text: SECTION 1. SHORT TITLE.
  
      This Act may be cited as the ``Reducing Over-Classification Act of 
  2008''.
  
  SEC. 2. FINDINGS.
  
      Congress finds the following:
              (1) A key conclusion in the Final Report of the National 
          Commission on Terrorist Attacks Upon the United States 
          (commonly known as the ``9/11 Commission'') was the need to 
          prevent over-classification by the Federal Government.
              (2) The 9/11 Commission and others have observed that the 
          over-classification of homeland security information interferes 
          with accurate, actionable, and timely homeland security 
          information sharing, increases the cost of information 
          security, and needlessly limits public access to information.
              (3) The over-classification 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, tribal, 
          and territorial homeland security and law enforcement partners, 
          private sector customers, and the public.
              (4) Excessive government secrecy 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.
              (5) To do so, the Department should start with the 
          understanding that all departmental information that is not 
          properly classified, or marked as controlled unclassified 
          information and otherwise exempt from disclosure, should be 
          made available to members of the public pursuant to section 552 
          of title 5, United States Code (commonly referred to as the 
          ``Freedom of Information Act'').
              (6) 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 classification markings and the 
          United States National Archives and Records Administration 
          policies implementing them.
  
  SEC. 3. OVER-CLASSIFICATION PREVENTION WITHIN THE DEPARTMENT OF 
                HOMELAND SECURITY.
  
      Subtitle A of title II of the Homeland Security Act of 2002 (6 
  U.S.C. 121 et seq.) is amended by adding at the end the following new 
  section:
  
  ``SEC. 210F. OVER-CLASSIFICATION PREVENTION PROGRAM.
  
      ``(a) In General.--The Secretary shall develop and administer 
  policies, procedures, and programs within the Department to prevent the 
  over-classification of homeland security information, terrorism 
  information, weapons of mass destruction information, and other 
  information within the scope of the information sharing environment 
  established under section 1016 of the Intelligence Reform and Terrorism 
  Prevention Act of 2004 (6 U.S.C. 485) that must be disseminated to 
  prevent and to collectively respond to acts of terrorism. The Secretary 
  shall coordinate with the Archivist of the United States and consult 
  with representatives of State, local, tribal, and territorial 
  government and law enforcement, organizations with expertise in civil 
  rights, civil liberties, and government oversight, and the private 
  sector, as appropriate, to develop such policies, procedures, and 
  programs.
      ``(b) Requirements.--Not later than one year after the date of the 
  enactment of the Reducing Over-Classification Act of 2008, the 
  Secretary, in administering the policies, procedures, and programs 
  required under subsection (a), shall--
              ``(1) create, in consultation with the Archivist of the 
          United States, standard classified and unclassified formats for 
          finished intelligence products created by the Department, 
          consistent with any government-wide standards, practices or 
          procedures for similar products;
              ``(2) require that all finished intelligence products 
          created by the Department be simultaneously prepared in the 
          standard unclassified format, provided that such an 
          unclassified product would reasonably be expected to be of any 
          benefit to a State, local, tribal or territorial government, 
          law enforcement agency or other emergency response provider, or 
          the private sector, based on input provided by the Interagency 
          Threat Assessment and Coordination Group Detail established 
          under section 210D;
              ``(3) ensure that such policies, procedures, and programs 
          protect the national security as well as the information 
          privacy rights and legal rights of United States persons 
          pursuant to all applicable law and policy, including the 
          privacy guidelines for the information sharing environment 
          established pursuant to section 1016 of the Intelligence Reform 
          and Terrorism Prevention Act of 2004 (6 U.S.C. 485), as 
          appropriate;
              ``(4) establish an ongoing auditing mechanism administered 
          by the Inspector General of the Department or other appropriate 
          senior Department official that randomly selects, on a periodic 
          basis, classified information from each component of the 
          Department that generates finished intelligence products to--
                      ``(A) assess whether applicable classification 
                  policies, procedures, rules, and regulations have been 
                  followed;
                      ``(B) describe any problems with the administration 
                  of the applicable classification policies, procedures, 
                  rules, and regulations, including specific non-
                  compliance issues;
                      ``(C) recommend improvements in awareness and 
                  training to address any problems identified in 
                  subparagraph (B); and
                      ``(D) report at least annually to the Committee on 
                  Homeland Security of the House of Representatives, the 
                  Committee on Homeland Security and Governmental Affairs 
                  of the Senate, and the public, in an appropriate 
                  format, on the findings of the Inspector General's 
                  audits under this section;
              ``(5) establish a process whereby employees may challenge 
          original classification decisions made by Department employees 
          or contractors and be rewarded with specific incentives for 
          successful challenges resulting in the removal of 
          classification markings or the downgrading of them;
              ``(6) inform employees and contractors that failure to 
          comply with the policies, procedures, and programs established 
          under this section could subject them to a series of penalties; 
          and
              ``(7) institute a series of penalties for employees and 
          contractors who repeatedly fail to comply with the policies, 
          procedures, and programs established under this section after 
          having received both notice of their noncompliance and 
          appropriate training or re-training to address such 
          noncompliance.
      ``(c) Finished Intelligence Product Defined.--The term `finished 
  intelligence product' means a document in which an intelligence analyst 
  has evaluated, interpreted, integrated, or placed into context raw 
  intelligence or information.''.
  
