H. R. 4968
IN THE HOUSE OF REPRESENTATIVES
March 15, 2006
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
To provide for the expeditious disclosure of records relevant to the life and death of Tupac Amaru Shakur.
Short title; table of contents
This Act may be cited as the
Tupac Shakur Records Release Act of 2006.
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 by Archivist.
Sec. 9. Disclosure of materials under seal of court.
Sec. 10. Private right of action.
Sec. 11. Rules of construction.
Sec. 12. Authorization of appropriations.
Sec. 13. Records pending.
Sec. 14. Whistleblower protection.
Sec. 15. Severability.
Findings, declarations, and purposes
Findings and Declarations
The Congress finds and declares that—
all Government records related to the life and death of Tupac Amaru Shakur should be preserved for historical and governmental purposes;
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;
legislation is necessary to create an enforceable, independent, and accountable process for the public disclosure of such records;
legislation is necessary because Government records related to the life and death of Tupac Amaru Shakur would not otherwise be subject to public disclosure;
legislation is necessary because the Freedom of Information Act, as implemented by the executive branch, is not sufficient to ensure the timely public disclosure of records relating to the life and death of Tupac Amaru Shakur; and
only in the rarest cases is there any legitimate need for continued protection of such records.
The purposes of this Act are—
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
to require the expeditious public transmission to the Archivist and public disclosure (including by electronic means) of such records.
In this Act, the following definitions apply:
Archivist means the Archivist of the United States.
Citizens Advisory Committee means the Citizens Advisory Committee appointed under section 5.
Collection means the Tupac Amaru Shakur Records Collection established under section 4.
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.
Government office includes—
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
any office of the Federal Government that has possession or control of related records, including any executive branch office or agency, and any independent agency.
identification aid means the written description prepared by the Archivist for each record as required by section 6.
National Archives means the National Archives and all components thereof, including Presidential archival depositories established under section 2112 of title 44, United States Code.
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.
originating body means the Executive agency or other governmental entity that created a record or particular information within a record.
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
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.
related record includes all public records, 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—
that was created or made available for use by, obtained by, or otherwise came into the possession of—
any Executive agency;
any independent agency;
any Government office; or
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
that is any of the following:
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.
A record located at, or under the control of—
record repositories and archives of a Federal, State, or local government;
an individual who possesses the record by virtue of service with a Government office;
a person, including an individual or corporation, who obtained such record from Government sources or individuals identified in this Act; or
a person, including an individual or corporation, who created or has obtained such record from sources other than those identified in this clause.
A record of a Federal or State criminal or civil court, including a record under seal released in accordance with section 9.
A record generated by a foreign government.
A record in possession of a contractor of the Federal Government.
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.
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—
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;
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
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.
third agency means a Government agency that originated a related record that is in the possession of another agency.
Tupac Amaru Shakur Records Collection at the National Archives
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.
The Collection shall include—
all related records—
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;
that are required to be transmitted to the National Archives;
the disclosure of which is postponed under this Act; or
that meets the definition of a related record but is discovered after completion of the record review under section 6(c) or termination of activities of the Archivist under this Act under section 8(f); and
a central directory comprised of identification aids created for each record transmitted to the Archivist under section 6.
Use of Secondary Location for Portion of Collection
The Archivist shall enter into an agreement with the Tupac Amaru Shakur Center for the Arts in Stone Mountain, Georgia, or another location agreed to by the family of Tupac Shakur, for the establishment of a secondary location for a complete copy of an appropriate portion (not including physical artifacts) of the Collection—
which will provide a maximum level of public access to copies of the portion of the Collection involved; and
which will encourage continuing study and education regarding the life and death of Tupac Amaru Shakur.
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 entered into 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.
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.
Fees for Copying
The Archivist shall—
charge fees for copying such records; and
grant waivers of such fees pursuant to the standards established by section 552(a)(4) of title 5, United States Code.
The Collection shall be preserved, protected, archived, and made available to the public at the National Archives.
Whenever artifacts are included in the Collection, 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.
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 7.
