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

October 27, 1999

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

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

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

SECTION 1. SHORT TITLE.

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

SEC. 2. FINDINGS.

Congress makes the following findings:

(1) A comprehensive reform of the management of the classification and declassification of information is essential but will require additional funding, more technical development, and more coordination by the executive branch.

(2) The dissemination of declassified records of permanent historic value that pertain to the national security of the United States is in the public interest and can best be accomplished through continued on-going systematic declassification of classified information.

(3) It is in the national interest to establish an effective, coordinated, and cost-effective means by which records on specific subjects of extraordinary public interest may be collected, retained, reviewed, and disseminated for Congress, policymakers in the executive branch, and the public.

(4) Ensuring, through such measures, public access to information that does not require protections is a key to striking the balance between secrecy and the openness that is central to the proper functioning of the political institutions of the United States.

SEC. 3. PUBLIC INTEREST DECLASSIFICATION BOARD.

(a) ESTABLISHMENT- There is established within the National Archives and Records Administration a board to be known as the 'Public Interest Declassification Board' (in this Act referred to as the 'Board').

(b) PURPOSES- The purposes of the Board are as follows:

(1) To direct and provide, through recommendations to the Archivist of the United States, for the thorough, coordinated, comprehensive, and cost-effective identification, collection, review for declassification, and release to Congress, interested agencies, and the public of records and materials (including donated historical materials) that are of extraordinary public interest.

(2) To provide Congress, interested agencies, and the public with the fullest possible access to a thorough, accurate, and reliable documentary record of significant United States national security decisions and significant United States national security activities in order to--

(A) support the oversight and legislative functions of Congress;

(B) support the policymaking role of the executive branch;

(C) respond to the interest of the public in national security matters; and

(D) promote reliable historical analysis and new avenues of historical study in national security matters.

(c) MEMBERSHIP- (1)(A) The Board shall be composed of nine individuals appointed by the President from among citizens of the United States who are preeminent in the fields of history, national security, foreign policy, social science, law, or archives, including individuals who have served in Congress or otherwise in Federal Government or have otherwise engaged in research, scholarship, or publication in such fields on matters relating to the national security of the United States.

(B) The President shall appoint members of the Board after consideration of recommendations made by appropriate organizations, including the American Historical Association, the Organization of American Historians, the American Political Science Association, the Society of American Archivists, the American Society of International Law, the Standing Committee on Law and National Security of the American Bar Association, and the Society for Historians of American Foreign Relations.

(C) An officer or employee of the Federal Government may not serve as a member of the Board.

(2)(A) Of the members initially appointed to the Board, three shall be appointed for a term of three years, three shall be appointed for a term of two years, and three shall be appointed for a term of one year.

(B) Any subsequent appointment to the Board shall be for a term of three years.

(3) A vacancy in the Board shall be filled in the same manner as the original appointment. A member of the Board appointed to fill a vacancy before the expiration of a term shall serve for the remainder of the term.

(4) A member of the Board may continue to serve on the Board when the member's term expires until a successor is appointed.

(5) A member of the Board may be appointed to a new term on the Board upon the expiration of the member's term on the Board, except that no member may serve more than three full terms on the Board.

(d) CHAIRPERSON; EXECUTIVE SECRETARY- (1)(A) The President shall designate one of the members of the Board as the chairperson of the Board.

(B) The term of service as chairperson of the Board shall be one year.

(C) A member serving as chairperson of the Board may be re-designated as chairperson of the Board upon the expiration of the member's term as chairperson of the Board.

(2) The Archivist of the United States shall select the Executive Secretary of the Board.

(e) MEETINGS- The Board shall meet at least quarterly. A majority of the members of the Board shall constitute a quorum.

(f) STAFF- (1) The Chairperson of the Board may, with the concurrence of the Board, appoint such staff of the Board as the Board requires to carry out its duties under this Act.

(2) Any employee of the Federal Government may be detailed to the Board, without reimbursement to the detailing agency, and such detail shall be without interruption or loss of civil service status or privilege.

