[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 1801 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                S. 1801

     To provide for the identification, collection, and review for 
  declassification of records and materials that are of extraordinary 
   public interest to the people of the United States, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 27, 1999

 Mr. Moynihan introduced the following bill; which was read twice and 
           referred to the Committee on Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
     To provide for the identification, collection, and review for 
  declassification of records and materials that are of extraordinary 
   public interest to the people of the United States, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Public Interest Declassification Act 
of 1999''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) A comprehensive reform of the management of the 
        classification and declassification of information is essential 
        but will require additional funding, more technical 
        development, and more coordination by the executive branch.
            (2) The dissemination of declassified records of permanent 
        historic value that pertain to the national security of the 
        United States is in the public interest and can best be 
        accomplished through continued on-going systematic 
        declassification of classified information.
            (3) It is in the national interest to establish an 
        effective, coordinated, and cost-effective means by which 
        records on specific subjects of extraordinary public interest 
        may be collected, retained, reviewed, and disseminated for 
        Congress, policymakers in the executive branch, and the public.
            (4) Ensuring, through such measures, public access to 
        information that does not require protections is a key to 
        striking the balance between secrecy and the openness that is 
        central to the proper functioning of the political institutions 
        of the United States.

SEC. 3. PUBLIC INTEREST DECLASSIFICATION BOARD.