Citizens Advisory Committee
Not later than 60 days after the date of enactment of this Act, the Archivist shall appoint an independent Citizens Advisory Committee, subject to the Federal Advisory Committee Act (5 U.S.C. App.) 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., the National Conference of Black Political Scientists, and the civil rights, civil liberties, entertainment and African American communities, which shall consist of appointees—
who have not had any previous involvement with any official investigations into the life and death of Tupac Amaru Shakur;
who were never employed or engaged by any Federal, State, or local intelligence or law enforcement agency that generated or that is required to transmit to the Archivist under section 6 any related record;
who shall be impartial private citizens, none of whom is presently employed by any branch of the Government;
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 Tupac Shakur;
who possess an appreciation of the value of such material to the public, scholars, and government; and
who include at least 3 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.
If an organization described in subsection (a) does not recommend at least 2 nominees meeting the qualifications stated in that subsection, 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).
The Archivist may request an organization described in subsection (a) to submit additional nominations.
The Citizens Advisory Committee shall not be compensated, but shall meet at its discretion at least twice each year to advise and assist the Archivist in the full implementation of this Act, including—
suggestions to assist in the location of all related records,
review of the public reasons for postponement decisions and appeals regarding related records,
recommendations for subpoena of records or enforcement of the Act,
evaluations regarding cooperation of Government agencies and entities, and
participation in annual reviews and reports by the Archivist.
A vacancy on the Citizens Advisory Committee shall be filled in the same manner as specified for original appointment within 30 days after the occurrence of the vacancy. Nominations for a vacancy shall be made by the organizations and communities described in subsection (a).
The Members of the Citizens Advisory Committee shall elect one of its members as chairperson at its initial meeting.
Removal of Citizens Advisory Committee Member
No member of the Citizens Advisory Committee shall be removed from office, other than—
by impeachment and conviction; or
by the action of the Archivist for inefficiency, neglect of duty, malfeasance in office, physical disability, mental incapacity, failure to meet, falsification of any qualifications under subsection (a)(1), or any other condition that substantially impairs the performance of the member’s duties.
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.
The Archivist shall publish in the Federal Register a report submitted under paragraph (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.
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.
The member may be reinstated or granted other appropriate relief by order of the court.
Review, identification, transmission to the National Archives, and public disclosure of related records by Government offices
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.
Determination of use of originals or copies
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:
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.
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.
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.
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.
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.
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.
In the case of artifacts, the original objects themselves shall be placed in the Collection at the National Archives.
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.
In cases where a copy, as defined in subparagraph (D), is authorized by the Archivist to be included in the Collection, the Archivist may require that a copy be certified if, in the discretion of the Archivist, the Archivist 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 Archivist may, at the discretion of the Archivist, 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.
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.
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.
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.
In carrying out this section, a Government office may not destroy, alter, or mutilate in any way a related record.
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.
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.
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—
any oversight Committee requires the physical transfer of records for purposes of conducting an independent and impartial review;
it is a third agency record described in subsection (c)(2)(C); or
any other records are transferred to the Archives for public disclosure.
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).
In carrying out paragraph (1), a Government office shall—
determine which of its records are related records;
determine which of its related records have been officially disclosed or publicly available in a complete and un-redacted form;
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
transmit to a third agency or other Government office those records, or particular information contained in those records, or complete and accurate copies thereof;
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
specify on the identification aid required by subsection (d) the applicable postponement provision contained in section 7;
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;
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;
give priority to—
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
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
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:
All training manuals, instructional materials, and guidelines created or used by the Government office in furtherance of its review of related records.
All records, lists, and documents describing the procedure by which the office identified or selected related records for review.
Organizational charts of the office.
Records necessary and sufficient to describe the office’s—
records policies and schedules;
filing systems and organization;
storage facilities and locations;
indexing symbols, marks, codes, instructions, guidelines, methods, and procedures; and
search methods and procedures used in the performance of the duties of the office under this Act.
Reclassification to a higher level, transfer, destruction, or other information (e.g., theft) regarding the status of related records.
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.
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.
Upon completion of an identification aid under paragraph (1) by the Archivist, a Government office shall—
attach a printed copy of the identification aid describing a related record to the related record it describes;
when a related record is transmitted to the Archivist pursuant to subsection (e), include with the related record such printed copy of the identification aid, including an indication of whether the record is to be made available immediately to the public or recommended for postponement; and
make available to the public electronically each identification aid describing a related record, whether or not the record is made available to the public.
