Section 1 Short title
This Act may be cited as the “Cold Case Record Collections Act of 2017”.
Cold Case Record Collections Act of 2017
A BILL
To provide for the expeditious disclosure of records related to civil rights cold cases, and for other purposes.
Sec. 2 Findings
The Congress finds the following:
All government records related to civil rights cold cases shall be preserved for historical and governmental purposes.
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.
Legislation is necessary to create an enforceable, independent, and accountable process for the public disclosure of such records.
Legislation is necessary because congressional records related to civil rights cold cases would not otherwise be subject to public disclosure.
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.
Legislation is necessary because Executive Order 13526 (75 Fed. Reg. 707; relating to classified national security information), while eliminating the declassification and downgrading of schedules relating to classified information across government, has not resulted in the timely and adequate public disclosure of records relating to civil rights cold cases.
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.
Sec. 3 Definitions
In this Act:
Archivist— The term “Archivist” means the Archivist of the United States.
Civil Rights Cold Case— The term “Civil Rights Cold Case” means any unsolved case related to criminal civil rights statutes specifically—
section 241 of title 18, United States Code (relating to conspiracy against rights);
section 242 of title 18, United States Code (relating to deprivation of rights under color of law);
section 245 of title 18, United States Code (relating to federally protected activities);
sections 1581 and 1584 of title 18, United States Code (relating to involuntary servitude and peonage);
section 901 of the Fair Housing Act (42 U.S.C. 3631); and
any other Federal law that—
was in effect on or before December 31, 1969; and
the criminal section of the Civil Rights Division of the Department of Justice enforced, prior to the date of enactment of this Act.
Collection— The term “Collection” means the Civil Rights Cold Cases Collection established under section 4.
Executive Agency— The term “Executive Agency” means an executive agency as defined in subsection 552(f) of title 5, United States Code, and includes any executive department, military department, Government Corporation, government controlled corporation, or other establishment in the executive branch of the government, including the Executive Office of the President, or any independent regulatory agency.
Government office— The term “Government office” means any office of the Federal Government that has possession or control of civil rights cold cases records.
Government official— The term “Government official” means any officer or employee of the United States, including elected and appointed officials.
Identification aid— The term “Identification aid” means the written description prepared for each record as required in section 224.
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.
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.
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.
Public interest— The term “Public interest” means the compelling interest in the prompt public disclosure of Civil Rights Cold Cases records for historical and governmental purposes and for the purpose of fully informing the American people about the history surrounding all Civil Rights Cold Cases in the United States.
Record— The term “Record” includes a book, paper, map, photograph, sound or video recording, machine readable material, computerized, digitized, or electronic information, regardless of the medium on which it is stored, or other documentary material, regardless of its physical form or characteristics.
Civil Rights Cold Case Record— The term “Civil Rights Cold Case Record” means a record that is related to Civil Rights Cold Cases, that was created or made available for use by, obtained by, or otherwise came into the possession of—
the Library of Congress;
the National Archives and Records Administration;
any executive agency;
any independent agency;
any other entity of the Federal Government; and
any State or local government, or component thereof, that provided support or assistance or performed work in connection with a Federal inquiry into Civil Rights Cold Cases.
Review board— The term “Review Board” means the Civil Rights Cold Cases Records Review Board established by section 6.
Third agency— The term “Third agency” means an executive agency that originated a Civil Rights Cold Case record that is in the possession of another agency.
Widely accessible format— The term “Widely accessible format” refers to an open format that is platform independent, machine readable, and made available to the public without restrictions that would impede the re-use of that information.
Sec. 4 Civil rights cold case records collection at the national archives and record administration
In general—
Establishment of the civil rights cold case records collection— Not later than 60 days after the date of the enactment of this Act, the Archivist shall—
establish a collection of 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
prepare and publish the subject guidebook and index to the Collection.
Contents of collection— The Collection shall include—
a copy of each cold case record that shall be transmitted to the Archivist in accordance with section 2107 of title 44, United States Code;
each cold case record—
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;
that is required to be transmitted to the Archivist; and
the disclosure of which is postponed under this Act;
a central directory comprised of identification aids created for each record transmitted to the Archivist under section 5; and
all Review Board records as required by this Act.
Disclosure of records— All cold case records transmitted to the Archivist for disclosure to the public shall be included in the Collection and shall be available to the public for inspection and copying at the National Archives within 30 days after the transmission of such record to the Archivist.
