ARRB Recomendations - Not Implemented

JFK ASSASSINATION RECORDS REVIEW BOARD RECOMMENDATIONS

The Final Report of the Assassinations Records Review Board provides not only an opportunity to detail the extraordinary breadth and depth of the Board’s work to identify and release the records of the tragic death of President John F. Kennedy, but also to reflect on the Board’s shared experience in carrying out this mission and the meaning of its efforts for the much larger challenge of secrecy and accountability in the federal government. It is true that the Board’s role was to a large extent disciplined and tightly focused on the assassination, its aftermath and the broader Cold War context in which the events occurred.

Any evaluation, however, of the unique experience of the Review Board-five private citizens granted unprecedented powers to require public release of long-secret federal records – inevitably presents the larger question of how the Board’s work can be applied to federal records policy. There is no doubt that for decades the pendulum had swung sharply toward secrecy and away from openness. Changes wrought by the end of the Cold War and the public’s desire to know have begun to shift the balance. The Review Board’s mandate represented a new frontier in this changing balance – an entirely new declassification process applied to the most sought after government secrets.

In this chapter, the Board steps back and reflects on its experiences, raises issues that will help frame the declassification debate, and makes recommendations on the lessons to be learned from the path taken to release of the JFK assassination collection. The dialogue about how best to balance national security and privacy with openness and accountability will continue both within government and beyond. The Review Board will necessarily be part of that important debate.

The Review Board was created out of the broad public frustration that the federal government was hiding important information about the Kennedy assassination by placing its records beyond the reach of its citizens.

Broad disagreement with the Warren Commission findings, explosive claims in the popular movie JFK, and continued deterioration of public confidence in government led to consensus that it was time to open the files.

Thus the debate in Congress largely became a debate over what mechanisms could constitutionally compel the opening of the assassination files.

The Review Board’s mandate was not to investigate one again the assassination, but to release as many of these heavily restricted documents as possible. Lawmakers commented that the efforts of the Review Board “will stand as a symbol and barometer of public confidence in the review and release of the government records related to the assassination of President Kennedy….Several provisions of [the JFK Act] are intended to provide as much independence and accountability as possible within out Constitutional framework.”

Restoring public confidence in government is a difficult task under any circumstances. The Review Board took this responsibility seriously, however, and set out in April 1994 to create the most complete record possible of the documentary evidence of the assassination so that in the end the American people could draw its own conclusions as to what happened and why on that fateful day in Dallas in November 1963.

From the start, the Review Board did as much of its work in public as it could possibly do, given the classified material with which it worked. The Board’s major policy decisions were all made carefully consulting with the public through public hearings and Federal Register notices. Many of the Board’s requests to agencies for additional information were suggested by the Board’s continuing dialogue with researchers, authors, and experts. Frequent public hearings outside of Washington, experts conferences, ongoing public releases of the records, witness interviews, and media availability were among the many tools the Board used to reach out and communicate with a public strongly interested in the results of the Board’s work.

The result was that the Board was helped immeasurably not only by the advice and suggestions that resulted from the public dialogue, but by the records that were discovered and opened through the communications….

The precedents that developed from the Board’s early deliberations guided the staff in its review of the records and guided agency reviewers in the positions they took towards postponement requests. The development of this unique and valuable set of decisions, which came to be known as the Board’s “common law,” eventually resulted in thousands of “consensus releases,” in which documents moved directly from the agencies without redactions to NARA.

There were, of course, many substantive disagreements between the Board and the agencies, but the course of the relationships were characterized chiefly by growing mutual understanding and markedly improved communications. The Board was gratified to see agency reviewers and decisionmakers grow increasingly aware that he responsible release of information can provide an opportunity to create a more complete record of the extensive work that many agencies did on the issues raised by the assassination. Many appeared also to gain a greater appreciation of the tremendous costs of secrecy, both in terms of public confidence and maintenance of records.

