109th CONGRESS
2d Session
S. 2499
To provide for the expeditious disclosure of records relevant to
the life and assassination of Reverend Doctor Martin Luther King, Jr.
IN THE SENATE OF THE UNITED STATES
April 4, 2006
Mr. KERRY introduced the following bill; which was read twice and referred
to the Committee on Homeland Security and Governmental Affairs
A BILL
To provide for the expeditious disclosure of records relevant to
the life and assassination of Reverend Doctor Martin Luther King, Jr.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Martin Luther King, Jr.,
Records Collection Act of 2006'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and declarations.
Sec. 4. Reverend Dr. Martin Luther King, Jr., Records Collection at the
National Archives.
Sec. 5. Review, identification, transmission to the National Archives,
and public disclosure of related records by Government offices.
Sec. 6. Postponement of public disclosure of records.
Sec. 7. Establishment and powers of the Records Review Board.
Sec. 8. Records Review Board personnel.
Sec. 9. Review of records by the Records Review Board.
Sec. 10. Disclosure of materials under seal of court.
Sec. 11. Private right of action.
Sec. 12. Rules of construction.
Sec. 13. Termination of effect of Act.
Sec. 14. Authorization of appropriations.
Sec. 15. Records pending.
Sec. 16. Whistleblower protection.
SEC. 2. FINDINGS AND DECLARATIONS.
(a) Findings and Declarations- The Congress finds and declares that--
(1) all Government records related to the life and assassination of Reverend
Dr. Martin Luther King, Jr., should be preserved for historical and governmental
purposes;
(2) all Government records concerning the life and assassination of Reverend
Dr. Martin Luther King, Jr., should carry a presumption of immediate disclosure,
and all records should be eventually disclosed to enable the public to
become fully informed about the history surrounding his life and assassination;
(3) legislation is necessary to create an enforceable, independent, and
accountable process for the public disclosure of such records;
(4) legislation is necessary because congressional records related to
the life and assassination of Reverend Dr. Martin Luther King, Jr., would
not otherwise be subject to public disclosure until at least the year
2028;
(5) legislation is necessary because the Freedom of Information Act, as
implemented by the executive branch, has prevented the timely public disclosure
of records relating to the life and assassination of Reverend Dr. Martin
Luther King, Jr.;
(6) legislation is necessary because Executive Order No. 12356, entitled
`National Security Information', has eliminated the declassification and
downgrading schedules relating to classified information across government
and has prevented the timely public disclosure of records relating to
the life and assassination of Reverend Dr. Martin Luther King, Jr.;
(7) legislation is necessary because records relating to the life and
assassination of Reverend Dr. Martin Luther King, Jr., that were previously
declassified and released to the public are being reevaluated for reclassification;
and
(8) most of the records related to the life and assassination of Reverend
Dr. Martin Luther King, Jr., are almost 35 years old, and only in the
rarest cases is there any legitimate need for continued protection of
such records.
(b) Purposes- The purposes of this Act are--
(1) to provide for the creation of the Reverend Dr. Martin Luther King,
Jr., Records Collection at the National Archives; and
(2) to require the expeditious public transmission to the Archivist and
public disclosure (including by electronic means) of such records.
SEC. 3. DEFINITIONS.
In this Act, the following definitions apply:
(1) The term `Archivist' means the Archivist of the United States.
(2) The term `related record' includes all records, public and private,
regardless of how labeled or identified, that document, describe, report
on, analyze or interpret activities, persons, or events reasonably related
to the life and assassination of Dr. Martin Luther King, Jr., and investigations
of or inquiries into his life or death, including a record--
(A) that was created or made available for use by, obtained by, or otherwise
came into the possession of--
(i) the Commission on Central Intelligence Agency Activities Within
the United States (the `Rockefeller Commission');
(ii) the Senate Select Committee to Study Governmental Operations
with Respect to Intelligence Activities (the `Church Committee');
(iii) the Select Committee on Assassinations (the `House Assassinations
Committee') of the House of Representatives;
(iv) the Select Committee on Intelligence (the `Pike Committee') of
the House of Representatives;
(v) the Library of Congress;
(vi) the National Archives;
(vii) any Presidential library;
(viii) any Executive agency;
(ix) any independent agency;
(x) any Government office;
(xi) any State or local law enforcement office that provided support
or assistance or performed work in connection with a Federal inquiry
into the life and assassination of Reverend Dr. Martin Luther King,
Jr.; or
(xii) any donated deed or gift; or
(B) that is any of the following:
(i) A record created in the course of a Federal, State, or local governmental
investigation that is no longer in possession of the Federal, State,
or local government.
(ii) A record located at, or under the control of--
(I) record repositories and archives of a Federal, State, or local
government;
(II) record repositories and archives of a university, library,
historical society, or similar organization;
(III) an individual who possesses the record by virtue of service
with a Government office;
(IV) a person, including an individual or corporation, who obtained
such record from Government sources or individuals identified in
this Act; or
(V) a person, including an individual or corporation, who created
or has obtained such record from sources other than those identified
in this clause.
(iii) A record of a Federal or State criminal or civil court, including
a record under seal released in accordance with section 10.
(iv) A record generated by a foreign government.
(v) A record in possession of a contractor of the Federal Government.