(g) SECURITY- (1) The members and staff of the Board shall, as a condition of appointment to or employment with the Board, hold appropriate security clearances for access to the classified records and materials to be reviewed by the Board and shall follow the guidance and practices on security of the Assistant to the President for National Security Affairs.

(2) The head of an agency may, as a condition of granting access by a member or staff of the Board to classified records or materials of the agency under this Act, require the member or staff to--

(A) execute an agreement regarding the security of such records or materials that is approved by the head of the agency; and

(B) hold an appropriate security clearance granted or recognized under the standard procedures and eligibility criteria of the agency, including any special access approval required for access to such records or materials.

(2) Members and staff of the Board may not use any information acquired in the course of their official activities on the Board for nonofficial purposes.

(3) For purposes of any law or regulation governing access to classified information that pertains to the national security of the United States, and subject to any limitations on access arising under section 6(c), a member of the Board seeking access to a record or material under this paragraph shall be deemed to have a need to know the contents of the record or material.

(h) COMPENSATION- (1) Each member of the Board shall receive compensation at a rate not to exceed the daily equivalent of the annual rate of basic pay payable for positions at SES-1 of the Senior Executive Service under section 5382 of title 5, United States Code, for each day such member is engaged in the actual performance of duties of the Board.

(2) Members of the Board shall be allowed travel expenses, including per diem in lieu of subsistence at rates authorized for employees of agencies under subchapter 1 of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of the duties of the Board.

(i) GUIDANCE; ANNUAL BUDGET- (1) On behalf of the President, the Assistant to the President for National Security Affairs shall provide guidance on policy and security matters to the Board, including guidance and practices on security under subsection (g)(1).

(2) The Archivist of the United States shall, in consultation with the Assistant to the President for National Security Affairs and the Director of the Office of Management and Budget, prepare the annual budget for the Board.

(j) PUBLIC AVAILABILITY OF RECORDS AND REPORTS- (1) The Board shall make available for public inspection records of its proceedings and reports prepared in the course of its activities under this Act to the extent such records and reports are not classified and would not be exempt from release under the provisions of section 552 of title 5, United States Code.

(2) In making records and reports available under paragraph (1), the Board shall coordinate the release of such records and reports with appropriate officials from agencies with expertise in classified information in order to ensure that such records and reports do not inadvertently contain classified information.

(k) INAPPLICABILITY OF FACA- The provisions of the Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the activities of the Board under this Act.

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

(a) RECOMMENDATIONS- (1) The Board may recommend to the Archivist of the United States that an agency or Federal Presidential library be directed to carry out an activity specified in paragraph (2) with respect to records or materials that the Board determines are records or materials (including donated historical materials) of extraordinary public interest for purposes of the release of such records or materials to the public or the provision of such records or materials to Congress or policymakers in the executive branch.

(2) The activities that may be recommended by the Board under paragraph (1) are the following:

(A) Identification of records or materials.

(B) Collection of records or materials.

(C) Review for declassification of records or materials.

(D) Any combination of activities specified in subparagraphs (A) through (C).

(3) In making recommendations under paragraph (1), the Board shall consider the following:

(A) The opinions and requests of Members of Congress, including opinions and requests expressed or embodied in letters or legislative proposals.

(B) The opinions and requests of the National Security Council and of the heads of agencies.

(C) The opinions of United States citizens.

(D) The opinions of individual members of the Board.

(E) In the case of unscheduled or temporary records or materials, the assessment of the Archivist of the United States as to the value of identifying, collecting, and conducting declassification reviews of such records or materials.

(4) The Board shall, subject to the policy, budgetary, and security guidance provided under section 3, establish such priorities as the Board considers appropriate for purposes of this section.

(5) The Board should establish liaisons, and may consult, with such other historical advisory committees, including panels and boards created under statute, or agency directive, concerned with the identification, collection, and review for declassification of classified information as the Board considers appropriate for purposes of this Act.