There were critics of the Review Board, those who believed that the “targeted declassification” of assassination records not only interfered with the goal of systematic declassification directed by Executive Order 12958, but was also much too expensive. It is difficult, of course, to compare one method of declassification with another, harder still to place a price tag on the nature of the information that is now released and available to the American public.

It is worth noting that the Kennedy assassination records were largely segregated due to the use of the records during the many prior government investigations of the assassination. But, the Review Board does recognize that any meaningful approach to declassification will of necessity be multi-faceted, with different methods adopted for different circumstances. The particular circumstances of eh assassination of President Kennedy and the highly secretive government response  have had an enormous impact on public confidence and made the Review Board approach singularly appropriate, particularly when compared with the significant costs, both financial and otherwise, of keeping the record secret. The Board is confident that, in this setting, the approach chosen by the Congress to open the Kennedy assassination records was a highly effective one.

The Review Board is certainly aware that there are a great many unresolved issues relating to the assassination of President Kennedy that will be addressed in the years to come. The massive public collection of documents that awaits the researchers will undoubtedly shed light not only on the assassination, but on its broader context as an episode of the Cold War.

The community of professional historians, who initially exhibited comparatively slight interest in the Board’s work, has begun paying attention with the new accessibility of records that reflect the Cold War context in which the assassination is enmeshed. Ultimately, it will be years before the JFK Collection at NARA can be judged properly. The test will be in the scholarship that is generated by historians and other researchers who study the extensive documentation of the event and its aftermath. Does the historical record formed by the Board inspire confidence that the record is now reasonably complete?

Will the documents released under the JFK Act lead to still other materials?

Will the mass of documentary evidence answer the questions posed by historians and others?

Will the Board’s compliance program inspire confidence that the agencies have produced all the relevant documentation that exists today in agency files?

What do the records tell us about the 1960s and the Cold War context of the assassination?

The Review Board approach, the precedent created, the tools identified, and the lessons learned will assist future researchers immeasurably.

Agency reviewers will note that the Republic has not collapsed under the weight of threats to national security because of Review Board actions and, perhaps, they will also note that openness is itself a good thing and that careful scrutiny of government actions can strengthen agencies and the process of government, not weaken it.

There will likely be problems in the future that best lend themselves to the extraordinary attention that a similarly empowered Review Board can focus.

Formation of a historical record that can augment understanding of important events is central not only to openness and accountability, but to democracy itself.

At an early stage in the Review Board’s efforts, one of the Board members commented that the Board should strive to accomplish as much as it could, to be remembered for what it attempted. Or, to paraphrase Robert Kennedy, the Board should work hard to ensure that its reach continually exceeded its grasp. The Board did not always achieve that standard, but the sheer scope and accessibility of the JFK Collection speaks eloquently about the effort. The Board has left to posterity a historical bequest that is invaluable and unprecedented.

Recommendations

The Review Board presents recommendations that reflect the Board’s experience and provides guidance for those who wish to capitalize on that experience to further reform the process of classification and declassification of government documents. The Board recognizes that the JFK Act represents but one approach to declassification, one whose activity was designed to review sensitive records concerning a controversial event.

1. The Review Board recommends that future declassification boards be genuinely independent, both in the structure of the organization and in the qualifications of the appointments.
2. The Review Board recommends that any serious, sustained effort to declassify records requires congressional legislation with (a) a presumption of openness, (b) clear standards of access, (c) an enforceable review and appeals process, and (d) a budget appropriate to the scope of the task. 
3. The Review Board recommends that its “common law” of decision, formed in the context of a “presumption of disclosure” and the “clear and convincing evidence of harm” criteria, be utilized for similar information in future declassification efforts as a way to simplify and speed up releases.
4. The Review Board recommends that future declassification efforts avoid the major shortcomings of the JFK Act:

       (a) unreasonable time limits,

 (b) employee restrictions,

(c) application of the law after the Board terminates, and 

(d) problems inherent with rapid sunset provisions.