(vi) All records collected by or segregated by all Federal, State,
and local government agencies in conjunction with any investigation
or analysis of or inquiry into the life and assassination of Dr. Martin
Luther King, Jr., including any intra-agency investigation or analysis,
any interagency communications, any request by the Select Committee
on Assassinations of the House of Representatives to collect documents
and other materials, or any intra-agency collection or segregation
of documents and other materials regarding the life and assassination
of Dr. Martin Luther King, Jr.
(vii) All documents used by Government offices and agencies during
their declassification review of related records as well as all other
documents, indices, and other material, including but not limited
to those that disclose cryptonyms, code names, or other identifiers
that appear in related records that would reasonably constitute a
related record or would assist in the identification, evaluation,
or interpretation of a related record, including--
(I) with respect to records that are identified with respect to
a particular person, all records relating to that person that use
or reflect the true name or any other name, pseudonym, codeword,
symbol, number, cryptonym, or alias used to identify that person;
(II) with respect to records that are identified with respect to
a particular operation or program, all records pertaining to that
program by any other name, pseudonym, codeword, symbol, number,
or cryptonym; and
(III) any other record that does not fall within the scope of a
related record as described in the Act, but which has the potential
to enhance, enrich, and broaden the historical record of the life
and death of Dr. Martin Luther King, Jr.
(3) The term `Collection' means the Reverend Dr. Martin Luther King, Jr.,
Records Collection established under section 4.
(4) 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.
(5) The term `Government office' includes--
(A) all current, past, and former departments, agencies, offices, divisions,
foreign offices, bureaus, and deliberative bodies of any Federal, State,
or local government and includes all inter- or intra-agency working
groups, committees, and meetings that possess or created records relating
to the life and assassination of Dr. Martin Luther King, Jr.; and
(B) any office of the Federal Government that has possession or control
of related records, including--
(i) the House Committee on Administration with regard to the Select
Committee on Assassinations of the records of the House of Representatives;
(ii) the Select Committee on Intelligence of the Senate with regard
to records of the Senate Select Committee to Study Governmental Operations
with Respect to Intelligence Activities and other related records;
(iii) the Library of Congress;
(iv) the National Archives as custodian of related records that it
has obtained or possesses, including the Commission on Central Intelligence
Agency Activities in the United States; and
(v) any other executive branch office or agency, and any independent
agency.
(6) The term `identification aid' means the written description prepared
by the Archivist for each record as required by section 4.
(7) The term `National Archives' means the National Archives and all components
thereof, including Presidential archival depositories established under
section 2112 of title 44, United States Code.
(8) The term `official investigation' means the reviews of the activities
or assassination of Reverend Dr. Martin Luther King, Jr., conducted by
any Presidential commission, any authorized congressional committee, and
any Government agency either independently, at the request of any Presidential
commission or congressional committee, or at the request of any Government
official.
(9) 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.
(10) The term `public interest' means the compelling interest in the prompt
public disclosure of related records for historical and governmental purposes
and for the purpose of fully informing the American people about the history
surrounding the life and assassination of Reverend Dr. Martin Luther King,
Jr.
(11) 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 or physical evidence or artifact regardless
of its physical form or characteristics.
(12) The term `Review Board' means the Records Review Board established
by section 7.
(13) The term `third agency' means a Government agency that originated
a related record that is in the possession of another agency.
SEC. 4. REVEREND DR. MARTIN LUTHER KING, JR., RECORDS COLLECTION AT THE
NATIONAL ARCHIVES.
(a) In General- (1) Not later than 60 days after the date of enactment of
this Act, the National Archives shall commence establishment of a collection
of records to be known as the `Reverend Dr. Martin Luther King, Jr., Records
Collection.' In so doing, the Archivist shall ensure the physical integrity
and original provenance of all records. The Collection shall consist of
originals or record copies of all Government records relating to the life
and assassination of Reverend Dr. Martin Luther King, Jr., which shall be
transmitted to the National Archives in accordance with section 2107 of
title 44, United States Code. The Archivist shall prepare and publish a
subject guidebook and index to the collection, including the central directory
described in paragraph (2)(B), which shall be available to the public and
searchable electronically.
(2) The Collection shall include--
(A) all related records--
(i) that have been transmitted to the National Archives or disclosed
to the public in an unredacted form prior to the date of enactment of
this Act, or were so transmitted or disclosed and reclassified prior
to such date of enactment;
(ii) that are required to be transmitted to the National Archives;
(iii) the disclosure of which is postponed under this Act; or
(iv) that meets the definition of a related record discovered after
termination of the existence of the Records Review Board;
(B) a central directory comprised of identification aids created for each
record transmitted to the Archivist under section 5; and
(C) all Review Board records as required by this Act.
(b) Use of Secondary Location for Portion of Collection-
(1) IN GENERAL- The Archivist shall enter into an agreement with an entity
outside the National Archives for the establishment of a secondary location
for copies of such portion of the Collection as the Archivist considers
appropriate.
(2) PROCESS FOR ENTERING INTO AGREEMENT- The Archivist shall enter into
an agreement under this subsection through the solicitation of proposals
from public and private institutions of higher education, research institutions,
museums, and other archival institutions.
