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Week Ending August 1, 2008

H.R.6193 Improving Public Access to Documents Act of 2008'

Congress finds that the use of “sensitive but unclassified” as a document control mark by Federal government agencies interferes with accurate, actionable and timely homeland security information sharing, increases the cost of information security, and needlessly limits public access to information. The marking has increased in use since 911 and reportedly causes confusion about what information can be shared and with whom in DHS or beyond.

The bill directs the Secretary of DHS to develop and administer policies, procedures, and programs within DHS to implement the CUI information framework in order to maximize the disclosure to the public of, and to standardize the use of that information marking on homeland security information, terrorism information within the scope of the information sharing environment codified in law.

Within 180 days the Secretary must create a standard format for unclassified finished intelligence products created by DHS that have been designated as CUI, consistent with any government-wide standards, practices or procedures for similar products. All unclassified finished intelligence products create must be designated as CUI must be prepared in the standard format whenever possible. The new policies and procedures must assure that privacy and legal rights of US persons are protected. AN ongoing auditing mechanism is to be put in place that randomly selects, on a periodic basis, CUI to assess whether applicable policies have been followed, describe problems and recommend improvements.

Also to be established is a process whereby employees may challenge the use of CUI markings and be rewarded with specific incentives for successfully challenging the status resulting in removal of the CUI mark. A process is to be created through which the public can seek removal of the CUI mark.

The Secretary is to establish a series of penalties, up to termination, for employees and contractors who fail to comply with policies and maintain a publicly available list of documents marked CUI and those that have been withheld from Freedom of Information Requests.

A document may be marked CUI only if a statute requires or authorizes the designation or the Secretary through regulations, directives or other specific guidance to the agency (submitted to and approved by the Archivist of the US) determines the information is CUI based on mission requirements business prudence, legal privilege, the protection of personal or commercial rights, safety, or security.

Documents may not be designated CUI to conceal violations of the law, inefficiency, or administrative error, to prevent embarrassment to the Federal government, any Federal official, any organization or agency, to improperly or unlawfully interfere with competition in the private sector, prevent or delay release of information that does not require such protections, if they are required to me made available to the public or if it has already been release to the public under proper authority.

Technologies must be assessed, selected and a timeline to deployment is to be established on those technologies through which an electronic personal ID number of the employee or contractor with authority to apply the CUI designation in order to track which documents have been designated as CUI by any particular employee, determine the circumstances when the documents have been shared, to identify and address misuse and misapplication, and assess the information sharing impact of any misuse.

Employee technology training and a report to Congress are ordered.

Sponsor:  Rep. Jane Harman (D-CA-36^th)

Vote: Passed House by voice vote July 30, 2008

Cost to the taxpayers: “CBO estimates that the cost of implementing H.R. 6193 would be less than $500,000 a year, assuming the availability of appropriated funds. Enacting the legislation would not affect direct spending or revenues”

Earmark Certification:  

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MORE INFORMATION

SEC. 2. FINDINGS.

Congress finds the following:

(1) The proliferation and widespread use of `sensitive but unclassified' (SBU) control markings by the Federal government interferes with accurate, actionable and timely homeland security information sharing, increases the cost of information security, and needlessly limits public access to information.

(2) The control markings problem, which has worsened since the 9/11 attacks, causes considerable confusion about what information can be shared with whom both internally at the Department of Homeland Security and with its external partners. This problem negatively impacts the dissemination of homeland security information to the Department's State, local, and tribal homeland security, law enforcement, and private sector customers, and the public.

(3) Overuse of `sensitive but unclassified' markings stands in the way of a safer and more secure homeland. This trend is antithetical to the creation and operation of the information sharing environment established under section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), and must be halted and reversed.

(4) To do so, the Department should start with the presumption that all homeland security information that is not properly classified, or marked as controlled unclassified information and otherwise exempt from disclosure, should be shared with the public pursuant to section 552 of title 5, United States Code (commonly referred to as the `Freedom of Information Act').

(5) The Department should also develop and administer policies, procedures, and programs that promote compliance with applicable laws, executive orders, and other authorities pertaining to the proper use of controlled unclassified information markings and the United States National Archives and Records Administration policies implementing them.

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