    (a) Establishment.--There is established within the National 
Archives and Records Administration a board to be known as the ``Public 
Interest Declassification Board'' (in this Act referred to as the 
``Board'').
    (b) Purposes.--The purposes of the Board are as follows:
            (1) To direct and provide, through recommendations to the 
        Archivist of the United States, for the thorough, coordinated, 
        comprehensive, and cost-effective identification, collection, 
        review for declassification, and release to Congress, 
        interested agencies, and the public of records and materials 
        (including donated historical materials) that are of 
        extraordinary public interest.
            (2) To provide Congress, interested agencies, and the 
        public with the fullest possible access to a thorough, 
        accurate, and reliable documentary record of significant United 
        States national security decisions and significant United 
        States national security activities in order to--
                    (A) support the oversight and legislative functions 
                of Congress;
                    (B) support the policymaking role of the executive 
                branch;
                    (C) respond to the interest of the public in 
                national security matters; and
                    (D) promote reliable historical analysis and new 
                avenues of historical study in national security 
                matters.
    (c) Membership.--(1)(A) The Board shall be composed of nine 
individuals appointed by the President from among citizens of the 
United States who are preeminent in the fields of history, national 
security, foreign policy, social science, law, or archives, including 
individuals who have served in Congress or otherwise in Federal 
Government or have otherwise engaged in research, scholarship, or 
publication in such fields on matters relating to the national security 
of the United States.
    (B) The President shall appoint members of the Board after 
consideration of recommendations made by appropriate organizations, 
including the American Historical Association, the Organization of 
American Historians, the American Political Science Association, the 
Society of American Archivists, the American Society of International 
Law, the Standing Committee on Law and National Security of the 
American Bar Association, and the Society for Historians of American 
Foreign Relations.
    (C) An officer or employee of the Federal Government may not serve 
as a member of the Board.
    (2)(A) Of the members initially appointed to the Board, three shall 
be appointed for a term of three years, three shall be appointed for a 
term of two years, and three shall be appointed for a term of one year.
    (B) Any subsequent appointment to the Board shall be for a term of 
three years.
    (3) A vacancy in the Board shall be filled in the same manner as 
the original appointment. A member of the Board appointed to fill a 
vacancy before the expiration of a term shall serve for the remainder 
of the term.
    (4) A member of the Board may continue to serve on the Board when 
the member's term expires until a successor is appointed.
    (5) A member of the Board may be appointed to a new term on the 
Board upon the expiration of the member's term on the Board, except 
that no member may serve more than three full terms on the Board.
    (d) Chairperson; Executive Secretary.--(1)(A) The President shall 
designate one of the members of the Board as the chairperson of the 
Board.
    (B) The term of service as chairperson of the Board shall be one 
year.
    (C) A member serving as chairperson of the Board may be re-
designated as chairperson of the Board upon the expiration of the 
member's term as chairperson of the Board.
    (2) The Archivist of the United States shall select the Executive 
Secretary of the Board.
    (e) Meetings.--The Board shall meet at least quarterly. A majority 
of the members of the Board shall constitute a quorum.
    (f) Staff.--(1) The Chairperson of the Board may, with the 
concurrence of the Board, appoint such staff of the Board as the Board 
requires to carry out its duties under this Act.
    (2) Any employee of the Federal Government may be detailed to the 
Board, without reimbursement to the detailing agency, and such detail 
shall be without interruption or loss of civil service status or 
privilege.
    (g) Security.--(1) The members and staff of the Board shall, as a 
condition of appointment to or employment with the Board, hold 
appropriate security clearances for access to the classified records 
and materials to be reviewed by the Board and shall follow the guidance 
and practices on security of the Assistant to the President for 
National Security Affairs.
    (2) The head of an agency may, as a condition of granting access by 
a member or staff of the Board to classified records or materials of 
the agency under this Act, require the member or staff to--
            (A) execute an agreement regarding the security of such 
        records or materials that is approved by the head of the 
        agency; and
            (B) hold an appropriate security clearance granted or 
        recognized under the standard procedures and eligibility 
        criteria of the agency, including any special access approval 
        required for access to such records or materials.
    (2) Members and staff of the Board may not use any information 
acquired in the course of their official activities on the Board for 
nonofficial purposes.
    (3) For purposes of any law or regulation governing access to 
classified information that pertains to the national security of the 
United States, and subject to any limitations on access arising under 
section 6(c), a member of the Board seeking access to a record or 
material under this paragraph shall be deemed to have a need to know 
the contents of the record or material.
    (h) Compensation.--(1) Each member of the Board shall receive 
compensation at a rate not to exceed the daily equivalent of the annual 
rate of basic pay payable for positions at SES-1 of the Senior 
Executive Service under section 5382 of title 5, United States Code, 
for each day such member is engaged in the actual performance of duties 
of the Board.
    (2) Members of the Board shall be allowed travel expenses, 
including per diem in lieu of subsistence at rates authorized for 
employees of agencies under subchapter 1 of chapter 57 of title 5, 
United States Code, while away from their homes or regular places of 
business in the performance of the duties of the Board.
    (i) Guidance; Annual Budget.--(1) On behalf of the President, the 
Assistant to the President for National Security Affairs shall provide 
guidance on policy and security matters to the Board, including 
guidance and practices on security under subsection (g)(1).
    (2) The Archivist of the United States shall, in consultation with 
the Assistant to the President for National Security Affairs and the 
Director of the Office of Management and Budget, prepare the annual 
budget for the Board.
    (j) Public Availability of Records and Reports.--(1) The Board 
shall make available for public inspection records of its proceedings 
and reports prepared in the course of its activities under this Act to 
the extent such records and reports are not classified and would not be 
exempt from release under the provisions of section 552 of title 5, 
United States Code.
    (2) In making records and reports available under paragraph (1), 
the Board shall coordinate the release of such records and reports with 
appropriate officials from agencies with expertise in classified 
information in order to ensure that such records and reports do not 
inadvertently contain classified information.
    (k) Inapplicability of FACA.--The provisions of the Federal 
Advisory Committee Act (5 U.S.C. App.) shall not apply to the 
activities of the Board under this Act.

SEC. 4. IDENTIFICATION, COLLECTION, AND REVIEW FOR DECLASSIFICATION OF 
              INFORMATION OF EXTRAORDINARY PUBLIC INTEREST.

