II Calendar No. 487 113TH CONGRESS 2D SESSION H. R. 1233 [Report No. 113–218] IN THE SENATE OF THE UNITED STATES JANUARY 15, 2014 Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs JULY 23, 2014 Reported by Mr. CARPER, with amendments [Omit the part struck through and insert the part printed in italic] AN ACT 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, and for other purposes. 1 Be it enacted by the Senate and House of Representa- tjames on DSK5VPTVN1PROD with BILLS 2 tives of the United States of America in Congress assembled, VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 2 1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 2 (a) SHORT TITLE.—This Act may be cited as the 3 ‘‘Presidential and Federal Records Act Amendments of 4 2014’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 7 10 Short title; table of contents. Presidential records. National Archives and Records Administration. Records management by Federal agencies. Disposal of records. Procedures to prevent unauthorized removal of classified records from National Archives. 7. Repeal of provisions related to the National Study Commission on Records and Documents of Federal Officials. 8. Pronoun amendments. 9. Records management by the Archivist. 10. Disclosure requirement for official business conducted using non-official electronic messaging account. SEC. 2. PRESIDENTIAL RECORDS. 8 9 1. 2. 3. 4. 5. 6. (a) PROCEDURES OF FOR CONSIDERATION OF CLAIMS CONSTITUTIONALLY BASED PRIVILEGE AGAINST DIS- CLOSURE.— 11 (1) AMENDMENT.—Chapter 22 of title 44, 12 United States Code, is amended by adding at the 13 end the following: 14 ‘‘§ 2208. Claims of constitutionally based privilege 15 16 against disclosure ‘‘(a)(1) When the Archivist determines under this tjames on DSK5VPTVN1PROD with BILLS 17 chapter to make available to the public any Presidential 18 record that has not previously been made available to the 19 public, the Archivist shall— •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 3 1 2 ‘‘(A) promptly provide notice of such determination to— 3 ‘‘(i) the former President during whose 4 term of office the record was created; and 5 ‘‘(ii) the incumbent President; and 6 ‘‘(B) make the notice available to the public. 7 ‘‘(2) The notice under paragraph (1)— 8 ‘‘(A) shall be in writing; and 9 ‘‘(B) shall include such information as may be 10 prescribed in regulations issued by the Archivist. 11 ‘‘(3)(A) Upon the expiration of the 60-day period (ex- 12 cepting Saturdays, Sundays, and legal public holidays) be13 ginning on the date the Archivist provides notice under 14 paragraph (1)(A), the Archivist shall make available to the 15 public the Presidential record covered by the notice, except 16 any record (or reasonably segregable part of a record) with 17 respect to which the Archivist receives from a former 18 President or the incumbent President notification of a 19 claim of constitutionally based privilege against disclosure 20 under subsection (b). 21 ‘‘(B) A former President or the incumbent President 22 may extend the period under subparagraph (A) once for tjames on DSK5VPTVN1PROD with BILLS 23 not more than 30 additional days (excepting Saturdays, 24 Sundays, and legal public holidays) by filing with the Ar- •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 4 1 chivist a statement that such an extension is necessary 2 to allow an adequate review of the record. 3 ‘‘(C) Notwithstanding subparagraphs (A) and (B), if 4 the 60-day period under subparagraph (A), or any exten5 sion of that period under subparagraph (B), would other6 wise expire during the 6-month period after the incumbent 7 President first takes office, then that 60-day period or ex8 tension, respectively, shall expire at the end of that 69 month period. 10 ‘‘(b)(1) For purposes of this section, the decision to 11 assert any claim of constitutionally based privilege against 12 disclosure of a Presidential record (or reasonably seg13 regable part of a record) must be made personally by a 14 former President or the incumbent President, as applica15 ble. 16 ‘‘(2) A former President or the incumbent President 17 shall notify the Archivist, the Committee on Oversight and 18 Government Reform of the House of Representatives, and 19 the Committee on Homeland Security and Governmental 20 Affairs of the Senate of a privilege claim under paragraph 21 (1) on the same day that the claim is asserted under such 22 paragraph. tjames on DSK5VPTVN1PROD with BILLS 23 ‘‘(c)(1) If a claim of constitutionally based privilege 24 against disclosure of a Presidential record (or reasonably 25 segregable part of a record) is asserted under subsection •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 5 1 (b) by a former President, the Archivist shall consult with 2 the incumbent President, as soon as practicable during the 3 period specified in paragraph (2)(A), to determine whether 4 the incumbent President will uphold the claim asserted by 5 the former President. 