Before Congress passed the JFK Act, members of the public
who wished to review the government's assassination records could either
request the records under the Freedom of Information Act (FOIA)3 or await the
release of the records under the then-current Executive Order on
declassification.4 As of 1992, some agencies had a five year backlog in
responding to FOIA requests, and members of the public often waited for long
periods of time to receive information that might be heavily redacted. Moreover
President Reagan's Executive Order 12356, in effect in 1992, was aimed more at
protecting secrets than releasing information.
Like the JFK Act, the FOIA is a disclosure statute that
assumes that all government records, except for those that fit within one of
the enumerated exemptions, may be released.5 Also like the JFK Act, the FOIA
places upon the government the burden of proving that material fits within the
statutory exemptions. The nine FOIA exemptions that allow government agencies
to withhold information from the public include exemptions for information that
relates to the national security, information that is related to law
enforcement activities, and information that would invade the personal privacy
of individuals. The FOIA also allows agencies to protect information if its
release would cause agencies to operate in a fishbowl. For example, agencies
can withhold information that relates solely to personnel practices or reveals
the deliberative process in its decision making. The FOIA further protects trade
secrets, certain information relating to financial institutions, and certain
geological and geophysical information. Finally, exemption b(3) of the FOIA
works to exempt any information from disclosure if the Director of Central
Intelligence determines that the material may not be released.
The second set of guidelines that governed disclosure of
records relating to the assassination of President Kennedy before Congress
passed the JFK Act was provided by President Reagan's Executive Order 12356.
Executive Order 12356 was not as disclosure-oriented as Executive Order 12958,
enacted by President Clinton in 1995. The Senate Report for the JFK Act notes
that, Executive Order 12356, National Security Information, has precluded the
release of [assassination] records.... [L]egislation is necessary...because
E.O. 12356, "National Security Information," has eliminated the
government-wide schedules for declassification
and downgrading of classified information and has prevented the timely public
disclosure of assassination records...6
President Clinton's Executive Order 12958, currently in
effect,7 is significantly more disclosure-oriented than President Reagan's
order. The current Executive Order applies to all Executive branch records and,
unlike the JFK Act, requires agencies to engage in a systematic
declassification of all records more than 25 years old. The Executive Order
gives agencies five yearsuntil April 2000to declassify all classified
information that is (1) more than 25 years old, and (2) is of permanent
historical value unless the "agency head" determines that release of
the information would cause one of the nine enumerated harms. The Executive Order
provides for continuing protection for sources and methods where disclosure
would damage the national security. It also protects, inter alia, information
that involves diplomatic relations, U.S.
cryptologic systems, war plans that are still in effect, and protection of the
President.8
2. Key Distinctions Between Standards of Release Under the
FOIA, the Executive Order, and the JFK Act
In considering whether the JFK Act was necessary to
guarantee public access to assassination records, Congress evaluated the
effectiveness of both the FOIA and the then-current Executive Order 12356. Both
the House and the Senate concluded that the FOIA and the Executive Order, as
administered by the executive branch, had failed to guarantee adequate public
disclosure of assassination records.
At the time that the JFK Act became law, the largest
collections of records concerning the assassination were under the control of
the FBI, the CIA , and the Congressional
Committees who investigated the assassination. The FOIA provides special
protections for each of these entities, and thus could not serve as the
mechanism for maximum disclosure of assassination records. First, the FOIA
exempts CIA operational files from
disclosure.10 Second, the FOIA provides broad-based protection for law
enforcement files and therefore allows the FBI to protect a substantial amount
of its information from disclosure.11 Third, the FOIA does not apply to
unpublished Congressional records.12 Congress found that the FOIA did not
require adequate disclosure in those records that it did cover. Thus, Congress
believed that the FOIA was not a satisfactory mechanism for guaranteeing
disclosure of assassination records.13
President Clinton did not sign Executive Order 12958 until
April 17, 1995over two years after Congress passed the JFK Act. Clearly, the
terms of the Executive Order applied to most assassination records since they
were of permanent historical value and were over 25 years old. Even if
President Clinton's Executive Order had been in effect prior to 1992, it could
not have achieved the maximum disclosure accomplished by the JFK Act. The
problem with the Executive Order is that it allowed "agency heads" to
make the decision to exempt records from automatic declassification provided that
the "agency head" expected that disclosure of the records would
result in one of the nine enumerated categories of harm. As many sections of
this Report explain, the Review Board found that "agency heads"
tended to be quite reluctant to release their agencies' secrets. The Executive
Order, while well-intentioned, failed to provide for any independent review of
"agency heads'" decisions on declassification. Thus, although the
Executive Order's standards for declassification appeared to be disclosure-oriented,
the Executive Order failed to hold agency heads accountable for their
decisionmaking.
The JFK Act did require agencies to account for their
decisions. To ensure such accountability, Congress included four essential
provisions in the JFK Act: first, the JFK Act presumed that assassination
records may be released; second, the JFK Act stated that an agency could rebut
the presumption of disclosure only by proving, with clear and convincing
evidence, that disclosure would result in harm and that the expected harm would
outweigh any public benefit in the disclosure; third, the JFK Act created an
independent agencythe Review Boardwhose mandate was to ensure that agencies
respected the presumption of disclosure and honestly presented clear and
convincing evidence of the need to protect information; and fourth, the JFK Act
required agencies to provide the Review Board with access to government
records, even when those records would not become part of the JFK Collection.
Without these accountability provisions, the JFK Act would not have
accomplished its objective of maximum release of assassination records to the
public. So, while the FOIA and the Executive Order each expressed the goal of
obtaining maximum disclosure, the JFK Act ensured that the goal would be met.