    (a) Recommendations.--(1) The Board may recommend to the Archivist 
of the United States that an agency or Federal Presidential library be 
directed to carry out an activity specified in paragraph (2) with 
respect to records or materials that the Board determines are records 
or materials (including donated historical materials) of extraordinary 
public interest for purposes of the release of such records or 
materials to the public or the provision of such records or materials 
to Congress or policymakers in the executive branch.
    (2) The activities that may be recommended by the Board under 
paragraph (1) are the following:
            (A) Identification of records or materials.
            (B) Collection of records or materials.
            (C) Review for declassification of records or materials.
            (D) Any combination of activities specified in 
        subparagraphs (A) through (C).
    (3) In making recommendations under paragraph (1), the Board shall 
consider the following:
            (A) The opinions and requests of Members of Congress, 
        including opinions and requests expressed or embodied in 
        letters or legislative proposals.
            (B) The opinions and requests of the National Security 
        Council and of the heads of agencies.
            (C) The opinions of United States citizens.
            (D) The opinions of individual members of the Board.
            (E) In the case of unscheduled or temporary records or 
        materials, the assessment of the Archivist of the United States 
        as to the value of identifying, collecting, and conducting 
        declassification reviews of such records or materials.
    (4) The Board shall, subject to the policy, budgetary, and security 
guidance provided under section 3, establish such priorities as the 
Board considers appropriate for purposes of this section.
    (5) The Board should establish liaisons, and may consult, with such 
other historical advisory committees, including panels and boards 
created under statute, or agency directive, concerned with the 
identification, collection, and review for declassification of 
classified information as the Board considers appropriate for purposes 
of this Act.
    (b) Orders.--(1) The Archivist of the United States, or the 
designee of the Archivist, shall, in consultation with the Assistant to 
the President for National Security Affairs, consider each 
recommendation made by the Board under subsection (a).
    (2) If the Archivist accepts a recommendation of the Board under 
subsection (a), the Archivist shall order that the actions contained in 
the recommendation be taken.
    (3) If the Archivist does not accept a recommendation of the Board 
under subsection (a), the Board shall notify Congress of the lack of 
acceptance of the recommendation in a report under section 6(f)(2).
    (c) Compliance With Orders.--(1) Except as otherwise provided in 
section 5(a) or 6(c), and subject to the availability of funds under 
section 8, an agency or Federal Presidential library shall comply with 
an order made to the agency or library, as the case may be, under 
subsection (b).
    (2)(A) If an order to an agency or Federal Presidential library 
under subsection (b) requires a review for declassification of records 
or materials originated by another agency, the agency or library, as 
the case may be, shall refer such records or materials to such other 
agency for review in accordance with the order.
    (B) The actions of an agency referred records or materials under 
subparagraph (A) shall be subject to the terms of the order relating to 
such records or materials and to limitations relating to funding under 
section 8.
    (3)(A) The Board shall, through the head of an agency or Federal 
Presidential library given an order under subsection (b), provide 
oversight of any identification, collection, or review of records or 
materials ordered under that subsection.
    (B) In providing oversight of identification, collection, or review 
under this paragraph, the Board shall, in consultation with the 
Archivist of the United States, take appropriate actions to ensure that 
such activities preserve the archival integrity of the records or 
materials involved.
    (d) Release of Unclassified and Declassified Information.--An 
agency or Federal Presidential library that undertakes a review for 
declassification of records or materials under an order under this 
section shall release any unclassified records or materials identified, 
or classified records or materials that are declassified, as a result 
of the review.

SEC. 5. PROTECTION OF NATIONAL SECURITY INFORMATION AND OTHER 
              INFORMATION.

