[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\
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\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.
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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.
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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\
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\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.
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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.
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\7\5 U.S.C. Sec. 552 (2018).
\8\Id.
\9\Id. at Sec. 552(b)(7).
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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.
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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--
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2019 2020 2021 2022 2023 2019-2023
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INCREASES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level...................... 1 3 2 2 2 10
Estimated Outlays.................................. 1 3 2 2 2 10
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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]