  SEC. 4. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION WITHIN THE 
                DEPARTMENT OF HOMELAND SECURITY.
  
      Subtitle A of title II of the Homeland Security Act of 2002 (6 
  U.S.C. 121 et seq.) is further amended by adding at the end the 
  following new section:
  
  ``SEC. 210G. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION PROGRAMS.
  
      ``(a) Personal Identifiers.--The Secretary shall--
              ``(1) assess the technologies available or in use at the 
          Department by which an electronic personal identification 
          number or other electronic identifying marker can be assigned 
          to each Department employee and contractor with original 
          classification authority in order to--
                      ``(A) track which documents have been classified by 
                  a particular employee or contractor;
                      ``(B) determine the circumstances when such 
                  documents have been shared;
                      ``(C) identify and address over-classification 
                  problems, including the misapplication of 
                  classification markings to documents that do not merit 
                  such markings; and
                      ``(D) assess the information sharing impact of any 
                  such problems or misuse;
              ``(2) develop an implementation plan for a Department 
          standard for such technology with appropriate benchmarks, a 
          timetable for its completion, and cost estimate for the 
          creation and implementation of a system of electronic personal 
          identification numbers or other electronic identifying markers 
          for all relevant Department employees and contractors; and
              ``(3) upon completion of the implementation plan described 
          in paragraph (2), or not later than 180 days after the date of 
          the enactment of the Reducing Over-Classification Act of 2008, 
          whichever is earlier, the Secretary shall provide a copy of the 
          plan to the Committee on Homeland Security of the House of 
          Representatives and the Committee on Homeland Security and 
          Governmental Affairs of the Senate.
      ``(b) Training.--The Secretary, in coordination with the Archivist 
  of the United States, shall--
              ``(1) require annual training for each Department employee 
          and contractor with classification authority or those 
          responsible for analysis, dissemination, preparation, 
          production, receiving, publishing, or otherwise communicating 
          written classified information, including training to--
                      ``(A) educate each employee and contractor about--
                              ``(i) the Department's requirement that all 
                          classified finished intelligence products that 
                          they create be simultaneously prepared in 
                          unclassified form in a standard format 
                          prescribed by the Department, provided that the 
                          unclassified product would reasonably be 
                          expected to be of any benefit to a State, 
                          local, tribal, or territorial government, law 
                          enforcement agency, or other emergency response 
                          provider, or the private sector, based on input 
                          provided by the Interagency Threat Assessment 
                          and Coordination Group Detail established under 
                          section 210D;
                              ``(ii) the proper use of classification 
                          markings, including portion markings; and
                              ``(iii) the consequences of over-
                          classification and other improper uses of 
                          classification markings, including the 
                          misapplication of classification markings to 
                          documents that do not merit such markings, and 
                          of failing to comply with the Department's 
                          policies and procedures established under or 
                          pursuant to this section, including the 
                          negative consequences for the individual's 
                          personnel evaluation, homeland security, 
                          information sharing, and the overall success of 
                          the Department's missions;
                      ``(B) serve as a prerequisite, once completed 
                  successfully, as evidenced by an appropriate 
                  certificate, for--
                              ``(i) obtaining classification authority; 
                          and
                              ``(ii) renewing such authority annually; 
                          and
                      ``(C) count as a positive factor, once completed 
                  successfully, in the Department's employment, 
                  evaluation, and promotion decisions; and
              ``(2) ensure that such program is conducted efficiently, in 
          conjunction with any other security, intelligence, or other 
          training programs required by the Department to reduce the 
          costs and administrative burdens associated with the additional 
          training required by this section.
      ``(c) Detailee Program.--The Secretary shall--
              ``(1) implement a Departmental detailee program to detail 
          Departmental personnel to the National Archives and Records 
          Administration for one year, for the purpose of--
                      ``(A) training and educational benefit for the 
                  Department personnel assigned so that they may better 
                  understand the policies, procedures and laws governing 
                  original classification authorities;
                      ``(B) bolstering the ability of the National 
                  Archives and Records Administration to conduct its 
                  oversight authorities over the Department and other 
                  Departments and agencies; and
                      ``(C) ensuring that the policies and procedures 
                  established by the Secretary remain consistent with 
                  those established by the Archivist of the United 
                  States;
              ``(2) ensure that the program established under paragraph 
          (1) includes at least one individual for each Department office 
          with delegated original classification authority; and
              ``(3) in coordination with the Archivist of the United 
          States, report to Congress not later than 90 days after the 
          conclusion of the first year of the program established under 
          paragraph (1), on--
                      ``(A) the advisability of expanding the program on 
                  a government-wide basis, whereby other departments and 
                  agencies would send detailees to the National Archives 
                  and Records Administration; and
                      ``(B) the administrative and monetary costs of full 
                  compliance with this section.
      ``(d) Sunset of Detailee Program.--Except as otherwise provided by 
  law, subsection (c) shall cease to have effect on December 31, 2012.
      ``(e) Finished Intelligence Product Defined.--The term `finished 
  intelligence product' has the meaning given the term in section 
  210F(c).''.
  
