[Senate Report 115-424]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 727
115th Congress     }                                    {       Report        
                                 SENATE
 2d Session        }                                    {      115-424
_______________________________________________________________________

                                     

   

         CIVIL RIGHTS COLD CASE RECORDS COLLECTION ACT OF 2018

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 3191

          TO PROVIDE FOR THE EXPEDITIOUS DISCLOSURE OF RECORDS
       RELATED TO CIVIL RIGHTS COLD CASES, AND FOR OTHER PURPOSES






[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]







               December 10, 2018.--Ordered to be printed

                                   ______
		 
                     U.S. GOVERNMENT PUBLISHING OFFICE 
		 
89-010                    WASHINGTON : 2018                 





























        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma             HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming             GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota            MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana                KAMALA D. HARRIS, California
JON KYL, Arizona                     DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
       Patrick J. Bailey, Chief Counsel for Governmental Affairs
               Margaret E. Daum, Minority Staff Director
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Katherine C. Sybenga, Minority Counsel
                     Laura W. Kilbride, Chief Clerk


























                                                      Calendar No. 727
115th Congress     }                                    {       Report        
                                 SENATE
 2d Session        }                                    {      115-424

======================================================================



 
         CIVIL RIGHTS COLD CASE RECORDS COLLECTION ACT OF 2018

                                _______
                                

               December 10, 2018.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 3191]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 3191) to provide 
for the expeditious disclosure of records related to civil 
rights cold cases, and for other purposes, having considered 
the same, reports favorably thereon with an amendment (in the 
nature of a substitute) and recommends that the bill, as 
amended, do pass.
                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................1
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................7
 VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Bill, as Reported............9

                         I. PURPOSE AND SUMMARY

    S. 3191, the Civil Rights Cold Case Records Collection Act 
of 2018, establishes a records collection at the National 
Archives and Records Administration (NARA) to ensure the 
physical integrity and eventual public availability of records 
related to civil rights cold cases.

