IIB 

110TH CONGRESS 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Reducing Over-Classi3 fication Act of 2008’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds the following: 

6 (1) A key conclusion in the Final Report of the 

7 National Commission on Terrorist Attacks Upon the 

8 United States (commonly known as the ‘‘9/11 Com9 mission’’) was the need to prevent over-classification 

10 by the Federal Government. 

11 (2) The 9/11 Commission and others have ob12 served that the over-classification of homeland secu13 rity information interferes with accurate, actionable, 

14 and timely homeland security information sharing, 

15 increases the cost of information security, and need16 lessly limits public access to information. 

17 (3) The over-classification problem, which has 

18 worsened since the 9/11 attacks, causes considerable 

19 confusion about what information can be shared 

20 with whom both internally at the Department of 

21 Homeland Security and with its external partners. 

22 This problem negatively impacts the dissemination 

23 of homeland security information to the Depart24 ment’s State, local, tribal, and territorial homeland 

25 security and law enforcement partners, private sec26 tor customers, and the public. 

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1 (4) Excessive government secrecy stands in the 

2 way of a safer and more secure homeland. This 

3 trend is antithetical to the creation and operation of 

4 the information sharing environment established 

5 under section 1016 of the Intelligence Reform and 

6 Terrorism Prevention Act of 2004 (6 U.S.C. 485), 

7 and must be halted and reversed. 

8 (5) To do so, the Department should start with 

9 the understanding that all departmental information 

10 that is not properly classified, or marked as con11 trolled unclassified information and otherwise ex12 empt from disclosure, should be made available to 

13 members of the public pursuant to section 552 of 

14 title 5, United States Code (commonly referred to as 

15 the ‘‘Freedom of Information Act’’). 

16 (6) The Department should also develop and 

17 administer policies, procedures, and programs that 

18 promote compliance with applicable laws, executive 

19 orders, and other authorities pertaining to the prop20 er use of classification markings and the United 

21 States National Archives and Records Administra22 tion policies implementing them. 

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1 SEC. 3. OVER-CLASSIFICATION PREVENTION WITHIN THE 

2 DEPARTMENT OF HOMELAND SECURITY. 

3 Subtitle A of title II of the Homeland Security Act 

4 of 2002 (6 U.S.C. 121 et seq.) is amended by adding at 

5 the end the following new section: 

6 ‘‘SEC. 210F. OVER-CLASSIFICATION PREVENTION PRO7 GRAM. 

8 ‘‘(a) IN GENERAL.—The Secretary shall develop and 

9 administer policies, procedures, and programs within the 

10 Department to prevent the over-classification of homeland 

11 security information, terrorism information, weapons of 

12 mass destruction information, and other information with13 in the scope of the information sharing environment estab14 lished under section 1016 of the Intelligence Reform and 

15 Terrorism Prevention Act of 2004 (6 U.S.C. 485) that 

16 must be disseminated to prevent and to collectively re17 spond to acts of terrorism. The Secretary shall coordinate 

18 with the Archivist of the United States and consult with 

19 representatives of State, local, tribal, and territorial gov20 ernment and law enforcement, organizations with exper21 tise in civil rights, civil liberties, and government over22 sight, and the private sector, as appropriate, to develop 

23 such policies, procedures, and programs. 

24 ‘‘(b) REQUIREMENTS.—Not later than one year after 

25 the date of the enactment of the Reducing Over-Classifica26 tion Act of 2008, the Secretary, in administering the polimstockstill on PROD1PC66 with BILLS

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1 cies, procedures, and programs required under subsection 

2 (a), shall— 

3 ‘‘(1) create, in consultation with the Archivist 

4 of the United States, standard classified and unclas5 sified formats for finished intelligence products cre6 ated by the Department, consistent with any govern7 ment-wide standards, practices or procedures for 

8 similar products; 

9 ‘‘(2) require that all finished intelligence prod10 ucts created by the Department be simultaneously 

11 prepared in the standard unclassified format, pro12 vided that such an unclassified product would rea13 sonably be expected to be of any benefit to a State, 

14 local, tribal or territorial government, law enforce15 ment agency or other emergency response provider, 