5. The Review Board recommends that the cumbersome, time-consuming, and expensive problem of referrals for “third party equities” (classified information of one agency appearing in a document of another) be streamlined by
1.  requiring representatives of all agencies with interests in selected groups of records to meet for joint declassification sessions, or
2. devising uniform substitute language to deal with certain categories of recurring sensitive equities.
6. The Review Board recommends that a compliance program be used in future declassification efforts as an effective means of eliciting full cooperation in the search for records.
7. The Review Board recommends the following to ensure that NARA can exercise the provisions of the JFK Act after the Review Board terminates: a. that NARA has the authority and means to continue to implement Board decisions, b. that an appeals procedure be developed that places the burden for preventing access on the agencies, and c. that a joint oversight group composed of representatives of the four organizations that originally nominated individuals to serve on the Review Board be created to facilitate the continuing execution of the access provisions of the JFK Act.
8. The Review Board recommends that the Review Board model be adopted and applied whenever there are extraordinary circumstances in which continuing controversy concerning government actions has been most acute and where an aggressive effort to release all “reasonably related” federal records would serve usefully to enhance historically understanding of the event.
9. The Review Board recommends that both the Freedom of Information Act (FOIA) and Executive Order 12958 be strengthened, the former to narrow the categories of information automatically excluded from disclosure, the latter to add “independent oversight” to the process of  “review” when agency heads decide that records in their unites should be excluded from release. 
10. The Review Board recommends the adoption of a federal classification policy that substantially:

a. limits the number of those in government who can actually classify federal documents,

b. restricts the number of categories by which documents might be classified, c. reduces the time period for which the document(s) might be classified,

d. encourages the sue of substitute language to immediately open material which might otherwise be classified, and e. increases the resources available to the agencies and NARA for declassifying federal records.  

The Review Board’s experience leaves little doubt that the federal government needlessly and wastefully classified and then withheld from the public access countless important records that did not require such treatment. Consequently there is little doubt that an aggressive policy is necessary to address the significant problems of lack of accountability and an uniformed citizenry that are created by the current practice of excessive classification and obstacles to releasing such information. The need is not something recently identified, although the Moynihan Commission on Secrecy in Government is a recent expression of this longstanding concern. Change is long overdue and the Review Board’s experience amply demonstrates the value of sharing important information with the American public. It is a matter of trust.

The Review Board’s recommendations are designed to help ensure that the comprehensive documentary record of the Kennedy assassination is both actively developed after the board terminates, and that the experience of the Review Board be turned to the larger purpose of addressing the negative consequences of the excessive classification of federal records.

The Review Board’s efforts to accomplish the purposes of the JFK Act has been focused and aggressive. It will be for others, of course, to judge the Board’s success in achieving these goals, but there can be no doubt about the commitment to making the JFK Act and an independent Review Board a model for the future.

44 U.S.C. 2107 - JFK Act

44 U.S.C. 2107

§ 2107. Acceptance of records for historical preservation

When it appears to the Archivist to be in the public interest, he may--

(1) accept for deposit with the National Archives of the United States the records of a Federal agency, the Congress, the Architect of the Capitol, or the Supreme Court determined by the Archivist of the United States to have sufficient historical or other value to warrant their continued preservation by the United States Government;

(2) direct and effect the transfer to the National Archives of the United States of records of a Federal agency that have been in existence for more than thirty years and determined by the Archivist of the United States to have sufficient historical or other value to warrant their continued preservation by the United States Government, unless the head of the agency which has custody of them certifies in writing to the Archivist that they must be retained in his custody for use in the conduct of the regular current business of the agency;

(3) direct and effect, with the approval of the head of the originating agency, or if the existence of the agency has been terminated, then with the approval of his successor in function, if any, the transfer of records deposited or approved for deposit with the National Archives of the United States to public or educational institutions or associations; title to the records to remain vested in the United States unless otherwise authorized by Congress; and

(4) transfer materials from private sources authorized to be received by the Archivist by section 2111 of this title

Note. President John F. Kennedy Assassination Records Collection Act of 1992

Sec. 1. Short Title

This Act may be cited as the “President John F. Kennedy Assassination Records Collection Act of 1992.”