              II. BACKGROUND AND THE NEED FOR LEGISLATION

    On October 26, 1992, recognizing the historical 
significance of the law enforcement records related to the 
assassination of President John F. Kennedy, President George 
H.W. Bush signed into law the President John F. Kennedy 
Assassination Records Collection Act of 1992 (Kennedy 
Collection Act).\1\ It established a special collection at NARA 
for records related to President Kennedy's assassination, a 
process for Federal agencies to transfer records to NARA, and a 
review board to determine how and when to make records 
public.\2\ The bill also established a process for the 
President to delay the release of records as appropriate.\3\
---------------------------------------------------------------------------
    \1\Presidential Statement on Signing the President John F. Kennedy 
Assassination Records Collection Act of 1992, (Oct. 26, 1992), 
available at https://www.gpo.gov/fdsys/pkg/PPP-1992-book2/pdf/PPP-1992-
book2-doc-pg2004-2.pdf.
    \2\``President John F. Kennedy Assassination Records Collection Act 
of 1992, Pub. L. No. 102-526, 106 Stat. 3443 (1992).
    \3\Id.
---------------------------------------------------------------------------
    On October 21, 2017, President Donald J. Trump announced 
via Twitter that ``[s]ubject to the receipt of further 
information, I will be allowing, as President, the long blocked 
and classified JFK FILES to be opened.''\4\
---------------------------------------------------------------------------
    \4\Donald J. Trump (@realDonaldTrump), Twitter (Oct 12, 2017, 5:53 
AM), available at: https://twitter.com/realDonaldTrump/status/
921716470140325889.
---------------------------------------------------------------------------
    On October 26, 2017, Advanced Placement U.S. Government 
students at Hightstown High School in New Jersey called for the 
release of not only the Kennedy records, but also records 
related to civil rights cold cases from 1940 to 1979.\5\ The 
students created draft legislation modeled after the process 
established in the Kennedy Collection Act.\6\
---------------------------------------------------------------------------
    \5\With JFK files open, students say open civil rights killings 
files, too, Clarion Ledger (Oct. 26, 2017), https://
www.clarionledger.com/story/news/local/journeytojustice/2017/10/26/jfk-
files-open-students-say-open-civil-rights-killings-files-too/
802665001/.
    \6\Id.
---------------------------------------------------------------------------
    Records related to civil rights cold cases are valuable for 
researchers, journalists, historians, and those interested in 
solving these unsolved crimes. Under the current process, 
citizens can request files from the Department of Justice (DOJ) 
and other agencies through the Freedom of Information Act 
(FOIA).\7\ While a valuable tool for the release of Federal 
records to the public, FOIA has exemptions for the release of 
records that make it less useful for requesting records from a 
law enforcement agency.\8\ Specifically, FOIA exemption 7 
prevents the disclosure of ``records or information compiled 
for law enforcement purposes, but only to the extent that the 
production of such law enforcement records or information (A) 
could reasonably be expected to interfere with enforcement 
proceedings [. . .]''\9\ Because civil rights cold cases are by 
their very definition unsolved crimes, public disclosure of 
records related to these cases could reasonably be expected to 
interfere with law enforcement proceedings.The incompatibility 
of FOIA with records inherently linked to open criminal cases 
shows the necessity of a special process for the release of 
civil rights cases that are 39 to 78 years old.
---------------------------------------------------------------------------
    \7\5 U.S.C. Sec. 552 (2018).
    \8\Id.
    \9\Id. at Sec. 552(b)(7).
---------------------------------------------------------------------------
    The older these unsolved cases become, the less likely they 
are to be solved by DOJ, and, in fact, public disclosure of 
information may actually increase the likelihood of enforcement 
by crowdsourcing the materials. Illustrating this point, author 
and journalist Stanley Nelson stated with regard to withheld 
and redacted DOJ civil rights records that ``[i]f the FBI 
doesn't want to do the work, share the unredacted files with 
journalists--we'll do it.''\10\ Another example is the case of 
Emmet Till, a 14-year-old African American who was abducted and 
brutally murdered in 1955 after he allegedly flirted with a 
white woman named Carolyn Bryant, and grabbed her either by the 
hand or waist.\11\ In 2007, the Federal Bureau of 
Investigations (FBI) released recovered court transcripts that 
were later used by author Timothy B. Tyson as the basis of his 
interview of Bryant who recanted, telling Tyson regarding her 
court testimony about Till's alleged sexual aggression toward 
her that ``[y]ou tell these stories for so long that they seem 
true, but that part is not true.''\12\
---------------------------------------------------------------------------
    \10\With JFK files open, students say open civil rights killings 
files, too, Clarion Ledger (Oct. 26, 2017), https://
www.clarionledger.com/story/news/local/journeytojustice/2017/10/26/jfk-
files-open-students-say-open-civil-rights-killings-files-too/
802665001/.
    \11\Jason Parham, Emmett Till's Murder: What Really Happened That 
Day in the Store?, The New York Times (Jan. 27, 2017), available at 
https://www.nytimes.com/2017/01/27/books/review/blood-of-emmett-till-
timothy-b-tyson.html?module=inline.
    \12\Jason Parham, Emmett Till's Murder: What Really Happened That 
Day in the Store?, The New York Times (Jan. 27, 2017), available at 
https://www.nytimes.com/2017/01/27/books/review/blood-of-emmett-till-
timothy-b-tyson.html?module=inline.
---------------------------------------------------------------------------
    Recognizing the potential sensitivity of the information 
contained in civil rights cold case records, the Civil Rights 
Cold Case Collection Act of 2018 establishes a process nearly 
identical to the Kennedy Collection Act, which also dealt with 
extremely sensitive and classified information. The Civil 
Rights Cold Case Collection Act of 2018 establishes a special 
collection at NARA for civil rights cold cases and requires 
Federal agencies with records related to civil rights cold 
cases to transmit them to NARA. Civil rights cold cases are 
defined as those occurring between 1940 and 1979 and include 
cases related to conspiracy against rights, deprivation of 
rights under color of law, cases related to federally protected 
activities, peonage and involuntary servitude, violations of 
the Fair Housing Act, and those cases related to Federal laws 
that would be enforced by the DOJ Civil Rights Division.
    The legislation allows Federal agencies to transmit records 
separately for a protected collection that will be reviewed 
periodically for public disclosure. It also establishes a 
review board to make determinations about the public disclosure 
of records. The review board terminates four years after 
enactment. Any record that is not disclosed will be 
automatically disclosed 25 years after the date of enactment of 
the legislation unless the head of the agency that transmitted 
the record requests additional postponement.
    The bill lays out specific grounds for the postponement of 
public disclosure of records. For example, the release can be 
postponed if it would harm national security, reveal classified 
information, or reveal the name or identity of a living 
individual who provided confidential information to the United 
States where it would put that informant at risk of physical 
harm. It also prevents the release of information that could 
endanger the life or physical safety of any person or interfere 
with ongoing law enforcement proceedings. Finally, the 
legislation exempts records that contain personnel and medical 
files.

