I 

108TH CONGRESS 

2D SESSION H. R. 5073 

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

Federal Government. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 14, 2004 

Mr. WAXMAN (for himself, Mr. SANDERS, Mrs. MALONEY, Mr. CUMMINGS, 

Mr. KUCINICH, Mr. CLAY, Mr. VAN HOLLEN, Ms. NORTON, Ms. MCCOLLUM, and Mr. MCDERMOTT) introduced the following bill; which was referred to the Committee on Government Reform 

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 2004’’. 

6 SEC. 2. TABLE OF CONTENTS. 

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

Sec. 1. Short title. 

Sec. 2. Table of Contents. 

TITLE I—FREEDOM OF INFORMATION 
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Sec. 101. Revocation of the Ashcroft Memo and the Card Memo. 

Sec. 102. Findings and policy relating to disclosure of information under the 

Freedom of Information Act. 

Sec. 103. Protection of voluntarily furnished confidential information. 

TITLE II—PRESIDENTIAL RECORDS 

Sec. 201. Revocation of Executive Order of November 1, 2001. 

TITLE III—ADVISORY COMMITTEES 

Sec. 301. Presidential inter-agency advisory committees. 

TITLE IV—CLASSIFICATION OF INFORMATION 

Sec. 401. Reducing excessive classification of information. 

TITLE V—OTHER PROVISIONS 

Sec. 501. Citizen actions. 

1 TITLE I—FREEDOM OF 

2 INFORMATION 

3 SEC. 101. REVOCATION OF THE ASHCROFT MEMO AND THE 

4 CARD MEMO. 

5 The ‘‘Memorandum for Heads of all Federal Depart6 ments and Agencies’’ on ‘‘The Freedom of Information 

7 Act’’ issued by Attorney General John Ashcroft on Octo8 ber 12, 2001, and the ‘‘Memorandum for the Heads of 

9 Executive Department and Agencies’’ on ‘‘Action to Safe10 guard Information Regarding Weapons of Mass Destruc11 tion and Other Sensitive Documents Related to Homeland 

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

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

14 have no force or effect. 
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1 SEC. 102. FINDINGS AND POLICY RELATING TO DISCLO2 SURE OF INFORMATION UNDER THE FREE3 DOM OF INFORMATION ACT. 

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— 

22 (1) if such release is required by law; or 

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

24 agency concerned does not reasonably foresee that 

25 disclosure would be harmful to an interest protected 

26 by an applicable exemption. 
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1 (c) GUIDANCE.—All guidance provided to Federal 

2 Government employees responsible for carrying out the 

3 Freedom of Information Act shall be consistent with the 

4 policy set forth in subsection (b). 

5 SEC. 103. PROTECTION OF VOLUNTARILY FURNISHED CON6 FIDENTIAL INFORMATION. 

7 (a) IN GENERAL.—Title II of the Homeland Security 

8 Act of 2002 (Public Law 107–296) is amended by striking 

9 subtitle B and inserting the following: 

10 ‘‘Subtitle B—Protection of Volun11 tarily Furnished Confidential 

12 Information 

13 ‘‘SEC. 211. PROTECTION OF VOLUNTARILY FURNISHED 

14 CONFIDENTIAL INFORMATION. 

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

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

17 ‘critical infrastructure’ has the meaning given that 

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

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

20 ‘‘(2) FURNISHED VOLUNTARILY.— 

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

22 voluntarily’ means a submission of a record 

23 that— 
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1 ‘‘(i) is made to the Department in the 

2 absence of authority of the Department re3 quiring that record to be submitted; and 

4 ‘‘(ii) is not submitted or used to sat5 isfy any legal requirement or obligation or 

6 to obtain any grant, permit, benefit (such 

7 as agency forbearance, loans, or reduction 

8 or modifications of agency penalties or rul9 ings), or other approval from the Govern10 ment. 

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

12 term ‘benefit’ does not include any warning, 

13 alert, or other risk analysis by the Department. 

14 ‘‘(b) IN GENERAL.—Notwithstanding any other pro15 vision of law, a record pertaining to the vulnerability of 

16 and threats to critical infrastructure (such as attacks, re17 sponse, and recovery efforts) that is furnished voluntarily 

18 to the Department shall not be made available under sec19 tion 552 of title 5, United States Code, if— 

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

21 the record available to the public; and 

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

23 the provider, in a manner specified by the Depart24 ment, as confidential and not customarily made 

25 available to the public. 
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1 ‘‘(c) RECORDS SHARED WITH OTHER AGENCIES.— 

2 ‘‘(1) IN GENERAL.— 

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

4 in receipt of a record that was furnished volun5 tarily to the Department and subsequently 

6 shared with the agency shall, upon receipt of a 

7 request under section 552 of title 5, United 

8 States Code, for the record— 

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

10 and 

11 ‘‘(ii) refer the request to the Depart12 ment for processing and response in ac13 cordance with this section. 

14 ‘‘(B) SEGREGABLE PORTION OF

15 RECORD.—Any reasonably segregable portion of 

16 a record shall be provided to the person re17 questing the record after deletion of any portion 

18 which is exempt under this section. 

19 ‘‘(2) DISCLOSURE OF INDEPENDENTLY FUR20 NISHED RECORDS.—Notwithstanding paragraph (1), 

21 nothing in this section shall prohibit an agency from 

22 making available under section 552 of title 5, United 

23 States Code, any record that the agency receives 

24 independently of the Department, regardless of 
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1 whether or not the Department has a similar or 

2 identical record. 

