[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4210 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 4210
To provide for the expeditious disclosure of records relevant to the
life and death of Tupac Amaru Shakur.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 2, 2005
Ms. McKinney introduced the following bill; which was referred to the
Committee on Government Reform, and in addition to the Committee on
Rules, for a period to be subsequently determined by the Speaker, in
each case for consideration of such provisions as fall within the
jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To provide for the expeditious disclosure of records relevant to the
life and death of Tupac Amaru Shakur.
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 ``Tupac Amaru Shakur
Records Collection Act of 2005''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings, declarations, and purposes.
Sec. 3. Definitions.
Sec. 4. Tupac Amaru Shakur records collection at the National Archives.
Sec. 5. Citizens Advisory Committee.
Sec. 6. Review, identification, transmission to the National Archives,
and public disclosure of related records by
Government offices.
Sec. 7. Postponement of public disclosure of records.
Sec. 8. Review of records.
Sec. 9. Disclosure of materials under seal of court.
Sec. 10. Private right of action.
Sec. 11. Rules of construction.
Sec. 12. Termination of effect of Act.
Sec. 13. Authorization of appropriations.
Sec. 14. Records pending.
Sec. 15. Whistleblower protection.
Sec. 16. Severability.
SEC. 2. FINDINGS, DECLARATIONS, AND PURPOSES.
(a) Findings and Declarations.--The Congress finds and declares
that--
(1) all Government records related to the life and death of
Tupac Amaru Shakur should be preserved for historical and
governmental purposes;
(2) all Government records concerning the life and death of
Tupac Amaru Shakur 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 death;
(3) legislation is necessary to create an enforceable,
independent, and accountable process for the public disclosure
of such records;
(4) legislation is necessary because Government records
related to the life and death of Tupac Amaru Shakur would not
otherwise be subject to public disclosure;
(5) legislation is necessary because the Freedom of
Information Act, as implemented by the executive branch, is not
sufficient to insure the timely public disclosure of records
relating to the life and death of Tupac Amaru Shakur; and
(6) 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 Tupac Amaru Shakur
Records Collection at the National Archives; and a second
repository at the Tupac Amaru Shakur Center for the Arts in
Stone Mountain, Georgia; 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 death of Tupac Amaru Shakur 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) any Executive agency;
(ii) any independent agency;
(iii) any Government office; or
(iv) any State or local law enforcement
office that provided support or assistance or
performed work in connection with any
Government inquiry into the life and death of
Tupac Amaru Shakur; 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) an individual who possesses
the record by virtue of service with a
Government office;
(III) a person, including an
individual or corporation, who obtained
such record from Government sources or
individuals identified in this Act; or
(IV) 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
8.
(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
death of Tupac Amaru Shakur, including any
intra-agency investigation or analysis, any
interagency communications, or any intra-agency
collection or segregation of documents and
other materials regarding the life and death of
Tupac Amaru Shakur.
(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 Tupac
Amaru Shakur.
(3) The term ``Collection'' means the Tupac Amaru Shakur
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 death of
Tupac Amaru Shakur; and
(B) any office of the Federal Government that has
possession or control of related records, including 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 5.
(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 death of Tupac Amaru Shakur conducted by
any Federal, state or local agency either independently, or at
the request of any Government official.
(9) The term ``originating body'' means the Executive
agency, 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 death of Tupac Amaru Shakur
(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 ``third agency'' means a Government agency
that originated a related record that is in the possession of
another agency.
(13) The term ``Citizens Advisory Committee'' means an
independent body of qualified and concerned citizens, scholars,
legal experts and immediate family members of Tupac Amaru
Shakur to advise and assist in the implementation of this Act.
SEC. 4. TUPAC AMARU SHAKUR 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 ``Tupac
Amaru Shakur 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 death of Tupac Amaru
Shakur, 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 un-redacted
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 record review; and
(B) a central directory comprised of identification aids
created for each record transmitted to the Archivist under
section 5; and
(b) Use of Secondary Location for Portion of Collection.--
(1) In general.--The Archivist shall enter into an
agreement with the Tupac Amaru Shakur Center for the Arts in
Stone Mountain, Georgia for the establishment of a secondary
location for a complete copy of the appropriate portion of the
Collection, not to include physical artifacts--
(A) which will provide a maximum level of public
access to copies of the portion of the Collection
involved; and
(B) which will encourage continuing study and
education regarding the life and death of Tupac Amaru
Shakur.
(2) 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 at the
National Archives, 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.
SEC. 5. CITIZENS ADVISORY COMMITTEE.
(a) Not later than 60 days after the date of enactment of this Act,
the National Archives shall appoint an independent Citizens Advisory
Committee, subject to the Federal Advisory Committee Act (5 U.S.C.,
App.), as defined in App. 2, from candidates solicited from and
nominated not later than 30 days after the date of the enactment of
this Act by non-governmental organizations from 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, the civil rights, civil liberties,
entertainment and African American community, which will consist of
appointees--
(1) who have not had any previous involvement with any
official investigations into the life and death of Tupac Amaru
Shakur,
(2) who were never employed or engaged by any Federal,
state or local intelligence or law enforcement agency which is
covered in the scope of this Act's search for records related
to the life and death of Tupac Amaru Shakur,
(3) who shall be impartial private citizens, none of whom
is presently employed by any branch of the Government, and
(4) who 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 death of Tupak
Shakur,
(A) who possess an appreciation of the value of
such material to the public, scholars, and government,
and
(B) who include at least three scholars in current
history, at least 3 members of the civil rights
community, at least 3 experts on civil liberties, and
at least one member of the immediate family of Tupac
Amaru Shakur.
