                            ``(i) obtaining classification authority; 
                        and
                            ``(ii) renewing such authority annually; 
                        and
                    ``(C) count as a positive factor, once completed 
                successfully, in the Department's employment, 
                evaluation, and promotion decisions; and
            ``(2) ensure that such program is conducted efficiently, in 
        conjunction with any other security, intelligence, or other 
        training programs required by the Department to reduce the 
        costs and administrative burdens associated with the additional 
        training required by this section.
    ``(c) Detailee Program.--The Secretary shall--
            ``(1) implement a Departmental detailee program to detail 
        Departmental personnel to the National Archives and Records 
        Administration for one year, for the purpose of--
                    ``(A) training and educational benefit for the 
                Department personnel assigned so that they may better 
                understand the policies, procedures and laws governing 
                original classification authorities;
                    ``(B) bolstering the ability of the National 
                Archives and Records Administration to conduct its 
                oversight authorities over the Department and other 
                Departments and agencies; and
                    ``(C) ensuring that the policies and procedures 
                established by the Secretary remain consistent with 
                those established by the Archivist of the United 
                States;
            ``(2) ensure that the program established under paragraph 
        (1) includes at least one individual for each Department office 
        with delegated original classification authority; and
            ``(3) in coordination with the Archivist of the United 
        States, report to Congress not later than 90 days after the 
        conclusion of the first year of the program established under 
        paragraph (1), on--
                    ``(A) the advisability of expanding the program on 
                a government-wide basis, whereby other departments and 
                agencies would send detailees to the National Archives 
                and Records Administration; and
                    ``(B) the administrative and monetary costs of full 
                compliance with this section.
    ``(d) Sunset of Detailee Program.--Except as otherwise provided by 
law, subsection (c) shall cease to have effect on December 31, 2012.
    ``(e) Finished Intelligence Product Defined.--The term `finished 
intelligence product' has the meaning given the term in section 
210F(c).''.

SEC. 5. TECHNICAL AMENDMENT.

    The table of contents in section 1(b) of the Homeland Security Act 
of 2002 (6 U.S.C. 101(b)) is amended by adding after the item relating 
to section 210E the following new items:

``Sec. 210F. Over-classification prevention program.
``Sec. 210G. Enforcement of over-classification prevention programs.''.

            Passed the House of Representatives July 30, 2008.

            Attest:

                                            LORRAINE C. MILLER,

                                                                 Clerk.
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