(3) CRITERIA FOR SELECTION- In selecting from the proposals submitted
under paragraph (2), the Archivist shall give preference to an entity--
(A) with a proven record of archival collecting;
(B) which will provide a maximum level of public access to copies of
the portion of the Collection involved; and
(C) which will encourage continuing study and education regarding the
life and assassination of Dr. Reverend Martin Luther King, Jr.
(4) TREATMENT OF COLLECTION AT SECONDARY LOCATION- The copies of the portion
of the Collection maintained at the secondary location pursuant to this
subsection, and the entity responsible for maintaining such copies of
the collection under the agreement under this subsection, shall be subject
to the same terms, conditions, and requirements as apply under this Act
to the portion of the Collection maintained at the National Archives and
the Archivist.
(c) Availability of Collection at Archives and Electronically- Each item
in the Collection (as described in subsection (a)(2)), other than an artifact
or a record the disclosure of which is postponed under this Act, shall be
available to the public for inspection and copying at the National Archives
and through an electronic format within 30 days after its transmission to
the National Archives.
(d) Fees for Copying- The Archivist shall--
(1) charge fees for copying such records; and
(2) grant waivers of such fees pursuant to the standards established by
section 552(a)(4) of title 5, United States Code.
(e) Additional Requirements- (1) The Collection shall be preserved, protected,
archived, and made available to the public at the National Archives.
(2) Whenever artifacts are included in the Collection, it shall be sufficient
to comply with this Act if the public is provided with access to photographs,
drawings, or similar materials depicting the artifacts. Additional display,
examination, or testing by the public of artifacts in the Collection shall
occur if there is a reasonable claim that such examination or testing will
reveal aspects of the artifact that cannot be determined from such photographs
or depictions, and shall occur under the terms and conditions established
by the National Archives to ensure their preservation and protection for
prosperity.
(3) The National Archives, in consultation with its Information Security
Oversight Office, shall ensure the security of the records in the Collection
that qualify for postponement of public disclosure pursuant to section 6.
(f) Oversight- The Committee on 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 Collection
and shall conduct biannual hearings, up to and including the final Archivist
determination.
SEC. 5. REVIEW, IDENTIFICATION, TRANSMISSION TO THE NATIONAL ARCHIVES,
AND PUBLIC DISCLOSURE OF RELATED RECORDS BY GOVERNMENT OFFICES.
(1) PREPARATION FOR REVIEW- As soon as practicable after the date of enactment
of this Act, each Government office shall identify and organize its records
relating to the life and assassination of Reverend Dr. Martin Luther King,
Jr., and prepare them for transmission to the Archivist for inclusion
in the Collection.
(2) DETERMINATION OF USE OF ORIGINALS OR COPIES-
(A) For purposes of determining whether originals or copies of related
records are to be made part of the Collection established under this
Act, the following shall apply:
(i) In the case of papers, maps, and other documentary materials,
the Review Board may determine that record copies of Government records,
either the signed original, original production, or a reproduction
that has been treated as the official record maintained to chronicle
government functions or activities may be placed in the Collection.
(ii) In the case of other papers, maps, and other documentary material,
the Review Board may determine that a true and accurate copy of a
record in lieu of the original may be placed in the Collection.
(iii) In the case of photographs, the original negative, whenever
available (otherwise the nearest generation print that is a true and
accurate copy), may be placed in the Collection.
(iv) In the case of motion pictures, the camera original, whenever
available (otherwise the earliest generation print that is a true
and accurate copy) may be placed in the Collection.
(v) In the case of sound and video recordings, the original recording,
whenever available (otherwise the earliest generation copy that is
a true and accurate copy) may be placed in the Collection.
(vi) In the case of machine-readable information, a true and accurate
copy of the original (duplicating all information contained in the
original and in a format that permits retrieval of the information)
may be placed in the Collection.
(vii) In the case of artifacts, the original objects themselves shall
be placed in the Collection.
(B) To the extent records from foreign governments are included in the
Collection, copies of the original records shall be sufficient for inclusion
in the Collection.
(C) In cases where a copy, as defined in subparagraph (D), is authorized
by the Review Board to be included in the Collection, the Review Board
may require that a copy be certified if, in its discretion, it determines
a certification to be necessary to ensure the integrity of the Collection.
In cases where an original, as defined in subparagraph (A), is required
for inclusion in the Collection, the Review Board may, at its discretion,
accept the best available copy. In such cases that records included
in the Collection, whether originals or copies, contain illegible portions,
such records shall have attached thereto a certified transcription of
the illegible language to the extent practicable.
(D) For purposes of implementing this Act, the term `copy' means true
and accurate photocopy duplication by a means appropriate to the medium
of the original record that preserves and displays the integrity of
the record and the information contained in it.
(E) Nothing in this paragraph shall be interpreted to suggest that additional
copies of any related records contained in the Collection are not also
related records that, at the Review Board's discretion, may also be
placed in the Collection.
(F) Nothing in this paragraph shall be interpreted to prevent or to
preclude copies of any electronic related records from being reformatted
electronically in order to conform to different hardware or software
requirements of audiovisual or machine readable formats if such is the
professional judgment of the National Archives.
(3) RELATED RECORDS- In carrying out this section, a Government office
may not destroy, alter, or mutilate in any way a related record.
