H.R. 6723 — Bring Our Heroes Home Act

This section states congressional findings that all federal records relating to missing Armed Forces and civilian personnel should be preserved for historical, governmental, and public research purposes (including for families seeking information on loved ones), carry a presumption of declassification, and be disclosed under the Act to enable the fullest possible accounting of such personnel. The section further specifies the Act's purposes of creating the Missing Armed Forces and Civilian Personnel Records Collection at the National Archives and requiring the expeditious public transmission to the Archivist and public disclosure of such records, subject to narrow exceptions.

This section defines 14 terms for use in the Act, including "missing person"—a person under 10 U.S.C. §1513(1) or any other civilian employee of the federal government or federal contractor who serves in direct support of, or accompanies, the Armed Forces in the field under orders and is in a missing status (as defined in 10 U.S.C. §1513(2))—"missing Armed Forces and civilian personnel record" as a government record relating to the loss, fate, or status of such personnel missing from December 7, 1941, through the date of enactment, and "Review Board" as the Missing Armed Forces and Civilian Personnel Records Review Board established under section 5.

This section directs the Archivist of the United States, not later than 90 days after a quorum of the Missing Armed Forces and Civilian Personnel Records Review Board is established, to (1) commence establishment of the Missing Armed Forces and Civilian Personnel Records Collection at the National Archives; (2) commence preparing a subject guidebook and index for the collection; and (3) establish criteria and formats, including metadata and privacy safeguards, for executive agencies to transmit copies of missing Armed Forces and civilian personnel records. It further requires the Review Board, not later than 90 days after its members are sworn in, to promulgate rules establishing guidelines and processes for disclosing records in the collection, including privacy safeguards. Finally, this section assigns continuing legislative oversight jurisdiction over the collection to the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Government Reform.

This section requires each government office, as soon as practicable after enactment, to identify and locate all missing Armed Forces and civilian personnel records (i.e., records related to prisoners of war/missing in action including intelligence reports, POW debriefings, live sighting reports, and documents on POW camps, movements, exploitation, or experimentation) in its custody; prepare uncertified copies for transmission to the Archivist of the United States in formats specified by the Archivist; submit a perjury-certified statement confirming a thorough search and any non-transmitted records; preserve all such records without destruction, alteration, or mutilation; and prohibit withholding, redaction, reclassification, or delayed disclosure of previously public information. The section further directs that, not later than 270 days after a quorum of the Review Board is established under section 7, each government office must review all such records for transmission to the Archivist and public disclosure (or Review Board review if needed), with the Review Board promulgating disclosure rules; requires the Archivist to identify classified records at the National Archives, notify originating offices, and make them available via the National Declassification Center (under Executive Order 13526); and exempts the Defense POW/MIA Accounting Agency from declassifying records on active investigations and Department of Defense/State casualty offices from those supporting families of missing individuals. For proposed substantial redactions or full withholdings, agency heads must submit unclassified justifications to the Archivist, Review Board, and relevant congressional committees demonstrating harm outweighing public interest, with the Archivist defining "substantially redacted record" by regulation; previously unredacted public records at the National Archives require no further review. Government offices must commence transmitting copies of such records to the Archivist not later than 270 days after Review Board quorum establishment.

This section establishes grounds for the Archivist to postpone public disclosure of missing Armed Forces and civilian personnel records. For records created less than 25 years before the review date, postponement is permitted if (1) the information pertains to specified national security matters (e.g., military plans, intelligence sources or methods, foreign relations, nuclear safeguards, or weapons of mass destruction) and the disclosure threat outweighs the public interest; (2) the information is protected under FOIA exemptions (5 U.S.C. §552(b)); or (3) it reveals information described in paragraphs (1) through (9) of section 3.3(b) of Executive Order 13526 (relating to classified national security information). For records created 25 or more years before the review date, postponement requires clear and convincing evidence that disclosure would (1) reveal confidential human or nonhuman intelligence sources, impair intelligence methods or cryptologic systems, reveal active military plans, or cause serious harm to U.S. foreign relations and (2) pose a disclosure threat outweighing the public interest. Regardless of record age, postponement also applies if disclosure would (1) reveal a living confidential source's identity posing substantial harm; (2) constitute a substantial unwarranted privacy invasion; (3) harm Armed Forces survival, evasion, resistance, or escape methods; or (4) conflict with U.S. law, regulations, or executive orders governing classified information.

