I 

111TH CONGRESS 

1ST SESSION H. R. 553 

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. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 15, 2009 

Ms. HARMAN introduced the following bill; which was referred to the 

Committee on Homeland Security 

A BILL 

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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Reducing Over-Classi5 fication Act of 2009’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 


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

2 National Commission on Terrorist Attacks Upon the 

3 United States (commonly known as the ‘‘9/11 Com4 mission’’) was the need to prevent over-classification 

5 by the Federal Government. 

6 (2) The 9/11 Commission and others have ob7 served that the over-classification of homeland secu8 rity information interferes with accurate, actionable, 

9 and timely homeland security information sharing, 

10 increases the cost of information security, and need11 lessly limits public access to information. 

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

13 worsened since the 9/11 attacks, causes considerable 

14 confusion about what information can be shared 

15 with whom both internally at the Department of 

16 Homeland Security and with its external partners. 

17 This problem negatively impacts the dissemination 

18 of homeland security information to the Depart19 ment’s State, local, tribal, and territorial homeland 

20 security and law enforcement partners, private sec21 tor customers, and the public. 

22 (4) Excessive government secrecy stands in the 

23 way of a safer and more secure homeland. This 

24 trend is antithetical to the creation and operation of 

25 the information sharing environment established 


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1 under section 1016 of the Intelligence Reform and 

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

3 and must be halted and reversed. 

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

5 the understanding that all departmental information 

6 that is not properly classified, or marked as con7 trolled unclassified information and otherwise ex8 empt from disclosure, should be made available to 

9 members of the public pursuant to section 552 of 

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

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

12 (6) The Department should also develop and 

13 administer policies, procedures, and programs that 

14 promote compliance with applicable laws, executive 

15 orders, and other authorities pertaining to the prop16 er use of classification markings and the United 

17 States National Archives and Records Administra18 tion policies implementing them. 

19 SEC. 3. OVER-CLASSIFICATION PREVENTION WITHIN THE 

20 DEPARTMENT OF HOMELAND SECURITY. 

21 Subtitle A of title II of the Homeland Security Act 

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

23 the end the following new section: 


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1 ‘‘SEC. 210F. OVER-CLASSIFICATION PREVENTION PRO2 GRAM. 

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

4 administer policies, procedures, and programs within the 

5 Department to prevent the over-classification of homeland 

6 security information, terrorism information, weapons of 

7 mass destruction information, and other information with8 in the scope of the information sharing environment estab9 lished under section 1016 of the Intelligence Reform and 

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

11 must be disseminated to prevent and to collectively re12 spond to acts of terrorism. The Secretary shall coordinate 

13 with the Archivist of the United States and consult with 

14 representatives of State, local, tribal, and territorial gov15 ernment and law enforcement, organizations with exper16 tise in civil rights, civil liberties, and government over17 sight, and the private sector, as appropriate, to develop 

18 such policies, procedures, and programs. 

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

20 the date of the enactment of the Reducing Over-Classifica21 tion Act of 2009, the Secretary, in administering the poli22 cies, procedures, and programs required under subsection 

23 (a), shall— 

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

25 of the United States, standard classified and unclas26 sified formats for finished intelligence products creVerDate Nov 24 2008 22:51 Jan 20, 2009 Jkt 079200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H553.IH H553

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1 ated by the Department, consistent with any govern2 ment-wide standards, practices or procedures for 

3 similar products; 

4 ‘‘(2) require that all finished intelligence prod5 ucts created by the Department be simultaneously 

6 prepared in the standard unclassified format, pro7 vided that such an unclassified product would rea8 sonably be expected to be of any benefit to a State, 

9 local, tribal or territorial government, law enforce10 ment agency or other emergency response provider, 

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

12 Interagency Threat Assessment and Coordination 

13 Group Detail established under section 210D; 

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

15 programs protect the national security as well as the 

16 information privacy rights and legal rights of United 

17 States persons pursuant to all applicable law and 

18 policy, including the privacy guidelines for the infor19 mation sharing environment established pursuant to 