The two accountability provisions that relate directly to the Section 6 grounds
for postponementthe presumption of release and the standard of proofare
discussed in detail below. The third provision discussed below is the Review
Board's obligation to balance the weight of the evidence in favor of
postponement against the public interest in release.
Section
3(2) of the JFK Act defines assassination records to include any records
"created or made available for use by, obtained by, or otherwise came into
possession of" the federal government (or state or local law enforcement
offices that assisted in an investigation of President Kennedy's
assassination).
Definitions
In this Act:
(1) "Archivist" means the Archivist of the United
States .
2) "Assassination record" means a record that is
related to the assassination of President John F. Kennedy, that was created or
made available for use by, obtained by, or otherwise came into the possession
of--
(A) the Commission to Investigate the Assassination of
President John F. Kennedy (the "Warren
Commission");
(B) the Commission on Central Intelligence Agency Activities
Within the United States
(the "Rockefeller Commission");
(C) the Senate Select Committee to Study Governmental
Operations with Respect to Intelligence Activities (the "Church
Committee");
(D) the Select Committee on Intelligence (the "Pike
Committee") of the House of Representatives;
(E) the Select Committee on Assassinations (the "House
Assassinations Committee") of the House of Representatives;
(F) the Library of Congress;
(G) the National Archives and Records Administration;
(H) any Presidential library;
(I) any Executive agency;
(J) any independent agency;
(K) any other office of the Federal Government; and
(L) any State or local law enforcement office that provided
support or assistance or
performed work in connection with a Federal inquiry into the assassination of
President John F. Kennedy, but does not include the autopsy records donated by
the Kennedy family to the National Archives pursuant to a deed of gift
regulating access to those records, or copies and reproductions made from such
records.
Section 6:
Grounds for Postponement of Public Disclosure of Records
Disclosure of assassination records or particular
information in assassination records to the public may be postponed subject to
the limitations of this Act if there is clear and convincing evidence that
(1) the threat to the military defense, intelligence
operations, or conduct of foreign relations of the United
States posed by the public disclosure of the
assassination is of such gravity that it outweighs the public interest, and
such public disclosure would reveal
(A) an intelligence agent whose identity currently requires
protection;
(B) 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
(C) 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 ;
(2) the public disclosure of the assassination 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;
(3) the public disclosure of the assassination record could
reasonably be expected to constitute an unwarranted invasion of personal
privacy, and that invasion of privacy is so substantial that it outweighs the
public interest;
(4) the public disclosure of the assassination record would
compromise the existence of an understanding of confidentiality currently
requiring protection between a Government agent and a cooperating individual or
a foreign government, and public disclosure would be so harmful that it
outweighs the public interest; or
(5) the public disclosure of the assassination record would
reveal a security or protective procedure currently utilized, or reasonably
expected to be utilized, by the Secret Service or another Government agency
responsible for protecting Government officials, and public disclosure would be
so harmful that it outweighs the public interest.
(i) Duties of the
Review Board-
(1) The Review Board shall consider and render decisions on
a determination by a Government office to seek to postpone the disclosure of
assassination records.
(2) In carrying out paragraph (1), the Review Board shall
consider and render decisions
(A) whether a record
constitutes an assassination record; and
(B) whether an assassination record or particular
information in a record qualifies for postponement of disclosure under this
Act.
(j) Powers-
(1) The Review Board shall have the authority to act in a
manner prescribed under this Act including authority to
(A) direct Government offices to complete identification
aids and organize assassination records;
(B) direct Government offices to transmit to the Archivist
assassination records as required under this Act, including segregable portions
of assassination records, and substitutes and summaries of assassination
records that can be publicly disclosed to the fullest extent;
(C)
(i) obtain access to assassination records that have been
identified and organized by a Government office;
(ii) direct a Government office to make available to the
Review Board, and if necessary investigate the facts surrounding, additional
information, records, or testimony from individuals, which the Review Board has
reason to believe is required to fulfill its functions and responsibilities
under this Act; and
(iii) request the Attorney General to subpoena private
persons to compel testimony, records, and other information relevant to its
responsibilities under this Act;
(D) require any Government office to account in writing for
the destruction of any records relating to the assassination of President John
F. Kennedy;
(E) receive information from the public regarding the
identification and public disclosure of assassination records; and
(F) hold hearings, administer oaths, and subpoena witnesses
and documents.
(2) A subpoena issued under paragraph (1)(C)(iii) may be
enforced by any appropriate Federal court acting pursuant to a lawful request
of the Review Board.
(k) Witness Immunity- The Review Board shall be considered
to be an agency of the United States
for purposes of section 6001 of title 18, United States Code.
(l) Oversight-
(1) The Committee on Government Operations of the House of
Representatives and the Committee on Governmental Affairs of the Senate shall
have continuing oversight jurisdiction with respect to the official conduct of
the Review Board and the disposition of postponed records after termination of
the Review Board, and shall have access to any records held or created by the
Review Board.
(2) The Review Board shall have the duty to cooperate with
the exercise of such oversight jurisdiction.
(m) Support Services- The Administrator of the General
Services Administration shall provide administrative services for the Review
Board on a reimbursable basis.
(n) Interpretive Regulations- The Review Board may issue
interpretive regulations.
(o) Termination and Winding up-
(1) The Review Board and the terms of its members shall
terminate not later than 2 years after the date of enactment of this Act,
except that the Review Board may, by majority vote, extend its term for an
additional 1-year period if it has not completed its work within that 2-year
period.
(2) Upon its termination, the Review Board shall submit
reports to the President and the Congress including a complete and accurate
accounting of expenditures during its existence, and shall complete all other
reporting requirements under this Act.
(3) Upon termination and winding up, the Review Board shall
transfer all of its records to the Archivist for inclusion in the Collection,
and no record of the Review Board shall be destroyed.
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