This section establishes the Missing Armed Forces and Civilian Personnel Records Review Board as an independent establishment in the executive branch to ensure and facilitate the review, transmission to the Archivist, and public disclosure of missing Armed Forces and civilian personnel records. The board consists of 5 members appointed by the President with Senate advice and consent—including one chairperson appointed in consultation with the Archivist of the United States and others appointed in consultation with congressional leaders—each of whom must be a non-executive branch employee of U.S. citizenship with specified qualifications (e.g., integrity, impartiality, high professional reputation, appreciation for such records' value to families and scholars, at least one professional historian, and at least one attorney). Members must obtain security clearances, with expedited processing required; a majority including the chairperson constitutes a quorum; vacancies must be filled within 60 days; and members may be removed only by impeachment or presidential action for cause (with judicial review and congressional notice required), while receiving Executive Level IV pay and travel expenses. The section further directs the President to consult the Office of Government Ethics on conflicts of interest and consider recommendations from specified historical, archival, legal, veterans', and families' organizations; requires Senate Homeland Security and Governmental Affairs Committee consideration of the chairperson nomination; and assigns the board the duty to consider and decide on any government office determination to postpone disclosure of such records.

This section establishes the position of Executive Director for the Armed Forces and Civilian Personnel Records Review Board (Review Board)—to be appointed by the Review Board not later than 45 days after its initial meeting—with specified qualifications (i.e., U.S. citizen of integrity and impartiality, no conflicts of interest as determined in consultation with the Office of Government Ethics), required security clearance, administrative duties as principal liaison and coordinator (without authority over record disclosure decisions), and removal by majority vote of the Review Board. It further (1) authorizes the Review Board to appoint and terminate additional staff as needed without regard to competitive civil service requirements, treating such personnel as executive branch employees with similar qualifications and expedited security clearances; (2) directs the Review Board to fix compensation for the Executive Director and staff without regard to General Schedule classification, not to exceed the rate payable for level V of the Executive Schedule; and (3) permits the Review Board to create advisory committees subject to the Federal Advisory Committee Act.

This section establishes startup, review, disclosure, postponement, notification, and reporting procedures for the Missing Armed Forces and Civilian Personnel Records Review Board. Specifically, it requires the Review Board to (1) publish an initial review schedule on a National Archives website within 90 days after all members are sworn in and begin reviews within 180 days thereafter; (2) direct transmission and public disclosure of all relevant records absent clear and convincing evidence otherwise, with postponements limited to segregable parts, substitutes, or summaries developed in consultation with originating agencies; (3) for postponed records, transmit unclassified reports to the Archivist and specified Senate and House committees—including Homeland Security and Governmental Affairs, and Oversight and Government Reform—detailing actions, justifications, and recommended future disclosure times or events; (4) notify originating agency heads, the President, and committees of determinations within 30 days, with public website postings; (5) issue monthly public notices summarizing approved postponements beginning 60 days after the first one; and (6) submit annual reports on its activities, beginning one year after enactment, to the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Government Reform. It further requires post-termination referral of newly discovered records to the Archivist and the Senate and House Armed Services Committees for oversight, enforcement, and declassification review.

This section authorizes the Review Board to request the Attorney General to petition U.S. or foreign courts to release information under seal relevant to the loss, fate, or status of missing Armed Forces and civilian personnel, including grand jury materials (deemed a showing of particularized need under Federal Rule of Criminal Procedure 6). This section states the sense of Congress that (1) the Attorney General assist the Review Board in good faith to unseal relevant records; (2) the Secretary of State contact the governments of the Russian Federation, People's Republic of China, and Democratic People's Republic of Korea, as well as any other relevant foreign governments, to seek disclosure of such records; and (3) all agencies fully cooperate with the Review Board consistent with the public interest.

This section establishes rules of construction for the Act. Specifically, it provides that (1) Act requirements for transmitting records to the Archivist or public disclosure take precedence over other laws (except IRC §6103), judicial decisions, or common law doctrines prohibiting such actions, except for deeds governing gifts and donations to the U.S. government; (2) the Act does not eliminate or limit Freedom of Information Act (FOIA) rights to request records from executive agencies or seek judicial review of agency decisions; (3) the Act does not preclude Administrative Procedure Act judicial review of final actions taken under the Act; (4) the Act does not revoke or limit existing disclosure authorities of the President, executive agencies, Congress, or other government entities; and (5) Act procedures applicable to the Senate or House are adopted as rules of each chamber, superseding inconsistent rules only to that extent and subject to each chamber's constitutional authority to change its rules.

This section authorizes the head of a government office to request an extension from the Review Board, for good cause, on any deadline under this Act based on the date of quorum establishment under section 7. If the Review Board approves the request, it sets the applicable extended deadline.

This section (1) terminates the provisions of the Act pertaining to the appointment and operation of the Review Board upon termination of the Board and its members' terms under section 7(p), and (2) continues all other provisions of the Act in effect until the Archivist certifies to the President and Congress that all missing Armed Forces and civilian personnel records have been made available to the public in accordance with the Act.

This section establishes a severability clause, under which the invalidation of any provision of the Act, or its application to any person or circumstance, does not affect the remainder of the Act or the application of that provision to other persons or circumstances.