6 ‘‘(2)(A) Not later than the end of the 30-day period 7 beginning on the date of on which the Archivist receives 8 notification from a former President of the assertion of 9 a claim of constitutionally based privilege against disclo10 sure, the Archivist shall provide notice to the former Presi11 dent and the public of the decision of the incumbent Presi12 dent under paragraph (1) regarding the claim. 13 ‘‘(B) If the incumbent President upholds the claim 14 of privilege asserted by the former President, the Archivist 15 shall not make the Presidential record (or reasonably seg16 regable part of a record) subject to the claim publicly 17 available unless— 18 ‘‘(i) the incumbent President withdraws the de- 19 cision upholding the claim of privilege asserted by 20 the former President; or tjames on DSK5VPTVN1PROD with BILLS 21 ‘‘(ii) the Archivist is otherwise directed by a 22 final court order that is not subject to appeal. 23 ‘‘(C) If the incumbent President determines not to 24 uphold the claim of privilege asserted by the former Presi25 dent, or fails to make the determination under paragraph •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 6 1 (1) before the end of the period specified in subparagraph 2 (A), the Archivist shall release the Presidential record sub3 ject to the claim at the end of the 90-day period beginning 4 on the date on which the Archivist received notification 5 of the claim, unless otherwise directed by a court order 6 in an action initiated by the former President under sec7 tion 2204(e) of this title or by a court order in another 8 action in any Federal court. 9 ‘‘(d) The Archivist shall not make publicly available 10 a Presidential record (or reasonably segregable part of a 11 record) that is subject to a privilege claim asserted by the 12 incumbent President unless— 13 14 ‘‘(1) the incumbent President withdraws the privilege claim; or 15 ‘‘(2) the Archivist is otherwise directed by a 16 final court order that is not subject to appeal. 17 ‘‘(e) The Archivist shall adjust any otherwise applica- 18 ble time period under this section as necessary to comply 19 with the return date of any congressional subpoena, judi20 cial subpoena, or judicial process.’’. tjames on DSK5VPTVN1PROD with BILLS 21 (2) CONFORMING AMENDMENTS.—(A) 22 2204(d) of title 44, United States Code, is amended 23 by inserting ‘‘, except section 2208,’’ after ‘‘chap- 24 ter’’. •HR 1233 RS VerDate Mar 15 2010 Section 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 7 1 2 (B) Section 2205 of title 44, United States Code, is amended— 3 (i) in the matter preceding paragraph (1), 4 by striking ‘‘section 2204’’ and inserting ‘‘sec- 5 tions 2204 and 2208 of this title’’; and 6 (ii) in paragraph (2)(A), by striking ‘‘sub- 7 pena’’ and inserting ‘‘subpoena’’. 8 (C) Section 2207 of title 44, United States 9 Code, is amended in the second sentence by insert- 10 ing ‘‘, except section 2208,’’ after ‘‘chapter’’. 11 (3) CLERICAL AMENDMENT.—The table of sec- 12 tions at the beginning of chapter 22 of title 44, 13 United States Code, is amended by adding at the 14 end the following: ‘‘2208. Claims of constitutionally based privilege against disclosure.’’. tjames on DSK5VPTVN1PROD with BILLS 15 (4) RULE OF CONSTRUCTION.—Nothing 16 amendment made by paragraph (2)(C) shall be con- 17 strued to— 18 (A) affect the requirement of section 2207 19 of title 44, United States Code, that Vice Presi- 20 dential records shall be subject to chapter 22 of 21 that title in the same manner as Presidential 22 records; or 23 (B) affect any claim of constitutionally 24 based privilege by a President or former Presi- 25 dent with respect to a Vice Presidential record. •HR 1233 RS VerDate Mar 15 2010 in the 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 8 1 (b) DEFINITIONS.—Section 2201 of title 44, United 2 States Code, is amended— 3 (1) in paragraph (1)— 4 (A) by striking ‘‘memorandums’’ and in- 5 serting ‘‘memoranda’’; 6 (B) by striking ‘‘audio, audiovisual’’ and 7 inserting ‘‘audio and visual records’’; and 8 (C) by inserting ‘‘, whether in analog, dig- 9 ital, or any other form’’ after ‘‘mechanical 10 recordations’’; and 11 (2) in paragraph (2), by striking ‘‘advise and 12 assist’’ and inserting ‘‘advise or assist’’. 13 (c) MANAGEMENT AND CUSTODY OF PRESIDENTIAL 14 RECORDS.