Sec. 2. Findings, declarations, and purposes

(a) Findings and declarations.--The Congress finds and declares that--

(1) all Government records related to the assassination of President John F. Kennedy should be preserved for historical and governmental purposes;

(2) all Government records concerning the assassination of President John F. Kennedy should carry a presumption of immediate disclosure, and all records should be eventually disclosed to enable the public to become fully informed about the history surrounding the assassination;

(3) legislation is necessary to create an enforceable, independent, and accountable process for the public disclosure of such records;

(4) legislation is necessary because congressional records related to the assassination of President John F. Kennedy would not otherwise be subject to public disclosure until at least the year 2029;

(5) legislation is necessary because the Freedom of Information Act, as implemented by the executive branch, has prevented the timely public disclosure of records relating to the assassination of President John F. Kennedy;

(6) legislation is necessary because Executive Order No. 12356, entitled “National Security Information” has eliminated the declassification and downgrading schedules relating to classified information across government and has prevented the timely public disclosure of records relating to the assassination of President John F. Kennedy; and

(7) most of the records related to the assassination of President John F. Kennedy are almost 30 years old, and only in the rarest cases is there any legitimate need for continued protection of such records.

(b) Purposes.--The purposes of this Act are--

(1) to provide for the creation of the President John F. Kennedy Assassination Records Collection at the National Archives and Records Administration; and

(2) to require the expeditious public transmission to the Archivist and public disclosure of such records.

Sec. 3. 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.

(3) “Collection” means the President John F. Kennedy Assassination Records Collection established under section 4.

(4) “Executive agency” means an Executive agency as defined in subsection 552(f) of title 5, United States Code, and includes any Executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government, including the Executive Office of the President, or any independent regulatory agency.

(5) “Government office” means any office of the Federal Government that has possession or control of assassination records, including--

(A) the House Committee on Administration with regard to the Select Committee on Assassinations of the records of the House of Representatives;

(B) the Select Committee on Intelligence of the Senate with regard to records of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities and other assassination records;

(C) the Library of Congress;

(D) the National Archives as custodian of assassination records that it has obtained or possesses, including the Commission to Investigate the Assassination of President John F. Kennedy and the Commission on Central Intelligence Agency Activities in the United States; and

(E) any other executive branch office or agency, and any independent agency.

(6) “Identification aid” means the written description prepared for each record as required in section 4.

(7) “National Archives” means the National Archives and Records Administration and all components thereof, including Presidential archival depositories established under section 2112 of title 44, United States Code.

(8) “Official investigation” means the reviews of the assassination of President John F. Kennedy conducted by any Presidential commission, any authorized congressional committee, and any Government agency either independently, at the request of any Presidential commission or congressional committee, or at the request of any Government official.

(9) “Originating body” means the Executive agency, government commission, congressional committee, or other governmental entity that created a record or particular information within a record.

(10) “Public interest” means the compelling interest in the prompt public disclosure of assassination records for historical and governmental purposes and for the purpose of fully informing the American people about the history surrounding the assassination of President John F. Kennedy.

(11) “Record” includes a book, paper, map, photograph, sound or video recording, machine readable material, computerized, digitized, or electronic information, regardless of the medium on which it is stored, or other documentary material, regardless of its physical form or characteristics.

(12) “Review Board” means the Assassination Records Review Board established by section 7.

(13) “Third agency” means a Government agency that originated an assassination record that is in the possession of another agency.

Sec. 4. President John F. Kennedy Assassination Records Collection at the National Archives and Records Administration

(a) In General.