(b) If an organization described in subsection (a) does not
recommend at least 2 nominees meeting the qualifications stated, by the
date that is 45 days after the date of enactment of this Act, the
Archivist shall consider for nomination the persons recommended by the
other organizations or communities described in subsection (a).
(c) The Archivist may request an organization described in
subsection (a) to submit additional nominations.
(d) This Citizens Advisory Committee will not be compensated, but
will meet at its discretion at least twice each year to advise and
assist the archivist in the full implementation of this act,
including--
(1) suggestions assisting in the location of all related
records,
(2) review of the public reasons for postponement decisions
and appeals regarding related records,
(3) recommendations for subpoena of records or enforcement
of the Act,
(4) evaluations regarding cooperation of Government
agencies and entities, and
(5) participation in annual reviews and reports by the
Archivist.
(e) Vacancy.--A vacancy on the Citizens Advisory Committee 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 by the organizations and communities described in
subsection (a).
(f) Chairperson.--The Members of the Citizens Advisory Committee
shall elect one of its members as chairperson at its initial meeting.
(g) Removal of Citizens Advisory Committee Member.--
(1) In general.--No member of the Citizens Advisory
Committee shall be removed from office, other than--
(A) by impeachment and conviction; or
(B) by the action of the Archivist for
inefficiency, neglect of duty, malfeasance in office,
physical disability, mental incapacity, failure to meet
or falsification of any qualifications under subsection
(a)(1), or any other condition that substantially
impairs the performance of the member's duties.
(2) Report.--
(A) Facts and grounds.--If a member of the Citizens
Advisory Committee is removed from office, and that
removal is by the Archivist, not later than 10 days
after the removal the Archivist 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 Archivist shall publish in
the Federal Register a report submitted under
subsection (g)(2), except that the Archivist 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.
(3) Judicial review.--
(A) Civil action.--A member of the Citizens
Advisory Committee 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.
SEC. 6. REVIEW, IDENTIFICATION, TRANSMISSION TO THE NATIONAL ARCHIVES,
AND PUBLIC DISCLOSURE OF RELATED RECORDS BY GOVERNMENT
OFFICES.
(a) In General.--
(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
death of Tupac Amaru Shakur, 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 Archivist 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 Archivist 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 at the National Archives.
(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 Act to be
included in the Collection, the Archivist 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 National Archives
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, 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.
(4) Prior disclosure.--
(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, the Government office shall retain custody of
its related records for purposes of preservation, security, and
efficiency, unless--
(1) any oversight Committee requires the physical transfer
of records for purposes of conducting an independent and
impartial review;
(2) it is a third agency record described in subsection
(c)(2)(C); or
(3) any other records are transferred to the Archives for
public disclosure.
(c) Review.--
(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 un-redacted 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 Archivist
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 Archivist
any record concerning which the office has any
uncertainty as to whether the record is a related
record governed by this Act;
(G) give priority to--
(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 National Archives any
additional information and records that the Archivist
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.
(d) Identification Aids.--
(1) In general.--
(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 Archivist 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 any other
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 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.--The National Archives and 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 Archivist, 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. 7. 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
Act.
(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 initial review, or the
date that is 3 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. 8. REVIEW OF RECORDS.
(a) Startup Requirements.--The Government agencies and entities in
possession of related records shall--
(1) not later than 90 days after the date of its
appointment, publish a schedule for review of all related
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 Archivist Relating to Public Disclosure
and Postponement.--
(1) Transmittal.--The National Archives 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) Powers.--
(A) Archivist.--The Archivist shall have the
authority to act in a manner prescribed under this Act
including authority to--
(i) direct Government offices to complete
identification aids and organize related
records;
(ii) direct Government offices to transmit
to the National Archives 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;
(iii) obtain access to related records that
have been identified and organized by a
Government office;
(iv) receive information from the public
regarding the identification and public
disclosure of related records;
(v) hold hearings, administer oaths, and
subpoena witnesses and documents; and
(vi) appoint liaisons to all Federal
agencies that have created related records, or
have related records in their possession.
(B) Citizens advisory committee.--The Citizens
Advisory Committee shall have the authority to act in a
manner prescribed under this Act including authority
to--
(i) direct a Government office to make
available to the Citizens Advisory Committee,
and if necessary investigate the facts
surrounding, additional information, records,
or testimony from individuals, which the
Citizens Advisory Committee has reason to
believe is required to insure full disclosure
of related records and fulfill its functions
and responsibilities under this Act;
(ii) request the Attorney General to
subpoena private persons and State and Federal
employees to compel testimony, and other
information relevant to its responsibilities
under this Act;
(iii) require any Government office to
account in writing for the previous destruction
of any records relating to the life or death of
Tupac Amaru Shakur;
(iv) receive information from the public
regarding the identification and public
disclosure of related records; and
(v) hold hearings, administer oaths, and
subpoena witnesses.