—Section 2203 of title 44, United States Code, 15 is amended— 16 17 (1) in subsection (a), by striking ‘‘maintained’’ and inserting ‘‘preserved and maintained’’; 18 19 (2) in subsection (b), by striking ‘‘advise and assist’’ and inserting ‘‘advise or assist’’; 20 21 (3) by redesignating subsection (f) as subsection (g); tjames on DSK5VPTVN1PROD with BILLS 22 (4) by inserting after subsection (e) the fol- 23 lowing new subsection: 24 ‘‘(f) During a President’s term of office, the Archivist 25 may maintain and preserve Presidential records on behalf •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 9 1 of the President, including records in digital or electronic 2 form. The President shall remain exclusively responsible 3 for custody, control, and access to such Presidential 4 records. The Archivist may not disclose any such records, 5 except under direction of the President, until the conclu6 sion of a President’s term of office, if a President serves 7 consecutive terms upon the conclusion of the last term, 8 or such other period provided for under section 2204 of 9 this title.’’; and 10 (5) in subsection (g)(1), as so redesignated, by 11 striking ‘‘Act’’ and inserting ‘‘chapter’’. 12 (d) RESTRICTIONS ON ACCESS TO PRESIDENTIAL 13 RECORDS.—Section 2204 of title 44, United States Code, 14 is amended by adding at the end the following new sub15 section: 16 ‘‘(f) The Archivist shall not make available any origi- 17 nal Presidential records to any individual claiming access 18 to any Presidential record as a designated representative 19 under section 2205(3) of this title if that individual has 20 been convicted of a crime relating to the review, retention, 21 removal, or destruction of records of the Archives.’’. 22 tjames on DSK5VPTVN1PROD with BILLS 23 (e) DISCLOSURE REQUIREMENT FOR OFFICIAL BUSINESS CONDUCTED USING NON-OFFICIAL ELECTRONIC 24 MESSAGING ACCOUNT.— •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 10 1 (1) AMENDMENT.—Chapter 22 of title 44, 2 United States Code, as amended by subsection 3 (a)(1), is further amended by adding at the end the 4 following new section: 5 ‘‘§ 2209. Disclosure requirement for official business 6 conducted using non-official electronic 7 messaging accounts 8 ‘‘(a) IN GENERAL.—An officer or employee of an ex- 9 ecutive agency may not create or send a Presidential 10 record using a non-official electronic messaging account 11 unless such officer or employee— 12 ‘‘(1) copies an official electronic messaging ac- 13 count of the officer or employee in the original cre- 14 ation or transmission of the Presidential record; or 15 ‘‘(2) forwards a complete copy of the Presi- 16 dential record to an official electronic messaging ac- 17 count of the officer or employee within five days 18 after the original creation or transmission of the 19 Presidential record. 20 ‘‘(a) IN GENERAL.—The President, the Vice President, 21 or a covered employee may not create or send a Presidential 22 or Vice Presidential record using a non-official electronic tjames on DSK5VPTVN1PROD with BILLS 23 message account unless the President, Vice President, or 24 covered employee— •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\H1233.RS H1233 11 1 ‘‘(1) copies an official electronic messaging ac- 2 count of the President, Vice President, or covered em- 3 ployee in the original creation or transmission of the 4 Presidential record or Vice Presidential record; or 5 ‘‘(2) forwards a complete copy of the Presidential 6 or Vice Presidential record to an official electronic 7 messaging account of the President, Vice President, or 8 covered employee not later than 20 days after the 9 original creation or transmission of the Presidential 10 or Vice Presidential record. 11 ‘‘(b) ADVERSE ACTIONS.—The intentional violation 12 of subsection (a) by a covered employee (including any 13 rules, regulations, or other implementing guidelines), as 14 determined by the appropriate supervisor, shall be a basis 15 for disciplinary action in accordance with subchapter I, II, 16 or V of chapter 75 of title 5, as the case may be. 17 ‘‘(c) DEFINITIONS.—In this section: 18 19 ‘‘(1) COVERED term ‘covered employee’ means— 20 ‘‘(A) the immediate staff of the President; 21 ‘‘(B) the immediate staff of the Vice Presi- 22 tjames on DSK5VPTVN1PROD with BILLS EMPLOYEE.—The dent; 23 ‘‘(C) a unit or individual of the Executive 24 Office of the President whose function is to ad- 25 vise and assist the President; and •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\H1233.RS H1233 12 1 ‘‘(D) a unit or individual of the Office of 2 the Vice President whose function is to advise 3 and assist the Vice President. 4 ‘‘(1)(2) ELECTRONIC MESSAGES.—The term 5 ‘electronic messages’ means electronic mail and 6 other electronic messaging systems that are used for 7 purposes of communicating between individuals. 8 9 10 ‘‘(2)(3) ELECTRONIC MESSAGING ACCOUNT.— The term ‘electronic messaging account’ means any account that sends electronic messages. 11 ‘‘(3) EXECUTIVE AGENCY.—The term ‘executive 12 agency’ has the meaning given that term in section 13 105 of title 5.’’. 14 (2) CLERICAL AMENDMENT.—The table of sec- 15 tions at the beginning of chapter 22 of title 44, 16 United States Code, as amended by subsection 17 (a)(3), is further amended by adding at the end the 18 following new item: ‘‘2209. Disclosure requirement for official business conducted using non-official electronic messaging accounts.’’. 