(A) Except as provided in subparagraph (B), in carrying out this section,
a Government office may not withhold, redact, postpone for public disclosure,
or reclassify a related record that was made available or disclosed
to the public prior to the date of enactment of this Act.
(B) For purposes of subparagraph (A), a Government office may withhold
names or identifies, consistent with the requirements of section 6,
in a related record created by a person or entity outside government.
(b) Custody of Related Records Pending Review- During the review by a Government
office and pending review activity by the Review Board, the Government office
shall retain custody of its related records for purposes of preservation,
security, and efficiency, unless--
(1) the Review Board requires the physical transfer of records for purposes
of conducting an independent and impartial review;
(2) transfer is necessary for an administrative hearing or other Review
Board function;
(3) it is a third agency record described in subsection (c)(2)(C); or
(4) any other records are transferred to the Archives for public disclosure.
(1) IN GENERAL- Not later than 180 days after the date of enactment of
this Act, each Government office shall review each related record in its
custody or possession in accordance with paragraph (2).
(2) RELATED RECORDS- In carrying out paragraph (1), a Government office
shall--
(A) determine which of its records are related records;
(B) determine which of its related records have been officially disclosed
or publicly available in a complete and unredacted form;
(C)(i) determine which of its related records, or particular information
contained in such a record, was created by a third agency or by another
Government office; and
(ii) transmit to a third agency or other Government office those records,
or particular information contained in those records, or complete and
accurate copies thereof;
(D)(i) determine whether its related records or particular information
in related records are covered by the standards for postponement of
public disclosure under this Act; and
(ii) specify on the identification aid required by subsection (d) the
applicable postponement provision contained in section 6;
(E) organize and make available to the Review Board all related records
identified under subparagraph (D) the public disclosure of which in
whole or in part may be postponed under this Act;
(F) organize and make available to the Review Board any record concerning
which the office has any uncertainty as to whether the record is a related
record governed by this Act;
(i) the identification, review, and transmission of all related records
publicly available or disclosed as of the date of enactment of this
Act in a redacted or edited form; and
(ii) the identification, review, and transmission, under the standards
for postponement set forth in this Act, of related records that on
the date of enactment of this Act are the subject of litigation under
section 552 of title 5, United States Code; and
(H) make available to the Review Board any additional information and
records that the Review Board has reason to believe it requires for
conducting a review under this Act, including the following:
(i) All training manuals, instructional materials and guidelines created
or used by the Government office in furtherance of its review of related
records.
(ii) All records, lists, and documents describing the procedure by
which the office identified or selected related records for review.
(iii) Organizational charts of the office.
(iv) Records necessary and sufficient to describe the office's--
(I) records policies and schedules;
(II) filing systems and organization;
(III) storage facilities and locations;
(IV) indexing symbols, marks, codes, instructions, guidelines, methods,
and procedures; and
(V) search methods and procedures used in the performance of the
duties of the office under this Act.
(v) Reclassification to a higher level, transfer, destruction, or
other information (e.g., theft) regarding the status of related records.
(3) ARCHIVAL DEPOSITORIES- The Director of each archival depository established
under section 2112 of title 44, United States Code, shall have as a priority
the expedited review for public disclosure of related records in the possession
and custody of the depository, and shall make such records available to
the Review Board as required by this Act.
(A) STANDARD FORM- Not later than 45 days after the date of enactment
of this Act, the Archivist, in consultation with the appropriate Government
offices, shall prepare and make available to all Government offices
a standard form of identification or finding aid for use with each related
record subject to review under this Act.
(B) UNIFORM SYSTEM- The Archivist shall ensure that the identification
aid program is established in such a manner as to result in the creation
of a uniform system of electronic records by Government offices that
are compatible with each other and which shall be made publicly available
and searchable electronically.
(2) PRINTED COPIES- Upon completion of an identification aid by the Archivist,
a Government office shall--
(A) attach a printed copy to the record it describes;
(B) transmit to the Review Board a printed copy; and
(C) attach a printed copy to each related record it describes when it
is transmitted to the Archivist.
(3) PUBLICLY AVAILABLE RECORDS- Related records which are in the possession
of the National Archives on the date of enactment of this Act, and which
have been publicly available in their entirety without redaction, shall
be made available in the Collection without any additional review by the
Review Board or another authorized office under this Act.
(e) Transmission to the National Archives- Each Government office shall--
(1) transmit to the Archivist, and make immediately available to the public,
all related records that can be publicly disclosed, including those that
are publicly available on the date of enactment of this Act, without any
redaction, adjustment, or withholding under the standards of this Act;
and
(2) transmit to the Archivist upon approval for postponement by the Review
Board or upon completion of other action authorized by this Act, all related
records the public disclosure of which has been postponed, in whole or
in part, under the standards of this Act, to become part of the protected
Collection.
(f) Record Availability- Executive branch agencies shall--
(1) charge fees for copying related records;
(2) grant waivers of such fees pursuant to the standards established by
section 552(a)(4) of title 5, United States Code;
(3) permit, when not deemed a risk by the Board, the use of personal copying
devices, including, but not limited to portable scanners, digital cameras,
and the like; and
(4) make available to the public electronic versions of related records,
identification aids, and indexes.
SEC. 6. POSTPONEMENT OF PUBLIC DISCLOSURE OF RECORDS.
