[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3191 Reported in Senate (RS)]
<DOC>
Calendar No. 727
115th CONGRESS
2d Session
S. 3191
[Report No. 115-424]
To provide for the expeditious disclosure of records related to civil
rights cold cases, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 10, 2018
Mr. Jones (for himself, Mrs. McCaskill, Ms. Harris, and Mr. Cruz)
introduced the following bill; which was read twice and referred to the
Committee on Homeland Security and Governmental Affairs
December 10, 2018
Reported by Mr. Johnson, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To provide for the expeditious disclosure of records related to civil
rights cold cases, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Civil Rights Cold Case
Records Collection Act of 2018''.</DELETED>
<DELETED>SEC. 2. FINDINGS.</DELETED>
<DELETED> Congress finds the following:</DELETED>
<DELETED> (1) All Government records related to civil rights
cold cases shall be preserved for historical and Governmental
purposes.</DELETED>
<DELETED> (2) All Government records concerning civil rights
cold cases shall carry a presumption of immediate disclosure,
and all records shall be eventually disclosed to enable the
public to become fully informed about the history surrounding
the cases.</DELETED>
<DELETED> (3) Legislation is necessary to create an
enforceable, independent, and accountable process for the
public disclosure of such records.</DELETED>
<DELETED> (4) Legislation is necessary because congressional
records related to civil rights cold cases would not otherwise
be subject to public disclosure.</DELETED>
<DELETED> (5) Legislation is necessary because section 552
of title 5, United States Code (commonly known as the Freedom
of Information Act), as implemented by the executive branch,
has prevented the timely and adequate public disclosure of
records relating to civil rights cold cases.</DELETED>
<DELETED> (6) Legislation is necessary because Executive
Order 13526 (75 Fed. Reg. 707; relating to classified national
security information) has not resulted in the timely and
adequate public disclosure of records relating to civil rights
cold cases.</DELETED>
<DELETED> (7) Most of the records related to the civil
rights cold cases are almost 50 years old and only in the
rarest cases is there any legitimate need for continued
protection of such records.</DELETED>
<DELETED>SEC. 3. DEFINITIONS.</DELETED>
<DELETED> In this Act:</DELETED>
<DELETED> (1) Archivist.--The term ``Archivist'' means the
Archivist of the United States.</DELETED>
<DELETED> (2) Civil rights cold case.--The term ``civil
rights cold case'' means any unsolved case--</DELETED>
<DELETED> (A) arising out of events which occurred
during the period beginning on January 1, 1940 and
ending on December 31, 1979; and</DELETED>
<DELETED> (B) related to--</DELETED>
<DELETED> (i) section 241 of title 18,
United States Code (relating to conspiracy
against rights);</DELETED>
<DELETED> (ii) section 242 of title 18,
United States Code (relating to deprivation of
rights under color of law);</DELETED>
<DELETED> (iii) section 245 of title 18,
United States Code (relating to federally
protected activities);</DELETED>
<DELETED> (iv) sections 1581 and 1584 of
title 18, United States Code (relating to
peonage and involuntary servitude);</DELETED>
<DELETED> (v) section 901 of the Fair
Housing Act (42 U.S.C. 3631); or</DELETED>
<DELETED> (vi) any other Federal law that
was--</DELETED>
<DELETED> (I) in effect on or before
December 31, 1979; and</DELETED>
<DELETED> (II) enforced by the
criminal section of the Civil Rights
Division of the Department of Justice
before the date of enactment of this
Act.</DELETED>
<DELETED> (3) Civil rights cold case record.--The term
``civil rights cold case record'' means a record that--
</DELETED>
<DELETED> (A) is related to a civil rights cold
case; and</DELETED>
<DELETED> (B) was created or made available for use
by, obtained by, or otherwise came into the possession
of--</DELETED>
<DELETED> (i) the Library of
Congress;</DELETED>
<DELETED> (ii) the National Archives and
Records Administration;</DELETED>
<DELETED> (iii) any executive
agency;</DELETED>
<DELETED> (iv) any independent
agency;</DELETED>
<DELETED> (v) any other entity of the
Federal Government; and</DELETED>
<DELETED> (vi) any State or local
government, or component thereof, that provided
support or assistance or performed work in
connection with a Federal inquiry into a civil
rights cold case.</DELETED>
<DELETED> (4) Collection.--The term ``Collection'' means the
Civil Rights Cold Cases Collection established under section
4.</DELETED>
<DELETED> (5) Executive agency.--The term ``executive
agency'' means an agency, as defined in subsection 552(f) of
title 5, United States Code.</DELETED>
<DELETED> (6) Government office.--The term ``Government
office'' means any office of the Federal Government that has
possession or control of 1 or more civil rights cold case
records.</DELETED>
<DELETED> (7) Government official.--The term ``Government
official'' means any officer or employee of the United States,
including elected and appointed officials.</DELETED>
<DELETED> (8) National archives.--The term ``National
Archives'' means the National Archives and Records
Administration and all components thereof, including
Presidential archival depositories established under section
2112 of title 44, United States Code.</DELETED>
<DELETED> (9) Official investigation.--The term ``official
investigation'' means the reviews of civil rights cold cases
conducted by any entity of the Federal Government either
independently, at the request of any Presidential commission or
congressional committee, or at the request of any Government
official.</DELETED>
<DELETED> (10) Originating body.--The term ``originating
body'' means the executive agency, Government commission,
congressional committee, or other Governmental entity that
created a record or particular information within a
record.</DELETED>
<DELETED> (11) Public interest.--The term ``public
interest'' means the compelling interest in the prompt public
disclosure of civil rights cold case records for historical and
Governmental purposes and for the purpose of fully informing
the people of the United States about the history surrounding
all civil rights cold cases in the United States.</DELETED>
<DELETED> (12) Record.--The term ``record'' has the meaning
given the term in section 3301 of title 44, United States
Code.</DELETED>
<DELETED> (13) Review board.--The term ``Review Board''
means the Civil Rights Cold Case Records Review Board
established under section 6.</DELETED>
<DELETED>SEC. 4. CIVIL RIGHTS COLD CASE RECORDS COLLECTION AT THE
NATIONAL ARCHIVES AND RECORD ADMINISTRATION.</DELETED>
<DELETED> (a) In General.--</DELETED>
<DELETED> (1) Establishment of the civil rights cold case
records collection.--Not later than 60 days after the date of
enactment of this Act, the Archivist shall--</DELETED>
<DELETED> (A) commence establishing a collection of
civil rights cold case records to be known as the
``Civil Rights Cold Case Records Collection'' that
ensures the physical integrity and original provenance
of all records in the Collection; and</DELETED>
<DELETED> (B) commence preparing and publishing the
subject guidebook and index to the Collection;
and</DELETED>
<DELETED> (C) establish criteria for Government
offices to follow when transmitting copies of civil
rights cold case records to the Archivist, to include
required metadata.</DELETED>
<DELETED> (2) Contents of collection.--The Collection shall
include--</DELETED>
<DELETED> (A) a copy of each civil rights cold case
record--</DELETED>
<DELETED> (i) that has not been transmitted
to the Archivist, which shall be transmitted by
the entity described in section 3(3) in
possession of the civil rights cold case record
to the Archivist in accordance with section
2107 of title 44, United States Code;
or</DELETED>
<DELETED> (ii) that has been transmitted to
the Archivist or disclosed to the public in an
unredacted form before the date of the
enactment of this Act;</DELETED>
<DELETED> (iii) that is required to be
transmitted to the Archivist; or</DELETED>
<DELETED> (iv) the disclosure of which is
postponed under this Act; and</DELETED>
<DELETED> (B) all Review Board records, as required
under this Act.</DELETED>
<DELETED> (b) Disclosure of Records.--All civil rights cold case
records transmitted to the Archivist for disclosure to the public--
</DELETED>
<DELETED> (1) shall be included in the Collection;</DELETED>
<DELETED> (2) not later than 60 days after the transmission
of the record to the Archivist, shall be available to the
public for inspection and copying at the National Archives;
and</DELETED>
<DELETED> (3) shall be prioritized for digitization by the
National Archives.</DELETED>
<DELETED> (c) Fees for Copying.--The Archivist shall--</DELETED>
<DELETED> (1) use efficient electronic means when
possible;</DELETED>
<DELETED> (2) charge fees for copying civil rights cold case
records; and</DELETED>
<DELETED> (3) grant waivers of such fees pursuant to the
standard established under section 552(a)(4) of title 5, United
States Code.</DELETED>
<DELETED> (d) Additional Requirements.--The Archivist shall ensure
the security of civil rights cold case records in the Collection for
which disclosure is postponed.</DELETED>
<DELETED> (e) Transmission to the National Archives.--Each