Transmission to the National Archives
Each Government office shall—
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
transmit to the Archivist all related records the public disclosure of which the office recommends be postponed, in whole or in part, under the standards of section 7, to become part of the protected Collection.
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 authorized office under this Act.
The National Archives and Executive branch agencies shall—
charge fees for copying related records;
grant waivers of such fees pursuant to the standards established by section 552(a)(4) of title 5, United States Code;
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
make available to the public electronic versions of related records, identification aids, and indexes.
Postponement of public disclosure of records
Grounds for Postponement
Disclosure of related records or particular information in related records to the public may be postponed on the request of an Executive agency or Government office, only after a review and decision by the Archivist, and subject to the limitations of this Act if there is clear and convincing evidence that—
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 living intelligence agent whose identity currently requires protection;
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
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;
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;
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
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.
Custody of Postponed Related Records
A related record the public disclosure of which has been challenged by an Executive agency or Government office may be postponed only by the Archivist but shall, pending transmission to the National Archives, 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)(3).
Annual Review of Postponed Related Records and Additional Related Records
All postponed or redacted records shall be reviewed annually by the originating agency and the Archivist, consistent with the standards under subsection (a). The annual reviews shall cease upon termination of activities of the Archivist under this Act pursuant to section 8(g).
An annual review shall address the public disclosure of any related records in the Collection, including any related records discovered since the preceding annual review in possession of any Federal, State, or local agency, Government office, organization, or person.
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.
All postponed records determined in an annual review to no longer require continued postponement shall be publicly disclosed in full and added to the Collection.
Requirement to Disclose Postponed Records
Each related record shall be publicly disclosed in full, and available in the Collection not later than 1 year after the termination of activities of the Archivist under this Act under section 8(f), or the date that is 3 years after the date of the enactment of this Act, whichever is earlier, unless the President certifies that continued postponement is made necessary by—
a current and identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and
the identifiable harm is of such gravity that it outweighs the public interest in disclosure.
Review of records by Archivist
Requirement for review
The Archivist shall conduct a review of related records in accordance with this section.
Deadlines for start of review
The Archivist shall—
not later than 30 days after the date of appointment of the Citizens Advisory Committee, publish in the Federal Register a schedule for conducting the review; and
not later than 90 days after the date of appointment of the Citizens Advisory Committee, begin the review.
Determinations of the Archivist relating to public disclosure and postponement
Presumption of release to public
The Archivist shall direct that all related records be transmitted to the National Archives and disclosed to the public in the Collection in the absence of clear and convincing evidence that—
a Government record is not a related record; or
a Government record or particular information within a related record qualifies for postponement of public disclosure under this Act.
The Archivist shall have the authority to act in a manner prescribed under this Act including authority to—
direct Government offices to complete identification aids and organize related records;
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;
obtain access to related records that have been identified and organized by a Government office;
receive information from the public regarding the identification and public disclosure of related records;
hold hearings, administer oaths, and subpoena witnesses and documents; and
appoint liaisons to all Federal agencies that have created related records, or have related records in their possession.
Citizens advisory committee
The Citizens Advisory Committee shall have the authority to act in a manner prescribed under this Act including authority to—
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 ensure full disclosure of related records and fulfill its functions and responsibilities under this Act;
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;
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;
receive information from the public regarding the identification and public disclosure of related records; and
hold hearings, administer oaths, and subpoena witnesses.
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.
Notice of related record designation
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.
A Notice of 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.
The Archivist shall consider and render decisions on a recommendation by a Government office under section 6(e)(2) to postpone the public disclosure of a related record. In carrying out this subparagraph, the Archivist shall—
consider and render decisions on whether a record constitutes a related record;
consider and render decisions on whether a related record or particular information in a record qualifies for postponement of disclosure under this Act; and
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.
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 7(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.
In approving postponement of public disclosure of a related record, the Archivist shall seek to—
provide for the disclosure of segregable parts, substitutes, or summaries of such a record; and
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:
Any reasonably segregable particular information in a related record.
A substitute record for that information which is postponed.
A summary of a related record.
After a decision by the Archivist under paragraph (4) 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 the decision, publish a copy of the decision in the Federal Register within 14 days after the decision is made, and provide that the decision is searchable electronically.