(b) ORDERS- (1) The Archivist of the United States, or the designee of the Archivist, shall, in consultation with the Assistant to the President for National Security Affairs, consider each recommendation made by the Board under subsection (a).

(2) If the Archivist accepts a recommendation of the Board under subsection (a), the Archivist shall order that the actions contained in the recommendation be taken.

(3) If the Archivist does not accept a recommendation of the Board under subsection (a), the Board shall notify Congress of the lack of acceptance of the recommendation in a report under section 6(f)(2).

(c) COMPLIANCE WITH ORDERS- (1) Except as otherwise provided in section 5(a) or 6(c), and subject to the availability of funds under section 8, an agency or Federal Presidential library shall comply with an order made to the agency or library, as the case may be, under subsection (b).

(2)(A) If an order to an agency or Federal Presidential library under subsection (b) requires a review for declassification of records or materials originated by another agency, the agency or library, as the case may be, shall refer such records or materials to such other agency for review in accordance with the order.

(B) The actions of an agency referred records or materials under subparagraph (A) shall be subject to the terms of the order relating to such records or materials and to limitations relating to funding under section 8.

(3)(A) The Board shall, through the head of an agency or Federal Presidential library given an order under subsection (b), provide oversight of any identification, collection, or review of records or materials ordered under that subsection.

(B) In providing oversight of identification, collection, or review under this paragraph, the Board shall, in consultation with the Archivist of the United States, take appropriate actions to ensure that such activities preserve the archival integrity of the records or materials involved.

(d) RELEASE OF UNCLASSIFIED AND DECLASSIFIED INFORMATION- An agency or Federal Presidential library that undertakes a review for declassification of records or materials under an order under this section shall release any unclassified records or materials identified, or classified records or materials that are declassified, as a result of the review.

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

(a) IN GENERAL- Nothing in this Act shall be construed to limit the authority of the head of an agency to classify information or to continue the classification of information previously classified by an agency.

(b) SPECIAL ACCESS PROGRAMS- Nothing in this Act shall be construed to limit the authority of the head of an agency to grant or deny access to a special access program.

(c) EXEMPTIONS AND EXCEPTIONS TO RELEASE OF INFORMATION- Nothing in this Act shall be construed to limit any exemption or exception to the release to the public under this Act of information that is protected under section 552(b) of title 5, United States Code (commonly referred to as the Freedom of Information Act), or section 552a of title 5, United States Code (commonly referred to as the Privacy Act).

(d) WITHHOLDING INFORMATION FROM CONGRESS- Nothing in this Act shall be construed to authorize the withholding of information from Congress.

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

(a) STANDARDS AND PROCEDURES- (1) Not later than 180 days after the date of the enactment of this Act, each agency and Federal Presidential library that possesses or controls classified records or materials shall develop standards and procedures for access to such records and materials by the Board and by the employee of such agency or library, as the case may be, designated to serve as liaison to the Board under subsection (b).

(2) The standards and procedures developed by an agency or Federal Presidential library under paragraph (1) shall include provisions to achieve the following:

(A) To forward to the Board for its consideration under this Act any request, or if appropriate notice of a request, other than a request under section 552 or 552a of title 5, United States Code, from outside the agency or library, as the case may be, for the identification, collection, or review for declassification of records or materials, or for other provision with respect to records or materials, that are records or materials of extraordinary public interest.

(B) To coordinate with the Board in establishing priorities for the identification, collection, and review of records and materials under orders under section 4(b).

(C) To provide that the employee who is designated as the liaison to the Board--

(i) is designated in consultation with the Board; and

(ii) is eligible under the procedures and eligibility criteria of the agency or library, as the case may be, for access to any records and materials covered by an order under section 4(b).

(D) To permit access by the employee designated to serve as the liaison to the Board to any classified records or materials originated or controlled by the agency or library, as the case may be, to which access has not been denied or restricted under subsection (c), which has not otherwise been exempted from review under that subsection or under this Act, or that are not controlled under a special access program to which the head of the agency has denied or restricted access.