(a) Grounds for Postponement- Disclosure of related records or particular
information in related records to the public may be postponed subject to
the limitations of this Act if there is clear and convincing evidence that--
(1) the threat, as of the time the postponement decision is made, to the
military defense, intelligence operations, or conduct of foreign relations
of the United States posed by the public disclosure of the related record
is of such gravity that it outweighs the public interest, and such public
disclosure would reveal--
(A) a living intelligence agent whose identity currently requires protection;
(B) an intelligence source or method which is currently utilized, or
reasonably expected to be utilized, 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
(C) any other matter currently relating to the military defense, intelligence
operations, or conduct of foreign relations of the United States, the
disclosure of which would demonstrably impair the national security
of the United States;
(2) the public disclosure of the related 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;
(3) the public disclosure of the related record could reasonably be expected
to constitute an unwarranted invasion of a living person's personal privacy,
and that invasion of privacy is so substantial that it outweighs the public
interest; or
(4) the public disclosure of the related record would compromise the existence
of an understanding of confidentiality currently requiring protection
between a Government agent and a living cooperating individual or a foreign
government, and public disclosure would be so harmful that it outweighs
the public interest.
(b) Custody of Postponed Related Records- A related record the public disclosure
of which 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 by section 4(e)(2).
(c) Annual Review of Postponed Related Records- (1) All postponed or redacted
records shall be reviewed annually by the originating agency and the Archivist
consistent with the recommendations of the Review Board under section 9(c)(3)(B).
(2) An annual review shall address the public disclosure of additional related
records in the Collection. Any related records discovered since the preceding
annual review in possession of any Federal, State, or local agency, Government
office, organization, or person shall be added to the Collection, and the
annual review also shall address the public disclosure of such records under
the standard of this Act.
(3) All postponed related records determined to require continued postponement
shall require an unclassified written description of the record and the
reason for such continued postponement. Such description shall be provided
to the Archivist and published in the Federal Register upon determination.
(4) The annual review of postponed related records shall serve to downgrade
and declassify security classified information and implement the presumption
of release required by section 15.
(d) Requirement to Disclose Postponed Records- Each related record shall
be publicly disclosed in full, and available in the Collection no later
than 1 year after the termination of the Review Board or the date that is
8 years after the date of enactment of this Act, whichever is earlier, unless
the President certifies, as required by this Act, that continued postponement
is made necessary by--
(1) a current and identifiable harm to the military defense, intelligence
operations, law enforcement, or conduct of foreign relations; and
(2) the identifiable harm is of such gravity that it outweighs the public
interest in disclosure.
SEC. 7. ESTABLISHMENT AND POWERS OF THE RECORDS REVIEW BOARD.
(a) Establishment- There is established as an independent agency a board
to be known as the `Martin Luther King Records Review Board'.
(1) FIVE MEMBERS- The President, by and with the advice and consent of
the Senate, shall appoint, without regard to political affiliation, 5
citizens 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 the life and assassination of Reverend Dr. Martin Luther
King, Jr.
(2) THREE ALTERNATE MEMBERS- The President shall appoint, without regard
to political affiliation, 3 citizens to serve as alternate members of
the Review Board in the case of a vacancy. The appointments shall be made
at the same time members under paragraph (1) are nominated.
(3) NOMINATIONS- The President shall make nominations to the Review Board
not later than 90 calendar days after the date of enactment of this Act.
(4) ADDITIONAL NOMINATIONS- If the Senate votes not to confirm a nomination
to the Review Board, the President shall make an additional nomination
not later than 30 days thereafter.
(5) RECOMMENDATIONS- (A) The President shall make nominations to the Review
Board after considering persons recommended by the Society of American
Archivists, the National Bar Association, the Black Caucus of the American
Library Association, Inc., and the National Conference of Black Political
Scientists.
(B) If an organization described in subparagraph (A) does not recommend
at least 2 nominees meeting the qualifications stated in paragraph (6)
by the date that is 45 days after the date of enactment of this Act, the
President shall consider for nomination the persons recommended by the
other organizations described in subparagraph (A).
(C) The President may request an organization described in subparagraph
(A) to submit additional nominations.
(6) NOMINATIONS- Persons nominated to the Review Board--
(A) shall be impartial private citizens, none of whom is presently employed
by any branch of the Government, none of whom shall have had any previous
involvement with any official investigation or inquiry into the life
or death of Dr. Martin Luther King, Jr., conducted by a Federal, State,
or local government, and none of whom shall have been previously employed
by any Federal intelligence or law enforcement agency, relating to the
life or assassination of Reverend Dr. Martin Luther King, Jr.;
(B) shall be distinguished persons of high national professional reputation
in their respective fields who are capable of exercising the independent
and objective judgment necessary to the fulfillment of their role in
ensuring and facilitating the review, transmission to the public, and
public disclosure of records related to the life and assassination of
Dr. Reverend Martin Luther King, Jr., and who possess an appreciation
of the value of such material to the public, scholars, and government;
and
(C) shall include at least 1 professional historian, 1 attorney, 1 researcher,
and 1 representative of the civil rights community.
(c) Security Clearances- (1) All Review Board nominees shall be granted
the necessary security clearances in an accelerated manner, commensurate
with that of other executive nominations, subject to the standard procedures
for granting such clearances.