Fees for copying— The Archivist shall—
use efficient electronic means when possible;
charge fees for copying cold case records; and
grant waivers of such fees pursuant to the standard established by section 552(a)(4) of title 5, United States Code.
Additional requirements— The Archivist, in consultation with the Information Security Oversight Office, shall ensure the security of the postponed cold case records in the Collection.
Transmission to the national archives— Each Government office shall—
transmit to the Archivist and make available to the public not later than 300 days after the date of the enactment of this Act, each 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
transmit to the Archivist upon approval for postponement by the Review Board or upon completion of other action authorized by this Act, each 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.
Custody of postponed cold case records— A cold case record for which public disclosure has been postponed shall, pending transmission to the Archivist, be held for reasons of security and preservation by the originating body until such time as the information security program has been established at the National Archives as required in section 4(c)(2).
Periodic review of postponed cold case records—
In general— Each postponed or redacted record shall be reviewed every 180 days by the originating agency and the Archivist consistent with the recommendations of the Review Board under section 8(c)(3)(B).
Requirements of periodic review— The periodic review shall—
address the public disclosure of additional cold case records in the Collection under the standards of this Act; and
serve to downgrade and declassify classified information, with the presumption of providing public disclosure.
Unclassified written description— Any postponed cold case record that is determined to require continued postponement shall include an unclassified written description of the reason for such continued postponement. Such description shall be provided to the Archivist and published in the Federal Register upon determination.
Full disclosure of cold case record required— Each cold case record 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—
continued postponement is made necessary by an identifiable harm to military defense, intelligence operations, or the conduct of foreign relations; and
the identifiable harm is of such gravity that it outweighs the public interest in disclosure.
Digitization of records— Executive branch agencies shall make text searchable documents available to the Review Board pursuant to standards established by section 552(a)(3) of title 5, United States Code.
Sec. 5 Grounds for postponement of public disclosure of records
Disclosure of Civil Rights Cold Case records or particular information within a cold case record to the public may be postponed subject to the limitations of this Act if there is clear and convincing evidence that:
The threat to the military defense, intelligence operations, or the conduct of domestic affairs of the United States posed by the public disclosure of the cold case record is of such gravity that the disclosure outweighs the public interest and would reveal—
an intelligence source or method that is currently used, or reasonably expected to be used, by the United States Government and which has not been officially disclosed, the disclosure of which would interfere with the conduct of intelligence activities; or
any other matter relating to the military defense, intelligence operations, or conduct of foreign relations with the United States, the disclosure of which would demonstrably impair the national security of the United States.
The public disclosure of the cold case record would reveal the name or identity of a living person who provided confidential information to the United States and would pose a substantial risk of harm to that person.
The public disclosure of the 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.
The public disclosure of the 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.
The public record of the cold case record would reveal a security or protective procedure used, or reasonably expected to be used, by the United States Secret Service or another executive agency responsible for protecting Government officials, and public disclosure would be so harmful that protective procedure outweighs the public interest.
Sec. 6 Establishment and powers of the cold case records review board
Establishment— There is established, as an independent agency, a board to be known as the Cold Case Records Review Board.
Appointment—
The President shall appoint 5 persons to serve as members of the Review Board to ensure and facilitate the review, transmission to the Archivist, and public disclosure of government records related to civil rights cold cases.
Initial appointments to the Review Board shall, so far as practicable, be made not later than 30 days after the enactment of this Act.
In making appointments to the Review Board the President shall consider any persons recommended by the American Historical Association, the Organization of American Historians, the Society of American Archivists, and the American Bar Association.
If an organization described in paragraph (3) does not recommend at least two nominees meeting the qualifications stated in paragraph (4) within 30 days after the enactment of this Act, the requirements of paragraph (2) shall be extended until such recommendations are made or 60 days, whichever comes first.
The President may request any organization described in paragraph (2) to submit additional nominations.
Persons nominated to the Review Board shall—
be impartial private citizens, none of whom is presently employed by any branch of the Government, and none of whom shall 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 Cases;
be distinguished persons 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 Cold Cases and who possess an appreciation of the value of such material to the public, scholars, and government; and
include at least one professional historian and one attorney.
Security clearances— All Review Board nominees shall be processed for the necessary security clearances in an accelerated manner subject to the standard procedures for granting such clearances.
Vacancy— A vacancy on the Review Board shall be filled in the same manner as the original appointment within 30 days of the occurrence of the vacancy.