19 SEC. 3. NATIONAL ARCHIVES AND RECORDS ADMINISTRA- 20 21 TION. (a) ACCEPTANCE OF RECORDS FOR HISTORICAL tjames on DSK5VPTVN1PROD with BILLS 22 PRESERVATION.—Section 2107 of title 44, United States 23 Code, is amended to read as follows: •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 13 1 ‘‘§ 2107. Acceptance of records for historical preser2 3 vation ‘‘(a) IN GENERAL.—When it appears to the Archivist tjames on DSK5VPTVN1PROD with BILLS 4 to be in the public interest, the Archivist may— 5 ‘‘(1) accept for deposit with the National Ar- 6 chives of the United States the records of a Federal 7 agency, the Congress, the Architect of the Capitol, 8 or the Supreme Court determined by the Archivist 9 to have sufficient historical or other value to warrant 10 their continued preservation by the United States 11 Government; 12 ‘‘(2) direct and effect the transfer of records of 13 a Federal agency determined by the Archivist to 14 have sufficient historical or other value to warrant 15 their continued preservation by the United States 16 Government to the National Archives of the United 17 States, as soon as practicable, and at a time mutu- 18 ally agreed upon by the Archivist and the head of 19 that Federal agency not later than thirty years after 20 such records were created or received by that agen- 21 cy, unless the head of such agency has certified in 22 writing to the Archivist that such records must be 23 retained in the custody of such agency for use in the 24 conduct of the regular business of the agency; 25 ‘‘(3) direct and effect, with the approval of the 26 head of the originating Federal agency, or if the ex•HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 14 1 istence of the agency has been terminated, with the 2 approval of the head of that agency’s successor in 3 function, if any, the transfer of records, deposited or 4 approved for deposit with the National Archives of 5 the United States to public or educational institu- 6 tions or associations; title to the records to remain 7 vested in the United States unless otherwise author- 8 ized by Congress; and 9 ‘‘(4) transfer materials from private sources au- 10 thorized to be received by the Archivist by section 11 2111 of this title. 12 ‘‘(b) EARLY TRANSFER OF RECORDS.—The Archi- 13 vist— 14 ‘‘(1) in consultation with the head of the origi- 15 nating Federal agency, is authorized to accept a 16 copy of the records described in subsection (a)(2) 17 that have been in existence for less than thirty 18 years; and 19 20 ‘‘(2) may not disclose any such records until the expiration of— 21 ‘‘(A) the thirty-year period described in 22 paragraph (1); tjames on DSK5VPTVN1PROD with BILLS 23 ‘‘(B) any longer period established by the 24 Archivist by order; or •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 15 1 ‘‘(C) any shorter period agreed to by the 2 3 originating Federal agency.’’. (b) MATERIAL ACCEPTED FOR DEPOSIT.—Section 4 2111 of title 44, United States Code, is amended to read 5 as follows: 6 ‘‘§ 2111. Material accepted for deposit 7 ‘‘(a) IN GENERAL.—When the Archivist considers it 8 to be in the public interest the Archivist may accept for tjames on DSK5VPTVN1PROD with BILLS 9 deposit— 10 ‘‘(1) the papers and other historical materials 11 of a President or former President of the United 12 States, or other official or former official of the Gov- 13 ernment, and other papers relating to and contem- 14 porary with a President or former President of the 15 United States, subject to restrictions agreeable to 16 the Archivist as to their use; and 17 ‘‘(2) recorded information (as such term is de- 18 fined in section 3301(a)(2) of this title) from private 19 sources that are appropriate for preservation by the 20 Government as evidence of its organization, func- 21 tions, policies, decisions, procedures, and trans- 22 actions. 23 ‘‘(b) EXCEPTION.—This section shall not apply in the 24 case of any Presidential records which are subject to the 25 provisions of chapter 22 of this title.’’. •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 16 1 (c) PRESERVATION OF AUDIO AND VISUAL 2 RECORDS.— 3 4 (1) IN GENERAL.—Section 2114 of title 44, United States Code, is amended to read as follows: 5 ‘‘§ 2114. Preservation of audio and visual records 6 ‘‘The Archivist may make and preserve audio and vis- 7 ual records, including motion-picture films, still photo8 graphs, and sound recordings, in analog, digital, or any 9 other form, pertaining to and illustrative of the historical 10 development of the United States Government and its ac11 tivities, and provide for preparing, editing, titling, scoring, 12 processing, duplicating, reproducing, exhibiting, and re13 leasing for non-profit educational purposes, motion-picture 14 films, still photographs, and sound recordings in the Ar15 chivist’s custody.’’. 16 (2) CLERICAL AMENDMENT.—The table of sec- 17 tions at the beginning of chapter 21 of title 44, 18 United States Code, is amended by striking the item 19 for section 2114 and inserting the following: ‘‘2114. Preservation of audio and visual records.’’