Government office shall, in accordance with the criteria established by
the Archivist under subsection (a)(1)(C)--</DELETED>
<DELETED> (1) not later than 300 days after the date of the
enactment of this Act, transmit to the Archivist, for the
Archivist to make available to the public in accordance with
subsection (b), a copy of each civil rights cold case record
that can be publicly disclosed, including any such record that
is publicly available on the date of enactment of this Act,
without any redaction, adjustment, or withholding under the
standards of this Act; and</DELETED>
<DELETED> (2) transmit to the Archivist upon approval for
postponement by the Review Board or upon completion of other
action authorized by this Act, a copy of each civil rights cold
case record for which public disclosure has been postponed, in
whole or in part, under the standards of this Act, to become
part of the protected Collection.</DELETED>
<DELETED> (f) Periodic Review of Postponed Civil Rights Cold Case
Records.--</DELETED>
<DELETED> (1) In general.--Each civil rights cold case
record that is redacted or for which public disclosure is
postponed shall be reviewed not later than December 31 each
year by the entity submitting the record and the Archivist,
consistent with the recommendations of the Review Board under
section 8(c)(3)(B).</DELETED>
<DELETED> (2) Requirements of periodic review.--The periodic
review under paragraph (1) shall--</DELETED>
<DELETED> (A) address the public disclosure of
additional civil rights cold case records in the
Collection under the standards of this Act;
and</DELETED>
<DELETED> (B) serve to declassify classified
information, with the presumption of providing public
disclosure.</DELETED>
<DELETED> (3) Unclassified written description.--Any civil
rights cold case record for which postponement of public
disclosure is continued shall include an unclassified written
description of the reason for such continued postponement,
which shall be provided to the Archivist and made available on
a publicly accessible website upon the determination to
continue the postponement.</DELETED>
<DELETED> (4) Full disclosure of civil rights cold case
record required.--</DELETED>
<DELETED> (A) In general.--Each civil rights cold
case record that is not publicly disclosed in full as
of the date on which the Review Board terminates under
section 6(n) shall be publicly disclosed in full and
available in the Collection not later than 25 years
after the date of enactment of this Act unless--
</DELETED>
<DELETED> (i) the head of the originating
body, an executive agency, or other Government
office recommends in writing that continued
postponement is made necessary by an
identifiable harm to military defense, law
enforcement, intelligence operations, or the
conduct of foreign relations that is of such
gravity that it outweighs the public interest
in disclosure;</DELETED>
<DELETED> (ii) the written recommendation
described in clause (i)--</DELETED>
<DELETED> (I) is provided to the
Archivist not later than 180 days
before the date that is 25 years after
the date of enactment of this Act;
and</DELETED>
<DELETED> (II) includes--</DELETED>
<DELETED> (aa) a
justification of the
recommendation to postpone
disclosure; and</DELETED>
<DELETED> (bb) a recommended
specified time at which or a
specified occurrence following
which the material may be
appropriately disclosed to the
public under this Act;
and</DELETED>
<DELETED> (iii) the Archivist agrees with
the written recommendation described in clause
(i).</DELETED>
<DELETED> (B) Notification.--If the Archivist does
not agree with the recommendation described in
subparagraph (A)(1), the Archivist shall notify the
head of the originating body, executive agency, or
other Government office making the recommendation not
later than 90 days before the date that is 25 years
after the date of enactment of this Act.</DELETED>
<DELETED> (g) Digitization of Records.--Each executive agency shall
make text searchable documents available to the Review Board pursuant
to standards established under section 552(a)(3) of title 5, United
States Code.</DELETED>
<DELETED>SEC. 5. GROUNDS FOR POSTPONEMENT OF PUBLIC DISCLOSURE OF
RECORDS.</DELETED>
<DELETED> Disclosure of civil rights cold case records or particular
information within a civil rights cold case record to the public may be
postponed subject to the limitations of this Act if there is clear and
convincing evidence of any of the following:</DELETED>
<DELETED> (1) The threat to the military defense, law
enforcement, intelligence operations, or the conduct of
domestic affairs of the United States posed by the public
disclosure of the civil rights cold case record is of such
gravity that the disclosure outweighs the public interest and
would reveal information described in paragraphs (1) through
(9) of section 3.3(b) of Executive Order 13526 (75 Fed. Reg.
707; relating to classified national security
information).</DELETED>
<DELETED> (2) The public disclosure of the civil rights cold
case record would reveal the name or identity of a living
individual who provided confidential information to the United
States and would pose a substantial risk of harm to that
individual.</DELETED>
<DELETED> (3) The public disclosure of the civil rights cold
case record could reasonably be expected to constitute an
unwarranted invasion of personal privacy, and that invasion of
privacy is so substantial that the protection of privacy
outweighs the public interest.</DELETED>
<DELETED> (4) The public disclosure of the civil rights cold
case record would compromise the existence of an understanding
of confidentiality currently requiring protection between a
Government agent and a cooperating individual or group and
public disclosure would be so harmful that the understanding of
confidentiality outweighs the public interest.</DELETED>
<DELETED>SEC. 6. ESTABLISHMENT AND POWERS OF THE CIVIL RIGHTS COLD CASE
RECORDS REVIEW BOARD.</DELETED>
<DELETED> (a) Establishment.--There is established, as an
independent agency, a board to be known as the Civil Rights Cold Case
Records Review Board.</DELETED>
<DELETED> (b) Appointment.--</DELETED>
<DELETED> (1) In general.--The President shall appoint, by
and with the advice and consent of the Senate, 5 individuals to
serve as members of the Review Board to ensure and facilitate
the review, transmission to the Archivist, and public
disclosure of civil rights cold case records.</DELETED>
<DELETED> (2) Initial appointment.--</DELETED>
<DELETED> (A) In general.--Initial appointments to
the Review Board shall, so far as practicable, be made
not later than 60 days after the enactment of this
Act.</DELETED>
<DELETED> (B) Recommendations.--In making
appointments to the Review Board, the President shall
consider any individuals recommended by the American
Historical Association, the Organization of American
Historians, the Society of American Archivists, and the
American Bar Association.</DELETED>
<DELETED> (C) Extension.--If an organization
described in subparagraph (B) does not recommend at
least 2 nominees meeting the qualifications stated in
paragraph (3) within 60 days after the date of
enactment of this Act, the deadline under subparagraph
(A) shall be extended until the earlier of 60 days
after the date on which such recommendations are made
or 120 days after the date of enactment of this
Act.</DELETED>
<DELETED> (D) Additional recommendations.--The
President may request that any organization described
in subparagraph (B) submit additional recommended
nominees.</DELETED>
<DELETED> (3) Qualifications.--Individuals nominated to the
Review Board shall--</DELETED>
<DELETED> (A) not have had any previous involvement
with any official investigation or inquiry conducted by
the Federal Government, or any State or local
government, relating to any civil rights cold
case;</DELETED>
<DELETED> (B) be distinguished individuals of high
national professional reputation in their respective
fields who are capable of exercising the independent
and objective judgment necessary to fulfill their role
in ensuring and facilitating the review, transmission
to the public, and public disclosure of files related
to civil rights cold cases and who possess an
appreciation of the value of such material to the
public, scholars, and government; and</DELETED>
<DELETED> (C) include at least 1 professional
historian and 1 attorney.</DELETED>
<DELETED> (c) Security Clearances.--All Review Board nominees shall
be processed for the necessary security clearances in an accelerated
manner by the appropriate Federal agencies and subject to the standard
procedures for granting such clearances.</DELETED>
<DELETED> (d) Vacancy.--A vacancy on the Review Board shall be
filled in the same manner as the original appointment within 60 days of
the occurrence of the vacancy.</DELETED>
<DELETED> (e) Chairperson.--The members of the Review Board shall
elect 1 of the members as chairperson.</DELETED>
<DELETED> (f) Removal of Review Board Member.--</DELETED>
<DELETED> (1) In general.--No member of the Review Board
shall be removed from office, other than--</DELETED>
<DELETED> (A) by impeachment and conviction;
or</DELETED>
<DELETED> (B) by the action of the President for
inefficiency, neglect of duty, malfeasance in office,
physical disability, mental incapacity, or any other
condition that substantially impairs the performance of
the member's duties.</DELETED>
