McKinney has submitted to Congress two different versions of the same bill, the "MLK Records Act" (one in 2003, the other in 2005), which, if signed into law, would release all currently sealed files concerning the 1968 assassination of Martin Luther King, Jr..^[22] These records were sealed in 1978 and are not due to be declassified until the year 2028. The 2005 version of the MLK Records Act, HR 2554 had 67 cosponsors by the time McKinney left office at the end of 2006. A Senate version of the bill (S2499) was introduced by Senator John Kerry and was co-signed by Sen. Hillary Rodham Clinton. The bill has also received numerous endorsements from former Members of the House Select Committee on Assassinations.

SUMMARY OF REV. DR. MARTIN LUTHER KING, JR. RECORDS COLLECTION ACT OF 2005

The primary purposes of this Act are:
· The expeditious disclosure of records relevant to the life and assassination of Rev. Dr. Martin Luther King, Jr.
· The preservation of all such records for historical purposes.
· Secure a presumption of disclosure to fully inform the public.
· Establish an independent and accountable process for public disclosure.

This Act is necessary because:
· Records might be lost or destroyed which are not subject to disclosure until 2038.
· The Freedom of Information Act (FOIA) has prevented timely disclosure.
· Executive Order #12356 on “National Security Information” recently eliminated declassification schedules and prevents timely disclosure.
· Previously released records are being evaluated for re-classification.
· Most related records are more than 35 years old, and only in rare cases are there legitimate reasons to protect them from disclosure.

There is a compelling public interest in prompt public disclosure of records for historical and government purposes, and to fully inform the American people about the history surrounding the life and assassination of Dr. King.

The Act will create a Martin Luther King Records Collection at the National Archives and Records Administration (NARA), and will require expeditious transfer of records to the collection.

The Act will disclose a broad range of related records on the life and assassination of Dr. King that have been created, obtained by or came into the possession of earlier investigations, including the:
· Rockefeller Commission
· Church Committee
· Pike Committee
· House Select Committee on Assassinations
· Library of Congress
· National Archives and Records Administration
· Presidential Libraries
· Executive and independent federal agency offices
· State and local law enforcement supporting any federal inquiries
· Deeds and gifts to NARA

The Act defines related records as public or private, regardless of how labeled or identified, that document, report on, analyze or interpret activities, persons or events reasonably related to the life and assassination of Dr. King. These records will include any investigations or inquiries into his life of death by federal, state or local agencies. And any other record not described in the Act that has the potential to enhance, enrich, and broaden the historical record relating to Dr. King.

The Act will also release all types of records, including books, papers, maps, photographs, films, audio and video recordings, digital or computer files, physical evidence and artifacts to the National Archives MLK Collection, including:

· Records created by but no longer in the possession of government agencies, or in the possession of any individual by virtue of service with a government agency, or anyone who obtained a record from any government source or individual
· Intra-agency investigations, analysis or communications, requests by government investigations, and segregated documents or files created by the House Select Committee on Assassinations
· Documents used during declassification reviews of related records, and all other indexes that disclose cryptonyms, code names, symbols, numbers, aliases or identifiers that appear in the records
· Records in repositories and archives of a university, library, historical society or similar organization
· Records under seal by courts or grand juries
· Foreign government records
· Records of federal contractors
· Records of government controlled corporations.

NARA and the government agencies will create an identification aid for each record, which include:
· Books and paper records
· Maps
· Photographs and films
· Recordings
· Computerized files regardless of the storage medium
· Physical evidence and artifacts
And the Archive will insure the provenance, physical integrity and original copies of the records. NARA will also prepare and publish a Subject Guidebook & Index and a central directory of records that will allow access by online searches to records, identification aids and indexes.

All related records will be transferred for immediate release to the Archive or sent for review for redaction or postponement by the MLK Records Review Board, but no record will be withheld indefinitely. The Act outlines the procedures for agencies to determine whether originals or copies of different types of records should be certified and transmitted. No related record may be destroyed, altered or mutilated in any way after passage of this Act. Any record previously declassified and disclosed may not be withheld, redacted, reclassified or postponed for release. Records pending review by the Board will be transmitted to a secure location at their offices. Priority in searching for records will be given to those records previously released or available for declassification in full, as well as any related records pending review under the Freedom of Information Act. Any related records discovered after termination of the MLK Records Review Board or the Act will continue to be reviewed for release under the standards of this Act, not the Freedom of Information Act or other legislation or executive orders concerning declassification.

To facilitate review of records, agencies will provide the MLK Records Review Board with all manuals, instruction materials and guidelines used in their search, organizational charts, filing systems and organization, storage facilities, indexing symbols, and search methods used. The Act also requires them to report any reclassification to a higher level, transfer, destruction, theft or other information regarding the status of related records in their possession.

The National Archives will also create a secondary location for copies of appropriate items in the Collection, in agreement with a public or private institution of higher education, research institution, museum or other archival institution that requests to store them. These institutions must have a proven record of archival collection and preservation, provide maximum public access, and encourage continuing study and education regarding the life and assassination of Dr. King.