    (a) In General.--Nothing in this Act shall be construed to limit 
the authority of the head of an agency to classify information or to 
continue the classification of information previously classified by an 
agency.
    (b) Special Access Programs.--Nothing in this Act shall be 
construed to limit the authority of the head of an agency to grant or 
deny access to a special access program.
    (c) Exemptions and Exceptions to Release of Information.--Nothing 
in this Act shall be construed to limit any exemption or exception to 
the release to the public under this Act of information that is 
protected under section 552(b) of title 5, United States Code (commonly 
referred to as the Freedom of Information Act), or section 552a of 
title 5, United States Code (commonly referred to as the Privacy Act).
    (d) Withholding Information From Congress.--Nothing in this Act 
shall be construed to authorize the withholding of information from 
Congress.

SEC. 6. STANDARDS AND PROCEDURES FOR IDENTIFICATION, COLLECTION, AND 
              REVIEW OF INFORMATION.

    (a) Standards and Procedures.--(1) Not later than 180 days after 
the date of the enactment of this Act, each agency and Federal 
Presidential library that possesses or controls classified records or 
materials shall develop standards and procedures for access to such 
records and materials by the Board and by the employee of such agency 
or library, as the case may be, designated to serve as liaison to the 
Board under subsection (b).
    (2) The standards and procedures developed by an agency or Federal 
Presidential library under paragraph (1) shall include provisions to 
achieve the following:
            (A) To forward to the Board for its consideration under 
        this Act any request, or if appropriate notice of a request, 
        other than a request under section 552 or 552a of title 5, 
        United States Code, from outside the agency or library, as the 
        case may be, for the identification, collection, or review for 
        declassification of records or materials, or for other 
        provision with respect to records or materials, that are 
        records or materials of extraordinary public interest.
            (B) To coordinate with the Board in establishing priorities 
        for the identification, collection, and review of records and 
        materials under orders under section 4(b).
            (C) To provide that the employee who is designated as the 
        liaison to the Board--
                    (i) is designated in consultation with the Board; 
                and
                    (ii) is eligible under the procedures and 
                eligibility criteria of the agency or library, as the 
                case may be, for access to any records and materials 
                covered by an order under section 4(b).
            (D) To permit access by the employee designated to serve as 
        the liaison to the Board to any classified records or materials 
        originated or controlled by the agency or library, as the case 
        may be, to which access has not been denied or restricted under 
        subsection (c), which has not otherwise been exempted from 
        review under that subsection or under this Act, or that are not 
        controlled under a special access program to which the head of 
        the agency has denied or restricted access.
            (E) To permit access by members and staff of the Board to 
        records or materials covered by an order under section 4(b) to 
        which access has not been denied or restricted under subsection 
        (c), which has not otherwise been exempted from review under 
        that subsection or under this Act, or that are not controlled 
        under a special access program to which the head of the agency 
        has denied or restricted access.
            (F) To notify the Board of the completion of compliance 
        with an order under section 4(b), including instances when 
        access to records or materials is denied or restricted under 
        subsection (c) or records or materials are otherwise exempted 
        from review under that subsection or under this Act.
    (b) Designation of Liaison to Board.--The head of each agency and 
Federal Presidential library shall designate an employee of such agency 
or library, as the case may be, to act as liaison to the Board for 
purposes of this Act.
    (c) Limitations on Access.--If the head of an agency or Federal 
Presidential library determines it necessary to deny or restrict access 
by the Board, or by the agency or library liaison to the Board, to 
information contained in a record or material, in whole or in part, or 
to exempt any record or material from identification, collection, or 
review under this Act, the head of the agency or library, as the case 
may be, shall promptly notify the Board in writing of such 
determination. Each such notice shall include a description of the 
nature of the records or materials, and a justification for the 
determination, covered by such notice.
    (d) Reconsideration.--(1) The Board may request the reconsideration 
by the head of an agency or Federal Presidential library of a 
determination made by the head of the agency or library, as the case 
may be, under subsection (c). Such a request may not be made sooner 
than two years after the date of the determination in question.
    (2) To accommodate a request under paragraph (1) for 
reconsideration of a determination regarding records or materials, the 
head of the agency or Federal Presidential library making the 
determination shall maintain an appropriate record of the results of 
any review of the records or materials covered by the determination 
and, to the extent records and materials have been identified as part 
of the review upon which the determination is based, shall tag, index, 
physically set aside, or otherwise enable the ready retrieval of such 
records or materials.
    (e) Discretion to Disclose.--At the conclusion of a 
declassification review, or upon a request by the Board for 
reevaluation under subsection (c), the head of an agency or Federal 
Presidential library may, in his discretion, determine that the 
public's interest in disclosure of records or materials covered by such 
review or request, and still properly classified, outweighs the 
Government's need to protect such records or materials. In such case, 
the head of the agency or library, as the case may be, may release such 
records or materials.
    (f) Reports.--(1) The Board shall annually submit to the 
appropriate congressional committees a report on the activities of the 
Board under this Act.
    (2) The Board shall submit to the appropriate congressional 
committees a report on the following:
            (A) Any denial by the head of an agency or Federal 
        Presidential library of access for the Board to records or 
        materials under this Act.
            (B) Any failure or refusal by the Archivist of the United 
        States to accept a recommendation of the Board under section 
        4(a).
    (3) In this subsection, the term ``appropriate congressional 
committees'' means the Select Committee on Intelligence of the Senate 
and the Permanent Select Committee on Intelligence of the House of 
Representatives.