20 section 1016 of the Intelligence Reform and Ter21 rorism Prevention Act of 2004 (6 U.S.C. 485), as 

22 appropriate; 

23 ‘‘(4) establish an ongoing auditing mechanism 

24 administered by the Inspector General of the De25 partment or other appropriate senior Department ofVerDate Nov 24 2008 22:51 Jan 20, 2009 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H553.IH H553

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1 ficial that randomly selects, on a periodic basis, clas2 sified information from each component of the De3 partment that generates finished intelligence prod4 ucts to— 

5 ‘‘(A) assess whether applicable classifica6 tion policies, procedures, rules, and regulations 

7 have been followed; 

8 ‘‘(B) describe any problems with the ad9 ministration of the applicable classification poli10 cies, procedures, rules, and regulations, includ11 ing specific non-compliance issues; 

12 ‘‘(C) recommend improvements in aware13 ness and training to address any problems iden14 tified in subparagraph (B); and 

15 ‘‘(D) report at least annually to the Com16 mittee on Homeland Security of the House of 

17 Representatives, the Committee on Homeland 

18 Security and Governmental Affairs of the Sen19 ate, and the public, in an appropriate format, 

20 on the findings of the Inspector General’s au21 dits under this section; 

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

23 challenge original classification decisions made by 

24 Department employees or contractors and be re25 warded with specific incentives for successful chalVerDate Nov 24 2008 22:51 Jan 20, 2009 Jkt 079200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H553.IH H553

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1 lenges resulting in the removal of classification 

2 markings or the downgrading of them; 

3 ‘‘(6) inform employees and contractors that fail4 ure to comply with the policies, procedures, and pro5 grams established under this section could subject 

6 them to a series of penalties; and 

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

8 and contractors who repeatedly fail to comply with 

9 the policies, procedures, and programs established 

10 under this section after having received both notice 

11 of their noncompliance and appropriate training or 

12 re-training to address such noncompliance. 

13 ‘‘(c) FINISHED INTELLIGENCE PRODUCT DE14 FINED.—The term ‘finished intelligence product’ means a 

15 document in which an intelligence analyst has evaluated, 

16 interpreted, integrated, or placed into context raw intel17 ligence or information.’’. 

18 SEC. 4. ENFORCEMENT OF OVER-CLASSIFICATION PREVEN19 TION WITHIN THE DEPARTMENT OF HOME20 LAND SECURITY. 

21 Subtitle A of title II of the Homeland Security Act 

22 of 2002 (6 U.S.C. 121 et seq.) is further amended by add23 ing at the end the following new section: 


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1 ‘‘SEC. 210G. ENFORCEMENT OF OVER-CLASSIFICATION PRE2 VENTION PROGRAMS. 

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

4 shall— 

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

6 at the Department by which an electronic personal 

7 identification number or other electronic identifying 

8 marker can be assigned to each Department em9 ployee and contractor with original classification au10 thority in order to— 

11 ‘‘(A) track which documents have been 

12 classified by a particular employee or con13 tractor; 

14 ‘‘(B) determine the circumstances when 

15 such documents have been shared; 

16 ‘‘(C) identify and address over-classifica17 tion problems, including the misapplication of 

18 classification markings to documents that do 

19 not merit such markings; and 

20 ‘‘(D) assess the information sharing im21 pact of any such problems or misuse; 

22 ‘‘(2) develop an implementation plan for a De23 partment standard for such technology with appro24 priate benchmarks, a timetable for its completion, 

25 and cost estimate for the creation and implementa26 tion of a system of electronic personal identification 


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1 numbers or other electronic identifying markers for 

2 all relevant Department employees and contractors; 

3 and 

4 ‘‘(3) upon completion of the implementation 

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

6 180 days after the date of the enactment of the Re7 ducing Over-Classification Act of 2009, whichever is 