<DELETED> (2) Report.--</DELETED>
<DELETED> (A) In general.--If a member of the Review
Board is removed from office, and that removal is by
the President, not later than 10 days after the
removal, the President shall submit to the Committee on
Oversight and Government Reform of the House of
Representatives and the Committee on Homeland Security
and Governmental Affairs of the Senate a report
specifying the facts found and the grounds for the
removal.</DELETED>
<DELETED> (B) Publication.--The President shall
publish in the Federal Register a report submitted
under subparagraph (A), except that the President may,
if necessary to protect the rights of a person named in
the report or to prevent undue interference with any
pending prosecution, postpone or refrain from
publishing any or all of the report until the
completion of such pending cases or pursuant to privacy
protection requirements in law.</DELETED>
<DELETED> (3) Judicial review.--</DELETED>
<DELETED> (A) In general.--A member of the Review
Board removed from office may obtain judicial review of
the removal in a civil action commenced in the United
States District Court for the District of
Columbia.</DELETED>
<DELETED> (B) Relief.--The member may be reinstated
or granted other appropriate relief by order of the
court.</DELETED>
<DELETED> (g) Compensation of Members.--</DELETED>
<DELETED> (1) In general.--A member of the Review Board
shall be compensated at a rate equal to the daily equivalent of
the annual rate of basic pay prescribed for level IV of the
Executive Schedule under section 5315 of title 5, United States
Code, for each day (including travel time) during which the
member is engaged in the performance of the duties of the
Review Board.</DELETED>
<DELETED> (2) Travel expenses.--A member of the Review Board
shall be allowed reasonable travel expenses, including per diem
in lieu of subsistence, at rates for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from the member's home or regular place of
business in the performance of services for the Review
Board.</DELETED>
<DELETED> (h) Duties of the Review Board.--</DELETED>
<DELETED> (1) In general.--The Review Board shall consider
and render decisions on a determination by a Government office
to seek to postpone the disclosure of civil rights cold case
records.</DELETED>
<DELETED> (2) Decisions.--In carrying out paragraph (1), the
Review Board shall consider and render decisions--</DELETED>
<DELETED> (A) whether a record constitutes a civil
rights cold case record; and</DELETED>
<DELETED> (B) whether a civil rights cold case
record or particular information in a record qualifies
for postponement of disclosure under this
Act.</DELETED>
<DELETED> (i) Powers.--</DELETED>
<DELETED> (1) In general.--The Review Board shall have the
authority to act in a manner prescribed under this Act
including the authority to--</DELETED>
<DELETED> (A) obtain access to civil rights cold
case records that have been identified and organized by
a Government office;</DELETED>
<DELETED> (B) direct a Government office to make
available to the Review Board, and if necessary
investigate the facts surrounding, additional
information, records, or testimony from individuals,
which the Review Board has reason to believe is
required to fulfill its functions and responsibilities
under this Act;</DELETED>
<DELETED> (C) subpoena private persons to compel
testimony, records, and other information relevant to
its responsibilities under this Act;</DELETED>
<DELETED> (D) require any Government office to
account in writing for the destruction of any records
relating to civil rights cold cases;</DELETED>
<DELETED> (E) receive information from the public
regarding the identification and public disclosure of
civil rights cold case records; and</DELETED>
<DELETED> (F) hold hearings, administer oaths, and
subpoena witnesses and documents.</DELETED>
<DELETED> (2) Enforcement of subpoenas.--Any subpoena issued
under this subsection may be enforced by any appropriate
Federal court acting pursuant to a lawful request of the Review
Board.</DELETED>
<DELETED> (j) Witness Immunity.--The Review Board shall be
considered to be an agency of the United States for purposes of chapter
601 of title 18, United States Code.</DELETED>
<DELETED> (k) Oversight.--</DELETED>
<DELETED> (1) In general.--The Committee on Oversight and
Government Reform of the House of Representatives and the
Committee on Homeland Security and Governmental Affairs of the
Senate shall have continuing oversight jurisdiction with
respect to the official conduct of the Review Board and the
disposition of postponed records after termination of the
Review Board, and shall have access to any records held or
created by the Review Board.</DELETED>
<DELETED> (2) Cooperation of review board.--The Review Board
shall have a duty to cooperate with the exercised of the
oversight jurisdiction described in paragraph (1).</DELETED>
<DELETED> (l) Support Services.--The Administrator of General
Services shall provide administrative services for the Review Board on
a reimbursable basis.</DELETED>
<DELETED> (m) Interpretive Regulations.--The Review Board may issue
interpretive regulations.</DELETED>
<DELETED> (n) Termination.--</DELETED>
<DELETED> (1) In general.--The Review Board shall terminate
not later than 3 years after the enactment of this Act, except
that the Review Board may, by majority vote, extend its term
for an additional 1-year period if the Review Board has not
completed its work within that 3-year period.</DELETED>
<DELETED> (2) Reports.--Before its termination, the Review
Board shall submit reports to the President and the Congress,
including a complete and accurate accounting of expenditures
during its existence, and shall complete all other reporting
requirements under this Act.</DELETED>
<DELETED> (3) Transfer of records.--</DELETED>
<DELETED> (A) In general.--Upon termination, the
Review Board shall transfer all of its records to the
Archivist for inclusion in the Collection.</DELETED>
<DELETED> (B) Preservation of records.--The records
of the Review Board shall not be destroyed, except that
the Archivist may destroy routine administrative
records covered by a general records schedule following
notification in the Federal Register and after
considering comments.</DELETED>
<DELETED>SEC. 7. REVIEW BOARD PERSONNEL.</DELETED>
<DELETED> (a) Chief of Staff.--</DELETED>
<DELETED> (1) Appointment.--Not later than 45 days after the
initial meeting of the Review Board, and without regard to
political affiliation, the Review Board shall appoint an
individual to the position of Chief of Staff of the Review
Board.</DELETED>
<DELETED> (2) Requirements.--The individual appointed as
Chief of Staff--</DELETED>
<DELETED> (A) shall be a citizen of the United
States of integrity and impartiality who is a
distinguished professional; and</DELETED>
<DELETED> (B) shall have had no previous involvement
with any official investigation or inquiry relating to
civil rights cold cases.</DELETED>
<DELETED> (3) Candidate to have clearances.--A candidate for
Chief of Staff shall be granted the necessary security
clearances in an accelerated manner subject to the standard
procedures for granting such clearances.</DELETED>
<DELETED> (4) Approval contingent on prior clearance.--A
candidate shall qualify for the necessary security clearance
prior to being appointed by the Review Board.</DELETED>
<DELETED> (5) Duties.--The Chief of Staff shall--</DELETED>
<DELETED> (A) serve as principal liaison to
Government offices;</DELETED>
<DELETED> (B) be responsible for the administration
and coordination of the Review Board's review of
records;</DELETED>
<DELETED> (C) be responsible for the administration
of all official activities conducted by the Review
Board; and</DELETED>
<DELETED> (D) have no authority to decide or
determine whether any record shall be disclosed to the
public or postponed for disclosure.</DELETED>
<DELETED> (6) Removal.--The Chief of Staff shall not be
removed except upon a majority vote of the Review Board to
remove the Chief of Staff for cause on the grounds of
inefficiency, neglect of duty, malfeasance in office, physical
disability, mental incapacity, or any other condition that
substantially impairs the performance of the responsibilities
of the Chief of Staff or the employees of the Review
Board.</DELETED>
<DELETED> (b) Staff.--</DELETED>
<DELETED> (1) Additional personnel.--The Review Board may,
in accordance with the civil service laws but without regard to
civil service laws and regulations for appointments in the
competitive service under subchapter I of chapter 33 of title
5, United States Code, appoint and terminate additional
employees as are necessary to enable the Review Board and its
Chief of Staff to perform its duties.</DELETED>
<DELETED> (2) Requirements.--An individual appointed as an
employee of the Review Board--</DELETED>
<DELETED> (A) shall be a private citizen of
integrity and impartiality; and</DELETED>
<DELETED> (B) shall have had no previous involvement
with any official investigation or inquiry relating to
the civil rights cold cases.</DELETED>
<DELETED> (3) Nominations.--Before making an appointment
pursuant to paragraph (1), the Review Board shall consider
individuals recommended by the American Historical Association,
the Organization of American Historians, the Society of
American Archivists, and the American Bar
Association.</DELETED>