In addition, all reproducible items in the Collection at the National Archives will be available for public inspection and copying through an electronic format within 30 days of transmission. Artifacts and physical evidence will be available through photographs or drawings, but additional display, examination or testing of an artifact will be allowed if it will reveal aspects that cannot be determined from the images.

No related record may be withheld indefinitely, and there is a strong presumption of release based on weighing the public interest against the gravity of the threat posed by release to the military defense, intelligence operations, or conduct of foreign relations of the United States. Clear and convincing evidence is necessary to create grounds for temporary postponements of release or redaction or records. These grounds are limited to threats to a living intelligence agent whose identity currently requires protection, an intelligence source or method currently in use which has not yet been officially disclosed, disclosures of sources and methods that would interfere with the conduct of current intelligence activities, and any other matter that would demonstrably impair the national security of the United States.

The Martin Luther King Records Review Board will be established as an independent agency with five members, appointed by the President and approved with the advice and consent of the Senate, to facilitate the review and transmission of all related records to the Archivist for public disclosure. The President will also appoint three alternate members to serve on the Board in the case of a vacancy. Nominations will be considered among persons recommended by the Society of American Archivists, the National Bar Association, the Black Caucus of the American Library Association, and the National Conference of Black Political Scientists.

All nominees to the MLK Records Review Board must be impartial private citizens, not presently employed by any branch of the government, and who have been involved with any official investigation or inquiry into the life and death of Dr. King conducted by any federal, state or local government, and who also have not been previously employed by any intelligence or law enforcement agency relating to Dr. King. These nominees will be distinguished persons of high national professional reputation in their respective fields who are capable of exercising independent and objective judgment to insure the review and public disclosure of all related records, and who appreciate the value of such material to the public, scholars and the government. They will include at least one professional historian, one attorney, one researcher, and one representative of the civil rights community.

All nominees will be granted the necessary security clearances in an accelerated manner prior to being considered for confirmation by the Senate Committee on Homeland Security and Governmental Affairs. Based on hearings and a vote by the Committee, they will be confirmed by the full Senate. Vacancies will be filled by the same methods. The Review Board will then elect one member as chairperson at its initial meeting. The Act establishes strict standards, procedures and judicial appeals required in the removal of any Review Board member.

All MLK Review Board staff will meet the same qualifications as Review Board members, and their security clearances will be accelerated to allow access to classified records. Employment and initial duties will be dependent on successful security clearance review. The Act provides that all members and staff of the Review Board will be protected under federal laws relating to whistleblowers, particularly relating to the disclosure of improper document retention, release or disclosure.

The Review Board will appoint within 30 days of its inception an independent citizen advisory committee under provisions of the Federal Advisory Committee Act that includes members of the civil rights community and the King family.

Within 45 days of its first meeting, the Board will appoint a citizen to the position of Executive Director, using the same criteria that apply to qualify Review Board members, and secure necessary security clearances. The Executive director serves as a liaison to the federal offices, and will be responsible for administration of the review of records and all official activities of the Board, but shall have no authority to determine whether any record will be postponed or released to the public. The Executive Director can be removed by a majority vote of the Board for serious cause.

The MLK Records Review Board will have the power to direct government offices to locate and organize related records and transmit them for review or release. Thy may also investigate the facts surrounding the transmission or possession of records, and take testimony of individuals in order to fulfill their responsibilities.

The Board can request the Attorney General to subpoena private persons or government employees to compel testimony or records, and require agencies to account in writing for any previous or current destruction of related records. The Board can receive information from the public about the identification and disclosure of related records, and hold hearings, administer oaths or subpoena witnesses and documents. Acting on a lawful request of the Board, these subpoenas can be enforced by any appropriate federal court. The Review Board can also offer witness immunity to elicit testimony.

The Review Board can also request that the Attorney General petition any court in the United States or abroad to release any sealed information or physical evidence relevant to the life or death of Dr. King, and to subpoena such evidence if it is no longer in the possession of the government. A similar request can be made for release of any information held under the injunction of secrecy of a grand jury. The Act requires the Attorney general to assist the Board in such requests in good faith to unseal any such records. The Secretary of State will contact any other foreign government that may hold relevant information and seek its disclosure, and will report on its progress in a timely fashion to the Review Board. All Executive agencies are required by the Act to cooperate in full with the Review Board to seek disclosure of all related records, consistent with the public interest.

Within 90 days of appointment, the Review Board will publish a schedule for review of all related records in the Federal Register, and begin its review within the next 90 days. In the absence of finding that the record is not related to the life and death of Dr. King, or that information in the record qualifies for postponement, the Board will direct transmission to the Archivist for public release. The Board will determine whether each record will more likely than not enhance, enrich and broaden the historical record of the life and assassination of Dr. King. The Board will announce its determinations concerning records that are related in a Notice of Related Records Designation (NRRD) to be published in the Federal Register.