SEC. 7. JUDICIAL REVIEW.

    Nothing in this Act limits the protection afforded to any 
information under any other provisions of law. This Act is not intended 
and should not be construed to create any right or benefit, substantive 
or procedural, enforceable at law against the United States, its 
agencies, its officers, or its employees. This Act does not modify in 
any way the substantive criteria or procedures for the classification 
of information, nor does this Act create any right or benefit subject 
to judicial review.

SEC. 8. FUNDING.

    (a) Funding Requests.--The President shall include in the budget 
submission to Congress for each fiscal year under section 1105 of title 
31, United States Code, a request for amounts for the activities of the 
Board under this Act during such fiscal year, including amounts to be 
transferred to agencies and Federal Presidential libraries for 
activities in compliance with orders under section 4. Such amounts 
shall be included in amounts requested for the National Archives and 
Records Administration for the fiscal year concerned, and shall be 
stated as a separate item among the amounts requested for the 
Administration for such fiscal year.
    (b) Estimate of Agency and Library Expenses.--(1)(A) An agency or 
Federal Presidential library receiving an order from the Archivist of 
the United States under section 4(b) shall provide the Board an 
estimate of the costs, and of the time, required for compliance with 
the order.
    (B) If an order covers records or materials to be referred to 
another agency for review under section 4(c)(2), the estimate under 
this paragraph shall include, and shall set forth separately, the 
estimate of such other agency of the costs and time required for the 
compliance of such other agency with the portion of the order 
applicable to such other agency.
    (2) Upon receipt of an estimate of costs from an agency or Federal 
Presidential library under paragraph (1), the Board shall determine the 
amount of funds required by the agency or library, as the case may be, 
to comply with the order concerned under section 4(b). Such 
determination shall take into account the estimate of costs upon which 
the determination is based.
    (3) Upon determining the amount of funds required by an agency or 
Federal Presidential library under paragraph (2), the Board shall 
submit to the Archivist a recommendation that the Archivist transfer to 
the agency or library, as the case may be, an amount of funds equal to 
the amount determined under that paragraph.
    (c) Transfers of Funds.--(1) The Archivist of the United States 
shall transfer to an agency or Federal Presidential library for 
purposes of the activities of the agency or library, as the case may 
be, under an order under section 4(b) an amount equal to the amount 
recommended to be transferred with respect to the order under 
subsection (b)(3).
    (2) Amounts transferred under paragraph (1) shall be derived from 
amounts appropriated for the Board for purposes of this Act.
    (d) Use of Funds.--(1) An agency or Federal Presidential library 
shall use funds transferred to the agency or library, as the case may 
be, under subsection (c) for purposes of compliance with an order under 
section 4(b).
    (2)(A) An agency or Federal Presidential library shall not be 
required to comply with an order under section 4(b) until the agency or 
library, as the case may be, receives funds under subsection (c) that 
are sufficient to permit the agency or library, as the case may be, to 
comply with the order.
    (B) If the funds transferred to an agency or Federal Presidential 
library under subsection (c) are not sufficient for compliance with an 
order under section 4(b), the agency or library, as the case may be, 
shall hold compliance in abeyance until such time as sufficient funds 
are transferred from the Board to the agency or library, as the case 
may be.
    (C) The Board may recommend to the Archivist of the United States 
that additional funds be transferred from the Board to an agency or 
Federal Presidential library to ensure compliance with an order under 
section 4(b). The Archivist shall treat a recommendation under this 
subparagraph as a recommendation for purposes of subsection (c).
    (3)(A) If the costs incurred by an agency or Federal Presidential 
library to comply with an order under section 4(b) are less than the 
amounts transferred to the agency or library, as the case may be, under 
subsection (c), the agency or library, as the case may be, shall 
transfer any funds not required to comply with the order to the 
National Archives and Records Administration.
    (B) Any funds transferred to the Administration under subparagraph 
(A) shall be merged with funds in the appropriation or account 
providing funds for the Board for purposes of this Act, and shall be 
available to the same extent, and subject to the same limitations, as 
funds in such appropriation or account are available for the Board.

