I 
112TH CONGRESS 
1ST SESSION H. R. 1144 
To increase the transparency of the Federal Government, and for other 
purposes. 
IN THE HOUSE OF REPRESENTATIVES 
MARCH 17, 2011 
Mr. CUMMINGS (for himself, Mr. TOWNS, Mr. CLAY, Mrs. MALONEY, Ms. 
NORTON, Mr. KUCINICH, Mr. TIERNEY, 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 Com-
mittee on Oversight and Government Reform 
A BILL 
To increase the transparency of the Federal Government, 
and for other purposes. 
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 ‘‘Transparency and 
Openness in Government Act’’. 
SEC. 2. TABLE OF CONTENTS. 
The table of contents for this Act is as follows: 
Sec. 1. Short title. 
Sec. 2. Table of contents. 
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TITLE I—FEDERAL ADVISORY COMMITTEE ACT AMENDMENTS 
Sec. 101. Ensuring independent advice and expertise. 
Sec. 102. Preventing efforts to circumvent the Federal Advisory Committee Act 
and public disclosure. 
Sec. 103. Increasing transparency of advisory committees. 
Sec. 104. Comptroller General review and reports. 
Sec. 105. Application of Federal Advisory Committee Act to Trade Advisory 
Committees. 
Sec. 106. Definitions. 
Sec. 107. Effective date. 
TITLE II—PRESIDENTIAL RECORDS ACT AMENDMENTS 
Sec. 201. Procedures for consideration of claims of constitutionally based privi-
lege against disclosure. 
TITLE III—PRESIDENTIAL LIBRARY DONATION REFORM 
Sec. 301. Presidential libraries. 
TITLE IV—ELECTRONIC MESSAGE PRESERVATION 
Sec. 401. Preservation of electronic messages. 
Sec. 402. Presidential records. 
Sec. 403. Procedures to prevent unauthorized removal of classified records from 
National Archives. 
Sec. 404. Restrictions on access to presidential records. 
TITLE V—GOVERNMENT ACCOUNTABILITY OFFICE 
IMPROVEMENT 
Sec. 501. Authority to obtain information. 
Sec. 502. Administering oaths. 
Sec. 503. Agency reports. 
TITLE I—FEDERAL ADVISORY 
COMMITTEE ACT AMENDMENTS 
SEC. 101. ENSURING INDEPENDENT ADVICE AND EXPER-
TISE. 
(a) BAR ON POLITICAL LITMUS TESTS.—Section 9 
of the Federal Advisory Committee Act (5 U.S.C. App.) 
is amended— 
(1) in the section heading by inserting ‘‘MEM-
BERSHIP;’’ after ‘‘ADVISORY COMMITTEES;’’; 
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(2) by redesignating subsections (b) and (c) as 
subsections (e) and (f), respectively; and 
(3) by inserting after subsection (a) the fol-
lowing: 
‘‘(b) APPOINTMENTS MADE WITHOUT REGARD TO 
POLITICAL AFFILIATION OR ACTIVITY.—All appointments 
to advisory committees shall be made without regard to 
political affiliation or political activity, unless required by 
Federal statute.’’. 
(b) MINIMIZING CONFLICTS OF INTEREST.—Section 
9 of the Federal Advisory Committee Act (5 U.S.C. App.) 
is further amended by inserting after subsection (b) (as 
added by subsection (a)) the following: 
‘‘(c) PUBLIC NOMINATIONS OF COMMITTEE MEM-
BERS.—Prior to appointing members to an advisory com-
mittee, the head of an agency shall give interested persons 
an opportunity to suggest potential committee members. 
The agency shall include a request for comments in the 
Federal Register notice required under subsection (a) and 
provide a mechanism for interested persons to comment 
through the official Web site of the agency. The agency 
shall consider any comments submitted under this sub-
section in selecting the members of an advisory committee. 
‘‘(d) DESIGNATION OF COMMITTEE MEMBERS.— 
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‘‘(1) An individual appointed to an advisory 
committee who is not a full-time or permanent part- 
time officer or employee of the Federal Government 
shall be designated as— 
‘‘(A) a special government employee, if the 
individual is providing advice based on the indi-
vidual’s expertise or experience; or 
‘‘(B) a representative, if the individual is 
representing the views of an entity or entities 
outside of the Federal Government. 
‘‘(2) An agency may not designate committee 
members as representatives to avoid subjecting them 
to Federal ethics rules and requirements. 
‘‘(3) The designated agency ethics official for 
each agency shall review the members of each advi-
sory committee that reports to the agency to deter-
mine whether each member’s designation is appro-
priate, and to redesignate members if appropriate. 
