I 

112TH CONGRESS 

1ST SESSION H. R. 3071 

To amend chapter 22 of title 44, United States Code, popularly known 

as the Presidential Records Act, to establish procedures for the consideration of claims of constitutionally based privilege against disclosure of 

Presidential records. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 29, 2011 

Mr. TOWNS (for himself, Mr. CUMMINGS, Mrs. MALONEY, Ms. NORTON, Mr. 

KUCINICH, Mr. TIERNEY, Mr. CLAY, Mr. LYNCH, Mr. COOPER, Mr. CONNOLLY of Virginia, Mr. QUIGLEY, Mr. DAVIS of Illinois, Mr. BRALEY of 

Iowa, Mr. WELCH, Mr. YARMUTH, Mr. MURPHY of Connecticut, and Ms. 

SPEIER) introduced the following bill; which was referred to the Committee on Oversight and Government Reform 

A BILL 

To amend chapter 22 of title 44, United States Code, popularly known as the Presidential Records Act, to establish 

procedures for the consideration of claims of constitutionally based privilege against disclosure of Presidential 

records. 

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 ‘‘Presidential Records 

5 Act Amendments of 2011’’. 


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1 SEC. 2. PROCEDURES FOR CONSIDERATION OF CLAIMS OF 

2 CONSTITUTIONALLY BASED PRIVILEGE 

3 AGAINST DISCLOSURE. 

4 (a) IN GENERAL.—Chapter 22 of title 44, United 

5 States Code, is amended by adding at the end the fol6 lowing: 

7 ‘‘§ 2208. Claims of constitutionally based privilege 

8 against disclosure 

9 ‘‘(a)(1) When the Archivist determines under this 

10 chapter to make available to the public any Presidential 

11 record that has not previously been made available to the 

12 public, the Archivist shall— 

13 ‘‘(A) promptly provide notice of such deter14 mination to— 

15 ‘‘(i) the former President during whose 

16 term of office the record was created; and 

17 ‘‘(ii) the incumbent President; and 

18 ‘‘(B) make the notice available to the public. 

19 ‘‘(2) The notice under paragraph (1)— 

20 ‘‘(A) shall be in writing; and 

21 ‘‘(B) shall include such information as may be 

22 prescribed in regulations issued by the Archivist. 

23 ‘‘(3)(A) Upon the expiration of the 60-day period (ex24 cepting Saturdays, Sundays, and legal public holidays) be25 ginning on the date the Archivist provides notice under 

26 paragraph (1)(A), the Archivist shall make available to the 


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1 public the Presidential record covered by the notice, except 

2 any record (or reasonably segregable part of a record) with 

3 respect to which the Archivist receives from a former 

4 President or the incumbent President notification of a 

5 claim of constitutionally based privilege against disclosure 

6 under subsection (b). 

7 ‘‘(B) A former President or the incumbent President 

8 may extend the period under subparagraph (A) once for 

9 not more than 30 additional days (excepting Saturdays, 

10 Sundays, and legal public holidays) by filing with the Ar11 chivist a statement that such an extension is necessary 

12 to allow an adequate review of the record. 

13 ‘‘(C) Notwithstanding subparagraphs (A) and (B), if 

14 the 60-day period under subparagraph (A), or any exten15 sion of that period under subparagraph (B), would other16 wise expire during the 6-month period after the incumbent 

17 President first takes office, then that 60-day period or ex18 tension, respectively, shall expire at the end of that 6- 

19 month period. 

20 ‘‘(b)(1) For purposes of this section, the decision to 

21 assert any claim of constitutionally based privilege against 

22 disclosure of a Presidential record (or reasonably seg23 regable part of a record) must be made personally by a 

24 former President or the incumbent President, as applica25 ble. 


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1 ‘‘(2) A former President or the incumbent President 

2 shall notify the Archivist, the Committee on Oversight and 

3 Government Reform of the House of Representatives, and 

4 the Committee on Homeland Security and Governmental 

5 Affairs of the Senate of a privilege claim under paragraph 

6 (1) on the same day that the claim is asserted under such 

7 paragraph. 