Chairperson— The members of the Review Board shall elect one of its members as chairperson.
Removal of review board member—
No member of the Review Board shall be removed from office, other than—
by impeachment and conviction; or
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.
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.
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.
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.
The member may be reinstated or granted other appropriate relief by order of the court.
Compensation of members—
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.
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.
Duties of the review board—
The Review Board shall consider and render decisions on a determination by a Government office to seek to postpone the disclosure of Cold Case Records.
In carrying out paragraph (1), the Review Board shall consider and render decisions—
whether a record constitutes a Cold Case Record; and
whether a Cold Case Record or particular information in a record qualifies for postponement of disclosure under this Act.
Powers— The Review Board shall have the authority to act in a manner prescribed under this Act including the authority to—
obtain access to Cold Case records that have been identified and organized by a Government office;
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;
subpoena private persons to compel testimony, records, and other information relevant to its responsibilities under this Act;
require any Government office to account in writing for the destruction of any records relating to Civil Rights Cold Cases;
receive information from the public regarding the identification and public disclosure of Cold Case records; and
hold hearings, administer oaths, and subpoena witnesses and documents. Any subpoena issued under this paragraph may be enforced by any appropriate Federal court acting pursuant to a lawful request of the Review Board.
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.
Oversight— 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 be responsible for 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.
Support services— The Administrator of the General Services Administration shall provide administrative services for the Review Board on a reimbursable basis.
Interpretive Regulations— The Review Board may issue interpretive regulations.
Termination—
The Review Board shall terminate not later than 2 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 it has not completed its work within that 2-year period.
Upon 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.
Upon termination, the Review Board shall transfer all of its records to the Archivist for inclusion in the Collection, and the records of the Review Board shall not be destroyed.
Sec. 7 Cold case records review board personnel
Chief of staff—
Appointment— Not later than 45 days after the initial meeting of the Review Board, the Review Board shall appoint one United States citizen, without regard to political affiliation, to the position of Chief of Staff.
Requirements— The individual appointed as Chief of Staff—
shall be a private citizen of integrity and impartiality who is a distinguished professional;
may not be a present employee of the Federal Government; and
shall have had no previous involvement with any official investigation or inquiry relating to Civil Rights Cold Cases.
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.
Approval contingent on prior clearance— A candidate shall qualify for the necessary security clearance prior to being approved by the Review Board.
Duties— The Chief of Staff shall—
serve as principal liaison to Government offices;
be responsible for the administration and coordination of the Review Board’s review of records;
be responsible for the administration of all official activities conducted by the Review Board; and
have no authority to decide or determine whether any record shall be disclosed to the public or postponed for disclosure.
Removal— The Chief of Staff shall not be removed for reasons other than by a majority vote of the Review Board 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 staff of the Review Board.
Staff—
Additional personnel— The Review Board may, in accordance with the civil service laws but without regard to civil service law and regulation for competitive service as defined in subchapter 1 of chapter 33 of title 5, United States Code, appoint and terminate additional personnel as are necessary to enable the Review Board and its Chief of Staff to perform its duties.
Requirements— A person appointed to the staff of the Review Board—
shall be a private citizen of integrity and impartiality;
may not be an employee of the Federal Government; and
shall have had no previous involvement with any official investigation or inquiry relating to the Civil Rights Cold Cases.
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.
Security Clearances— A candidate shall qualify for the necessary security clearance prior to being approved by the Review Board.
Compensation— The Review Board shall fix the compensation of the Chief of Staff and or personnel in accordance with title 5, United States Code, except that the rate of pay for the Chief of Staff and other personnel may not exceed the rate payable for Level V of the Executive Schedule under section 5316 of that title.
Advisory committees— The Review Board shall have the authority to create advisory committees to assist in fulfilling the responsibilities of the Review Board under this Act.
Sec. 8 Review of records by the cold case records review board
Custody of records reviewed by the board— Pending the outcome of the Review Board’s review activity, a Government office shall retain custody of its cold case records for purposes of preservation, security, and efficiency, unless—
the Review Board requires the physical transfer of records for reasons of conducting an independent and impartial review; or
such transfer is necessary for an administrative hearing or other official Review Board function.
Startup requirements— The Review Board shall—
not later than 90 days after the date of its appointment, publish a schedule for review of all cold case records in the Federal Register; and
not later than 180 days after the enactment of this Act, begin its review of cold case records under this Act.
