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Transparency In Government Act 2008 (Revised)

10 section comments

Title VI - Executive Branch Transparency

Sec. 601. Reporting requirements and online disclosure relating to significant contacts.

  1. In General- The Ethics in Government Act of 1978 (5 U.S.C. App. 4) is amended by adding at the end the following new title:

    1. `TITLE VI--EXECUTIVE BRANCH DISCLOSURE OF SIGNIFICANT CONTACTS

    2. `SEC. 601. RECORDING AND REPORTING BY CERTAIN EXECUTIVE BRANCH OFFICIALS OF SIGNIFICANT CONTACTS MADE TO THOSE OFFICIALS.

      1. `(a) In General- Not later than 10 days after the end of each month, each covered executive branch official shall make a record of, and file with the Office of Government Ethics a report on, any significant contacts during the quarter between the covered executive branch official and any private party relating to an official government action. If no such contacts occurred, each such official shall make a record of, and file with the Office a report on, this fact, at the same time.

      2. `(b) Contents of Record and Report- Each record made, and each report filed, under subsection (a) shall contain--

        1. `(1) the name of the covered executive branch official;

        2. `(2) the name of each private party who had a significant contact with that official; and

        3. `(3) for each private party so named, a summary of the nature of the contact, including--

          1. `(A) the date of the contact;

          2. `(B) the subject matter of the contact and the specific executive branch action to which the contact relates; and

          3. `(C) if the contact was made on behalf of a client, the name of the client.

      3. `(c) Withholding FOIA-Exempt Information- This section does not require the filing with the Office of Government Ethics of information that is exempt from public disclosure under section 552(b) of title 5, United States Code (popularly referred to as the `Freedom of Information Act').

    3. `SEC. 602. AUTHORITIES AND RESPONSIBILITIES OF OFFICE OF GOVERNMENT ETHICS.

      1. `(a) In General- The Director of the Office of Government Ethics shall--

        1. `(1) promulgate regulations to implement this title, provide guidance and assistance on the recording and reporting requirements of this title, and develop common standards, rules, and procedures for compliance with this title;

        2. `(2) review, and, where necessary, verify the accuracy, completeness, and timeliness of reports;

        3. `(3) develop filing, coding, and cross-indexing systems to carry out the purpose of this title, including--

          1. `(A) a publicly available list of all private parties who made a significant contact; and

          2. `(B) computerized systems designed to minimize the burden of filing and maximize public access to reports filed under this title;

        4. `(4) make the reports filed under this title available to the public in a searchable, sortable, downloadable database format on the OGE Web site.

        5. `(5) retain reports for a period of at least six years after they are filed;

        6. `(6) compile and summarize, with respect to each reporting period, the information contained in reports filed with respect to such period in a clear and complete manner;

        7. `(7) notify any covered executive branch official in writing that may be in noncompliance with this title; and

        8. `(8) notify the United States Attorney for the District of Columbia that a covered executive branch official may be in noncompliance with this title, if the covered executive branch official has been notified in writing and has failed to provide an appropriate response within 60 days after notice was given under paragraph (7).

    4. `SEC. 603. PENALTIES.

      1. `(a) Violation- Whoever violates this title shall be subject to administrative sanctions, up to and including termination of employment.

      2. `(b) Deliberate Attempt To Conceal- Whoever deliberately attempts to conceal a significant contact in violation of this title shall upon proof of such deliberate violation by a preponderance of the evidence, be subject to a civil fine of not more than $50,000, depending on the extent and gravity of the violation.

    5. `SEC. 604. DEFINITIONS.

      1. `In this title:

      2. `(1) COVERED EXECUTIVE BRANCH OFFICIAL- The term `covered executive branch official' means--

        1. `(A) any officer or employee serving in a position in level I, II, III, IV, or V of the Executive Schedule, as designated by statute or Executive Order;

        2. `(B) any member of the uniformed services whose pay grade is at or above O-7 under section 201 of title 37, United States Code;

        3. `(C) any officer or employee serving in a position of a confidential, policy-determining, policy-making, or policy-advocating character described in section 7511(b)(2)(B) of title 5, United States Code;

        4. `(D) any noncareer appointee, as defined by section 3132(a)(7) of title 5, United States Code; and

        5. `(E) any officer or employee serving in a position of a confidential, policy-determining, policy-making, or policy advocating character, or any other individual functioning in the capacity of such an officer or employee, in the Executive Office of the President or the Office of the Vice President, but does not include the President or Vice President or the chief of staff of the President or Vice President.