                        III. LEGISLATIVE HISTORY

    Senator Doug Jones (D-AL) introduced S. 3191, the Civil 
Rights Cold Case Records Collection Act of 2018, on July 10, 
2018, with Senators Claire McCaskill (D-MO) and Kamala Harris 
(D-CA). On July 26, 2018, Senator Ted Cruz (R-TX) was added a 
cosponsor. The bill was referred to the Committee on Homeland 
Security and Governmental Affairs.
    The Committee considered S. 3191 at a business meeting on 
September 26, 2018. During the business meeting, a modified 
substitute amendment was offered by Senator Jones and accepted 
by unanimous consent. The amendment addressed feedback from 
NARA and the DOJ. The bill, as amended, was ordered reported 
favorably en bloc by voice vote. Senators Johnson, Portman, 
Lankford, Enzi, Hoeven, McCaskill, Carper, Heitkamp, Peters, 
Hassan, Harris, and Jones were present.

        IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short title

    This section establishes the short title of the bill as the 
Civil Rights Cold Case Records Collection Act of 2018.

Section 2. Definitions

    This section defines terms necessary to the legislation, 
including archivist, civil rights cold case, civil rights cold 
case record, collection, executive agency, review board, and 
other terms.

Section 3. Civil Rights Cold Case Records Collection at the National 
        Archives and Record Administration

    This section establishes a Civil Rights Cold Case Records 
Collection at the National Archives and requires NARA to 
prepare a subject guidebook and index to the collection and to 
establish criteria for agencies to use when transmitting 
records.
    It also requires that the collection include a copy of each 
civil rights cold case record which has not previously been 
provided to NARA, but will be under this legislation, as well 
as civil rights cold cases already in NARA's custody.
    This section requires that all civil rights cold case 
records transmitted to the collection for public disclosure be 
available to the public within 60 days and be prioritized for 
digitization. It also authorizes NARA to require fees for 
copying documents. This section discusses the composition of 
the collection's contents.These include a copy of each civil 
rights cold case record, a disclosure of records, fees for 
copying, and transmission to the national archives. 
Furthermore, it specifies the periodic review of postponed 
civil rights cold case records and the digitization of records. 
NARA is also required to keep secure those records submitted 
for the collection for which public disclosure has been 
postponed.
    Subsection (e) requires any Federal agency in possession of 
a civil rights cold case record to transmit that record within 
two years for the collection without any redactions. 
Separately, for records that the review board established under 
section 5 has determined postponement from public disclosure is 
warranted, shall be submitted to the protected Collection not 
available to the public. This subsection also establishes a 
process for the Attorney General to withhold records related to 
cases that the Attorney General reasonably believes will be 
reopened within two years.
    Subsection (f) establishes a process by which civil rights 
cold cases whose public disclosure has been postponed be re-
evaluated for disclosure on an annual basis. Additionally, 
following the termination of the review board four years after 
enactment, this subsection requires that all postponed records 
be released after 25 years unless the head of the agency that 
provided the record requests additional postponement.
    Finally, section (3) contains a Congressional finding that 
the public release may significantly affect victims of crimes 
and their next of kin and requires that to the greatest extent 
possible, they be notified 7 days in advance of any public 
release.

Section 4. Grounds for postponement of public disclosure of records

    This section specifies the grounds which would prevent 
records from being made public. Subsection (1) allows 
postponement where disclosure would damage national security, 
military defense, law enforcement, intelligence operations, or 
the conduct of foreign relations; or reveal classified 
information.
    Subsection (2) allows postponement where disclosure would 
reveal the name or identity of a living individual provided 
confidential information to the U.S. where it would pose a 
substantial risk of harm.
    Subsection (3) allows postponement where disclosure would 
pose an unwarranted invasion of personal privacy.
    Subsection (4) allows postponement where disclosure would 
compromise an understanding of confidentiality between the 
government and a cooperating informant, where the harm to that 
understanding outweighs the public interest in the records.
    Subsection (5) allows postponement where disclosure would 
endanger an individual's life or physical safety.
    Subsection (6) allows postponement where disclosure would 
interfere with ongoing law enforcement proceedings.