. 20 (d) LEGAL STATUS 21 SEAL; FEES FOR COPIES OF REPRODUCTIONS; OFFICIAL AND REPRODUCTIONS.—Section tjames on DSK5VPTVN1PROD with BILLS 22 2116(a) of title 44, United States Code, is amended by 23 inserting ‘‘digital,’’ after ‘‘microphotographic,’’, each place 24 it appears. •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 17 1 2 SEC. 4. RECORDS MANAGEMENT BY FEDERAL AGENCIES. Section 3106 of title 44, United States Code, is 3 amended to read as follows: 4 ‘‘§ 3106. Unlawful removal, destruction of records 5 ‘‘(a) FEDERAL AGENCY NOTIFICATION.—The head 6 of each Federal agency shall notify the Archivist of any 7 actual, impending, or threatened unlawful removal, defac8 ing, alteration, corruption, deletion, erasure, or other de9 struction of records in the custody of the agency, and with 10 the assistance of the Archivist shall initiate action through 11 the Attorney General for the recovery of records the head 12 of the Federal agency knows or has reason to believe have 13 been unlawfully removed from that agency, or from an14 other Federal agency whose records have been transferred 15 to the legal custody of that Federal agency. 16 ‘‘(b) ARCHIVIST NOTIFICATION.—In any case in 17 which the head of a Federal agency does not initiate an 18 action for such recovery or other redress within a reason19 able period of time after being notified of any such unlaw20 ful action described in subsection (a), or is participating 21 in, or believed to be participating in any such unlawful 22 action, the Archivist shall request the Attorney General tjames on DSK5VPTVN1PROD with BILLS 23 to initiate such an action, and shall notify the Congress 24 when such a request has been made.’’. •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 18 1 2 SEC. 5. DISPOSAL OF RECORDS. (a) DEFINITION OF RECORDS.—Section 3301 of title 3 44, United States Code, is amended to read as follows: 4 ‘‘§ 3301. Definition of records 5 ‘‘(a) RECORDS DEFINED.— 6 ‘‘(1) IN 7 term ‘records’— used in this chapter, the 8 ‘‘(A) includes all recorded information, re- 9 gardless of form or characteristics, made or re- 10 ceived by a Federal agency under Federal law 11 or in connection with the transaction of public 12 business and preserved or appropriate for pres- 13 ervation by that agency or its legitimate suc- 14 cessor as evidence of the organization, func- 15 tions, policies, decisions, procedures, operations, 16 or other activities of the United States Govern- 17 ment or because of the informational value of 18 data in them; and 19 ‘‘(B) does not include— 20 ‘‘(i) library and museum material 21 made or acquired and preserved solely for 22 reference or exhibition purposes; or 23 tjames on DSK5VPTVN1PROD with BILLS GENERAL.—As ‘‘(ii) duplicate copies of records pre- 24 served only for convenience. 25 26 ‘‘(2) RECORDED INFORMATION DEFINED.—For purposes of paragraph (1), the term ‘recorded infor•HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 19 1 mation’ includes all traditional forms of records, re- 2 gardless of physical form or characteristics, includ- 3 ing 4 nicated, or stored in digital or electronic form. 5 ‘‘(b) DETERMINATION information created, OF manipulated, commu- DEFINITION.—The Archi- 6 vist’s determination whether recorded information, regard7 less of whether it exists in physical, digital, or electronic 8 form, is a record as defined in subsection (a) shall be bind9 ing on all Federal agencies.’’. 10 (b) REGULATIONS COVERING LISTS 11 FOR 12 ARDS FOR DISPOSAL, PROCEDURE FOR OF DISPOSAL, RECORDS AND STAND- REPRODUCTION.—Section 3302(3) of title 44, 13 United States Code, is amended by striking ‘‘photographic 14 or microphotographic processes’’ and inserting ‘‘photo15 graphic, microphotographic, or digital processes’’. 16 (c) LISTS 17 SUBMITTED 18 ERNMENT AND TO THE SCHEDULES ARCHIVIST BY OF RECORDS TO BE HEAD OF EACH GOV- AGENCY.—Section 3303(1) of title 44, United 19 States Code, is amended by striking ‘‘photographed or 20 microphotographed’’ and inserting ‘‘photographed, micro21 photographed, or digitized’’. 22 (d) EXAMINATION tjames on DSK5VPTVN1PROD with BILLS 23 SCHEDULES OF BY ARCHIVIST OF LISTS AND RECORDS LACKING PRESERVATION 24 VALUE; DISPOSAL OF RECORDS.—Section 3303a(c) of 25 title 44, United States Code, is amended by striking ‘‘the •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 20 1 Committee on Rules and Administration of the Senate and 2 the Committee on House Oversight of the House of Rep3 resentatives’’ and inserting ‘‘the Committee on Oversight 4 and Government Reform of the House of Representatives 5 and the Committee on Homeland Security and Govern6 mental Affairs of the Senate’’. 7 (e) PHOTOGRAPHS 8 RECORDS CONSIDERED 9 PRODUCTIONS MICROPHOTOGRAPHS OR AS ADMISSIBLE OF ORIGINALS; CERTIFIED REIN EVIDENCE.