II 

109TH CONGRESS 

1ST SESSION S. 622 

To amend the Homeland Security Act of 2002 (Public Law 107–296) to 

provide for the protection of voluntarily furnished confidential information, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 15, 2005 

Mr. LEAHY (for himself, Mr. LEVIN, Mr. FEINGOLD, and Mr. LIEBERMAN) 

introduced the following bill; which was read twice and referred to the 

Committee on the Judiciary 

A BILL

To amend the Homeland Security Act of 2002 (Public Law 

107–296) to provide for the protection of voluntarily 

furnished confidential 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 ‘‘Restoration of Free5 dom of Information Act of 2005’’. 
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1 SEC. 2. PROTECTION OF VOLUNTARILY FURNISHED CON2 FIDENTIAL INFORMATION. 

3 Title II of the Homeland Security Act of 2002 (6 

4 U.S.C. 121 et seq.) is amended by striking subtitle B and 

5 inserting the following: 

6 ‘‘Subtitle B—Protection of Volun7 tarily Furnished Confidential 

8 Information 

9 ‘‘SEC. 211. PROTECTION OF VOLUNTARILY FURNISHED 

10 CONFIDENTIAL INFORMATION. 

11 ‘‘(a) DEFINITIONS.—In this section: 

12 ‘‘(1) CRITICAL INFRASTRUCTURE.—The term 

13 ‘critical infrastructure’ has the meaning given that 

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

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

16 ‘‘(2) FURNISHED VOLUNTARILY.— 

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

18 voluntarily’ means a submission of a record 

19 that— 

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

21 absence of authority of the Department re22 quiring that record to be submitted; and 

23 ‘‘(ii) is not submitted or used to sat24 isfy any legal requirement or obligation or 

25 to obtain any grant, permit, benefit (such 

26 as agency forbearance, loans, or reduction 
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1 or modifications of agency penalties or rul2 ings), or other approval from the Govern3 ment. 

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

5 term ‘benefit’ does not include any warning, 

6 alert, or other risk analysis by the Department. 

7 ‘‘(b) IN GENERAL.—Notwithstanding any other pro8 vision of law, a record pertaining to the vulnerability of 

9 and threats to critical infrastructure (such as attacks, re10 sponse, and recovery efforts) that is furnished voluntarily 

11 to the Department shall not be made available under sec12 tion 552 of title 5, United States Code, if— 

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

14 the record available to the public; and 

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

16 the provider, in a manner specified by the Depart17 ment, as confidential and not customarily made 

18 available to the public. 

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

20 ‘‘(1) IN GENERAL.— 

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

22 in receipt of a record that was furnished volun23 tarily to the Department and subsequently 

24 shared with the agency shall, upon receipt of a 
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1 request under section 552 of title 5, United 

2 States Code, for the record— 

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

4 and 

5 ‘‘(ii) refer the request to the Depart6 ment for processing and response in ac7 cordance with this section. 

8 ‘‘(B) SEGREGABLE PORTION OF

9 RECORD.—Any reasonably segregable portion of 

10 a record shall be provided to the person re11 questing the record after deletion of any portion 

12 which is exempt under this section. 

13 ‘‘(2) DISCLOSURE OF INDEPENDENTLY FUR14 NISHED RECORDS.—Notwithstanding paragraph (1), 

15 nothing in this section shall prohibit an agency from 

16 making available under section 552 of title 5, United 

17 States Code, any record that the agency receives 

18 independently of the Department, regardless of 

19 whether or not the Department has a similar or 

20 identical record. 

21 ‘‘(d) WITHDRAWAL OF CONFIDENTIAL DESIGNA22 TION.—The provider of a record that is furnished volun23 tarily to the Department under subsection (b) may at any 

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

25 the confidential designation. 
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1 ‘‘(e) PROCEDURES.—The Secretary shall prescribe 

2 procedures for— 

3 ‘‘(1) the acknowledgment of receipt of records 

4 furnished voluntarily; 

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

6 of records furnished voluntarily as confidential and 

7 not customarily made available to the public; 

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

9 voluntarily; 

10 ‘‘(4) the protection and maintenance of the con11 fidentiality of records furnished voluntarily; and 

12 ‘‘(5) the withdrawal of the confidential designa13 tion of records under subsection (d). 

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

15 in this section shall be construed as preempting or other16 wise modifying State or local law concerning the disclosure 

17 of any information that a State or local government re18 ceives independently of the Department. 

19 ‘‘(g) REPORT.— 

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

21 months after the date of the enactment of the Res22 toration of Freedom of Information Act of 2005, the 

23 Comptroller General of the United States shall sub24 mit to the committees of Congress specified in para-
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1 graph (2) a report on the implementation and use 

2 of this section, including— 

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

4 sector, and the number of State and local agen5 cies, that furnished voluntarily records to the 

6 Department under this section; 

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

8 records granted or denied under this section; 

9 and 

10 ‘‘(C) such recommendations as the Comp11 troller General considers appropriate regarding 

12 improvements in the collection and analysis of 

13 sensitive information held by persons in the pri14 vate sector, or by State and local agencies, re15 lating to vulnerabilities of and threats to critical 

16 infrastructure, including the response to such 

17 vulnerabilities and threats. 

18 ‘‘(2) COMMITTEES OF CONGRESS.—The com19 mittees of Congress specified in this paragraph 

20 are— 

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

22 Homeland Security and Governmental Affairs 

23 of the Senate; and 
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1 ‘‘(B) the Committees on the Judiciary and 

2 Government Reform and Oversight of the 

3 House of Representatives. 

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

5 unclassified form, but may include a classified 

6 annex.’’. 

7 SEC. 3. TECHNICAL AND CONFORMING AMENDMENT. 

8 The table of contents for the Homeland Security Act 

9 of 2002 (Public Law 107–296) is amended by striking the 

10 matter relating to subtitle B of title II and inserting the 

11 following:

‘‘SUBTITLE B—PROTECTION OF VOLUNTARILY FURNISHED CONFIDENTIAL

INFORMATION

‘‘Sec. 211. Protection of Voluntarily Furnished Confidential Information.’’.

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