16 or the private sector, based on input provided by the 

17 Interagency Threat Assessment and Coordination 

18 Group Detail established under section 210D; 

19 ‘‘(3) ensure that such policies, procedures, and 

20 programs protect the national security as well as the 

21 information privacy rights and legal rights of United 

22 States persons pursuant to all applicable law and 

23 policy, including the privacy guidelines for the infor24 mation sharing environment established pursuant to 

25 section 1016 of the Intelligence Reform and Termstockstill on PROD1PC66 with BILLS

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1 rorism Prevention Act of 2004 (6 U.S.C. 485), as 

2 appropriate; 

3 ‘‘(4) establish an ongoing auditing mechanism 

4 administered by the Inspector General of the De5 partment or other appropriate senior Department of6 ficial that randomly selects, on a periodic basis, clas7 sified information from each component of the De8 partment that generates finished intelligence prod9 ucts to— 

10 ‘‘(A) assess whether applicable classifica11 tion policies, procedures, rules, and regulations 

12 have been followed; 

13 ‘‘(B) describe any problems with the ad14 ministration of the applicable classification poli15 cies, procedures, rules, and regulations, includ16 ing specific non-compliance issues; 

17 ‘‘(C) recommend improvements in aware18 ness and training to address any problems iden19 tified in subparagraph (B); and 

20 ‘‘(D) report at least annually to the Com21 mittee on Homeland Security of the House of 

22 Representatives, the Committee on Homeland 

23 Security and Governmental Affairs of the Sen24 ate, and the public, in an appropriate format, 

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1 on the findings of the Inspector General’s au2 dits under this section; 

3 ‘‘(5) establish a process whereby employees may 

4 challenge original classification decisions made by 

5 Department employees or contractors and be re6 warded with specific incentives for successful chal7 lenges resulting in the removal of classification 

8 markings or the downgrading of them; 

9 ‘‘(6) inform employees and contractors that fail10 ure to comply with the policies, procedures, and pro11 grams established under this section could subject 

12 them to a series of penalties; and 

13 ‘‘(7) institute a series of penalties for employees 

14 and contractors who repeatedly fail to comply with 

15 the policies, procedures, and programs established 

16 under this section after having received both notice 

17 of their noncompliance and appropriate training or 

18 re-training to address such noncompliance. 

19 ‘‘(c) FINISHED INTELLIGENCE PRODUCT DE20 FINED.—The term ‘finished intelligence product’ means a 

21 document in which an intelligence analyst has evaluated, 

22 interpreted, integrated, or placed into context raw intel23 ligence or information.’’. 

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1 SEC. 4. ENFORCEMENT OF OVER-CLASSIFICATION PREVEN2 TION WITHIN THE DEPARTMENT OF HOME3 LAND SECURITY. 

4 Subtitle A of title II of the Homeland Security Act 

5 of 2002 (6 U.S.C. 121 et seq.) is further amended by add6 ing at the end the following new section: 

7 ‘‘SEC. 210G. ENFORCEMENT OF OVER-CLASSIFICATION PRE8 VENTION PROGRAMS. 

9 ‘‘(a) PERSONAL IDENTIFIERS.—The Secretary 

10 shall— 

11 ‘‘(1) assess the technologies available or in use 

12 at the Department by which an electronic personal 

13 identification number or other electronic identifying 

14 marker can be assigned to each Department em15 ployee and contractor with original classification au16 thority in order to— 

17 ‘‘(A) track which documents have been 

18 classified by a particular employee or con19 tractor; 

20 ‘‘(B) determine the circumstances when 

21 such documents have been shared; 

22 ‘‘(C) identify and address over-classifica23 tion problems, including the misapplication of 

24 classification markings to documents that do 

25 not merit such markings; and 

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1 ‘‘(D) assess the information sharing im2 pact of any such problems or misuse; 

3 ‘‘(2) develop an implementation plan for a De4 partment standard for such technology with appro5 priate benchmarks, a timetable for its completion, 

6 and cost estimate for the creation and implementa7 tion of a system of electronic personal identification 

8 numbers or other electronic identifying markers for 

9 all relevant Department employees and contractors; 

10 and 

11 ‘‘(3) upon completion of the implementation 

12 plan described in paragraph (2), or not later than 

13 180 days after the date of the enactment of the Re14 ducing Over-Classification Act of 2008, whichever is 