8 ‘‘(c)(1) If a claim of constitutionally based privilege 

9 against disclosure of a Presidential record (or reasonably 

10 segregable part of a record) is asserted under subsection 

11 (b) by a former President, the Archivist shall consult with 

12 the incumbent President, as soon as practicable during the 

13 period specified in paragraph (2)(A), to determine whether 

14 the incumbent President will uphold the claim asserted by 

15 the former President. 

16 ‘‘(2)(A) Not later than the end of the 30-day period 

17 beginning on the date of which the Archivist receives noti18 fication from a former President of the assertion of a 

19 claim of constitutionally based privilege against disclosure, 

20 the Archivist shall provide notice to the former President 

21 and the public of the decision of the incumbent President 

22 under paragraph (1) regarding the claim. 

23 ‘‘(B) If the incumbent President upholds the claim 

24 of privilege asserted by the former President, the Archivist 

25 shall not make the Presidential record (or reasonably segVerDate Mar 15 2010 22:40 Sep 29, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3071.IH H3071

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1 regable part of a record) subject to the claim publicly 

2 available unless— 

3 ‘‘(i) the incumbent President withdraws the de4 cision upholding the claim of privilege asserted by 

5 the former President; or 

6 ‘‘(ii) the Archivist is otherwise directed by a 

7 final court order that is not subject to appeal. 

8 ‘‘(C) If the incumbent President determines not to 

9 uphold the claim of privilege asserted by the former Presi10 dent, or fails to make the determination under paragraph 

11 (1) before the end of the period specified in subparagraph 

12 (A), the Archivist shall release the Presidential record sub13 ject to the claim at the end of the 90-day period beginning 

14 on the date on which the Archivist received notification 

15 of the claim, unless otherwise directed by a court order 

16 in an action initiated by the former President under sec17 tion 2204(e) of this title or by a court order in another 

18 action in Federal court. 

19 ‘‘(d) The Archivist shall not make publicly available 

20 a Presidential record (or reasonably segregable part of a 

21 record) that is subject to a privilege claim asserted by the 

22 incumbent President unless— 

23 ‘‘(1) the incumbent President withdraws the 

24 privilege claim; or 


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1 ‘‘(2) the Archivist is otherwise directed by a 

2 final court order that is not subject to appeal. 

3 ‘‘(e) The Archivist shall adjust any otherwise applica4 ble time period under this section as necessary to comply 

5 with the return date of any congressional subpoena, judi6 cial subpoena, or judicial process.’’. 

7 (b) RESTRICTIONS.—Section 2204 of title 44, United 

8 States Code (relating to restrictions on access to presi9 dential records) is amended by adding at the end the fol10 lowing new subsection: 

11 ‘‘(f) The Archivist shall not make available any origi12 nal presidential records to any individual claiming access 

13 to any presidential record as a designated representative 

14 under section 2205(3) if that individual has been convicted 

15 of a crime relating to the review, retention, removal, or 

16 destruction of records of the Archives.’’. 

17 (c) CONFORMING AMENDMENTS.—(1) Section 

18 2204(d) of title 44, United States Code, is amended by 

19 inserting ‘‘, except section 2208,’’ after ‘‘chapter’’. 

20 (2) Section 2205 of title 44, United States Code, is 

21 amended by inserting ‘‘and 2208’’ after ‘‘2204’’. 

22 (3) Section 2207 of title 44, United States Code, is 

23 amended in the second sentence by inserting ‘‘, except sec24 tion 2208,’’ after ‘‘chapter’’. 


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1 (d) CLERICAL AMENDMENT.—The table of sections 

2 at the beginning of chapter 22 of title 44, United States 

3 Code, is amended by adding at the end the following: 

‘‘2208. Claims of constitutionally based privilege against disclosure.’’. 

4 (e) RULE OF CONSTRUCTION.—Nothing in the 

5 amendment made by subsection (c)(3) shall be construed 

6 to— 

7 (1) affect the requirement of section 2207 of 

8 title 44, United States Code, that Vice Presidential 

9 records shall be subject to chapter 22 of that title 

10 in the same manner as Presidential records; or 

11 (2) affect any claim of constitutionally based 

12 privilege by a President or former President with re13 spect to a Vice Presidential record. 

Æ 


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