Section 5. Establishment and powers of the Civil Rights Cold Case 
        Records Review Board

    This section establishes the Civil Rights Cold Case Records 
Review Board. Subsection (b) delineates the appointment process 
for five individuals to serve on the review board, timelines 
for appointments, groups qualified to recommend appointments, 
and the qualifications required for members of the review 
board.
    Subsection (c) requires that all members be processed for 
the necessary security clearances in an expedited manner.
    Subsection (d) requires that vacancies be filled in the 
same manner as initial appointments. Subsection (e) requires 
that the board vote to elect a chairperson and subsection (f) 
delineates the process for the removal of board members. 
Subsection (g) sets compensation for board members at level IV 
of the Executive Schedule and allows for travel expenses.
    Subsection (h) requires the review board to consider and 
render decisions about Federal agencies' requests to postpone 
public disclosure of civil rights cold case records. Subsection 
(i) gives the review board power to obtain access to civil 
rights cold case records, direct agencies to make available 
additional information, records, or testimony which the review 
board believes is required to make determinations. It also 
gives the review board the right to subpoena records and 
testimony, require agencies to account in writing for the 
destruction of records, receive information from the public 
about the existence of certain records, and to hold hearing and 
administer oaths.
    This section requires the review board to cooperate with 
the oversight functions of Congress, provide support staff and 
services from the General Services Administration, allows it to 
issue regulations, and provides for the termination of the 
review board.

Section 6. Review board personnel

    This section outlines the process for the appointment and 
removal of a chief of staff of the review board, including the 
qualifications, duties, and required security clearances for 
the position. It also describes the process for the hiring of 
support staff and grants the board authority to create advisory 
committees.

Section 7. Review of records by the review board

    This section outlines the requirements for the retention of 
records by Federal agencies related to the work of the review 
board and the process and timeline for the review board to 
begin reviewing civil rights cold case records.This section 
also requires public disclosure, through NARA, of all records 
it determines are civil rights cold case records unless 
postponement of disclosure is warranted.
    If postponement of a civil rights cold case records is 
warranted, the review board is required to determine if any 
portion of the record can be segregated and released or if a 
summary of the record could be provided in its place.
    This section also requires the review board to report to 
the NARA with information about the records that warrant 
postponement and to the originating agency if it intends to 
make a record public.
    Section 7 also sets out a process for the President to 
assert authority to withhold documents cleared for release by 
the board, and requires a periodic review to determine if the 
President still wishes to assert that authority.
    Finally, this section requires that the review board report 
annually to Congress about its activities.

Section 8. Disclosure of other information and additional study

    This section gives the review board the authority to ask 
the Attorney General to petition courts to unseal grand jury 
information or other records under seal of court.The Attorney 
General has discretion whether to make the petition, but must 
respond to the review board within 45 days.
    Section 8 also contains a Sense of Congress that the 
Attorney General should assist the review board in good faith 
to unseal relevant records, as well as a Sense of Congress that 
all Federal agencies should cooperate with the review board to 
seek the disclosure of all information relevant to civil rights 
cold cases.

Section 9. Rules of construction

    This section establishes that the requirements of the bill 
supersede all other laws, except section 6103 of the Internal 
Revenue Code of 1986, and any personnel and medical files 
exempted by the Privacy Act. It also clarifies that nothing in 
the legislation should be construed to limit the right of 
individuals to request information under the Freedom of 
Information Act.

Section 10. Authorization of appropriations

    This section authorizes appropriations of such sums as are 
necessary for the review board.