<DELETED> (4) Security clearances.--A candidate shall
qualify for the necessary security clearance prior to being
appointed by the Review Board.</DELETED>
<DELETED> (c) Compensation.--The Review Board shall fix the
compensation of the Chief of Staff and other employees in accordance
with title 5, United States Code, except that the rate of pay for the
Chief of Staff and other employees may not exceed the rate payable for
level V of the Executive Schedule under section 5316 of that
title.</DELETED>
<DELETED> (d) Advisory Committees.--The Review Board may create
advisory committees to assist in fulfilling the responsibilities of the
Review Board under this Act.</DELETED>
<DELETED>SEC. 8. REVIEW OF RECORDS BY THE REVIEW BOARD.</DELETED>
<DELETED> (a) Custody of Records Reviewed by the Board.--Pending the
outcome of the Review Board's review activity, a Government office
shall retain custody of a civil rights cold case records for purposes
of preservation, security, and efficiency, unless--</DELETED>
<DELETED> (1) the Review Board requires the physical
transfer of records for reasons of conducting an independent
and impartial review; or</DELETED>
<DELETED> (2) such transfer is necessary for an
administrative hearing or other official Review Board
function.</DELETED>
<DELETED> (b) Startup Requirements.--The Review Board shall--
</DELETED>
<DELETED> (1) not later than 90 days after the date on which
all members of the Review Board are appointed, publish a
schedule for review of all civil rights cold case records in
the Federal Register; and</DELETED>
<DELETED> (2) not later than 180 days after the enactment of
this Act, begin its review of civil rights cold case records
under this Act.</DELETED>
<DELETED> (c) Determination of the Review Board.--</DELETED>
<DELETED> (1) In general.--The Review Board shall direct
that copies of all civil rights cold case records be
transmitted to the Archivist and disclosed to the public in the
Collection in the absence of clear and convincing evidence
that--</DELETED>
<DELETED> (A) a Government record is not a civil
rights cold case record; or</DELETED>
<DELETED> (B) a Government record or particular
information within a civil rights cold case record
qualifies for postponement of public disclosure under
this Act.</DELETED>
<DELETED> (2) Postponement.--In approving postponement of
public disclosure of a civil rights cold case record, the
Review Board shall work to--</DELETED>
<DELETED> (A) provide for the disclosure of
segregable parts, substitutes, or summaries of such a
record; and</DELETED>
<DELETED> (B) determine, in consultation with the
originating body and consistent with the standards for
postponement under this Act, which of the following
alternative forms of disclosure shall be made by the
originating body:</DELETED>
<DELETED> (i) Any reasonably segregable
particular information in a civil rights cold
case record.</DELETED>
<DELETED> (ii) A substitute record for that
information which is postponed.</DELETED>
<DELETED> (iii) A summary of a civil rights
cold case record.</DELETED>
<DELETED> (3) Report.--With respect to each civil rights
cold case record or particular information in civil rights cold
case records the public disclosure of which is postponed under
section 5, or for which only substitutions or summaries have
been disclosed to the public, the Review Board shall create and
transmit to the Archivist a report containing--</DELETED>
<DELETED> (A) a description of actions by the Review
Board, the originating body, the President, or any
Government office (including a justification of any
such action to postpone disclosure of any record or
part of any record) and of any official proceedings
conducted by the Review Board with regard to specific
civil rights cold case records; and</DELETED>
<DELETED> (B) a statement, based on a review of the
proceedings and in conformity with the decisions
reflected therein, designating a recommended specified
time at which or a specified occurrence following which
the material may be appropriately disclosed to the
public under this Act.</DELETED>
<DELETED> (4) Notice.--Not later than 14 days after the
Review Board makes a determination that a civil rights cold
case record shall be publicly disclosed in the Collection or
postponed for disclosure and held in the protected Collection,
the Review Board shall notify the head of the originating body
of its determination and publish a copy of the determination in
the Federal Register.</DELETED>
<DELETED> (5) Other notice.--Contemporaneous notice shall be
made to the President of Review Board determinations regarding
executive branch civil rights cold case records, and to the
oversight committees designated in this Act in the case of
legislative branch records. Such notice shall contain a written
unclassified justification for public disclosure or
postponement of disclosure, including an explanation of the
application of any standards under section 5.</DELETED>
<DELETED> (d) Presidential Authority Over Review Board
Determination.--</DELETED>
<DELETED> (1) Public disclosure or postponement of
disclosure.--After the Review Board has made a formal
determination concerning the public disclosure or postponement
of disclosure of an executive branch civil rights cold case
record or information contained in a civil rights cold case
record, obtained or developed solely within the executive
branch, the President shall have the sole and nondelegable
authority to require the disclosure or postponement of such
record or information under the standards set forth in section
5, and the President shall provide the Review Board with an
unclassified written certification specifying the President's
decision within 30 days after the Review Board's determination
and notice to the executive agency as required under this Act,
stating the justification for the President's decision,
including the applicable grounds for postponement under section
5.</DELETED>
<DELETED> (2) Periodic review.--Any executive branch civil
rights cold case record for which public disclosure is
postponed by the President shall be subject to the requirements
of periodic review and declassification of classified
information and public disclosure in the Collection set forth
in section 4.</DELETED>
<DELETED> (3) Record of presidential postponement.--The
Review Board shall, upon its receipt, publish in the Federal
Register a copy of any unclassified written certification,
statement, and other materials transmitted by or on behalf of
the President with regard to postponement of the public
disclosure of civil rights cold case records.</DELETED>
<DELETED> (e) Notice to the Public.--On each day that is on or after
the date that is 60 days after the Review Board first approves the
postponement of disclosure of a civil rights cold case record, the
Review Board shall publish on a publicly available website a notice
that summarizes the postponements approved by the Review Board or
initiated by the President, including a description of the subject,
originating agency, length or other physical description, and each
ground for postponement that is relied upon.</DELETED>
<DELETED> (f) Reports by the Review Board.--</DELETED>
<DELETED> (1) In general.--The Review Board shall report its
activities to the Speaker of the House of Representatives, the
Minority Leader of the House of Representatives, the Committee
on Oversight and Government Reform of the House of
Representatives, the Majority Leader of the Senate, the
Minority Leader of the Senate, the Committee on Homeland
Security and Governmental Affairs of the Senate, the President,
the Archivist, and the head of any Government office whose
records have been the subject of Review Board
activity.</DELETED>
<DELETED> (2) Deadlines.--Not later than 1 year after the
date of enactment of this Act, and every year thereafter until
termination of the Review Board, the Review Board shall issue a
report under paragraph (1).</DELETED>
<DELETED> (3) Contents.--Each report under paragraph (1)
shall include the following information:</DELETED>
<DELETED> (A) A financial report of the expenses for
all official activities and requirements of the Review
Board and its employees.</DELETED>
<DELETED> (B) The progress made on review,
transmission to the Archivist, and public disclosure of
civil rights cold case records.</DELETED>
<DELETED> (C) The estimated time and volume of civil
rights cold case records involved in the completion of
the Review Board's performance under this
Act.</DELETED>
<DELETED> (D) Any special problems, including
requests and the level of cooperation of Government
offices, with regard to the ability of the Review Board
to operate as required by this Act.</DELETED>
<DELETED> (E) A record of review activities,
including a record of postponement decisions by the
Review Board or other related actions authorized by
this Act, and a record of the volume of records
reviewed and postponed.</DELETED>
<DELETED> (F) Recommendations and requests to
Congress for additional authorization.</DELETED>
<DELETED> (G) An appendix containing copies of
reports of postponed records to the Archivist required
under section subsection (c)(3) made since the date of
the preceding report under this subsection.</DELETED>
<DELETED> (4) Notice of termination.--Not later than 90 days
before terminating, the Review Board shall provide written
notice to the President and the Congress of its intention to