The designated agency ethics official shall certify to 
the head of the agency that such review has been 
made— 
‘‘(A) following the initial appointment of 
members; and 
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‘‘(B) at the time a committee’s charter is 
renewed, or, in the case of a committee with an 
indefinite charter, every 2 years. 
‘‘(4) The head of each agency shall inform each 
individual appointed to an advisory committee that 
reports to the agency whether the individual is ap-
pointed as a special government employee or as a 
representative. The agency head shall provide each 
committee member with an explanation of the dif-
ferences between special government employees and 
representatives and a summary of applicable ethics 
requirements. The agency head, acting through the 
designated agency ethics official, shall obtain signed 
and dated written confirmation from each committee 
member that the member received and reviewed the 
information required by this paragraph. 
‘‘(5) The Director of the Office of Government 
Ethics shall provide guidance to agencies on what to 
include in the summary of ethics requirements re-
quired by paragraph (4). 
‘‘(6) The head of each agency shall, to the ex-
tent practicable, develop and implement strategies to 
minimize the need for written determinations under 
section 208(b)(1) of title 18, United States Code. 
Strategies may include such efforts as improving 
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outreach efforts to potential committee members and 
seeking public input on potential committee mem-
bers.’’. 
(c) REGULATIONS IMPLEMENTING FACA.—Section 
7(c) of the Federal Advisory Committee Act (5 U.S.C. 
App.) is amended by inserting after ‘‘(c)’’ the following: 
‘‘The Administrator shall promulgate regulations as nec-
essary to implement this Act.’’. 
SEC. 102. PREVENTING EFFORTS TO CIRCUMVENT THE 
FEDERAL ADVISORY COMMITTEE ACT AND 
PUBLIC DISCLOSURE. 
(a) DE FACTO MEMBERS.—Section 4 of the Federal 
Advisory Committee Act (5 U.S.C. App.) is amended by 
adding at the end the following: 
‘‘(d) TREATMENT OF INDIVIDUAL AS MEMBER.—An 
individual who is not a full-time or permanent part-time 
officer or employee of the Federal Government shall be 
regarded as a member of a committee if the individual 
regularly attends and fully participates in committee meet-
ings as if the individual were a member, even if the indi-
vidual does not have the right to vote or veto the advice 
or recommendations of the advisory committee.’’. 
(b) SUBCOMMITTEES.—Section 4 of the Federal Ad-
visory Committee Act (5 U.S.C. App.) is amended by 
striking subsection (a) and inserting the following: 
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‘‘(a) APPLICATION.—The provisions of this Act or of 
any rule, order, or regulation promulgated under this Act 
shall apply to each advisory committee, including any sub-
committee or subgroup thereof, except to the extent that 
any Act of Congress establishing any such advisory com-
mittee specifically provides otherwise. Any subcommittee 
or subgroup that reports to a parent committee estab-
lished under section 9(a) is not required to comply with 
section 9(f). In this subsection, the term ‘subgroup’ in-
cludes any working group, task force, or other entity 
formed for the purpose of assisting the committee or any 
subcommittee of the committee in its work.’’. 
(c) COMMITTEES CREATED UNDER CONTRACT.— 
Section 3(2) of the Federal Advisory Committee Act (5 
U.S.C. App.) is amended in the matter following subpara-
graph (C) by adding at the end the following: ‘‘An advi-
sory committee is considered to be established by an agen-
cy, agencies, or the President if it is formed, created, or 
organized under contract, other transactional authority, 
cooperative agreement, grant, or otherwise at the request 
or direction of an agency, agencies, or the President.’’. 
(d) ADVISORY COMMITTEES CONTAINING SPECIAL 
GOVERNMENT EMPLOYEES.—Section 4 of the Federal Ad-
visory Committee Act (5 U.S.C. App.) is further amended 
by adding at the end the following new subsection: 
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‘‘(e) SPECIAL
GOVERNMENT
EMPLOYEES.—Com-
mittee members appointed as special government employ-
ees shall not be considered full-time or permanent part- 
time officers or employees of the Federal Government for 
purposes of determining the applicability of this Act under 
section 3(2).’’. 
SEC. 103. INCREASING TRANSPARENCY OF ADVISORY COM-
MITTEES. 