—Section 3312 10 of title 44, United States Code, is amended— 11 (1) in the first sentence, by striking ‘‘Photo- 12 graphs or microphotographs of records’’ and insert- 13 ing ‘‘Photographs, microphotographs of records, or 14 digitized records’’; and 15 (2) in the second sentence, by striking ‘‘photo- 16 graphs or microphotographs’’ and inserting ‘‘photo- 17 graphs, microphotographs, or digitized records’’, 18 each place it appears. 19 SEC. 6. PROCEDURES TO PREVENT UNAUTHORIZED RE- 20 MOVAL OF CLASSIFIED RECORDS FROM NA- 21 TIONAL ARCHIVES. 22 (a) CLASSIFIED RECORDS.—Not later than 90 days tjames on DSK5VPTVN1PROD with BILLS 23 after the date of the enactment of this Act, the Archivist 24 shall prescribe internal procedures to prevent the unau25 thorized removal of classified records from the National •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 21 1 Archives and Records Administration or the destruction 2 or damage of such records, including when such records 3 are accessed or searched electronically. Such procedures tjames on DSK5VPTVN1PROD with BILLS 4 shall include, at a minimum, the following prohibitions: 5 (1) An individual, other than covered personnel, 6 may not view classified records in any room that is 7 not secure, except in the presence of National Ar- 8 chives and Records Administration personnel or 9 under video surveillance. 10 (2) An individual, other than covered personnel, 11 may not be left alone with classified records, unless 12 that individual is under video surveillance. 13 (3) An individual, other than covered personnel, 14 may not review classified records while possessing 15 any cellular phone, electronic personal communica- 16 tion device, or any other devices capable of 17 photographing, recording, or transferring images or 18 content. 19 (4) An individual seeking access to review clas- 20 sified records, as a precondition to such access, must 21 consent to a search of their belongings upon conclu- 22 sion of their records review. 23 (5) All notes and other writings prepared by an 24 individual, other than covered personnel, during the 25 course of a review of classified records shall be re- •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 22 1 tained by the National Archives and Records Admin- 2 istration in a secure facility until such notes and 3 other writings are determined to be unclassified, are 4 declassified, or are securely transferred to another 5 secure facility. 6 (b) DEFINITIONS.—In this section: 7 tjames on DSK5VPTVN1PROD with BILLS 8 (1) COVERED PERSONNEL.—The term ‘‘covered personnel’’ means any individual— 9 (A) who has an appropriate and necessary 10 reason for accessing classified records, as deter- 11 mined by the Archivist; and 12 (B) who is either— 13 (i) an officer or employee of the 14 United States Government with appro- 15 priate security clearances; or 16 (ii) any personnel with appropriate se- 17 curity clearances of a Federal contractor 18 authorized in writing to act for purposes of 19 this section by an officer or employee of 20 the United States Government. 21 (2) RECORDS.—The term ‘‘records’’ has the 22 meaning given that term under section 3301 of title 23 44, United States Code. •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 23 1 SEC. 7. REPEAL OF PROVISIONS RELATED TO THE NA- 2 TIONAL STUDY COMMISSION ON RECORDS 3 AND DOCUMENTS OF FEDERAL OFFICIALS. 4 (a) IN GENERAL.—Sections 3315 through 3324 of 5 title 44, United States Code, are repealed. 6 (b) CLERICAL AMENDMENT.—The table of sections 7 at the beginning of chapter 33 of title 44, United States 8 Code, is amended by striking the items relating to sections 9 3315 through 3324. 10 11 SEC. 8. PRONOUN AMENDMENTS. Title 44, United States Code, is amended— 12 13 (1) in section 2116(c), by striking ‘‘his’’ and inserting ‘‘the Archivist’s’’; 14 15 (2) in section 2201(2), by striking ‘‘his’’ and inserting ‘‘the President’s’’, each place it appears; 16 (3) in section 2203— 17 (A) in subsection (a), by striking ‘‘his’’ and 18 inserting ‘‘the President’s’’; 19 (B) in subsection (b), by striking ‘‘his’’ 20 and inserting ‘‘the President’s’’; 21 (C) in subsection (c)— 22 (i) in the matter preceding paragraph tjames on DSK5VPTVN1PROD with BILLS 23 (1)— 24 (I) by striking ‘‘his’’ and insert- 25 ing ‘‘the President’s’’; and •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 24 1 (II) by striking ‘‘those of his 2 Presidential records’’ and inserting 3 ‘‘those Presidential records of such 4 President’’; and 5 (ii) in paragraph (2), by striking ‘‘he’’ 6 and inserting ‘‘the Archivist’’; 7 (D) in subsection (d), by striking ‘‘he’’ and 8 inserting ‘‘the Archivist’’; 9 (E) in subsection (e), by striking ‘‘he’’ and 10 inserting ‘‘the Archivist’’; and 11 (F) in subsection (g), as so redesignated, 12 by striking ‘‘he’’ and inserting ‘‘the Archivist’’; 13 (4) in section 2204— 14 (A) in subsection (a)— 15 (i) in the matter preceding paragraph 16 (1), by striking ‘‘his’’ and inserting ‘‘a 17 