terminate its operations at a specified date.</DELETED>
<DELETED>SEC. 9. DISCLOSURE OF OTHER INFORMATION AND ADDITIONAL
STUDY.</DELETED>
<DELETED> (a) Materials Under the Seal of the Court.--</DELETED>
<DELETED> (1) In general.--The Review Board may request the
Attorney General to petition any court in the United States or
abroad to release any information relevant to civil rights cold
cases that is held under seal of court.</DELETED>
<DELETED> (2) Grand jury materials.--</DELETED>
<DELETED> (A) In general.--The Review Board may
request the Attorney General to petition any court in
the United States to release any information relevant
to civil rights cold cases that is held under the
injunction of secrecy of a grand jury.</DELETED>
<DELETED> (B) Particularized need.--A request for
disclosure of civil rights cold case records under this
Act shall be deemed to constitute a showing of
particularized need under rule 6 of the Federal Rules
of Criminal Procedure.</DELETED>
<DELETED> (3) Deadline.--The Attorney General shall comply
with any request that is subject to this subsection within 45
days.</DELETED>
<DELETED> (b) Cooperation With Agencies.--It is the sense of
Congress that--</DELETED>
<DELETED> (1) the Attorney General should assist the Review
Board in good faith to unseal any records that the Review Board
determines to be relevant and held under the seal by a court or
under the injunction of secrecy of a grand jury; and</DELETED>
<DELETED> (2) all departments and agencies of the United
States Government should cooperate in full with the Review
Board to seek the disclosure of all information relevant to
civil rights cold cases consistent with the public
interest.</DELETED>
<DELETED>SEC. 10. RULES OF CONSTRUCTION.</DELETED>
<DELETED> (a) Precedence Over Other Law.--When this Act requires
transmission of a record to the Archivist or public disclosure, it
shall take precedence over any other law (except section 6103 of the
Internal Revenue Code of 1986), judicial decisions construing such law,
or common law doctrine that would otherwise prohibit such transmission
or disclosure with the exception of deeds governing access to or
transfer or release of gifts and donations of records to the United
States Government.</DELETED>
<DELETED> (b) Freedom of Information Act.--Nothing in this Act shall
be construed to eliminate or limit any right to file any requests with
any executive agency or seek judicial review of the decisions under
section 552 of title 5, United States Code.</DELETED>
<DELETED> (c) Judicial Review.--Nothing in this Act shall be
construed to preclude judicial review, under chapter 7 of title 5,
United States Code, of final actions taken or required to be taken
under this Act.</DELETED>
<DELETED> (d) Existing Authority.--Nothing in this Act revokes or
limits the existing authority of the President, any executive agency,
the Senate, the House of Representatives, or any other entity of the
Government to publicly disclose records in its possession.</DELETED>
<DELETED>SEC. 11. AUTHORIZATION OF APPROPRIATIONS.</DELETED>
<DELETED> (a) In General.--There are authorized to be appropriated
such sums as are necessary to carry out this Act, to remain available
until expended.</DELETED>
<DELETED> (b) Interim Provisions.--Until such time as funds are
appropriated pursuant to subsection (a), the President shall use such
sums as are available for discretionary use to carry out this
Act.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Civil Rights Cold Case Records
Collection Act of 2018''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Archivist.--The term ``Archivist'' means the Archivist
of the United States.
(2) Civil rights cold case.--The term ``civil rights cold
case'' means any unsolved case--
(A) arising out of events which occurred during the
period beginning on January 1, 1940 and ending on
December 31, 1979; and
(B) related to--
(i) section 241 of title 18, United States
Code (relating to conspiracy against rights);
(ii) section 242 of title 18, United States
Code (relating to deprivation of rights under
color of law);
(iii) section 245 of title 18, United
States Code (relating to federally protected
activities);
(iv) sections 1581 and 1584 of title 18,
United States Code (relating to peonage and
involuntary servitude);
(v) section 901 of the Fair Housing Act (42
U.S.C. 3631); or
(vi) any other Federal law that was--
(I) in effect on or before December
31, 1979; and
(II) enforced by the criminal
section of the Civil Rights Division of
the Department of Justice before the
date of enactment of this Act.
(3) Civil rights cold case record.--The term ``civil rights
cold case record'' means a record that--
(A) is related to a civil rights cold case; and
(B) was created or made available for use by,
obtained by, or otherwise came into the possession of--
(i) the Library of Congress;
(ii) the National Archives;
(iii) any executive agency;
(iv) any independent agency;
(v) any other entity of the Federal
Government; or
(vi) any State or local government, or
component thereof, that provided support or
assistance or performed work in connection with
a Federal inquiry into a civil rights cold
case.
(4) Collection.--The term ``Collection'' means the Civil
Rights Cold Case Records Collection established under section
3.
(5) Executive agency.--The term ``executive agency'' means
an agency, as defined in section 552(f) of title 5, United
States Code.
(6) Government office.--The term ``Government office''
means any office of the Federal Government that has possession
or control of 1 or more civil rights cold case records.
(7) Government official.--The term ``Government official''
means any officer or employee of the United States, including
elected and appointed officials.
(8) National archives.--The term ``National Archives''
means the National Archives and Records Administration and all
components thereof, including Presidential archival
depositories established under section 2112 of title 44, United
States Code.
(9) Official investigation.--The term ``official
investigation'' means the review of a civil rights cold case
conducted by any entity of the Federal Government either
independently, at the request of any Presidential commission or
congressional committee, or at the request of any Government
official.
(10) Originating body.--The term ``originating body'' means
the executive agency, Government commission, congressional
committee, or other Governmental entity that created a record
or particular information within a record.
(11) Public interest.--The term ``public interest'' means
the compelling interest in the prompt public disclosure of
civil rights cold case records for historical and Governmental
purposes and for the purpose of fully informing the people of
the United States about the history surrounding all civil
rights cold cases in the United States.
(12) Record.--The term ``record'' has the meaning given the
term in section 3301 of title 44, United States Code.
(13) Review board.--The term ``Review Board'' means the
Civil Rights Cold Case Records Review Board established under
section 5.
SEC. 3. CIVIL RIGHTS COLD CASE RECORDS COLLECTION AT THE NATIONAL
ARCHIVES AND RECORD ADMINISTRATION.
(a) In General.--
(1) Establishment of the civil rights cold case records
collection.--Not later than 60 days after the date of enactment
of this Act, the Archivist shall--
(A) commence establishing a collection of civil
rights cold case records to be known as the ``Civil
Rights Cold Case Records Collection'' that ensures the
physical integrity and original provenance of all
records in the Collection;
(B) commence preparing and publishing the subject
guidebook and index to the Collection; and
(C) establish criteria for Government offices to
follow when transmitting copies of civil rights cold
case records to the Archivist, to include required
metadata.
(2) Contents of collection.--The Collection shall include--
(A) a copy of each civil rights cold case record--
(i) that has not been transmitted to the
Archivist, which shall be transmitted to the
Archivist in accordance with section 2107 of
title 44, United States Code, by the entity
described in section 2(3)(B) in possession of
the civil rights cold case record, except in
the case of a State or local government;
(ii) that has been transmitted to the
Archivist or disclosed to the public in an
unredacted form before the date of the
enactment of this Act;
(iii) that is required to be transmitted to
the Archivist; or
(iv) the disclosure of which is postponed
under this Act; and
(B) all Review Board records, as required under
this Act.
(b) Disclosure of Records.--All civil rights cold case records
transmitted to the Archivist for disclosure to the public--
(1) shall be included in the Collection;
(2) not later than 60 days after the transmission of the
record to the Archivist, shall be available to the public for
inspection and copying at the National Archives; and
(3) shall be prioritized for digitization by the National
Archives.
(c) Fees for Copying.--The Archivist shall--
(1) use efficient electronic means when possible;
(2) charge fees for copying civil rights cold case records;
and
(3) grant waivers of such fees pursuant to the standard
established under section 552(a)(4) of title 5, United States
Code.
(d) Additional Requirements.--The Archivist shall ensure the
security of civil rights cold case records in the Collection for which
disclosure is postponed.
