At HSGAC Hearing, Portman Presses Nominees on Importance of Balancing Public Disclosure & Privacy Protections on Civil Rights Cold Case Records Review Board

WASHINGTON, DC – Yesterday, U.S. Senator Rob Portman (R-OH), Ranking Member of the Senate Homeland Security and Governmental Affairs Committee, at a hearing to consider nominees to serve on the Civil Rights Cold Case Records Review Board, pressed the nominees on the importance of this review board to balance public disclosure and privacy interests as these civil rights cold case records are reviewed. Portman questioned the nominees on the proper handling of the Board’s authorities to issue subpoenas and request the Attorney General to petition courts for sealed information if the need arises. In addition, Portman stressed the need for the nominees to demonstrate impartiality and objectivity in their roles on the Board if confirmed. 

A transcript of the questioning can be found below and a video can be found here. 

Portman: “Great. Thank you, Mr. Chairman, and I would first like to comment on the working board rather than an honorary board. This is a working board, clearly, you all are viewing it this way. We talked about this in our earlier discussions, and one thing I mentioned is that under the statute, you have 90 days to publish the schedule for review of all civil rights cold case records in the Federal Register. So that alone, even if you weren’t short changed on time generally because it’s taken so long to get the nominees up and to get you confirmed, once you do hit the ground, you’ve got to hit the ground running. And so I will just stipulate that. My sense from talking to all four of you is you understand the importance of that and it is a working board, for sure. The two issues that, again, we’ve already discussed some and I want to hear you talk about in this public hearing context is one, balancing this interest of public disclosure and privacy and protection of those names in the records, such as witnesses. And as part of that, how would you handle this responsibility of subpoena authority and the ability to request the Attorney General? 

“And then the second question I have is with regard to impartiality. Some of you have made political contributions. All of us have personal political views. My sense from talking to you all is that you acknowledge that this is not a political appointment in the sense that this is an apolitical board, and that impartiality and objectivity is key. And I’d like you to talk a little more about that, too. So I’m giving you a lot to do in the five minutes or so remaining here. And let’s start in the reverse order. So, Professor Stevenson, if you can address one or all of those issues, and then we’ll go to Professor Klibanoff and then Ms. Dudley, and then Professor Burnham. Professor Stevenson.” 

Brenda E. Stevenson, Nominee to be a Member of the Civil Rights Cold Case Records Review Board: “Thank you, Senator Portman, for your question. I will begin with impartiality. As a trained historian, what I’m trying to do is to be impartial in terms of the use of documentation and providing information to my audience, whether my audience, it can be a reading audience or it can be a student-based audience, or it could be a radio audience. I am here in my work to be impartial. That’s the most important thing a scholar can do. And so I’m very much committed to that and have been for my entire career. I am very much encouraged by the impartial way in which this law was established and was voted on, and has been supported. And that really, I think, will guide us if we are confirmed, in our work, that this really comes out of the goodwill of all the political forces in our nation. And it is an honor to work on something and to keep that tradition going. So I look forward to, if confirmed, I look forward to being, if possible, a beacon of impartiality on the Board. 

“With regard to the balancing, thank you for that question as well. The law is very specific about what can be disclosed and what cannot be disclosed, and reasons why an agency may not want to disclose certain materials. And I do believe, if confirmed with the fellow nominees, that we will work diligently to understand what the law means and what it means to the people of the United States. And so, I will commit myself to following very carefully the details of the law with regard to the information that is exposed and our attempts to get information that may be helpful to us in our decision making.” 

Portman: “Thank you very much. I’m going to go on to the next witness and say that you’ve answered the questions well, but there are a couple out there. I want to be sure others have a chance to answer too. One, Mr. Klibanoff, as to the subpoena authority and to the power the Board has to ask the Attorney General to petition a court to release sealed information.” 

Henry Klibanoff, Nominee to be a Member of the Civil Rights Cold Case Records Review Board: “Yes, of course as you know, the law that the Senate and the House passed and that President Trump signed does give us some subpoena authority in certain situations. It is not something that I anticipate we will be using randomly. I don’t anticipate we would be using it recklessly. I think that this is a very serious responsibility, and I think we know that. And we understand that there are reasons along the line historically that certain records have been held off limits, that certain records have been sealed. We need to find out what those reasons are before we move to try to countermand that. So I think you will find us to be very reasonable about that. And I think that you know that we will be discussing this with the Attorney General, with the National Archives. I think we probably need some advisor, an advisory committee of lawyers who deal in the world of privacy and First Amendment issues in order to make sure that we’re not stepping into something that’s bigger than what we want to get into. So we take it seriously.” 

Portman:Thank you for that. And again, I want to make sure we get to the other two members. Let me just briefly speak on the advisory committee. You do have the authority to do that under law. And that’s one of the questions that I would have asked if I had a little more time, but an interesting use of the advisory committee would be to have lawyers who are trained and day to day deal with this balancing of the public disclosure versus privacy issue. Ms. Dudley, thoughts on any of these questions?” 

Gabrielle M. Dudley, Nominee to be a Member of the Civil Rights Cold Case Records Review Board: “Thank you, Senator. So I will say, as I mentioned in my opening statement, that I really do embody and employ the code of ethics for archivists, and I strive to exercise ethical and professional judgments in all of the work that I do. And I should say in my day to day work in Rose Library at Emory University, one of my charges is to balance access and privacy. I work in public services, so we are providing access to researchers, but also making sure to honor the agreements that we have with donors that have donated their materials and have certain stipulations. So I am very comfortable with doing that in my role, my professional role and then also could bring that to this Board if confirmed.” 

Portman: “Thank you. Professor Burnham, any response to those questions and then we’ll go on to allow Senator Carper to take over the panel?” 

Margaret A. Burnham, Nominee to be a Member of the Civil Rights Cold Case Records Review Board: “Thank you, Senator Portman. On the subpoena power and the question of balancing interest in nondisclosure or concerns that might lead to nondisclosure and our interest in disclosure, I would say that the statute is really well-drafted in that it lays out exactly what issues might give rise to nondisclosure. And so we just really follow along the lines of the statute and the statute, of course, echoes lots of law out there about reasons why government records ought not to be made generally available. Subpoena power, I agree with my colleagues that if appointed, we would all use our best judgment to obtain records without having to resort to subpoenas. But if it appeared that records were necessary to complete the collection, we would obviously have to consult quite closely with and be guided by the judgment of the Attorney General and whatever counsel are advising the Board. On the question of impartiality, of course, I would be completely impartial on all of these issues. This is, as Professor Klibanoff indicated, a completely impartial board, a nonpartisan and impartial board, although it reflects the views across the parties in the country, so I would, of course, be impartial here.” 

Portman: “Well, thank you, Professor Burnham. I appreciate those answers in our private conversations and also what you all put on the record publicly. I wish you all well with an important mission and look forward to checking in, assuming you are confirmed, with the progress of the Board and the results of your work. Thank you, Mr. Chairman.”