(E) To permit access by members and staff of the Board to records or materials covered by an order under section 4(b) to which access has not been denied or restricted under subsection (c), which has not otherwise been exempted from review under that subsection or under this Act, or that are not controlled under a special access program to which the head of the agency has denied or restricted access.

(F) To notify the Board of the completion of compliance with an order under section 4(b), including instances when access to records or materials is denied or restricted under subsection (c) or records or materials are otherwise exempted from review under that subsection or under this Act.

(b) DESIGNATION OF LIAISON TO BOARD- The head of each agency and Federal Presidential library shall designate an employee of such agency or library, as the case may be, to act as liaison to the Board for purposes of this Act.

(c) LIMITATIONS ON ACCESS- If the head of an agency or Federal Presidential library determines it necessary to deny or restrict access by the Board, or by the agency or library liaison to the Board, to information contained in a record or material, in whole or in part, or to exempt any record or material from identification, collection, or review under this Act, the head of the agency or library, as the case may be, shall promptly notify the Board in writing of such determination. Each such notice shall include a description of the nature of the records or materials, and a justification for the determination, covered by such notice.

(d) RECONSIDERATION- (1) The Board may request the reconsideration by the head of an agency or Federal Presidential library of a determination made by the head of the agency or library, as the case may be, under subsection (c). Such a request may not be made sooner than two years after the date of the determination in question.

(2) To accommodate a request under paragraph (1) for reconsideration of a determination regarding records or materials, the head of the agency or Federal Presidential library making the determination shall maintain an appropriate record of the results of any review of the records or materials covered by the determination and, to the extent records and materials have been identified as part of the review upon which the determination is based, shall tag, index, physically set aside, or otherwise enable the ready retrieval of such records or materials.

(e) DISCRETION TO DISCLOSE- At the conclusion of a declassification review, or upon a request by the Board for reevaluation under subsection (c), the head of an agency or Federal Presidential library may, in his discretion, determine that the public's interest in disclosure of records or materials covered by such review or request, and still properly classified, outweighs the Government's need to protect such records or materials. In such case, the head of the agency or library, as the case may be, may release such records or materials.

(f) REPORTS- (1) The Board shall annually submit to the appropriate congressional committees a report on the activities of the Board under this Act.

(2) The Board shall submit to the appropriate congressional committees a report on the following:

(A) Any denial by the head of an agency or Federal Presidential library of access for the Board to records or materials under this Act.

(B) Any failure or refusal by the Archivist of the United States to accept a recommendation of the Board under section 4(a).

(3) In this subsection, the term 'appropriate congressional committees' means the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.

SEC. 7. JUDICIAL REVIEW.

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

SEC. 8. FUNDING.

(a) FUNDING REQUESTS- The President shall include in the budget submission to Congress for each fiscal year under section 1105 of title 31, United States Code, a request for amounts for the activities of the Board under this Act during such fiscal year, including amounts to be transferred to agencies and Federal Presidential libraries for activities in compliance with orders under section 4. Such amounts shall be included in amounts requested for the National Archives and Records Administration for the fiscal year concerned, and shall be stated as a separate item among the amounts requested for the Administration for such fiscal year.

(b) ESTIMATE OF AGENCY AND LIBRARY EXPENSES- (1)(A) An agency or Federal Presidential library receiving an order from the Archivist of the United States under section 4(b) shall provide the Board an estimate of the costs, and of the time, required for compliance with the order.

(B) If an order covers records or materials to be referred to another agency for review under section 4(c)(2), the estimate under this paragraph shall include, and shall set forth separately, the estimate of such other agency of the costs and time required for the compliance of such other agency with the portion of the order applicable to such other agency.

(2) Upon receipt of an estimate of costs from an agency or Federal Presidential library under paragraph (1), the Board shall determine the amount of funds required by the agency or library, as the case may be, to comply with the order concerned under section 4(b). Such determination shall take into account the estimate of costs upon which the determination is based.

(3) Upon determining the amount of funds required by an agency or Federal Presidential library under paragraph (2), the Board shall submit to the Archivist a recommendation that the Archivist transfer to the agency or library, as the case may be, an amount of funds equal to the amount determined under that paragraph.