  SEC. 5. TECHNICAL AMENDMENT.
  
      The table of contents in section 1(b) of the Homeland Security Act 
  of 2002 (6 U.S.C. 101(b)) is amended by adding after the item relating 
  to section 210E the following new items:
  
  ``Sec. 210F. Over-classification prevention program.
  ``Sec. 210G. Enforcement of over-classification prevention programs.''.
  
              Passed the House of Representatives July 30, 2008.
  
              Attest:
  
                                              LORRAINE C. MILLER,
  
                                                                   Clerk.
target: Reducing Over-Classification Act of 2008 - (Sec. 3) Amends the Homeland Security Act of 2002 to direct the Secretary of Homeland Security to develop and administer policies, procedures, and programs (policies) within the Department of Homeland Security (DHS) to prevent the over-classification of homeland security, terrorism, weapons of mass destruction, and other information within the scope of the information sharing environment established under the Intelligence Reform and Terrorism Prevention Act of 2004 that must be disseminated to prevent and collectively respond to acts of terrorism.
  
  Requires the Secretary to coordinate with the Archivist of the United States and consult with representatives of state, local, tribal, and territorial government and law enforcement, organizations with expertise in civil rights, civil liberties, and government oversight, and the private sector to develop such policies.
  
  Directs the Secretary to: (1) create standard classified and unclassified formats for finished DHS intelligence products; (2) require that all such products be simultaneously prepared in the standard unclassified format, provided that such unclassified product would reasonably be expected to be of benefit to a state, local, tribal or territorial government, law enforcement agency or other emergency response provider, or the private sector, based on input provided by the Interagency Threat Assessment and Coordination Group Detail; (3) ensure that such policies protect the national security as well as the information privacy and legal rights of U.S. persons; (4) establish an ongoing auditing mechanism that randomly selects classified information from each DHS component to assess whether applicable classification regulations have been followed, describe any problems with their administration, and recommend improvements in awareness and training to address the problems identified; (5) establish a process whereby employees may challenge original classification decisions and be rewarded for successful challenges resulting in the removal or downgrading of classification markings; (6) inform employees and contractors that failure to comply could subject them to a series of penalties; and (7) institute such penalties.
  
  (Sec. 4) Requires the Secretary to: (1) assess technologies by which an electronic identifying marker can be assigned to each DHS employee and contractor with original classification authority to track which documents have been classified by a particular employee or contractor, determine the circumstances when such documents have been shared, identify and address over-classification problems, and assess the information sharing impact of any such problems or misuse; (2) develop an implementation plan for a DHS standard for such technology; and (3) provide a copy of the implementation plan to the House and Senate homeland security committees.
  
  Directs the Secretary, in coordination with the Archivist, to: (1) require annual training for each DHS employee and contractor with classification authority or those responsible for analyzing, producing, or communicating written classified information; and (2) ensure that such program is conducted efficiently in conjunction with any other security, intelligence, or other training programs required by DHS to reduce the costs and administrative burdens associated with the additional training required.
  
  Requires the Secretary to: (1) implement a program to detail DHS personnel to the National Archives and Records Administration (NARA) for one year for purposes of training and educating DHS personnel to better understand classification authorities, bolstering NARA's ability to conduct oversight, and ensuring that the policies and procedures established by the Secretary remain consistent with those established by the Archivist; (2) ensure that the program includes at least one individual for each DHS office with delegated original classification authority; and (3) report to Congress, in coordination with the Archivist, on the advisability of expanding the program on a government-wide basis and on the administrative and monetary costs of full compliance. Terminates the program on December 31, 2012.
feat_title: To require the Secretary of Homeland Security to develop a strategy to prevent the over-classification of homeland security and other information and to promote the sharing of unclassified homeland security and other information, and for other purposes.