(e) Transmission to the National Archives.--
(1) In general.--Subject to paragraph (2), each Government
office shall, in accordance with the criteria established by
the Archivist under subsection (a)(1)(C)--
(A) as soon as is reasonably practicable, and in
any event not later than 2 years after the date of the
enactment of this Act, transmit to the Archivist, for
the Archivist to make available to the public in
accordance with subsection (b), a copy of each civil
rights cold case record that can be publicly disclosed,
including any such record that is publicly available on
the date of enactment of this Act, without any
redaction, adjustment, or withholding under the
standards of this Act; and
(B) transmit to the Archivist upon approval for
postponement by the Review Board or upon completion of
other action authorized by this Act, a copy of each
civil rights cold case record for which public
disclosure has been postponed, in whole or in part,
under the standards of this Act, to become part of the
protected Collection.
(2) Reopening of cases.--If, not later than 2 years after
the date of enactment of this Act, the Attorney General submits
to the Archivist a certification that the Attorney General
intends to reopen and pursue prosecution of the civil rights
cold case to which a civil rights cold case record relates, the
Attorney General shall transmit to the Archivist the civil
rights cold case record in accordance with paragraph (1)--
(A) not later than 90 days after--
(i) final judgment is entered in the
proceedings relating to the civil rights cold
case; or
(ii) proceedings relating to the civil
rights cold case are dismissed with prejudice;
or
(B) not later than the date that is 1 year after
the date on which the Attorney General submits to the
Archivist the certification, if an indictment or
information has not been filed with respect to the
civil rights cold case.
(f) Periodic Review of Postponed Civil Rights Cold Case Records.--
(1) In general.--Each civil rights cold case record that is
redacted or for which public disclosure is postponed shall be
reviewed not later than December 31 each year by the entity
submitting the record and the Archivist, consistent with the
recommendations of the Review Board under section 7(c)(3)(B).
(2) Requirements of periodic review.--The periodic review
under paragraph (1) shall address the public disclosure of
additional civil rights cold case records in the Collection
under the standards of this Act.
(3) Unclassified written description.--Any civil rights
cold case record for which postponement of public disclosure is
continued shall include an unclassified written description of
the reason for such continued postponement, which shall be
provided to the Archivist and made available on a publicly
accessible website upon the determination to continue the
postponement.
(4) Full disclosure of civil rights cold case record
required.--
(A) In general.--Each civil rights cold case record
that is not publicly disclosed in full as of the date
on which the Review Board terminates under section 5(n)
shall be publicly disclosed in full and available in
the Collection not later than 25 years after the date
of enactment of this Act unless--
(i) the head of the originating body, an
executive agency, or other Government office
recommends in writing the exemption of the
record or information, the release of which
would clearly and demonstrably be expected to--
(I) cause identifiable or
describable damage to national
security, military defense, law
enforcement, intelligence operations,
or the conduct of foreign relations
that is of such gravity that it
outweighs the public interest in
disclosure; or
(II) reveal information described
in paragraphs (1) through (9) of
section 3.3(b) of Executive Order 13526
(75 Fed. Reg. 707; relating to
classified national security
information);
(ii) the written recommendation described
in clause (i)--
(I) is provided to the Archivist
not later than 180 days before the date
that is 25 years after the date of
enactment of this Act; and
(II) includes--
(aa) a justification of the
recommendation to postpone
disclosure; and
(bb) a recommended
specified time at which or a
specified occurrence following
which the material may be
appropriately disclosed to the
public under this Act; and
(iii) the Archivist agrees with the written
recommendation described in clause (i).
(B) Notification.--If the Archivist does not agree
with the recommendation described in subparagraph
(A)(i), the Archivist shall notify the head of the
originating body, executive agency, or other Government
office making the recommendation not later than 90 days
before the date that is 25 years after the date of
enactment of this Act.
(g) Digitization of Records.--Each executive agency shall make text
searchable documents available to the Review Board pursuant to
standards established under section 552(a)(3) of title 5, United States
Code.
(h) Notice Regarding Public Disclosure.--
(1) Finding.--Congress finds that the public release of
case-related documents and information without notice may
significantly affect the victims of the events to which the
case relates and their next of kin.
(2) Notice.--Not later than 7 days before a civil rights
cold case record is publicly disclosed, the executive agency
releasing the civil rights cold case record, in coordination
with the Government office that had possession or control of
the civil rights cold case record, shall take all reasonable
efforts to provide the civil rights cold case record to the
victims of the events to which the civil rights cold case
record relates, or their next of kin.
SEC. 4. GROUNDS FOR POSTPONEMENT OF PUBLIC DISCLOSURE OF RECORDS.
Disclosure of civil rights cold case records or particular
information within a civil rights cold case record to the public may be
postponed subject to the limitations of this Act if disclosure would
clearly and demonstrably be expected to--
(1)(A) cause identifiable or describable damage to national
security, military defense, law enforcement, intelligence
operations, or the conduct of foreign relations that is of such
gravity that it outweighs the public interest in disclosure; or
(B) reveal information described in paragraphs (1) through
(9) of section 3.3(b) of Executive Order 13526 (75 Fed. Reg.
707; relating to classified national security information);
(2)(A) reveal the name or identity of a living individual
who provided confidential information to the United States; and
(B) pose a substantial risk of harm to that individual;
(3) constitute an unwarranted invasion of personal privacy;
(4)(A) compromise the existence of an understanding of
confidentiality currently requiring protection between a
Government agent and a cooperating individual or group; and
(B) be so harmful that the understanding of confidentiality
outweighs the public interest;
(5) endanger the life or physical safety of any individual;
or
(6) interfere with ongoing law enforcement proceedings.
SEC. 5. ESTABLISHMENT AND POWERS OF THE CIVIL RIGHTS COLD CASE RECORDS
REVIEW BOARD.
(a) Establishment.--There is established, as an independent agency,
a board to be known as the Civil Rights Cold Case Records Review Board.
(b) Appointment.--
(1) In general.--The President shall appoint, by and with
the advice and consent of the Senate, 5 individuals to serve as
members of the Review Board, to ensure and facilitate the
review, transmission to the Archivist, and public disclosure of
civil rights cold case records.
(2) Initial appointment.--
(A) In general.--Initial appointments to the Review
Board shall, so far as practicable, be made not later
than 60 days after the date of enactment of this Act.
(B) Recommendations.--In making appointments to the
Review Board, the President may consider any
individuals recommended by the American Historical
Association, the Organization of American Historians,
the Society of American Archivists, and the American
Bar Association.
(C) Extension.--If an organization described in
subparagraph (B) does not recommend at least 2 nominees
meeting the qualifications stated in paragraph (3)
within 60 days after the date of enactment of this Act,
the deadline under subparagraph (A) shall be extended
until the earlier of 60 days after the date on which
such recommendations are made or 120 days after the
date of enactment of this Act.
(D) Additional recommendations.--The President may
request that any organization described in subparagraph
(B) submit additional recommended nominees.
(3) Qualifications.--Individuals nominated to the Review
Board shall--
(A) not have had any previous involvement with any
official investigation or inquiry conducted by the
Federal Government, or any State or local government,
relating to any civil rights cold case;
(B) be distinguished individuals of high national
professional reputation in their respective fields who
are capable of exercising the independent and objective
judgment necessary to fulfill their role in ensuring
and facilitating the review, transmission to the
public, and public disclosure of files related to civil
rights cold cases and who possess an appreciation of
the value of such material to the public, scholars, and
government; and
(C) include at least 1 professional historian and 1
attorney.
(c) Security Clearances.--All Review Board nominees shall be
processed for the necessary security clearances in an accelerated
manner by the appropriate Federal agencies and subject to the standard
procedures for granting such clearances.
(d) Vacancy.--A vacancy on the Review Board shall be filled in the
same manner as the original appointment within 60 days of the
occurrence of the vacancy.
(e) Chairperson.--The members of the Review Board shall elect 1 of
the members as chairperson.
(f) Removal of Review Board Member.--
(1) In general.--No member of the Review Board shall be
removed from office, other than--
(A) by impeachment and conviction; or
(B) by the action of the President for
inefficiency, neglect of duty, malfeasance in office,
physical disability, mental incapacity, or any other
condition that substantially impairs the performance of
the member's duties.
