II 
Calendar No. 64 
111TH CONGRESS 
1ST SESSION 
H. R. 35 
[Report No. 111–21] 
IN THE SENATE OF THE UNITED STATES 
JANUARY 8, 2009 
Received; read twice and referred to the Committee on Homeland Security and 
Governmental Affairs 
MAY 19, 2009 
Reported by Mr. LIEBERMAN, with an amendment 
[Strike out all after the enacting clause and insert the part printed in italic] 
AN ACT 
To amend chapter 22 of title 44, United States Code, popu-
larly known as the Presidential Records Act, to establish 
procedures for the consideration of claims of constitu-
tionally based privilege against disclosure of Presidential 
records. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Presidential Records 
Act Amendments of 2009’’. 
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SEC. 2. PROCEDURES FOR CONSIDERATION OF CLAIMS OF 
CONSTITUTIONALLY
BASED
PRIVILEGE 
AGAINST DISCLOSURE. 
(a) IN GENERAL.—Chapter 22 of title 44, United 
States Code, is amended by adding at the end the fol-
lowing: 
‘‘§ 2208. Claims of constitutionally based privilege 
against disclosure 
‘‘(a)(1) When the Archivist determines under this 
chapter to make available to the public any Presidential 
record that has not previously been made available to the 
public, the Archivist shall— 
‘‘(A) promptly provide notice of such deter-
mination to— 
‘‘(i) the former President during whose 
term of office the record was created; and 
‘‘(ii) the incumbent President; and 
‘‘(B) make the notice available to the public. 
‘‘(2) The notice under paragraph (1)— 
‘‘(A) shall be in writing; and 
‘‘(B) shall include such information as may be 
prescribed in regulations issued by the Archivist. 
‘‘(3)(A) Upon the expiration of the 20-day period (ex-
cepting Saturdays, Sundays, and legal public holidays) be-
ginning on the date the Archivist provides notice under 
paragraph (1)(A), the Archivist shall make available to the 
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public the record covered by the notice, except any record 
(or reasonably segregable part of a record) with respect 
to which the Archivist receives from a former President 
or the incumbent President notification of a claim of con-
stitutionally based privilege against disclosure under sub-
section (b). 
‘‘(B) A former President or the incumbent President 
may extend the period under subparagraph (A) once for 
not more than 20 additional days (excepting Saturdays, 
Sundays, and legal public holidays) by filing with the Ar-
chivist a statement that such an extension is necessary 
to allow an adequate review of the record. 
‘‘(C) Notwithstanding subparagraphs (A) and (B), if 
the period under subparagraph (A), or any extension of 
that period under subparagraph (B), would otherwise ex-
pire after January 19 and before July 20 of the year in 
which the incumbent President first takes office, then such 
period or extension, respectively, shall expire on July 20 
of that year. 
‘‘(b)(1) For purposes of this section, any claim of 
constitutionally based privilege against disclosure must be 
asserted personally by a former President or the incum-
bent President, as applicable. 
‘‘(2) A former President or the incumbent President 
shall notify the Archivist, the Committee on Oversight and 
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Government Reform of the House of Representatives, and 
the Committee on Homeland Security and Governmental 
Affairs of the Senate of a privilege claim under paragraph 
(1) on the same day that the claim is asserted under para-
graph (1). 
‘‘(c)(1) The Archivist shall not make publicly avail-
able a Presidential record that is subject to a privilege 
claim asserted by a former President until the expiration 
of the 20-day period (excluding Saturdays, Sundays, and 
legal public holidays) beginning on the date the Archivist 
is notified of the claim. 
‘‘(2) Upon the expiration of such period the Archivist 
shall make the record publicly available unless otherwise 
directed by a court order in an action initiated by the 
former President under section 2204(e). 
‘‘(d)(1) The Archivist shall not make publicly avail-
able a Presidential record that is subject to a privilege 
claim asserted by the incumbent President unless— 
‘‘(A) the incumbent President withdraws the 
privilege claim; or 
‘‘(B) the Archivist is otherwise directed by a 
final court order that is not subject to appeal. 
‘‘(2) This subsection shall not apply with respect to 
any Presidential record required to be made available 
under section 2205(2)(A) or (C). 