If the Board decides to postpone release of information in any record, it must set specific conditions and dates for public disclosure related to the specific dates when the reasons for the postponement will end, prior to the set date for complete disclosure established in the Act. The Review Board may also disclose segregable parts, substitutions or summaries of postponed records, in consultation with the originating agency. Decisions by the Review Board concerning postponement or release of records generated by executive agencies can be appealed within 30 days to the President, with a determination by the President within the next 30 days. The Board will make regular reports on its decisions to the President, the federal agencies involved and the Archivist, and will publish the unclassified written certifications of the President regarding postponement or release of related records in the Federal Register and make them available for electronic searches. Every 30 days, starting 60 days after the first decision to postpone a record, the Review Board will notify the public of all such decisions and the grounds for them in the Federal Register and make them searchable electronically. The Review Board will also provide annual reports to Congress, the President, the Archivist and all government agencies whose records have been reviewed, and to the public, until its termination. These reports will include progress on review and disclosure of records, an estimated time and volume of related records to complete their task, any special problems including the level of cooperation or government offices, review actions taken by the board since the last report, suggestions to Congress about additional legislative authority needs, the recommendations of the citizens advisory committee appointed by the Board, any recommendations of the Board, and an appendix of postponed records.

The Review Board will terminate its work no later than 5 years from passage of the Act, unless it votes to extend its term for an additional 2-year period if it has not completed its work. At least 90 days before completing its work, the Board will provide written notice to Congress and the President of its intention to terminate upon a specific date. Upon termination the Review Board will release a public report to the President and Congress accurately accounting all its expenditures and completing other reporting requirements. All records still pending postponement decisions by the Review Board upon termination will be presumed available for release and transmitted to the Archivist for release within 60 days of its termination.

The Committee on Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate will have continuing oversight jurisdiction over the Review Board, the Collection and the performance of government agencies. They will hold hearings every two years up to and beyond the termination of the Review Board, or one year after the Archivist certifies that all related records have been fully released to the public. These Committees will have access to all records held or created by the Review Board, and full cooperation from the Board and all federal agencies in their oversight.

The provisions of the Act take precedence over other laws except the privacy provisions relating to records of the Internal Revenue Service, as well as judicial decisions or common law interpretations that would otherwise prohibit disclosure of records. The Act does not eliminate or limit requests for records to any agency under the Freedom of Information Act, save that related records discovered after the termination of the Review Board will be considered for release under the standards of this Act, not the FOIA. The Act precludes judicial review of its decisions, but does not revoke the power of the President, the Congress, the executive branch or any other government entity to review and release records to the public on their own initiative.

Those provisions of the Act relating to the activities of the Review Board will remain in effect until its termination. All other provisions of the Act will remain in effect until such time as the Archivist certifies to the President and Congress that all related records, including any discovered subsequently, have been made available to the public in accordance with the Act.

TIMELINE FOR MLK RECORDS ACT

From the date of enactment:
RECORDS REVIEW BOARD
· Within 45 days nominating organizations will send nominations for the Review Board to the Senate
· Within 90 days the President nominates 5 members and 3 alternates
o Within 30 days after at least 3 nominations are made confirmation hearings will be held in Senate committee
o Within 14 days after confirmation hearings the Senate committee will vote on the nominees
o Within 14 days after the committee vote, the full Senate will vote on confirmation
o Within 30 days of any vote against confirmation of a nominee the President will send another nomination and the Senate will follow the same procedures
· Within 193 days a Review Board will be nominated and confirmed.
· The Review Board will appoint within 30 days of its inception an independent citizen advisory committee that includes members of the civil rights community and the King family.
· Within 45 days of its first meeting, the Board will appoint a citizen to the position of Executive Director
· Within 90 days of appointment, the Review Board will publish a schedule for review of all related records in the Federal Register, and begin its review within the next 90 days.
· Every 30 days, starting 60 days after the first decision to postpone a record, the Review Board will notify the public of all such decisions and the grounds for them in the Federal Register
· Decisions by the Review Board concerning postponement or release of records generated by executive agencies can be appealed within 30 days to the President, with a determination by the President within the next 30 days.
· The Review Board will also provide annual reports to Congress, the President, the Archivist and all government agencies whose records have been reviewed, and to the public, until its termination.

RECORDS COLLECTION
· As soon as practicable government agencies identify and organize related records for transmission.
· Within 45 days NARA Archivist prepares and distributes a standard finding aid and identification form for each record
· Within 60 days NARA starts the MLK Records Collection, and
o Publishes a subject guidance that is searchable electronically
o Creates a central directory of identification aids
· Within 180 days government agencies will locate and review all related records in their possession
· All reproducible items in the Collection at the National Archives will be available for public inspection and copying through an electronic format within 30 days of transmission.

OVERSIGHT AND TERMINATION
· Biannual hearings by Congressional oversight committees will be held up to and including the year in which the Archivist makes a final determination that the collection is complete and fully disclosed to the public.
· Within 5 years of enactment the Review Board will terminate its work, unless it requests an extension of 2 more years.
· At least 90 days before completing its work, the Board will provide written notice to Congress and the President of its intention to terminate upon a specific date.
· Upon termination the Review Board will release a public report to the President and Congress.

From the date of termination of the Review Board:
· All records still pending postponement decisions by the Review Board upon termination will be presumed available for release and transmitted to the Archivist for release within 60 days of its termination.
· One year after termination all related records will be fully released, or
· Eight years after enactment all related records will be fully released, whichever is sooner.