(a) INFORMATION REQUIREMENT.—Section 11 of the 
Federal Advisory Committee Act (5 U.S.C. App.) is 
amended— 
(1) by striking the section designation and 
heading and inserting the following: 
‘‘SEC. 11. DISCLOSURE OF INFORMATION.’’; 
(2) by redesignating subsection (a) as sub-
section (d) and in that subsection— 
(A) by inserting the following subsection 
heading: ‘‘AVAILABILITY OF PAPER COPIES OF 
TRANSCRIPTS.—’’; and 
(B) by inserting after ‘‘duplication,’’ the 
following: ‘‘paper’’; 
(3) by striking ‘‘(b)’’ and inserting ‘‘(e) AGEN-
CY PROCEEDING DEFINED.—’’; and 
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‘‘(B) Whether the member is designated as 
a special government employee or a representa-
tive. 
‘‘(C) In the case of a representative, the 
individuals or entity whose viewpoint the mem-
ber represents. 
‘‘(4) A list of all members designated as special 
government employees for whom written certifi-
cations were made under section 208(b) of title 18, 
United States Code, a copy of each such certifi-
cation, a summary description of the conflict necessi-
tating the certification, and the reason for granting 
the certification. 
‘‘(5) Any recusal agreement made by a member 
or any recusal known to the agency that occurs dur-
ing the course of a meeting or other work of the 
committee. 
‘‘(6) A summary of the process used by the ad-
visory committee for making decisions. 
‘‘(7) Transcripts or audio or video recordings of 
all meetings of the committee. 
‘‘(8) Any written determination by the Presi-
dent or the head of the agency to which the advisory 
committee reports, pursuant to section 10(d), to 
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close a meeting or any portion of a meeting and the 
reasons for such determination. 
‘‘(9) Notices of future meetings of the com-
mittee. 
‘‘(10) Any additional information considered 
relevant by the head of the agency to which the advi-
sory committee reports. 
‘‘(b) MANNER OF DISCLOSURE.— 
‘‘(1) Except as provided in paragraph (2), the 
head of an agency shall make the information re-
quired to be disclosed under this section available 
electronically on the official public Internet site of 
the agency at least 15 calendar days before each 
meeting of an advisory committee. If the head of the 
agency determines that such timing is not prac-
ticable for any required information, he shall make 
the information available as soon as practicable but 
no later than 48 hours before the next meeting of 
the committee. An agency may withhold from disclo-
sure any information that would be exempt from dis-
closure under section 552 of title 5, United States 
Code. 
‘‘(2) The head of an agency shall make avail-
able electronically, on the official public Internet site 
of the agency, a transcript or audio or video record-
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ing of each advisory committee meeting as required 
by subsection (a)(6) not later than 30 calendar days 
after the meeting. 
‘‘(c) PROVISION
OF INFORMATION
BY ADMINIS-
TRATOR OF GENERAL SERVICES.—The Administrator of 
General Services shall provide, on the official public Inter-
net site of the General Services Administration, electronic 
access to the information made available by each agency 
under this section.’’. 
(b) CHARTER FILING.—Section 9(f) of the Federal 
Advisory Committee Act (5 U.S.C. App.), as redesignated 
by section 101, is amended— 
(1) by striking ‘‘with (1) the Administrator,’’ 
and all that follows through ‘‘, or’’ and inserting 
‘‘(1) with the Administrator and’’; 
(2) by striking ‘‘and’’ at the end of subpara-
graph (I); 
(3) by striking the period and inserting a semi-
colon at the end of subparagraph (J); and 
(4) by adding at the end the following new sub-
paragraphs: 
‘‘(K) the authority under which the committee 
is established; 
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‘‘(L) the estimated number of members and a 
description of the expertise needed to carry out the 
objectives of the committee; 
‘‘(M) a description of whether the committee 
will be composed of special government employees, 
representatives, or members from both categories; 
and 
‘‘(N) whether the committee has the authority 
to create subcommittees and if so, the agency official 
authorized to exercise such authority.’’. 
SEC. 104. COMPTROLLER GENERAL REVIEW AND REPORTS. 
(a) REVIEW.—The Comptroller General of the United 
States shall review compliance by agencies with the Fed-
eral Advisory Committee Act, as amended by this title, 
including whether agencies are appropriately appointing 
advisory committee members as either special government 
employees or representatives. 
(b) REPORT.—The Comptroller General shall submit 
to the committees described in subsection (c) two reports 
on the results of the review, as follows: 
(1) The first report shall be submitted not later 
than one year after the date of promulgation of reg-
ulations under section 101. 
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(2) The second report shall be submitted not 
later than five years after such date of promulgation 
of regulations. 
(c) COMMITTEES.—The committees described in this 
subsection are the Committee on Oversight and Govern-
ment Reform of the House of Representatives and the 
Committee on Homeland Security and Governmental Af-
fairs of the Senate. 
SEC. 105. APPLICATION OF FEDERAL ADVISORY COM-
MITTEE ACT TO TRADE ADVISORY COMMIT-
TEES. 