Determination of the review board—
The Review Board shall direct that all 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 Government record is not a cold case record; or
a Government record or particular information within a cold case record qualifies for postponement of public disclosure under this Act.
In approving postponement of public disclosure of a cold case record, the Review Board shall work to—
provide for the disclosure of segregable parts, substitutes, or summaries of such a record; and
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:
Any reasonably segregable particular information in a cold case record.
A substitute record for that information which is postponed.
A summary of a cold case record.
With respect to each cold case record or particular information in cold case records the public disclosure of which is postponed pursuant to 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—
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 cold case records; and
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.
Following its review and a determination that a 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 within 14 days after the determination is made.
Contemporaneous notice shall be made to the President for Review Board determinations regarding executive branch 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 in section 5.
Presidential authority over review board determination—
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 cold case record or information contained in an 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 branch agency as required under this Act, stating the justification for the President’s decision, including the applicable grounds for postponement under section 5, accompanied by a copy of the identification aid required under section 4.
Periodic review— Any executive branch cold case record postponed by the President shall be subject to the requirements of periodic review, downgrading, and declassification of classified information, and public disclosure in the Collection set forth in section 4.
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 cold case records.
Notice to the public— Every calendar day, beginning 60 days after the Review Board first approves the postponement of disclosure of an cold case record, the Review Board shall publish in the Federal Register a notice that summarizes the postponements approved by the Review Board or initiated by the President, the House of Representatives, or the Senate, including a description of the subject, originating agency, length or other physical description, and each ground for postponement that is relied upon.
Reports by the review board—
The Review Board shall report its activities to the Speaker, Minority Leader and the Committee on Oversight and Government Reform of the House of Representatives, and the Majority Leader, Minority Leader, and 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.
The first report shall be issued 1 year after the enactment of this Act, and subsequent reports shall be issued every 12 months thereafter until termination of the Review Board.
A report under paragraph (1) shall include the following information:
A financial report of the expenses for all official activities and requirements of the Review Board and its personnel.
The progress made on review, transmission to the Archivist, and public disclosure of cold case records.
The estimated time and volume of cold case records involved in the completion of the Review Board’s performance under this Act.
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.
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.
Recommendations and requests to Congress for additional authorization.
An appendix containing copies of reports of postponed records to the Archivist required under section 8(c)(3) made since the date of the preceding report under this subsection.
At least 90 calendar days before completing its work, 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. 9 Disclosure of other information and additional study
Materials under the seal of the court—
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 related cold cases that is held under seal of court.
The Review Board may request the Attorney General to petition any court in the United States to release any information relevant to Civil Rights related cold cases that is held under the injunction of secrecy of a grand jury.
A request for disclosure of Civil Rights cold case materials under this Act shall be deemed to constitute a showing of particularized need under Rule 6 of the Federal Rules of Criminal Procedure.
The Attorney General shall comply with any request made subject to provisions of the section within 45 days.
Cooperation with agencies— It is the sense of Congress that—
the Attorney General shall 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
all departments and agencies of the United States Government shall cooperate in full with the Review Board to seek the disclosure of all information relevant to civil rights related cold cases consistent with the public interest.
Sec. 10 Rules of construction
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), judicial decisions construing such law, or common law doctrine that would otherwise prohibit such transgression 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.
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 pursuant to section 552 of title 5, United States Code.
Judicial review— Nothing in this Act shall be construed to preclude judicial review, under chapter 7 of title 5, United States Code, of final sections taken or required to be taken under this Act.
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.
Rules of the Senate and House of Representatives— To the extent that any provision of this Act establishes a procedure to be followed in the Senate or the House of Representatives, such provision is adopted—
as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and is deemed to be part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House, and it supersedes other rules only to the extent that it is inconsistent with such rules; and
with full recognition of the constitutional right of either House to change the rules (so far as they relate to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.
Sec. 11 Termination of effect of Act
Provisions pertaining to the review board— The provisions of this Act that pertain to the appointment and operation of the Review Board shall cease to be effective when the Review Board and the terms of its members have terminated pursuant to section 6(n).
Other provisions— The remaining provisions of this Act shall continue in effect until such time as the Archivist certifies to the President and the Congress that all Civil Rights Cold Cases records have been made available to the public in accordance with this Act.
Sec. 12 Authorization of appropriations
In general— There are authorized to be appropriated such sums as are necessary to carry out this Act, to remain available until expended.
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.