(c) TRANSFERS OF FUNDS- (1) The Archivist of the United States shall transfer to an agency or Federal Presidential library for purposes of the activities of the agency or library, as the case may be, under an order under section 4(b) an amount equal to the amount recommended to be transferred with respect to the order under subsection (b)(3).

(2) Amounts transferred under paragraph (1) shall be derived from amounts appropriated for the Board for purposes of this Act.

(d) USE OF FUNDS- (1) An agency or Federal Presidential library shall use funds transferred to the agency or library, as the case may be, under subsection (c) for purposes of compliance with an order under section 4(b).

(2)(A) An agency or Federal Presidential library shall not be required to comply with an order under section 4(b) until the agency or library, as the case may be, receives funds under subsection (c) that are sufficient to permit the agency or library, as the case may be, to comply with the order.

(B) If the funds transferred to an agency or Federal Presidential library under subsection (c) are not sufficient for compliance with an order under section 4(b), the agency or library, as the case may be, shall hold compliance in abeyance until such time as sufficient funds are transferred from the Board to the agency or library, as the case may be.

(C) The Board may recommend to the Archivist of the United States that additional funds be transferred from the Board to an agency or Federal Presidential library to ensure compliance with an order under section 4(b). The Archivist shall treat a recommendation under this subparagraph as a recommendation for purposes of subsection (c).

(3)(A) If the costs incurred by an agency or Federal Presidential library to comply with an order under section 4(b) are less than the amounts transferred to the agency or library, as the case may be, under subsection (c), the agency or library, as the case may be, shall transfer any funds not required to comply with the order to the National Archives and Records Administration.

(B) Any funds transferred to the Administration under subparagraph (A) shall be merged with funds in the appropriation or account providing funds for the Board for purposes of this Act, and shall be available to the same extent, and subject to the same limitations, as funds in such appropriation or account are available for the Board.

SEC. 9. DEFINITIONS.

In this Act:

(1) AGENCY- (A) Except as provided in subparagraph (B), the term 'agency' means the following:

(i) An executive agency as that term is defined in section 105 of title 5, United States Code.

(ii) A military department as that term is defined in section 102 of such title.

(iii) Any other entity in the executive branch that comes into possession of classified information.

(B) The term does not include the Board.

(2) CLASSIFIED MATERIAL OR RECORD- The terms 'classified material' and 'classified record' include any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microfilm, sound recording, videotape, machine readable records, and other documentary material, regardless of physical form or characteristics, that has been determined pursuant to Executive order to require protection against unauthorized disclosure in the interests of the national security of the United States.

(3) DECLASSIFICATION- The term 'declassification' means the process by which records or materials that have been classified are determined no longer to require protection from unauthorized disclosure to protect the national security of the United States.

(4) DONATED HISTORICAL MATERIAL- The term 'donated historical material' means collections of personal papers donated or given to a Federal Presidential library or other archival repository under a deed of gift or otherwise.

(5) FEDERAL PRESIDENTIAL LIBRARY- The term 'Federal Presidential library' means a library operated and maintained by the United States Government through the National Archives and Records Administration under the applicable provisions of chapter 21 of title 44, United States Code.

(6) NATIONAL SECURITY- The term 'national security' means the national defense or foreign relations of the United States.

(7) RECORDS OR MATERIALS OF EXTRAORDINARY PUBLIC INTEREST- The term 'records or materials of extraordinary public interest' means records or materials that--

(A) demonstrate and record the national security policies, actions, and decisions of the United States, including--

(i) policies, events, actions, and decisions which led to significant national security outcomes;

(ii) the collection and analysis of especially important intelligence; and

(iii) the development and evolution of significant United States national security policies, actions, and decisions;

(B) will provide a significantly different perspective in general from records and materials publicly available in other historical sources; and

(C) are, or are likely to be, of extraordinary interest to the public, its elected representatives, or policymakers in the executive branch.

END

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