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‘‘(e) The Archivist shall adjust any otherwise applica-
ble time period under this section as necessary to comply 
with the return date of any congressional subpoena, judi-
cial subpoena, or judicial process.’’. 
(b) RESTRICTIONS.—Section 2204 of title 44, United 
States Code (relating to restrictions on access to presi-
dential records) is amended by adding at the end the fol-
lowing new subsection: 
‘‘(f) The Archivist shall not make available any origi-
nal presidential records to any individual claiming access 
to any presidential record as a designated representative 
under section 2205(3) if that individual has been convicted 
of a crime relating to the review, retention, removal, or 
destruction of records of the Archives.’’. 
(c)
CONFORMING
AMENDMENTS.—(1)
Section 
2204(d) of title 44, United States Code, is amended by 
inserting ‘‘, except section 2208,’’ after ‘‘chapter’’. 
(2) Section 2207 of title 44, United States Code, is 
amended in the second sentence by inserting ‘‘, except sec-
tion 2208,’’ after ‘‘chapter’’. 
(d) CLERICAL AMENDMENT.—The table of sections 
at the beginning of chapter 22 of title 44, United States 
Code, is amended by adding at the end the following: 
‘‘2208. Claims of constitutionally based privilege against disclosure.’’. 
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SEC. 3. EXECUTIVE ORDER OF NOVEMBER 1, 2001. 
Executive Order No. 13233, dated November 1, 2001 
(66 Fed. Reg. 56025), shall have no force or effect. 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Presidential Records Act 
Amendments of 2009’’. 
SEC. 2. PROCEDURES FOR CONSIDERATION OF CLAIMS OF 
CONSTITUTIONALLY 
BASED 
PRIVILEGE 
AGAINST DISCLOSURE. 
(a) IN GENERAL.—Chapter 22 of title 44, United 
States Code, is amended by adding at the end the following: 
‘‘§ 2208. Claims of constitutionally based privilege 
against disclosure 
‘‘(a)(1) When the Archivist determines under this 
chapter to make available to the public any Presidential 
record that has not previously been made available to the 
public, the Archivist shall— 
‘‘(A) promptly provide notice of such determina-
tion to— 
‘‘(i) the former President during whose term 
of office the record was created; and 
‘‘(ii) the incumbent President; and 
‘‘(B) make the notice available to the public. 
‘‘(2) The notice under paragraph (1)— 
‘‘(A) shall be in writing; and 
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‘‘(B) shall include such information as may be 
prescribed in regulations issued by the Archivist. 
‘‘(3)(A) Upon the expiration of the 60-day period (ex-
cepting Saturdays, Sundays, and legal public holidays) be-
ginning on the date the Archivist provides notice under 
paragraph (1)(A), the Archivist shall make available to the 
public the Presidential record covered by the notice, except 
any record (or reasonably segregable part of a record) with 
respect to which the Archivist receives from a former Presi-
dent or the incumbent President notification of a claim of 
constitutionally based privilege against disclosure under 
subsection (b). 
‘‘(B) A former President or the incumbent President 
may extend the period under subparagraph (A) once for not 
more than 30 additional days (excepting Saturdays, Sun-
days, and legal public holidays) by filing with the Archivist 
a statement that such an extension is necessary to allow 
an adequate review of the record. 
‘‘(C) Notwithstanding subparagraphs (A) and (B), if 
the period under subparagraph (A), or any extension of that 
period under subparagraph (B), would otherwise expire 
after January 19 and before July 20 of the year in which 
the incumbent President first takes office, then such period 
or extension, respectively, shall expire on July 20 of that 
year. 
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‘‘(b)(1) For purposes of this section, any claim of con-
stitutionally based privilege against disclosure of a Presi-
dential record (or reasonably segregable part of a record) 
must be asserted personally by a former President or the 
incumbent President, as applicable. 
‘‘(2) A former President or the incumbent President 
shall notify the Archivist, the Committee on Oversight and 
Government Reform of the House of Representatives, and 
the Committee on Homeland Security and Governmental 
Affairs of the Senate of a privilege claim under paragraph 
(1) on the same day that the claim is asserted under such 
paragraph. 