15 earlier, the Secretary shall provide a copy of the 

16 plan to the Committee on Homeland Security of the 

17 House of Representatives and the Committee on 

18 Homeland Security and Governmental Affairs of the 

19 Senate. 

20 ‘‘(b) TRAINING.—The Secretary, in coordination with 

21 the Archivist of the United States, shall— 

22 ‘‘(1) require annual training for each Depart23 ment employee and contractor with classification au24 thority or those responsible for analysis, dissemina25 tion, preparation, production, receiving, publishing, 

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1 or otherwise communicating written classified infor2 mation, including training to— 

3 ‘‘(A) educate each employee and contractor 

4 about— 

5 ‘‘(i) the Department’s requirement 

6 that all classified finished intelligence prod7 ucts that they create be simultaneously 

8 prepared in unclassified form in a standard 

9 format prescribed by the Department, pro10 vided that the unclassified product would 

11 reasonably be expected to be of any benefit 

12 to a State, local, tribal, or territorial gov13 ernment, law enforcement agency, or other 

14 emergency response provider, or the pri15 vate sector, based on input provided by the 

16 Interagency Threat Assessment and Co17 ordination Group Detail established under 

18 section 210D; 

19 ‘‘(ii) the proper use of classification 

20 markings, including portion markings; and 

21 ‘‘(iii) the consequences of over-classi22 fication and other improper uses of classi23 fication markings, including the 

24 misapplication of classification markings to 

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1 ings, and of failing to comply with the De2 partment’s policies and procedures estab3 lished under or pursuant to this section, 

4 including the negative consequences for the 

5 individual’s personnel evaluation, homeland 

6 security, information sharing, and the 

7 overall success of the Department’s mis8 sions; 

9 ‘‘(B) serve as a prerequisite, once com10 pleted successfully, as evidenced by an appro11 priate certificate, for— 

12 ‘‘(i) obtaining classification authority; 

13 and 

14 ‘‘(ii) renewing such authority annu15 ally; and 

16 ‘‘(C) count as a positive factor, once com17 pleted successfully, in the Department’s employ18 ment, evaluation, and promotion decisions; and 

19 ‘‘(2) ensure that such program is conducted ef20 ficiently, in conjunction with any other security, in21 telligence, or other training programs required by 

22 the Department to reduce the costs and administra23 tive burdens associated with the additional training 

24 required by this section. 

25 ‘‘(c) DETAILEE PROGRAM.—The Secretary shall— 

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1 ‘‘(1) implement a Departmental detailee pro2 gram to detail Departmental personnel to the Na3 tional Archives and Records Administration for one 

4 year, for the purpose of— 

5 ‘‘(A) training and educational benefit for 

6 the Department personnel assigned so that they 

7 may better understand the policies, procedures 

8 and laws governing original classification au9 thorities; 

10 ‘‘(B) bolstering the ability of the National 

11 Archives and Records Administration to con12 duct its oversight authorities over the Depart13 ment and other Departments and agencies; and 

14 ‘‘(C) ensuring that the policies and proce15 dures established by the Secretary remain con16 sistent with those established by the Archivist 

17 of the United States; 

18 ‘‘(2) ensure that the program established under 

19 paragraph (1) includes at least one individual for 

20 each Department office with delegated original clas21 sification authority; and 

22 ‘‘(3) in coordination with the Archivist of the 

23 United States, report to Congress not later than 90 

24 days after the conclusion of the first year of the pro25 gram established under paragraph (1), on— 

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1 ‘‘(A) the advisability of expanding the pro2 gram on a government-wide basis, whereby 

3 other departments and agencies would send 

4 detailees to the National Archives and Records 

5 Administration; and 

6 ‘‘(B) the administrative and monetary 

7 costs of full compliance with this section. 

8 ‘‘(d) SUNSET OF DETAILEE PROGRAM.—Except as 

9 otherwise provided by law, subsection (c) shall cease to 

10 have effect on December 31, 2012. 

11 ‘‘(e) FINISHED INTELLIGENCE PRODUCT DE12 FINED.—The term ‘finished intelligence product’ has the 

13 meaning given the term in section 210F(c).’’. 

14 SEC. 5. TECHNICAL AMENDMENT. 

15 The table of contents in section 1(b) of the Homeland 

16 Security Act of 2002 (6 U.S.C. 101(b)) is amended by 

17 adding after the item relating to section 210E the fol18 lowing 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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