(C) Enforcement.--Any subpoena issued under
provisions of this Act, by the Archivist or the
Citizens Advisory Committee, may be enforced by any
appropriate Federal court acting pursuant to a lawful
request.
(3) Notice of related record designation.--
(A) In determining to designate related records,
the Archivist 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 death
of Tupac Amaru Shakur.
(B) A Notice or Related Record Designation (NRRD)
shall be the mechanism for the Archivist to announce
publicly its determination that a record or group of
records meets the definition of related records.
(4) Postponement.--
(A) The Archivist 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 Archivist 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 non-relevance
unless, in the Archivist'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 Archivist 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.
(5) 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 Government agency or entity shall create and transmit to
the Archivist a report containing--
(A) a description of actions by the Archivist, 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 Archivist 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 Archivist under paragraph (3)(A)(iii).
(6) Notice.--
(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 Archivist
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 Archivist 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 Archivist Determination.--
(1) Public disclosure or postponement of disclosure.--After
the Archivist 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, the
Citizens Advisory Committee, or third agency within 30 days
after such determination, the President shall have the sole and
non-delegable 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
Archivist with an unclassified written certification specifying
the President's decision within 30 days after the Archivist'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 Archivist, the Archivist may proceed according to the
previous 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 Archivist
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.
(A) Notice to public.--Every 30 calendar days,
beginning on the date that is 60 calendar days after
the date on which the Archivist first approves the
postponement of disclosure of a related record, the
Archivist shall publish in the Federal Register a
notice that summarizes the postponements approved by
the Archivist 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.
(B) Reports by the archivist.--The Archivist shall
report such 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 head of any Government office whose
records have been the subject of Archivist activity,
and the Citizens Advisory Committee.
(4) Annual reports.--
(A) The first annual 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 each annual review.
(B) A report under paragraph (1) shall include the
following information:
(i) A financial report of the expenses for
all official activities and requirements of the
National Archives and its personnel.
(ii) The progress made on review,
transmission to the Archivist, and public
disclosure of related records.
(iii) The estimated time and volume of
related records involved in the completion of
the Archivist's performance under this Act.
(iv) Any special problems, including
requests and the level of cooperation of
Government offices, with regard to the ability
of the Archivist to operate as required by this
Act.
(v) A record of review activities,
including a record of postponement decisions by
the Archivist or other related actions
authorized by this Act, and a record of the
volume of records reviewed and postponed.
(vi) Suggestions and requests to Congress
for additional legislative authority needs.
(vii) An appendix containing copies of
reports of postponed records to the Archivist
required under section 7(c)(3) made since the
date of the preceding report under this
subsection.
(viii) Any recommendations made by the
Citizens Advisory Committee, appointed by the
National Archives.
(ix) Any recommendations of the Archivist.
(5) At least 90 calendar days before completing work
relative to this Act, the Archivist shall provide written
notice to the President and Congress of its intention to
terminate operations at a specified date.
(6) 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 official conduct of
the Archivist and the Citizens Advisory Committee, and the
disposition of postponed or newly discovered records after
termination of the Act, and shall conduct periodic hearings on
the conduct of the board not less than every year for a period
ending 3 years after enactment, or one year after the Archivist
certifies that all related records have been fully released to
the public.
SEC. 9. DISCLOSURE OF MATERIALS UNDER SEAL OF COURT.
(a) Requests to Attorney General.--
(1) Requests for information or evidence under seal.--The
Archivist 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 death of Tupac Amaru Shakur
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 Archivist may request the Attorney General
to petition any court in the United States to release
any information relevant to the life or death of Tupac
Amaru Shakur that is held under the injunction of
secrecy of a grand jury.
(B) A request for disclosure of related 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 Archivist in
good faith to unseal any records that the Archivist 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
death of Tupac Amaru Shakur to seek the disclosure of such
information, and report on progress on these matters to the
Archivist in a timely fashion; and
(3) all Executive agencies should cooperate in full with
the Archivist to seek the disclosure of all information
relevant to the life and death of Tupac Amaru Shakur,
consistent with the public interest.
SEC. 10. 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. 11. 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 Act 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. 12. TERMINATION OF EFFECT OF ACT.
(a) Provisions Pertaining to the Archivist.--The provisions of this
Act that pertain to the Archivist shall cease to be effective when the
annual reviews terminate, or full disclosure is effected within 3 years
of enactment of this Act.
(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 related 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. 13. 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. 14. RECORDS PENDING.
Upon termination of the annual reviews, all records that are still
pending postponement determinations shall be presumed to be available
for release. Any related record discovered in the possession of any
Government agency or entity after termination of this Act will be
released to the Archivist for public disclosure under the provisions of
this Act.
SEC. 15. WHISTLEBLOWER PROTECTION.
All members of the Archivist's staff, the Archivist, 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. 16. 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.
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