‘‘(c)(1) If a claim of constitutionally based privilege 
against disclosure of a Presidential record (or reasonably 
segregable part of a record) is asserted under subsection (b) 
by a former President, the Archivist shall consult with the 
incumbent President, as soon as practicable during the pe-
riod specified in paragraph (2)(A), to determine whether 
the incumbent President will uphold the claim asserted by 
the former President. 
‘‘(2)(A) Not later than the end of the 30-day period 
beginning on the date of which the Archivist receives notifi-
cation from a former President of the assertion of a claim 
of constitutionally based privilege against disclosure, the 
Archivist shall provide notice to the former President and 
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the public of the decision of the incumbent President under 
paragraph (1) regarding the claim. 
‘‘(B) If the incumbent President upholds the claim of 
privilege asserted by the former President, the Archivist 
shall not make the Presidential record (or reasonably seg-
regable part of a record) subject to the claim publicly avail-
able unless— 
‘‘(i) the incumbent President withdraws the deci-
sion upholding the claim of privilege asserted by the 
former President; or 
‘‘(ii) the Archivist is otherwise directed by a 
final court order that is not subject to appeal. 
‘‘(C) If the incumbent President determines not to up-
hold the claim of privilege asserted by the former President, 
or fails to make the determination under paragraph (1) be-
fore the end of the period specified in subparagraph (A), 
the Archivist shall release the Presidential record subject to 
the claim at the end of the 90-day period beginning on the 
date of which the Archivist received notification of the 
claim, unless otherwise directed by a court order in an ac-
tion initiated by the former President under section 2204(e) 
of this title. 
‘‘(d)(1) The Archivist shall not make publicly available 
a Presidential record (or reasonably segregable part of a 
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record) that is subject to a privilege claim asserted by the 
incumbent President unless— 
‘‘(A) the incumbent President withdraws the 
privilege claim; or 
‘‘(B) the Archivist is otherwise directed by a 
final court order that is not subject to appeal. 
‘‘(2) This subsection shall not apply with respect to 
any Presidential record required to be made available under 
section 2205(2)(A) or (C) of this title. 
‘‘(e) The Archivist shall adjust any otherwise applica-
ble time period under this section as necessary to comply 
with the return date of any congressional subpoena, judicial 
subpoena, or judicial process.’’. 
(b) RESTRICTIONS.—Section 2204 of title 44, United 
States Code (relating to restrictions on access to presi-
dential records) is amended by adding at the end the fol-
lowing new subsection: 
‘‘(f) The Archivist shall not make available any origi-
nal presidential records to any individual claiming access 
to any presidential record as a designated representative 
under section 2205(3) if that individual has been convicted 
of a crime relating to the review, retention, removal, or de-
struction of records of the Archives.’’. 
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(c) CONFORMING AMENDMENTS.—(1) Section 2204(d) 
of title 44, United States Code, is amended by inserting 
‘‘, except section 2208,’’ after ‘‘chapter’’. 
(2) Section 2207 of title 44, United States Code, is 
amended in the second sentence by inserting ‘‘, except sec-
tion 2208,’’ after ‘‘chapter’’. 
(d) CLERICAL AMENDMENT.—The table of sections at 
the beginning of chapter 22 of title 44, United States Code, 
is amended by adding at the end the following: 
‘‘2208. Claims of constitutionally based privilege against disclosure.’’. 
SEC. 3. TREATMENT OF EXECUTIVE ORDERS 13233 AND 
12667. 
Executive Order No. 13233, dated November 1, 2001 
(66 Fed. Reg. 56025), and Executive Order No. 12667, 
dated January 1, 1989 (54 Fed. Reg. 3403), shall have no 
force or effect. 
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Calendar No. 64 
111TH CONGRESS 
1ST SESSION 
H. R. 35 
[Report No. 111–21] 
AN ACT 
To amend chapter 22 of title 44, United States 
Code, popularly known as the Presidential 
Records Act, to establish procedures for the con-
sideration of claims of constitutionally based 
privilege 
against 
disclosure 
of 
Presidential 
records. 
MAY 19, 2009 
Reported with an amendment 
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