3 ‘‘(d) WITHDRAWAL OF CONFIDENTIAL DESIGNA4 TION.—The provider of a record that is furnished volun5 tarily to the Department under subsection (b) may at any 

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

7 the confidential designation. 

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

9 procedures for— 

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

11 furnished voluntarily; 

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

13 of records furnished voluntarily as confidential and 

14 not customarily made available to the public; 

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

16 voluntarily; 

17 ‘‘(4) the protection and maintenance of the con18 fidentiality of records furnished voluntarily; and 

19 ‘‘(5) the withdrawal of the confidential designa20 tion of records under subsection (d). 

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

22 in this section shall be construed as preempting or other23 wise modifying State or local law concerning the disclosure 

24 of any information that a State or local government re25 ceives independently of the Department. 
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1 ‘‘(g) REPORT.— 

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

3 months after the date of the enactment of the Re4 store Open Government Act of 2004, the Comp5 troller General of the United States shall submit to 

6 the committees of Congress specified in paragraph 

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

8 section, including— 

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

10 sector, and the number of State and local agen11 cies, that furnished voluntarily records to the 

12 Department under this section; 

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

14 records granted or denied under this section; 

15 and 

16 ‘‘(C) such recommendations as the Comp17 troller General considers appropriate regarding 

18 improvements in the collection and analysis of 

19 sensitive information held by persons in the pri20 vate sector, or by State and local agencies, re21 lating to vulnerabilities of and threats to critical 

22 infrastructure, including the response to such 

23 vulnerabilities and threats. 
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1 ‘‘(2) COMMITTEES OF CONGRESS.—The com2 mittees of Congress specified in this paragraph 

3 are— 

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

5 Governmental Affairs of the Senate; and 

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

7 Government Reform and Oversight of the 

8 House of Representatives. 

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

10 unclassified form, but may include a classified 

11 annex.’’. 

12 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

13 The table of contents for the Homeland Security Act of 

14 2002 (Public Law 107–296) is amended by striking the 

15 items relating to subtitle B of title II and sections 211 

16 through 215 and inserting the following: 

‘‘Subtitle B—Protection of Voluntarily Furnished Confidential Information 

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

17 TITLE II—PRESIDENTIAL 

18 RECORDS 

19 SEC. 201. REVOCATION OF EXECUTIVE ORDER OF NOVEM20 BER 1, 2001. 

21 Executive Order number 13233, dated November 1, 

22 2001 (66 Fed. Reg. 56025), shall have no force or effect, 

23 and Executive Order number 12667, dated January 18, 

24 1989 (54 Fed. Reg. 3403), shall apply by its terms. 
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1 TITLE III—ADVISORY 

2 COMMITTEES 

3 SEC. 301. PRESIDENTIAL INTER-AGENCY ADVISORY COM4 MITTEES. 

5 (a) DEFINITION.—The term ‘‘Presidential inter6 agency advisory committee’’ is any committee or task force 

7 that— 

8 (1) is composed wholly of full-time, or perma9 nent part-time, officers or employees of the Federal 

10 Government; 

11 (2) includes officers or employees of at least 

12 two separate Federal agencies; 

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

14 ideas, or recommendations to the President or Vice 

15 President on a specified topic or topics; and 

16 (4) has at least one officer or employee as17 signed full-time as a staff member of the committee 

18 to support the functions of the committee. 

19 (b) REQUIREMENTS.— 

20 (1) The President shall ensure that the names 

21 of the members of the committee are published in 

22 the Federal Register. 

23 (2) The committee must make public each sub24 stantive contact between the advisory committee, or 

25 individual members of the advisory committee acting 
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1 on the committee’s behalf, and any person who is 

2 not a full-time or permanent part-time officer or em3 ployee of the Federal Government, including— 

4 (A) the date of the contact; 

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

6 telephone, by e-mail, or in writing); 

7 (C) the names and affiliations of the par8 ties involved; and 

9 (D) the substance of the communication 

10 and the communication itself, if in electronic or 

11 written form. 

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

13 shall be considered substantive if the information 

14 conveyed influenced or was reflected in any way in 

15 the committee’s advice, recommendations, or report 

16 to the President or Vice President. 

17 TITLE IV—CLASSIFICATION OF 

18 INFORMATION 

19 SEC. 401. REDUCING EXCESSIVE CLASSIFICATION OF IN20 FORMATION. 

21 As soon as possible, but in no event later than 180 

22 days after the date of the enactment of this Act, the Presi23 dent shall require Federal departments and agencies to 

24 promote a culture of information sharing by reducing dis25 incentives to information sharing, including overclassifica-
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1 tion of information and unnecessary requirements for 

2 originator approval. 

3 TITLE V—OTHER PROVISIONS 

4 SEC. 501. CITIZEN ACTIONS. 

5 Section 552(a)(4)(E) of title 5, United States Code, 

6 is amended— 

7 (1) by inserting ‘‘, or in any case seeking infor8 mation from a Federal agency or official under any 

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

10 and 

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

12 purposes of this section, a complainant has ‘substan13 tially prevailed’ if the complainant has obtained 

14 some of its requested relief through a judicial or ad15 ministrative order or an enforceable written agree16 ment, or if the complainant’s pursuit of a nonfrivo17 lous claim or defense has been a catalyst for a vol18 untary or unilateral change in position by the oppos19 ing party that provides any significant part of the 

20 relief sought.’’. 

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