Section 135(f)(2)(A) of the Trade Act of 1974 (19 
U.S.C. 2155) is amended by striking ‘‘subsection (a) and 
(b) of sections 10 and 11 of the Federal Advisory Com-
mittee Act’’ and inserting ‘‘subsections (a) and (b) of sec-
tion 10 and subsections (a)(7), (a)(8), (a)(9), (d), and (e) 
of section 11 of the Federal Advisory Committee Act’’. 
SEC. 106. DEFINITIONS. 
Section 3 of the Federal Advisory Committee Act (5 
U.S.C. App.) is amended by adding at the end the fol-
lowing new paragraph: 
‘‘(5) The term ‘special Government employee’ 
has the same meaning as in section 202(a) of title 
18, United States Code.’’. 
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SEC. 107. EFFECTIVE DATE. 
This title shall take effect 30 days after the date of 
the enactment of this Act. 
TITLE II—PRESIDENTIAL 
RECORDS ACT AMENDMENTS 
SEC. 201. 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 
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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 
President 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, 
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 60-day period under subparagraph (A), or any exten-
sion of that period under subparagraph (B), would other-
wise expire during the 6-month period after the incumbent 
President first takes office, then that 60-day period or ex-
tension, respectively, shall expire at the end of that 6- 
month period. 
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‘‘(b)(1) For purposes of this section, the decision to 
assert any claim of constitutionally based privilege against 
disclosure of a Presidential record (or reasonably seg-
regable part of a record) must be made personally by a 
former President or the incumbent President, as applica-
ble. 
‘‘(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 
period 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 noti-
fication from a former President of the assertion of a 
claim of constitutionally based privilege against disclosure, 
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the Archivist shall provide notice to the former President 
and 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 
available unless— 
‘‘(i) the incumbent President withdraws the de-
cision 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 
uphold the claim of privilege asserted by the former Presi-
dent, or fails to make the determination under paragraph 
(1) before the end of the period specified in subparagraph 
(A), the Archivist shall release the Presidential record sub-
ject to the claim at the end of the 90-day period beginning 
on the date on which the Archivist received notification 
of the claim, unless otherwise directed by a court order 
in an action initiated by the former President under sec-
tion 2204(e) of this title or by a court order in another 
action in Federal court. 
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‘‘(d) The Archivist shall not make publicly available 
a Presidential record (or reasonably segregable part of a 
record) that is subject to a privilege claim asserted by the 
incumbent President unless— 
‘‘(1) the incumbent President withdraws the 
privilege claim; or 
‘‘(2) the Archivist is otherwise directed by a 
final court order that is not subject to appeal. 
‘‘(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’’. 
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(2) Section 2205 of title 44, United States Code, is 
amended by inserting ‘‘and 2208’’ after ‘‘2204’’, 
(3) 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.’’. 
(e) RULE
OF
CONSTRUCTION.—Nothing in the 
amendment made by subsection (c)(3) shall be construed 
to— 
(1) affect the requirement of section 2207 of 
title 44, United States Code, that Vice Presidential 
records shall be subject to chapter 22 of that title 
in the same manner as Presidential records; or 
(2) affect any claim of constitutionally based 
privilege by a President or former President with re-
spect to a Vice Presidential record. 
TITLE III—PRESIDENTIAL 
LIBRARY DONATION REFORM 
SEC. 301. PRESIDENTIAL LIBRARIES. 
(a) IN GENERAL.—Section 2112 of title 44, United 
States Code, is amended by adding at the end the fol-
lowing new subsection: 
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‘‘(h)(1) Any Presidential library fundraising organi-
zation shall submit on a quarterly basis, in accordance 
with paragraph (2), information with respect to every con-
tributor who gave the organization a contribution or con-
tributions (whether monetary or in-kind) totaling $200 or 
more for the quarterly period. 
‘‘(2) For purposes of paragraph (1)— 
‘‘(A) the entities to which information shall be 
submitted under that paragraph are the Administra-
tion, the Committee on Oversight and Government 
Reform of the House of Representatives, and the 
Committee on Homeland Security and Governmental 
Affairs of the Senate; 
‘‘(B) the dates by which information shall be 
submitted under that paragraph are April 15, July 
15, October 15, and January 15 of each year and 
of the following year (for the fourth quarterly filing); 
‘‘(C) the requirement to submit information 
under that paragraph shall continue until the later 
of the following occurs: 
‘‘(i) The Archivist has accepted, taken title 
to, or entered into an agreement to use any 
land or facility for the archival depository. 
‘‘(ii) The President whose archives are con-
tained in the depository no longer holds the Of-
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