(2) All nominees shall qualify for the necessary security clearance prior
to being considered for confirmation by the Committee on Homeland Security
and Governmental Affairs of the Senate.
(d) Confirmation Hearings- (1) The Committee on Homeland Security and Governmental
Affairs of the Senate shall hold confirmation hearings within 30 days in
which the Senate is in session after the nomination of 3 Review Board members.
(2) The Committee on Homeland Security and Governmental Affairs shall vote
on the nominations within 14 days in which the Senate is in session after
the confirmation hearings, and shall report its results to the full Senate
immediately.
(3) The Senate shall vote on each nominee to confirm or reject within 14
days in which the Senate is in session after reported by the Committee on
Homeland Security and Governmental Affairs.
(e) Vacancy- A vacancy on the Review Board shall be filled in the same manner
as specified for original appointment within 30 days of the occurrence of
the vacancy. Nominations for a vacancy shall be made from among the alternate
members appointed under subsection (b)(2).
(f) Chairperson- The Members of the Review Board shall elect one of its
members as chairperson at its initial meeting.
(g) 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, failure
to meet or falsification of any qualifications under subsection (b)(6),
or any other condition that substantially impairs the performance of
the member's duties.
(A) FACTS AND GROUNDS- 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 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.
(A) CIVIL ACTION- 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) REINSTATEMENT- The member may be reinstated or granted other appropriate
relief by order of the court.
(h) Compensation of Members- (1) 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) 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.
(i) Duties of the Review Board- The Review Board shall carry out sections
9 and 10 of this Act and any other duties of the Board as specified in this
Act.
(1) IN GENERAL- The Review Board shall have the authority to act in a
manner prescribed under this Act including authority to--
(A) direct Government offices to complete identification aids and organize
related records;
(B) direct Government offices to transmit to the Archivist related records
as required under this Act, including segregable portions of related
records, and substitutes and summaries of related records that can be
publicly disclosed to the fullest extent;
(C)(i) obtain access to related records that have been identified and
organized by a Government office;
(ii) 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; and
(iii) request the Attorney General to subpoena private persons and State
and Federal employees 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 previous
destruction of any records relating to the life or assassination of
Reverend Dr. Martin Luther King, Jr.;
(E) receive information from the public regarding the identification
and public disclosure of related records;
(F) hold hearings, administer oaths, and subpoena witnesses and documents;
(G) use the Federal Supply Service in the same manner and under the
same conditions as other departments and agencies of the United States;
(H) use the United States mails in the same manner and under the same
conditions as other departments and agencies of the United States; and
(I) appoint within 30 days after the appointment of the Review Board
an independent citizen advisory committee, subject to the Federal Advisory
Committee Act (5 U.S.C. App.), that includes members of the civil rights
community and the King family.
(2) ENFORCEMENT- A subpoena issued under paragraph (1)(C)(iii) may be
enforced by any appropriate Federal court acting pursuant to a lawful
request of the Review Board.
(k) Witness Immunity- The Review Board shall be considered to be an agency
of the United States for purposes of section 6001 of title 18, United States
Code.
(l) Oversight- (1) The Committee on 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 or newly discovered
records after termination of the Review Board, shall conduct periodic hearings
on the conduct of the board not less than every 2 years for a period ending
2 years after termination of the Review Board or 1 year after the certification
of the Archivist under section 13(b), and shall have access to any records
held or created by the Review Board.
(2) The Review Board, all Federal Government agencies, and the National
Archives shall have the duty to cooperate with the exercise of such oversight
jurisdiction.
(m) Support Services- The Administrator of the General Services Administration
shall provide administrative services for the Review Board on a reimbursable
basis.
(n) Interpretive Regulations- The Review Board may issue interpretive regulations.
(o) Termination and Winding up- (1) The Review Board and the terms of its
members shall terminate not later than 5 years after the enactment of this
Act, except that the Review Board may, by majority vote, extend its term
for an additional 2-year period if it has not completed its work within
that 5-year period.
(2) 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.
(3) Upon termination and winding up, the Review Board shall transfer all
of its records to the Archivist for inclusion in the Collection, and no
record of the Review Board shall be destroyed and records created in the
course of its duties will be released to the public within 60 days of its
termination.
SEC. 8. RECORDS REVIEW BOARD PERSONNEL.
(1) APPOINTMENT- Not later than 45 days after the initial meeting of the
Review Board, the Review Board shall appoint one citizen, without regard
to political affiliation, to the position of Executive Director.
(2) QUALIFICATIONS- The person appointed as Executive Director shall be
a private citizen of integrity and impartiality who is a distinguished
professional and who is not a present employee of any branch of the Government,
has not previously been employed by an intelligence agency, and has had
no previous involvement with any official investigation or inquiry relating
to the life or assassination of Reverend Dr. Martin Luther King, Jr.
(A) A candidate for Executive Director shall be granted the necessary
security clearances in an accelerated manner subject to the standard
procedures for granting such clearances.
(B) A candidate shall qualify for the necessary security clearance prior
to being approved by the Review Board.
(4) DUTIES- The Executive Director 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 should
be disclosed to the public or postponed for disclosure.