President’s’’; and 18 (ii) in paragraph (5), by striking 19 ‘‘his’’ and inserting ‘‘the President’s’’; and 20 (B) in subsection (b)— 21 (i) in paragraph (1)(B), by striking 22 ‘‘his’’ and inserting ‘‘the President’s’’; and tjames on DSK5VPTVN1PROD with BILLS 23 (ii) in paragraph (3)— •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 25 1 (I) by striking ‘‘his’’the first 2 place it appears and inserting ‘‘the 3 Archivist’s’’; and 4 (II) by striking ‘‘his designee’’ 5 and inserting ‘‘the Archivist’s des- 6 ignee’’; 7 (5) in section 2205— 8 (A) in paragraph (2)(B), by striking ‘‘his’’ 9 and inserting ‘‘the incumbent President’s’’; and 10 (B) in paragraph (3), by striking ‘‘his’’ 11 and inserting ‘‘the former President’s’’; 12 (6) in section 2901(11), by striking ‘‘his’’ and 13 inserting ‘‘the Archivist’s’’; 14 15 (7) in section 2904(c)(6), by striking ‘‘his’’ and inserting ‘‘the Archivist’s’’; 16 (8) in section 2905(a)— 17 (A) by striking ‘‘He’’ and inserting ‘‘The 18 Archivist’’; and 19 (B) by striking ‘‘his’’ and inserting ‘‘the 20 Archivist’s’’; 21 (9) in section 3103, by striking ‘‘he’’ and in- 22 serting ‘‘the head of such agency’’; tjames on DSK5VPTVN1PROD with BILLS 23 (10) in section 3104— 24 (A) by striking ‘‘his’’ the first place it ap- 25 pears and inserting ‘‘such official’s’’; and •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 26 1 (B) by striking ‘‘him or his’’ and inserting 2 ‘‘such official or such official’s’’; 3 (11) in section 3105, by striking ‘‘he’’ and in- 4 serting ‘‘the head of such agency’’; 5 6 (12) in section 3302(1), by striking ‘‘him’’ and inserting ‘‘the Archivist’’; and 7 (13) in section 3303a— 8 (A) in subsection (a)— 9 (i) by striking ‘‘him’’ and inserting 10 ‘‘the Archivist’’, each place it appears; and 11 (ii) by striking ‘‘he’’ and inserting 12 ‘‘the Archivist’’; 13 (B) in subsection (c), by striking ‘‘he’’ and 14 inserting ‘‘the Archivist’’; 15 (C) in subsection (e), by striking ‘‘his’’ and 16 inserting ‘‘the Archivist’s’’; and 17 (D) in subsection (f), by striking ‘‘he’’ and 18 19 20 inserting ‘‘the Archivist’’. SEC. 9. RECORDS MANAGEMENT BY THE ARCHIVIST. (a) OBJECTIVES OF RECORDS MANAGEMENT.—Sec- tjames on DSK5VPTVN1PROD with BILLS 21 tion 2902 of title 44, United States Code, is amended— 22 (1) in paragraph (4), by striking ‘‘creation and 23 of records maintenance and use’’ and inserting ‘‘cre- 24 ation, maintenance, transfer, and use’’; •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 27 1 (2) in paragraph (6), by inserting after ‘‘Fed- 2 eral paperwork’’ the following: ‘‘and the transfer of 3 records from Federal agencies to the National Ar- 4 chives of the United States in digital or electronic 5 form to the greatest extent possible’’; and 6 (3) in paragraph (7), by striking ‘‘the Adminis- 7 trator or’’. 8 (b) RECORDS CENTERS 9 FILMING 10 11 AND CENTRALIZED MICRO- SERVICES.— (1) AMENDMENT.—Section 2907 of title 44, United States Code, is amended— 12 (A) in the section heading by inserting ‘‘or digitization’’ after ‘‘microfilming’’; and 13 14 (B) by inserting ‘‘or digitization’’ after 15 ‘‘microfilming’’. 16 (2) CONFORMING AMENDMENT.—The table of 17 sections at the beginning of chapter 29 of title 44, 18 United States Code, is amended in the item relating 19 to section 2907 by inserting ‘‘or digitization’’ after 20 ‘‘microfilming’’. 21 (c) GENERAL RESPONSIBILITIES FOR RECORDS 22 MANAGEMENT.—Section 2904 of title 44, United States tjames on DSK5VPTVN1PROD with BILLS 23 Code, is amended— 24 25 (1) in subsection (b), by striking ‘‘The Administrator’’ and inserting ‘‘The Archivist’’; •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 28 1 (2) in subsection (c)— 2 (A) in the matter preceding paragraph 3 (1)— 4 (i) by striking ‘‘their’’ and inserting 5 ‘‘the’’; 6 (ii) by striking ‘‘subsection (a) or (b), 7 respectively’’ and inserting ‘‘subsections 8 (a) and (b)’’; 9 (iii) by striking ‘‘and the Adminis- 10 trator’’; and 11 (iv) by striking ‘‘each’’; and 12 (B) in paragraph (8), by striking ‘‘or the 13 Administrator (as the case may be)’’; and 14 (3) subsection (d) is amended to read as fol- 15 lows: 16 ‘‘(d) The Archivist shall promulgate regulations re- 17 quiring all Federal agencies to transfer all digital or elec18 tronic records to the National Archives of the United 19 States in digital or electronic form to the greatest extent 20 possible.’’. 21 (d) INSPECTION OF AGENCY RECORDS.