      3. `(2) SIGNIFICANT CONTACT-

        1. `(A) IN GENERAL- Except as provided in subparagraph (B), the term `significant contact' means oral or written communication (including electronic communication) that is made by a private party to a covered executive branch official in which such private party seeks to influence official action by any officer or employee of the executive branch of the United States.

        2. `(B) EXCEPTION- The term `significant contact' does not include any communication that is an exception to the definition of `lobbying contact'--

          1. `(i) under clauses (i) through (vii) or clauses (ix) through (xix) of subparagraph (B) of paragraph (8) of section 3 of the Lobbying Disclosure Act of 1995 (2 U.S.C. 1602(8)(i)-(vii) or (ix)-(xix)); or

          2. `(ii) with respect to publicly available information only, under clause (viii) of subparagraph (B) of paragraph (8) of section 3 of the Lobbying Disclosure Act of 1995 (2 U.S.C. 1602(8)(viii)).

      4. `(3) PRIVATE PARTY- The term `private party' means any person or entity, but does not include a Federal, State, or local government official or a person representing such an official.'.

Sec. 602. Requirement for disclosure of Federal sponsorship of all Federal advertising or other communications.

  1. Requirement- Each advertisement or other communication paid for by an Executive agency, either directly or through a contract awarded by the Executive agency, shall include a prominent notice informing the target audience that the advertisement or other communication is paid for by that Executive agency.

  2. Advertisement or Other Communication- In this section, the term `advertisement or other communication' includes--

    1. an advertisement disseminated in any form, including print or by any electronic means; and

    2. a communication by an individual in any form, including speech, print, or by any electronic means.

  3. Executive Agency- In this section, the term `Executive agency' has the meaning provided in section 105 of title 5, United States Code.

Sec. 603. Eliminating the use of pseudo-classifications to withhold public information.

  1. Reports on the Proliferating Use of `Pseudo' Classification Designations-

    1. REPORT BY FEDERAL AGENCIES- Not later than six months after the date of the enactment of this Act, each Federal agency shall submit to the Archivist of the United States and the congressional committees described in subsection (d) a report describing the use of `pseudo' classification designations.

    2. MATTERS COVERED- Each such agency shall report on, at a minimum, the following:

      1. The number of `pseudo' classification designation policies used by the agency.

      2. Any existing guidance, instruction, directive, or regulations regarding the agency's use of `pseudo' classification designations.

      3. The number and level of experience and training of Federal agency, office, and contractor personnel authorized to make `pseudo' classification designations.

      4. The cost of placing and maintaining information under each `pseudo' classification designation.

      5. The extent to which information placed under `pseudo' classification designations has subsequently been released under section 552 of title 5, United States Code (popularly known as the Freedom of Information Act).

      6. The extent to which `pseudo' classification designations have been used to withhold from the public information that is not authorized to be withheld by Federal statute, or by an Executive Order relating to the classification of national security information.

      7. The statutory provisions described in subsection (c).

    3. REPORT BY THE ARCHIVIST OF THE UNITED STATES- Not later than nine months after the date of the enactment of this Act, the Archivist of the United States shall issue to the congressional committees described in subsection (d) a report on the use of `pseudo' classification designations across the executive branch that is based on the information provided by agencies, as well as input from the Director of National Intelligence, Federal agencies, offices, and contractors. All federal agencies, offices, and contractors shall cooperate fully and promptly with all requests by the Archivist in the fulfillment of this paragraph.

    4. NOTICE AND COMMENT- The Archivist shall provide notice and an opportunity for public comment on the report.

  2. Elimination of `Pseudo' Classification Designations-

    1. REGULATIONS- Not later than 15 months after the date of the enactment of this Act, the Archivist of the United States shall promulgate regulations banning the use of `pseudo' classification designations.

    2. STANDARDS FOR INFORMATION CONTROL DESIGNATIONS- If the Archivist determines that there is a need for some agencies to use information control designations to safeguard information prior to review for disclosure, beyond those designations established by statute or by an Executive Order relating to the classification of national security information, the regulations under paragraph (1) shall establish standards for the use of those designations by agencies. Such standards shall address, at a minimum, the following issues:

      1. Standards for utilizing the information control designations in a manner that is narrowly tailored to maximize public access to information.

      2. Procedures for providing specified Federal officials with authority to utilize the information control designations, including training and certification requirements.

      3. Categories of information that may be assigned the information control designations.

      4. The duration of the information control designations and the process by which they will be removed.

      5. Procedures for identifying, marking, dating, and tracking information assigned the information control designations, including the identity of officials making the designations.

      6. Specific limitations and prohibitions against using the information control designations.

      7. Procedures for members of the public to challenge the use of the information control designations.

      8. The manner in which the use of the information control designations relates to the procedures of each agency or office under section 552 of title 5, United States Code.