(5) REMOVAL- The Executive Director 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, failure to meet or falsification of any qualifications
under paragraph (2), or any other condition that substantially impairs
the performance of the responsibilities of the Executive Director or the
staff of the Review Board.
(1) IN GENERAL- The Review Board, without regard to the provisions of
title 5, United States Code, governing appointments in the competitive
service and without regard to the provisions of chapter 51 and chapter
53 of that title relating to classification and General Service pay rates,
may appoint and terminate additional personnel as are necessary to enable
the Review Board and its Executive Director to perform its duties.
(2) QUALIFICATIONS- A person appointed to the staff of the Review Board
shall be a private citizen of integrity and impartiality who is not a
present employee of any branch of the Government, has not previously been
in the employ of any intelligence agency, and who has had no previous
involvement with any official investigation or inquiry relating to the
life or assassination of Reverend Dr. Martin Luther King, Jr.
(A) ACCELERATION- A candidate for staff shall be granted the necessary
security clearances in an accelerated manner subject to the standard
procedures for granting such clearances.
(B) CONDITIONAL EMPLOYMENT- (i) The Review Board may offer conditional
employment to a candidate for a staff position pending the completion
of security background investigations. During the pendency of such investigations,
the Review Board shall ensure that any such employee does not have access
to, or responsibility involving, classified or otherwise restricted
related record materials.
(ii) If a person hired on a conditional basis under clause (i) is denied
other otherwise does not qualify for all security clearances necessary
to carry out the responsibilities of the position for which conditional
employment has been offered, the Review Board shall immediately terminate
the person's employment.
(c) Compensation- Subject to such rules as may be adopted by the Review
Board, the chairperson, without regard to the provisions of title 5, United
States Code, governing appointments in the competitive service and without
regard to the provisions of chapter 51 and chapter 53 of that title relating
to classification and General Service pay rates, may--
(1) appoint an Executive Director, who shall be paid at a rate not to
exceed the rate of basic pay for level V of the Executive Schedule; and
(2) appoint and fix compensation of such other personnel as may be necessary
to carry out this Act.
(d) Security Clearance Required- An individual employed in any position
by the Review Board (including an individual appointed as Executive Director)
shall be required to qualify for any necessary security clearance prior
to taking office in that position, but may be employed conditionally in
accordance with subsection (b)(3)(B) before qualifying for that clearance.
SEC. 9. REVIEW OF RECORDS BY THE RECORDS REVIEW BOARD.
(a) Startup Requirements- The Review Board shall--
(1) not later than 90 days after the date of its appointment, publish
a schedule for review of all assassination records in the Federal Register;
and
(2) not later than 180 days after the date of its appointment, begin its
review of related records under this Act.
(b) Determinations of the Review Board Relating to Public Disclosure and
Postponement-
(1) TRANSMITTAL- The Review Board shall direct that all related 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 related record; or
(B) a Government record or particular information within a related record
qualifies for postponement of public disclosure under this Act.
(2) NOTICE OF RELATED RECORD DESIGNATION-
(A) In determining to designate related records, the Review Board must
determine that the record or group of records will more likely than
not enhance, enrich, and broaden the historical record of the life and
assassination of Dr. Martin Luther King, Jr.
(B) A Notice or Related Record Designation (NRRD) shall be the mechanism
for the Review Board to announce publicly its determination that a record
or group of records meets the definition of related records.
(A) The Review Board shall consider and render decisions on a determination
by a Government office to seek to postpone the disclosure of related
records. In carrying out this subparagraph, the Review Board shall--
(i) consider and render decisions on whether a record constitutes
a related record;
(ii) consider and render decisions on whether a related record or
particular information in a record qualifies for postponement of disclosure
under this Act; and
(iii) in the case of a related record that qualifies for such postponement,
set specific conditions and dates for public disclosure of the record,
related to events or specific dates when the reasons for postponement
will end.
(B) A related record shall be released in its entirety except for portions
specifically postponed pursuant to the grounds for postponement of public
disclosure of records established in section 6(a), and no portion of
any related record shall be withheld from public disclosure solely on
grounds of nonrelevance unless, in the Review Board's sole discretion,
release of a part of a record is sufficient to comply with the intent
and purposes of this Act.
(C) In approving postponement of public disclosure of a related record,
the Review Board shall seek to--
(i) provide for the disclosure of segregable parts, substitutes, or
summaries of such a record; and
(ii) 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 related
record.
(II) A substitute record for that information which is postponed.
(III) A summary of a related record.
(4) REPORT- With respect to each related record or particular information
in related records the public disclosure of which is postponed pursuant
to section 6, 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 related records; and
(B) a statement of the specific conditions and dates for the public
disclosure of the record as set by the Review Board under paragraph
(3)(A)(iii).
(A) IN GENERAL- Following its review and a determination that a related
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, publish
a copy of the determination in the Federal Register within 14 days after
the determination is made, and provide that the determination is searchable
electronically.
(B) CONTEMPORANEOUS NOTICE TO EXECUTIVE AND LEGISLATIVE BRANCHES- Contemporaneous
notice shall be made to the President for Review Board determinations
regarding executive branch related 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 contained in section 6.
