Nazi War Crimes Records Disclosure: Public Law No. 105-246

Nazi War Crimes Records Disclosure: Public Law No. 105-246

98-329 A
Updated October 16, 1998
CRS Report for Congress
Received through the CRS Web
Nazi War Crimes Records Disclosure: Public Law
No. 105-246
Paul S. Wallace, Jr.
Specialist in American Public Law
American Law Division
Summary
Public Law No. 105-246, amends the Freedom of Information Act (5 U.S.C. §552)
to establish a presumption that Nazi war criminal records are to be made available to the
public. This in effect requires all materials to be released in their entirety unless a
Federal agency head concludes that the release of all or part of the records would
compromise privacy or national security interests. The agency head must notify
Congress of any decision to not release the records.
In order to help expedite the process, the law establishes the Nazi War Criminal
Records Interagency Working Group. This group will to the greatest extent possible
locate, identify, inventory, declassify, and make available to the public all Nazi war
records held by the United States. The law targets two classes of Nazi-related
information1: (1) war crimes information regarding Nazi persecutions; and (2) any
information related to transactions involving assets of Holocaust and other Nazi victims.
This report provides a section-by-section summary of its provisions and will not be
updated.
Section-by-section summary. Section 1. Short Title. This section provides that
the Act may be cited as the “Nazi War Crimes Disclosure Act.”
Section 2 establishes the Nazi War Criminal Records Interagency Working Group
which will be made up of agency heads selected by the President whose functions will
be to: (1) “locate, identify, inventory, recommend for declassification, and make available
to the National Archives and Records Administration, all Nazi war criminal records; (2)
coordinate with agencies and take such actions as necessary to expedite the release of such
1 The Freedom of Information Act (FOIA) would be amended by proposed section 4(a) of
the bill which provides for expedited processing for these two classes of information. In effect,
it would appear that this would suspend the existing requirements under FOIA that restrict
disclosure of information by creating its own special category of rules for two classes of Nazi-
related material which would be released pursuant to an implied compelling need.
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records to the public; and (3) submit a report to Congress describing all such records, the
disposition of such records, and the activities of the Interagency Group and agencies under
this section.”
Section 3, subsection (a) provides that two classes of materials would be released:
(1) war crimes information about Nazi persecutions; and (2) information concerning
transactions involving assets stolen from Holocaust victims during the period beginning
on March 23, 1933, and ending on May 8, 1945.2
Subsection (b) provides that the Nazi War Criminal Records Interagency Working
Group shall release all records that are described in subsection (a) except for those records
whose release would either “constitute a clearly unwarranted invasion of personal
privacy”; compromise intelligence sources and methods as well as the national security
interests of the United States; violate a treaty or international agreement.
In applying the exceptions to compelled disclosure, it is presumed that the public
interest will be served by the records’ release. The only allowable condition of non-
compliance would be if releasing the records compromised the narrowly drawn set of
privacy and national security interests set out in subsection 3(b). The release of Nazi war
criminal records would not be required, however, if the records were among those “related
to or supporting any active or inactive investigation, inquiry, or prosecution by the Office
of Special Investigations of the Department of Justice” or those unrelated to and
nonsupportive of such official purposes but nevertheless in sole “possession, custody, or
control of that office.”

Section 4 provides that for purposes of expedited processing under the Freedom of
Information Act (5 U.S.C. §552(a)(6)(E)), any person who had been subject to Nazi
persecution, as defined in the Act, who requests a Nazi war criminal record shall be
deemed to have a compelling need for the record.
Section 5 provides that the amendment made by this Act to the Freedom of
Information Act shall take effect 90 days after the date of enactment of the Act.
On May 5, 1998, S. 1379 was reported to the Senate by the Senate Judiciary
Committee and placed on its calendar.
On June 19, 1998, S. 1379 passed the Senate with amendments added since the bill
was unanimously reported out by the full Senate Judiciary Committee on March 5, 1998.
The following amendments were made: (1) Section 3(B)(3) was revised to make clear that
the standard of judicial deference currently accorded to agency classification decisions
under Exemption (b)(1) of the Freedom of Information Act applies to exemption
decisions provided by agency heads making a withholding decision under section 3(b).3
This will ensure that the agency head's decision that disclosure and release of a Nazi War
Record would be harmful to a specific interest identified in an exemption will be accorded
2 The two classes include persecution and transactions by governments allied or
collaborating with the Nazis during that period.
3 144 Cong. Rec. S6727 (daily ed. June 19, 1998) (statement of Sen. DeWine).

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substantial weight pursuant to the agency's affidavit by the federal courts;4 and (2) section
2(b)(1) was amended to extend the life of the Interagency Group from one to three years
in recognition of the fact that more time may be needed to review the extensive document
holdings.5
On October 8, 1998, S. 1379 was signed by President Clinton and became Public
Law No. 105-246.
4 Id.
5 Id.

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