Contemporaneous notice to executive and legislative branches
Contemporaneous notice shall be made to the President for Archivist decisions regarding executive branch related records, and to the oversight committees specified in subsection (i) 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 standards contained in section 7.
Presidential Authority Over Archivist Determination
Public disclosure or postponement of disclosure
After the Archivist has made a formal decision 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 decision, 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 7, and the President shall provide the Archivist with an unclassified written certification specifying the President’s decision within 30 days after the Archivist’s decision 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 7, accompanied by a copy of the identification aid required under section 6. If, after 30 days, the President has not transmitted such written certification to the Archivist, the Archivist may proceed according to the previous formal decision.
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 of the collection set forth in section 7(c).
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.
Notice to Public
Every 30 days, the Archivist shall submit to the committees described in paragraph (2) and publish in the Federal Register a report on related records or particular information in related records the public disclosure of which is postponed by the Archivist under subsection (c) or by the President under subsection (d) during the preceding 30 days. With respect to each such record, the report shall contain—
a description of the subject of the record, the originating agency, the length or other physical description of the record, and each ground for postponement that is relied upon, and provide that the notice is searchable electronically.
a description of actions by the Archivist, the originating agency, the President, or any Government office with respect to the related record (including a justification of each ground for postponement of the record or part of the record) and of any official proceedings conducted by the Archivist with regard to the record or part of the record; and
a statement of the specific conditions and dates for the public disclosure of the record as set by the Archivist under subsection (c)(4)(A)(iii).
The committees described in this paragraph are the Committee on Government Reform of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Citizens Advisory Committee.
The first report required by paragraph (1) shall be submitted and published not later than 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 ensure that the report required by this subsection is searchable electronically.
Reports by the Archivist
The Archivist shall report the activities of the Archivist under this Act to the leadership of 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.
The first report under this subsection shall be issued on the date that is 1 year after the date of enactment of this Act, and subsequent reports shall be issued every 12 months thereafter until termination of activities of the Archivist under this Act pursuant to section 8(g).
A report under paragraph (2) shall include the following information:
A financial report of the expenses for all official activities and requirements of the National Archives and its personnel.
The progress made on review, transmission to the Archivist, and public disclosure of related records.
The estimated time and volume of related records involved in the completion of the Archivist’s performance under this Act.
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.
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.
Suggestions and requests to Congress for additional legislative authority needs.
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.
Any recommendations made by the Citizens Advisory Committee.
Any recommendations of the Archivist.
Notice of termination of activities under this Act
At least 90 calendar days before completing activities required under this Act and submitting the certification under subsection (h), the Archivist shall provide written notice to the President and Congress of the Archivist’s intention to terminate activities under this Act at a specified date.
Certification of completion of Archivist activities under this Act
Upon completing activities required under this Act, including collecting related records, reviewing related records, and releasing or postponing related records, the Archivist shall submit to the President and Congress a written certification that the activities of the Archivist are complete under this Act.
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 activities of the Archivist under this Act pursuant to section 8(g)), and shall conduct periodic hearings on the conduct of the Archivist and the Citizens Advisory Committee not less than every year for a period ending 3 years after the date of the enactment of this Act.
Disclosure of materials under seal of court
Requests to Attorney General
Requests for information or evidence under seal
The Archivist may request the Attorney General—
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
to subpoena any such information or evidence if such information or evidence is no longer in the possession of the Government.
Requests for information under injunction of secrecy of a grand jury
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.
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.
Sense of Congress
It is the sense of the Congress that—
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;
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
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.
Private right of action
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.
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.
Rules of construction
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.
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 activities of the Archivist under this Act pursuant to section 8(g) shall be considered for postponement or public disclosure under the standards of this Act, not such section 552.
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.
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.
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—
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
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.
Authorization of appropriations
There are authorized to be appropriated such sums as are necessary to carry out this Act, to remain available until expended.
Upon termination of activities of the Archivist under this Act pursuant to section 8(g), all records that are still pending postponement determinations shall be presumed to be available for release to the public. Any related record discovered in the possession of any Government agency or entity after termination of such activities shall be released to the Archivist for public disclosure under the provisions of this Act.
All members of the staff of the National Archives, the Archivist, 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.
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.