                   V. EVALUATION OF REGULATORY IMPACT

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, December 3, 2018.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 3191, the Civil 
Rights Cold Case Records Collection Act of 2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

S. 3191--Civil Rights Cold Case Records Collection Act of 2018

    Summary: S. 3191 would make federal information about 
investigations of unsolved civil rights cases more readily 
available to the public. The bill would authorize the National 
Archives and Records Administration (NARA) to create a 
collection of unsolved civil rights cases. In addition, the 
legislation would establish a Civil Rights Cold Case Review 
Board (Review Board) to determine which records can be released 
to the public.
    CBO estimates that implementing S. 3191 would cost $10 
million over the 2019-2023 period; such spending would be 
subject to the availability of appropriated funds.
    Enacting S. 3191 could affect direct spending by agencies 
that are authorized to use receipts from the sale of goods, 
fees, and other collections to cover operating costs; 
therefore, pay-as-you-go procedures apply. Because most 
agencies can adjust the amounts collected as operating costs 
change, CBO estimates that any net changes in direct spending 
by those agencies would be negligible. In addition, NARA can 
charge and spend fees to cover some or all of its costs to 
process certain requests. CBO estimates, however, that any net 
increase in fees collected under the bill would be negligible. 
Enacting the bill would not affect revenues.
    CBO estimates that enacting S. 3191 would not significantly 
increase net direct spending or on-budget deficits in any of 
the four consecutive 10-year periods beginning in 2029.
    S. 3191 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
    Estimated cost to the Federal Government: The estimated 
budgetary effect of S. 3191 is shown in the following table. 
The costs of the legislation primarily fall within all budget 
functions 750 (administration of justice) and 800 (general 
government).

----------------------------------------------------------------------------------------------------------------
                                                               By fiscal year, in millions of dollars--
                                                    ------------------------------------------------------------
                                                       2019      2020      2021      2022      2023    2019-2023
----------------------------------------------------------------------------------------------------------------
                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATION
 
Estimated Authorization Level......................         1         3         2         2         2         10
Estimated Outlays..................................         1         3         2         2         2         10
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that S. 
3191 will be enacted near the end of 2018. Estimated outlays 
are based on historical spending patterns for similar 
activities.
    S. 3191 would require NARA to establish a collection of 
federal records about unsolved civil rights cases that occurred 
between 1940 and 1979. The collection would be made available 
to the public. The bill also would establish a Civil Rights 
Cold Case Records Review Board. Five members would be appointed 
by the President with the advice and consent of the Senate. The 
board would facilitate the review, transmission to NARA, and 
public disclosure of government records related to the unsolved 
cases. It would terminate five years after enactment.
    Information from the Department of Justice (DOJ) Cold Case 
Initiative indicates that there are about 115 unsolved civil 
rights cases that the department is aware of. Using information 
from NARA, CBO expects that the cost of implementing this bill 
would be similar to the John F. Kennedy Assassination Records 
Review Board. That board re-examined records related to the 
assassination investigation that federal agencies considered 
too sensitive to release to the public to consider which 
records should be released to the public; CBO expects that the 
board established under S. 3191 would be similar. CBO estimates 
that implementing the bill would cost about $2 million annually 
and $10 million over the 2019-2023 period, subject to the 
availability of appropriated funds. Those amounts would cover 
personnel and other administrative costs to evaluate which 
documents could be released publicly. If more cold cases are 
reopened following the enactment of S. 3191 there would be 
additional costs in future years to evaluate those additional 
records.
    Pay-As-You-Go considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. S. 3191 could affect direct spending by agencies that 
are not funded through annual appropriations; therefore, pay-
as-you-go procedures apply. CBO estimates, however, that any 
changes in direct spending would be negligible. In addition, 
NARA can charge and spend fees to cover some or all of the 
costs to process certain requests. CBO estimates, however, that 
any net increase in fees collected under the bill would be 
negligible. The bill would not affect revenues.
    Increase in long-term direct spending and deficits: CBO 
estimates that enacting S. 3191 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2029.
    Mandates: S. 3191 contains no intergovernmental or private-
sector mandates as defined in UMRA.
    Estimate prepared by: Federal costs: Matthew Pickford; 
Mandates: Andrew Laughlin.
    Estimate reviewed by: Kim P. Cawley, Unit Chief, Natural 
Resources Cost Estimate Unit; H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

       VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    Because this legislation would not repeal or amend any 
provision of current law, it would make no changes in existing 
law within the meaning of clauses (a) and (b) of paragraph 12 
of rule XXVI of the Standing Rules of the Senate.

                                  [all]