SEC. 9. DEFINITIONS.

    In this Act:
            (1) Agency.--(A) Except as provided in subparagraph (B), 
        the term ``agency'' means the following:
                    (i) An executive agency as that term is defined in 
                section 105 of title 5, United States Code.
                    (ii) A military department as that term is defined 
                in section 102 of such title.
                    (iii) Any other entity in the executive branch that 
                comes into possession of classified information.
            (B) The term does not include the Board.
            (2) Classified material or record.--The terms ``classified 
        material'' and ``classified record'' include any 
        correspondence, memorandum, book, plan, map, drawing, diagram, 
        pictorial or graphic work, photograph, film, microfilm, sound 
        recording, videotape, machine readable records, and other 
        documentary material, regardless of physical form or 
        characteristics, that has been determined pursuant to Executive 
        order to require protection against unauthorized disclosure in 
        the interests of the national security of the United States.
            (3) Declassification.--The term ``declassification'' means 
        the process by which records or materials that have been 
        classified are determined no longer to require protection from 
        unauthorized disclosure to protect the national security of the 
        United States.
            (4) Donated historical material.--The term ``donated 
        historical material'' means collections of personal papers 
        donated or given to a Federal Presidential library or other 
        archival repository under a deed of gift or otherwise.
            (5) Federal presidential library.--The term ``Federal 
        Presidential library'' means a library operated and maintained 
        by the United States Government through the National Archives 
        and Records Administration under the applicable provisions of 
        chapter 21 of title 44, United States Code.
            (6) National security.--The term ``national security'' 
        means the national defense or foreign relations of the United 
        States.
            (7) Records or materials of extraordinary public 
        interest.--The term ``records or materials of extraordinary 
        public interest'' means records or materials that--
                    (A) demonstrate and record the national security 
                policies, actions, and decisions of the United States, 
                including--
                            (i) policies, events, actions, and 
                        decisions which led to significant national 
                        security outcomes;
                            (ii) the collection and analysis of 
                        especially important intelligence; and
                            (iii) the development and evolution of 
                        significant United States national security 
                        policies, actions, and decisions;
                    (B) will provide a significantly different 
                perspective in general from records and materials 
                publicly available in other historical sources; and
                    (C) are, or are likely to be, of extraordinary 
                interest to the public, its elected representatives, or 
                policymakers in the executive branch.
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