(2) Report.--
(A) In general.--If a member of the Review Board is
removed from office, and that removal is by the
President, not later than 10 days after the removal,
the President shall submit to the Committee on
Oversight and Government Reform of the House of
Representatives and the Committee on Homeland Security
and Governmental Affairs of the Senate a report
specifying the facts found and the grounds for the
removal.
(B) Publication.--The President shall publish in
the Federal Register a report submitted under
subparagraph (A), except that the President may, if
necessary to protect the rights of a person named in
the report or to prevent undue interference with any
pending prosecution, postpone or refrain from
publishing any or all of the report until the
completion of such pending cases or pursuant to privacy
protection requirements in law.
(3) Judicial review.--
(A) In general.--A member of the Review Board
removed from office may obtain judicial review of the
removal in a civil action commenced in the United
States District Court for the District of Columbia.
(B) Relief.--The member may be reinstated or
granted other appropriate relief by order of the court.
(g) Compensation of Members.--
(1) In general.--A member of the Review Board shall be
compensated at a rate equal to the daily equivalent of the
annual rate of basic pay prescribed for level IV of the
Executive Schedule under section 5315 of title 5, United States
Code, for each day (including travel time) during which the
member is engaged in the performance of the duties of the
Review Board.
(2) Travel expenses.--A member of the Review Board shall be
allowed reasonable travel expenses, including per diem in lieu
of subsistence, at rates for employees of agencies under
subchapter I of chapter 57 of title 5, United States Code,
while away from the member's home or regular place of business
in the performance of services for the Review Board.
(h) Duties of the Review Board.--
(1) In general.--The Review Board shall consider and render
decisions on a determination by a Government office to seek to
postpone the disclosure of civil rights cold case records.
(2) Decisions.--In carrying out paragraph (1), the Review
Board shall consider and render decisions on--
(A) whether a record constitutes a civil rights
cold case record; and
(B) whether a civil rights cold case record or
particular information in a record qualifies for
postponement of disclosure under this Act.
(i) Powers.--
(1) In general.--The Review Board shall have the authority
to act in a manner prescribed under this Act including the
authority to--
(A) obtain access to civil rights cold case records
that have been identified and organized by a Government
office;
(B) direct a Government office to make available to
the Review Board, and if necessary investigate the
facts surrounding, additional information, records, or
testimony from individuals, which the Review Board has
reason to believe is required to fulfill its functions
and responsibilities under this Act;
(C) subpoena private persons to compel testimony,
records, and other information relevant to its
responsibilities under this Act;
(D) require any Government office to account in
writing for the destruction of any records relating to
civil rights cold cases;
(E) receive information from the public regarding
the identification and public disclosure of civil
rights cold case records; and
(F) hold hearings, administer oaths, and subpoena
witnesses and documents.
(2) Enforcement of subpoenas.--Any subpoena issued under
this subsection may be enforced by any appropriate Federal
court acting pursuant to a lawful request of the Review Board.
(j) Witness Immunity.--The Review Board shall be considered to be
an agency of the United States for purposes of chapter 601 of title 18,
United States Code.
(k) Oversight.--
(1) In general.--The Committee on Oversight and Government
Reform of the House of Representatives and the Committee on
Homeland Security and Governmental Affairs of the Senate shall
have continuing oversight jurisdiction with respect to the
official conduct of the Review Board and the disposition of
postponed records after termination of the Review Board, and
shall have access to any records held or created by the Review
Board.
(2) Cooperation of review board.--The Review Board shall
have a duty to cooperate with the exercise of the oversight
jurisdiction described in paragraph (1).
(l) Support Services.--The Administrator of General Services shall
provide administrative services for the Review Board on a reimbursable
basis.
(m) Interpretive Regulations.--The Review Board may issue
interpretive regulations.
(n) Termination.--
(1) In general.--The Review Board shall terminate not later
than 4 years after the date of enactment of this Act, except
that the Review Board may, by majority vote, extend its term
for an additional 1-year period if the Review Board has not
completed its work within that 4-year period.
(2) Reports.--Before its termination, the Review Board
shall submit reports to the President and the Congress,
including a complete and accurate accounting of expenditures
during its existence, and shall complete all other reporting
requirements under this Act.
(3) Transfer of records.--
(A) In general.--Upon termination, the Review Board
shall transfer all of its records to the Archivist for
inclusion in the Collection.
(B) Preservation of records.--The records of the
Review Board shall not be destroyed, except that the
Archivist may destroy routine administrative records
covered by a general records schedule following
notification in the Federal Register and after
considering comments.
SEC. 6. REVIEW BOARD PERSONNEL.
(a) Chief of Staff.--
(1) Appointment.--Not later than 45 days after the initial
meeting of the Review Board, and without regard to political
affiliation, the Review Board shall appoint an individual to
the position of Chief of Staff of the Review Board.
(2) Requirements.--The individual appointed as Chief of
Staff--
(A) shall be a citizen of the United States of
integrity and impartiality who is a distinguished
professional; and
(B) shall have had no previous involvement with any
official investigation or inquiry relating to civil
rights cold cases.
(3) Candidate to have clearances.--A candidate for Chief of
Staff shall be granted the necessary security clearances in an
accelerated manner subject to the standard procedures for
granting such clearances.
(4) Approval contingent on prior clearance.--A candidate
for Chief of Staff shall qualify for the necessary security
clearance prior to being appointed by the Review Board.
(5) Duties.--The Chief of Staff shall--
(A) serve as principal liaison to Government
offices;
(B) be responsible for the administration and
coordination of the Review Board's review of records;
(C) be responsible for the administration of all
official activities conducted by the Review Board; and
(D) have no authority to decide or determine
whether any record shall be disclosed to the public or
postponed for disclosure.
(6) Removal.--The Chief of Staff shall not be removed
except upon a majority vote of the Review Board to remove the
Chief of Staff for cause on the grounds of inefficiency,
neglect of duty, malfeasance in office, physical disability,
mental incapacity, or any other condition that substantially
impairs the performance of the responsibilities of the Chief of
Staff or the employees of the Review Board.
(b) Staff.--
(1) Additional personnel.--The Review Board may, in
accordance with the civil service laws but without regard to
civil service laws and regulations for appointments in the
competitive service under subchapter I of chapter 33 of title
5, United States Code, appoint and terminate additional
employees as are necessary to enable the Review Board and its
Chief of Staff to perform their duties.
(2) Requirements.--An individual appointed as an employee
of the Review Board--
(A) shall be a private citizen of integrity and
impartiality; and
(B) shall have had no previous involvement with any
official investigation or inquiry relating to civil
rights cold cases.
(3) Nominations.--Before making an appointment pursuant to
paragraph (1), the Review Board shall consider individuals
recommended by the American Historical Association, the
Organization of American Historians, the Society of American
Archivists, and the American Bar Association.
(4) Security clearances.--A candidate shall qualify for the
necessary security clearance prior to being appointed by the
Review Board.
(c) Compensation.--The Review Board shall fix the compensation of
the Chief of Staff and other employees in accordance with title 5,
United States Code, except that the rate of pay for the Chief of Staff
and other employees may not exceed the rate payable for level V of the
Executive Schedule under section 5316 of that title.
(d) Advisory Committees.--The Review Board may create advisory
committees to assist in fulfilling the responsibilities of the Review
Board under this Act.
SEC. 7. REVIEW OF RECORDS BY THE REVIEW BOARD.
(a) Custody of Records Reviewed by the Board.--Pending the outcome
of the Review Board's review activity, a Government office shall retain
custody of a civil rights cold case record for purposes of
preservation, security, and efficiency, unless--
(1) the Review Board requires the physical transfer of
records for reasons of conducting an independent and impartial
review; or
(2) such transfer is necessary for an administrative
hearing or other official Review Board function.
(b) Startup Requirements.--The Review Board shall--
(1) not later than 90 days after the date on which all
members of the Review Board are appointed, publish a schedule
for review of all civil rights cold case records in the Federal
Register; and
(2) not later than 180 days after the enactment of this
Act, begin its review of civil rights cold case records under
this Act.
(c) Determination of the Review Board.--
(1) In general.--The Review Board shall direct that copies
of all civil rights cold case records be transmitted to the
Archivist and disclosed to the public in the Collection in the
absence of clear and convincing evidence that--
(A) a Government record is not a civil rights cold
case record; or
(B) a Government record or particular information
within a civil rights cold case record qualifies for
postponement of public disclosure under this Act, which
shall include consideration by the Review Board of
relevant laws and policies protecting criminal records
of juveniles.
