Friday, March 1, 2013

FOIA v JFK ACT Basic Background

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). 

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;

(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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