(c) 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 related record or
information within such a record, or of any information contained in a
related record, obtained or developed solely within the executive branch,
and upon a written appeal to the President by the originating agency or
third agency within 30 days after such determination, 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 6, 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 6, accompanied by a copy of the identification aid required
under section 4. If, after 30 days, the President has not transmitted
such written certification to the Review Board, the Board may proceed
according to its formal determination.
(2) ANNUAL REVIEW- Any executive branch related record postponed by the
President shall be subject to the requirements of annual review, downgrading
and declassification of classified information, and public disclosure
in the collection set forth in section 6.
(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 related records
and provide that such copies are searchable electronically.
(d) Notice to Public- Every 30 calendar days, beginning on the date that
is 60 calendar days after the date on which the Review Board first approves
the postponement of disclosure of a related 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, and provide that the notice is searchable
electronically.
(e) Reports by the Review Board- (1) The Review Board shall report its activities
to the leadership of the Congress, the Committee on Government Reform of
the House of Representatives, 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) The first report shall be issued on the date that is 1 year after the
date of enactment of this Act, and subsequent reports every 12 months thereafter
until termination of the Review Board.
(3) A 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 personnel.
(B) The progress made on review, transmission to the Archivist, and public
disclosure of related records.
(C) The estimated time and volume of assassination 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) Suggestions and requests to Congress for additional legislative authority
needs.
(G) An appendix containing copies of reports of postponed records to the
Archivist required under section 9(c)(3) made since the date of the preceding
report under this subsection.
(H) Any recommendations made by the citizens advisory committee appointed
by the Review Board.
(I) Any recommendations of the Review Board.
(4) At least 90 calendar days before completing its work, the Review Board
shall provide written notice to the President and Congress of its intention
to terminate its operations at a specified date.
SEC. 10. DISCLOSURE OF MATERIALS UNDER SEAL OF COURT.
(a) Requests to Attorney General-
(1) REQUESTS FOR INFORMATION OR EVIDENCE UNDER SEAL- The Review Board
may request the Attorney General--
(A) to petition any court in the United States or abroad to release
any information or physical evidence relevant to the life or assassination
of Reverend Dr. Martin Luther King, Jr., that is held under seal of
the court; or
(B) to subpoena any such information or evidence if such information
or evidence is no longer in the possession of the Government.
(2) REQUESTS FOR INFORMATION UNDER INJUNCTION OF SECRECY OF A GRAND JURY-
(A) The Review Board may request the Attorney General to petition any
court in the United States to release any information relevant to the
life or assassination of Reverend Dr. Martin Luther King, Jr., that
is held under the injunction of secrecy of a grand jury.
(B) A request for disclosure of life or assassination materials under
this Act shall be deemed to constitute a showing of particularized need
under Rule 6 of the Federal Rules of Criminal Procedure.
(b) Sense of Congress- It is the sense of the 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 seal by a court or under the injunction of secrecy of a
grand jury;
(2) the Secretary of State should contact any other foreign government
that may hold information relevant to the life and assassination of Reverend
Dr. Martin Luther King, Jr., seek the disclosure of such information,
and report on progress on these matters to the Review Board in a timely
fashion; and
(3) all Executive agencies should cooperate in full with the Review Board
to seek the disclosure of all information relevant to the life and assassination
of Reverend Dr. Martin Luther King, Jr., consistent with the public interest.
SEC. 11. PRIVATE RIGHT OF ACTION.
(a) In General- Any person who is aggrieved by a violation of this Act may
bring a civil action in an appropriate district court for declaratory or
injunctive relief with respect to the violation.
(b) Attorney's Fees- In a civil action under this section, the court may
allow the prevailing party (other than the United States) reasonable attorney
fees, including litigation expenses, and costs.
SEC. 12. RULES OF CONSTRUCTION.
(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), judicial
decision construing such law, or common law doctrine that would otherwise
prohibit such transmission or disclosure.
(b) Freedom of Information Act- Nothing in this Act shall be construed to
eliminate or limit any right to file requests with any executive agency
or seek judicial review of the decisions pursuant to section 552 of title
5, United States Code, except that any related record discovered after termination
of the Review Board shall be considered for postponement or public disclosure
under the standards of this Act, not such section 552.
(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, or the House
of Representatives, or any other entity of the Government to publicly disclose
records in its possession.
(e) 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--
(1) 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
(2) 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. 13. TERMINATION OF EFFECT OF ACT.
(a) 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 7(o).
(b) 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 assassination records, including any related record
subsequently discovered as described in section 6(c)(2), have been made
available to the public in accordance with this Act.
SEC. 14. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are necessary to carry
out this Act, to remain available until expended.
SEC. 15. RECORDS PENDING.
Upon termination of the Review Board, all records that are still pending
postponement determinations shall be presumed to be available for release.
SEC. 16. WHISTLEBLOWER PROTECTION.
All members of the Review Board staff, the Review Board, the National Archives,
and all Federal agencies covered under this Act shall treat relevant employees
in accordance with the provisions of chapter 23 of title 5, United States
Code, prohibiting certain personnel practices (commonly referred to as whistleblower
protection provisions), particularly relating to the disclosure of improper
document retention, release, and disclosure.
SEC. 17. SEVERABILITY.
If any provision of this Act or the application thereof to any person or
circumstance is held invalid, the remainder of this Act and the application
of that provision to other persons not similarly situated or to other circumstances
shall not be affected by the invalidation.
END