    3. REGULATION TO CONSTITUTE SOLE AUTHORITY- A regulation promulgated pursuant to this subsection shall constitute the sole authority by which Federal agencies, offices, or contractors are permitted to control information for the purposes of safeguarding information prior to review for disclosure, other than authority granted by Federal statute or by an Executive Order relating to the classification of national security information.

  3. Review of Statutory Barriers to Public Access Information-

    1. REVIEW OF STATUTES- As part of the report required under subsection (a)(3), the Archivist shall examine existing Federal statutes that allow Federal agencies, offices, or contractors to control, protect, or otherwise withhold information based on security concerns.

    2. RECOMMENDATIONS- The report shall make recommendations on potential changes to the Federal statutes examined under paragraph (1) that would improve public access to information governed by such statutes.

  4. Definitions- In this section:

    1. The term `congressional committees' means the Committees on Government Reform, Judiciary, Homeland Security, and Appropriations of the House of Representatives and the Committees on Homeland Security and Governmental Affairs, Judiciary, and Appropriations of the Senate.

    2. The term `pseudo' classification designations' means information control designations, including `sensitive but unclassified' and `for official use only', that are not defined by Federal statute, or by an Executive Order relating to the classification of national security information, but that are used to manage, direct, or route Government information, or control the accessibility of Government information, regardless of its form or format.

Sec. 604. Procedures for consideration of claims of constitutionally based privilege against disclosure.

  1. In General- Chapter 22 of title 44, United States Code, is amended by adding at the end the following:

    1. `Sec. 2208. Claims of constitutionally based privilege against disclosure

      1. `(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--

        1. `(A) promptly provide notice of such determination to--

          1. `(i) the former President during whose term of office the record was created; and

          2. `(ii) the incumbent President; and

        2. `(B) make the notice available to the public.

      2. `(2) The notice under paragraph (1)--

        1. `(A) shall be in writing; and

        2. `(B) shall include such information as may be prescribed in regulations issued by the Archivist.

      3. `(3)(A) Upon the expiration of the 20-day period (excepting Saturdays, Sundays, and legal public holidays) beginning on the date the Archivist provides notice under paragraph (1)(A), the Archivist shall make available to the 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 constitutionally based privilege against disclosure under subsection (b).

      4. `(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 Archivist a statement that such an extension is necessary to allow an adequate review of the record.

      5. `(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.

      6. `(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 incumbent President, as applicable.

      7. `(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 paragraph (1).

      8. `(c)(1) The Archivist shall not make publicly available 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.

      9. `(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).

      10. `(d)(1) The Archivist shall not make publicly available a presidential record that is subject to a privilege claim asserted by the incumbent President unless--

        1. `(A) the incumbent President withdraws the privilege claim; or

        2. `(B) the Archivist is otherwise directed by a final court order that is not subject to appeal.

      11. `(2) This subsection shall not apply with respect to any presidential record required to be made available under section 2205(2)(A) or (C).

      12. `(e) The Archivist shall adjust any otherwise applicable time period under this section as necessary to comply with the return date of any congressional subpoena, judicial subpoena, or judicial process.'.

  2. Restrictions- Section 2204 of title 44, United States Code (relating to restrictions on access to presidential records) is amended by adding at the end the following new subsection:

    1. `(f) The Archivist shall not make available any original 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.'.

Sec. 606. Prohibition on Secret Advisory Committees

  1. Definition- The term `Presidential inter-agency advisory committee' is any committee or task force that--

    1. is composed wholly of full-time, or permanent part-time, officers, or employees of the Federal Government;

    2. includes officers or employees of at least two separate Federal agencies;

    3. is established or utilized to provide advice, ideas, or recommendations to the President or Vice President on a specified topic or topics; and

    4. has at least one officer or employee assigned full-time as a staff member of the committee to support the functions of the committee.

  2. Requirements-

    1. The President shall ensure that the names of the members of the committee are published in the Federal Register.

    2. The committee must make public on the White House Web site, each substantive contact between the advisory committee, or individual members of the advisory committee acting on the committee's behalf, and any person who is not a full-time or permanent part-time officer or employee of the Federal Government, including--

      1. the date of the contact;

      2. the form of the contact (in person, by telephone, by e-mail, or in writing);

      3. the names and affiliations of the parties involved; and

      4. the substance of the communication and the communication itself, if in electronic or written form.

    3. For purposes of this subsection, a contact shall be considered substantive if the information conveyed influenced or was reflected in any way in the committee's advice, recommendations, or report to the President or Vice President.

  3. Applicability- The requirements of this section do not apply to substantive contacts exclusively with the President or the Vice President or their immediate personal staff.