(2) Postponement.--In approving postponement of public
disclosure of a civil rights cold case record, the Review Board
shall work to--
(A) provide for the disclosure of segregable parts,
substitutes, or summaries of such a record; and
(B) determine, in consultation with the originating
body and consistent with the standards for postponement
under this Act, which of the following alternative
forms of disclosure shall be made by the originating
body:
(i) Any reasonably segregable particular
information in a civil rights cold case record.
(ii) A substitute record for that
information which is postponed.
(iii) A summary of a civil rights cold case
record.
(3) Report.--With respect to each civil rights cold case
record or particular information in civil rights cold case
records the public disclosure of which is postponed under
section 4, or for which only substitutions or summaries have
been disclosed to the public, the Review Board shall create and
transmit to the Archivist a report containing--
(A) a description of actions by the Review Board,
the originating body, the President, or any Government
office (including a justification of any such action to
postpone disclosure of any record or part of any
record) and of any official proceedings conducted by
the Review Board with regard to specific civil rights
cold case records; and
(B) a statement, based on a review of the
proceedings and in conformity with the decisions
reflected therein, designating a recommended specified
time at which or a specified occurrence following which
the material may be appropriately disclosed to the
public under this Act.
(4) Notice.--Not later than 14 days after the Review Board
makes a determination that a civil rights cold case record
shall be publicly disclosed in the Collection or postponed for
disclosure and held in the protected Collection, the Review
Board shall notify the head of the originating body of its
determination and publish a copy of the determination in the
Federal Register.
(5) Other notice.--Contemporaneous notice shall be made to
the President of Review Board determinations regarding
executive branch civil rights cold case records, and to the
oversight committees designated in this Act in the case of
legislative branch records. Such notice shall contain an
unclassified written justification for public disclosure or
postponement of disclosure, including an explanation of the
application of any standards under section 4.
(d) Presidential Authority Over Review Board Determination.--
(1) Public disclosure or postponement of disclosure.--After
the Review Board has made a formal determination concerning the
public disclosure or postponement of disclosure of an executive
branch civil rights cold case record or information contained
in a civil rights cold case record, obtained or developed
solely within the executive branch, the President shall have
the sole and nondelegable authority to require the disclosure
or postponement of such record or information under the
standards set forth in section 4, and the President shall
provide the Review Board with an unclassified written
certification specifying the President's decision within 30
days after the Review Board's determination and notice to the
executive agency as required under this Act, stating the
justification for the President's decision, including the
applicable grounds for postponement under section 4.
(2) Periodic review.--Any executive branch civil rights
cold case record for which public disclosure is postponed by
the President shall be subject to the requirements of periodic
review and declassification of classified information and
public disclosure in the Collection set forth in section 3.
(3) Record of presidential postponement.--The Review Board
shall, upon its receipt, publish in the Federal Register a copy
of any unclassified written certification, statement, or other
materials transmitted by or on behalf of the President with
regard to postponement of the public disclosure of civil rights
cold case records.
(e) Notice to the Public.--On each day that is on or after the date
that is 60 days after the Review Board first approves the postponement
of disclosure of a civil rights cold case record, the Review Board
shall publish on a publicly available website a notice that summarizes
the postponements approved by the Review Board or initiated by the
President, including a description of the subject, originating body,
length or other physical description, and each ground for postponement
that is relied upon.
(f) Reports by the Review Board.--
(1) In general.--The Review Board shall report its
activities to the Speaker of the House of Representatives, the
Minority Leader of the House of Representatives, the Committee
on Oversight and Government Reform of the House of
Representatives, the Majority Leader of the Senate, the
Minority Leader of the Senate, the Committee on Homeland
Security and Governmental Affairs of the Senate, the President,
the Archivist, and the head of any Government office whose
records have been the subject of Review Board activity.
(2) Deadlines.--Not later than 1 year after the date of
enactment of this Act, and every year thereafter until
termination of the Review Board, the Review Board shall issue a
report under paragraph (1).
(3) Contents.--Each report under paragraph (1) shall
include the following information:
(A) A financial report of the expenses for all
official activities and requirements of the Review
Board and its employees.
(B) The progress made on review, transmission to
the Archivist, and public disclosure of civil rights
cold case records.
(C) The estimated time and volume of civil rights
cold case records involved in the completion of the
Review Board's performance under this Act.
(D) Any special problems, including requests and
the level of cooperation of Government offices, with
regard to the ability of the Review Board to operate as
required by this Act.
(E) A record of review activities, including a
record of postponement decisions by the Review Board or
other related actions authorized by this Act, and a
record of the volume of records reviewed and postponed.
(F) Recommendations and requests to Congress for
additional authorization.
(G) An appendix containing copies of reports of
postponed records to the Archivist required under
subsection (c)(3) made since the date of the preceding
report under this subsection.
(4) Notice of termination.--Not later than 90 days before
terminating, the Review Board shall provide written notice to
the President and the Congress of its intention to terminate
its operations at a specified date.
SEC. 8. DISCLOSURE OF OTHER INFORMATION AND ADDITIONAL STUDY.
(a) Materials Under the Seal of the Court.--
(1) In general.--The Review Board may request the Attorney
General to petition any court in the United States or abroad to
release any information relevant to civil rights cold cases
that is held under seal of court.
(2) Grand jury materials.--
(A) In general.--The Review Board may request the
Attorney General to petition any court in the United
States to release any information relevant to civil
rights cold cases that is held under the injunction of
secrecy of a grand jury.
(B) Particularized need.--A request for disclosure
of civil rights cold case records under this Act shall
be deemed to constitute a showing of particularized
need under rule 6 of the Federal Rules of Criminal
Procedure.
(3) Deadline.--
(A) In general.--The Attorney General shall respond
to any request that is subject to this subsection
within 45 days.
(B) Nondisclosure of grand jury information.--If
the Attorney General determines that information
relevant to a civil rights cold case that is held under
the injunction of secrecy of a grand jury should not be
made public, the Attorney General shall set forth in
the response to the request the reasons for the
determination.
(b) Cooperation With Agencies.--It is the sense of Congress that--
(1) the Attorney General should assist the Review Board in
good faith to unseal any records that the Review Board
determines to be relevant and held under the seal by a court or
under the injunction of secrecy of a grand jury; and
(2) all departments and agencies of the United States
Government should cooperate in full with the Review Board to
seek the disclosure of all information relevant to civil rights
cold cases consistent with the public interest.
SEC. 9. RULES OF CONSTRUCTION.
(a) Precedence Over Other Law.--
(1) In general.--Subject to paragraph (2), when this Act
requires transmission of a record to the Archivist or public
disclosure, it shall take precedence over any other law (except
section 6103 of the Internal Revenue Code of 1986), judicial
decisions construing such law, or common law doctrine that
would otherwise prohibit such transmission or disclosure with
the exception of deeds governing access to or transfer or
release of gifts and donations of records to the United States
Government.
(2) Personnel and medical files.--This Act shall not
require the public disclosure of information that is exempt
from disclosure under section 552(b)(6) of title 5, United
States Code.
(b) Freedom of Information Act.--Nothing in this Act shall be
construed to eliminate or limit any right to file any requests with any
executive agency or seek judicial review of the decisions under section
552 of title 5, United States Code.
(c) Judicial Review.--Nothing in this Act shall be construed to
preclude judicial review, under chapter 7 of title 5, United States
Code, of final actions taken or required to be taken under this Act.
(d) Existing Authority.--Nothing in this Act revokes or limits the
existing authority of the President, any executive agency, the Senate,
the House of Representatives, or any other entity of the Government to
publicly disclose records in its possession.
SEC. 10. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated such sums
as are necessary to carry out this Act, to remain available until
expended.
(b) Interim Provisions.--Until such time as funds are appropriated
pursuant to subsection (a), the President shall use such sums as are
available for discretionary use to carry out this Act.
Calendar No. 727
115th CONGRESS
2d Session
S. 3191
[Report No. 115-424]
_______________________________________________________________________
A BILL
To provide for the expeditious disclosure of records related to civil
rights cold cases, and for other purposes.
_______________________________________________________________________
December 10, 2018
Reported with an amendment