—Section 22 2906 of title 44, United States Code, is amended— tjames on DSK5VPTVN1PROD with BILLS 23 (1) in subsection (a)— 24 (A) in paragraph (1)— •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 29 1 (i) by striking ‘‘their respective’’ and 2 inserting ‘‘the’’; 3 (ii) by striking ‘‘the Administrator of 4 General Services and’’; 5 (iii) by striking ‘‘designee of either’’ 6 and inserting ‘‘the Archivist’s designee’’; 7 (iv) by striking ‘‘solely’’; and 8 (v) by inserting after ‘‘for the im- 9 provement of records management prac- 10 tices and programs’’ the following: ‘‘and 11 for determining whether the records of 12 Federal agencies have sufficient value to 13 warrant continued preservation or lack suf- 14 ficient value to justify continued preserva- 15 tion’’; 16 (B) in paragraph (2)— 17 (i) by striking ‘‘the Administrator 18 and’’; and 19 (ii) by striking the second sentence; 20 and 21 (C) in paragraph (3)— 22 (i) in the matter preceding subpara- tjames on DSK5VPTVN1PROD with BILLS 23 graph (A)— 24 (I) by striking ‘‘the Adminis- 25 trator or’’; and •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 30 1 (II) by striking ‘‘designee of ei- 2 ther’’ and inserting ‘‘Archivist’s des- 3 ignee’’; and 4 (ii) in subparagraph (A), by striking 5 ‘‘the Administrator, the Archivist,’’ and in- 6 serting ‘‘the Archivist’’; and 7 (2) in subsection (b)— 8 (A) by striking ‘‘the Administrator and’’; 9 and 10 (B) by striking ‘‘designee of either’’ and 11 12 inserting ‘‘Archivist’s designee’’. (e) REPORTS; CORRECTION OF VIOLATIONS.—Sec- 13 tion 2115 of title 44, United States Code, is amended— 14 (1) in subsection (a)— 15 (A) by striking ‘‘their respective’’ and in- 16 serting ‘‘the’’; 17 (B) by striking ‘‘and the Administrator’’; 18 and 19 (C) by striking ‘‘each’’; and 20 (2) in subsection (b)— 21 (A) by striking ‘‘either’’; 22 (B) by striking ‘‘or the Administrator’’, tjames on DSK5VPTVN1PROD with BILLS 23 each place it appears; and 24 (C) by striking ‘‘inaugurated’’ and insert- 25 ing ‘‘demonstrably commenced’’. •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 31 1 (f) RECORDS MANAGEMENT BY THE ARCHIVIST.—. 2 (1) AMENDMENT.—The heading for chapter 29 3 of title 44, United States Code, is amended by strik- 4 ing ‘‘AND BY THE ADMINISTRATOR OF 5 GENERAL SERVICES’’. 6 (2) CONFORMING AMENDMENT.—The table of 7 chapters at the beginning of title 44, United States 8 Code, is amended in the item related to chapter 29 9 by striking ‘‘and by the Administrator of General 10 Services’’. 11 (g) ESTABLISHMENT 12 MENT.—Section OF PROGRAM OF MANAGE- 3102(2) of title 44, United States Code, 13 is amended by striking ‘‘the Administrator of General 14 Services and’’. 15 SEC. 10. DISCLOSURE REQUIREMENT FOR OFFICIAL BUSI- 16 NESS 17 ELECTRONIC MESSAGING ACCOUNT. 18 (a) AMENDMENT.—Chapter 29 of title 44, United CONDUCTED USING NON-OFFICIAL 19 States Code is amended by adding at the end the following 20 new section: tjames on DSK5VPTVN1PROD with BILLS 21 ‘‘§ 2911. Disclosure requirement for official business 22 conducted using non-official electronic 23 messaging accounts 24 ‘‘(a) IN GENERAL.—An officer or employee of an ex- 25 ecutive agency may not create or send a record using a •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 32 1 non-official electronic messaging account unless such offi2 cer or employee— 3 ‘‘(1) copies an official electronic messaging ac- 4 count of the officer or employee in the original cre- 5 ation or transmission of the record; or 6 ‘‘(2) forwards a complete copy of the record to 7 an official electronic messaging account of the offi- 8 cer or employee within five days not later than 20 9 days after the original creation or transmission of 10 the record. 11 ‘‘(b) ADVERSE ACTIONS.—The intentional violation 12 of subsection (a) (including any rules, regulations, or other 13 implementing guidelines), as determined by the appro14 priate supervisor, shall be a basis for disciplinary action 15 in accordance with subchapter I, II, or V of chapter 75 16 of title 5, as the case may be. 17 ‘‘(c) DEFINITIONS.—In this section: 18 ‘‘(1) ELECTRONIC term ‘elec- 19 tronic messages’ means electronic mail and other 20 electronic messaging systems that are used for pur- 21 poses of communicating between individuals. 22 tjames on DSK5VPTVN1PROD with BILLS MESSAGES.—The ‘‘(2) ELECTRONIC MESSAGING ACCOUNT.—The 23 term ‘electronic messaging account’ means any ac- 24 count that sends electronic messages. •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\H1233.RS H1233 33 1 ‘‘(3) EXECUTIVE AGENCY.—The term ‘executive 2 agency’ has the meaning given that term in section 3 105 of title 5.’’. 4 (b) CLERICAL AMENDMENT.—The table of sections 5 at the beginning of chapter 29 of title 44, United States 6 Code, is amended by adding at the end the following new 7 item: tjames on DSK5VPTVN1PROD with BILLS ‘‘2911. Disclosure requirement for official business conducted using non-official electronic messaging accounts.’’. •HR 1233 RS VerDate Mar 15 2010 01:04 Jul 24, 2014 Jkt 039200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6211 E:\BILLS\H1233.RS H1233 Calendar No. 487 H. R. 1233 tjames on DSK5VPTVN1PROD with BILLS 113TH CONGRESS 2D SESSION [Report No. 113–218] AN ACT 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, and for other purposes. JULY 23, 2014 Reported with amendments H1233 E:\BILLS\H1233.RS Sfmt 6651 Fmt 6651 Frm 00034 PO 00000 Jkt 039200 01:04 Jul 24, 2014 VerDate Mar 15 2010