8 earlier, the Secretary shall provide a copy of the 

9 plan to the Committee on Homeland Security of the 

10 House of Representatives and the Committee on 

11 Homeland Security and Governmental Affairs of the 

12 Senate. 

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

14 the Archivist of the United States, shall— 

15 ‘‘(1) require annual training for each Depart16 ment employee and contractor with classification au17 thority or those responsible for analysis, dissemina18 tion, preparation, production, receiving, publishing, 

19 or otherwise communicating written classified infor20 mation, including training to— 

21 ‘‘(A) educate each employee and contractor 

22 about— 

23 ‘‘(i) the Department’s requirement 

24 that all classified finished intelligence prod25 ucts that they create be simultaneously 


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1 prepared in unclassified form in a standard 

2 format prescribed by the Department, pro3 vided that the unclassified product would 

4 reasonably be expected to be of any benefit 

5 to a State, local, tribal, or territorial gov6 ernment, law enforcement agency, or other 

7 emergency response provider, or the pri8 vate sector, based on input provided by the 

9 Interagency Threat Assessment and Co10 ordination Group Detail established under 

11 section 210D; 

12 ‘‘(ii) the proper use of classification 

13 markings, including portion markings; and 

14 ‘‘(iii) the consequences of over-classi15 fication and other improper uses of classi16 fication markings, including the 

17 misapplication of classification markings to 

18 documents that do not merit such mark19 ings, and of failing to comply with the De20 partment’s policies and procedures estab21 lished under or pursuant to this section, 

22 including the negative consequences for the 

23 individual’s personnel evaluation, homeland 

24 security, information sharing, and the 


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1 overall success of the Department’s mis2 sions; 

3 ‘‘(B) serve as a prerequisite, once com4 pleted successfully, as evidenced by an appro5 priate certificate, for— 

6 ‘‘(i) obtaining classification authority; 

7 and 

8 ‘‘(ii) renewing such authority annu9 ally; and 

10 ‘‘(C) count as a positive factor, once com11 pleted successfully, in the Department’s employ12 ment, evaluation, and promotion decisions; and 

13 ‘‘(2) ensure that such program is conducted ef14 ficiently, in conjunction with any other security, in15 telligence, or other training programs required by 

16 the Department to reduce the costs and administra17 tive burdens associated with the additional training 

18 required by this section. 

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

20 ‘‘(1) implement a Departmental detailee pro21 gram to detail Departmental personnel to the Na22 tional Archives and Records Administration for one 

23 year, for the purpose of— 

24 ‘‘(A) training and educational benefit for 

25 the Department personnel assigned so that they 


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1 may better understand the policies, procedures 

2 and laws governing original classification au3 thorities; 

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

5 Archives and Records Administration to con6 duct its oversight authorities over the Depart7 ment and other Departments and agencies; and 

8 ‘‘(C) ensuring that the policies and proce9 dures established by the Secretary remain con10 sistent with those established by the Archivist 

11 of the United States; 

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

13 paragraph (1) includes at least one individual for 

14 each Department office with delegated original clas15 sification authority; and 

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

17 United States, report to Congress not later than 90 

18 days after the conclusion of the first year of the pro19 gram established under paragraph (1), on— 

20 ‘‘(A) the advisability of expanding the pro21 gram on a government-wide basis, whereby 

22 other departments and agencies would send 

23 detailees to the National Archives and Records 

24 Administration; and 


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1 ‘‘(B) the administrative and monetary 

2 costs of full compliance with this section. 

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

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

5 have effect on December 31, 2012. 

6 ‘‘(e) FINISHED INTELLIGENCE PRODUCT DE7 FINED.—The term ‘finished intelligence product’ has the 

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

9 SEC. 5. TECHNICAL AMENDMENT. 

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

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

12 adding after the item relating to section 210E the fol13 lowing new items: 

‘‘Sec. 210F. Over-classification prevention program. 

‘‘Sec. 210G. Enforcement of over-classification prevention programs.’’. 

Æ 


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