(1) Not later than 60 days after the date of enactment of this Act [Oct. 26, 1992], the National Archives and Records Administration shall commence establishment of a collection of records to be known as the President John F. Kennedy Assassination Records Collection. In so doing, the Archivist shall ensure the physical integrity and original provenance of all records. The Collection shall consist of record copies of all Government records relating to the assassination of President John F. Kennedy, which shall be transmitted to the National Archives in accordance with section 2107 of title 44, United States Code [this section]. The Archivist shall prepare and publish a subject guidebook and index to the collection.

(2) The Collection shall include--

(A) all assassination records--

(i) that have been transmitted to the National Archives or disclosed to the public in an unredacted form prior to the date of enactment of this Act [Oct. 26 1992];

(ii) that are required to be transmitted to the National Archives; or

(iii) the disclosure of which is postponed under this Act;

(B) a central directory comprised of identification aids created for each record transmitted to the Archivist under section 5; and

(C) all Review Board records as required by this Act.

(b) Disclosure of records.

All assassination records transmitted to the National Archives for disclosure to the public shall be included in the Collection and shall be available to the public for inspection and copying at the National Archives within 30 days after their transmission to the National Archives.

(c) Fees for copying.

The Archivist shall--

(1) charge fees for copying assassination records; and

(2) grant waivers of such fees pursuant to the standards established by section 552(a)(4) of title 5, United States Code.

(d) Additional requirements.

(1) The Collection shall be preserved, protected, archived, and made available to the public at the National Archives using appropriations authorized, specified, and restricted for use under the terms of this Act.

(2) The National Archives, in consultation with the Information Security Oversight Office, shall ensure the security of the postponed assassination records in the Collection.

(e) Oversight.--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 Collection.

Sec. 5. Review, identification, transmission to the National Archives, and public disclosure of assassination records by government offices.

(a) In general.

(1) As soon as practicable after the date of enactment of this Act [Oct. 26, 1992], each Government office shall identify and organize its records relating to the assassination of President John F. Kennedy and prepare them for transmission to the Archivist for inclusion in the Collection.

(2) No assassination record shall be destroyed, altered, or mutilated in any way.

(3) No assassination record made available or disclosed to the public prior to the date of enactment of this Act [Oct. 26, 1992] may be withheld, redacted, postponed for public disclosure, or reclassified.

(4) No assassination record created by a person or entity outside government (excluding names or identities consistent with the requirements of section 6) shall be withheld, redacted, postponed for public disclosure, or reclassified.

(b) Custody of assassination records pending review.--During the review by Government offices and pending review activity by the Review Board, each Government office shall retain custody of its assassination records for purposes of preservation, security, and efficiency, unless--

(1) the Review Board requires the physical transfer of records for purposes of conducting an independent and impartial review;

(2) transfer is necessary for an administrative hearing or other Review Board function; or

(3) it is a third agency record described in subsection (c)(2)(C).

(c) Review.

(1) Not later than 300 days after the date of enactment of this Act [Oct. 26, 1992], each Government office shall review, identify and organize each assassination record in its custody or possession for disclosure to the public, review by the Review Board, and transmission to the Archivist.

(2) In carrying out paragraph (1), a Government office shall--

(A) determine which of its records are assassination records;

(B) determine which of its assassination records have been officially disclosed or publicly available in a complete and unredacted form;

(C)(i) determine which of its assassination records, or particular information contained in such a record, was created by a third agency or by another Government office; and

(ii) transmit to a third agency or other Government office those records, or particular information contained in those records, or complete and accurate copies thereof;

(D)(i) determine whether its assassination records or particular information in assassination records are covered by the standards for postponement of public disclosure under this Act; and

(ii) specify on the identification aid required by subsection (d) the applicable postponement provision contained in section 6;

(E) organize and make available to the Review Board all assassination records identified under subparagraph (D) the public disclosure of which in whole or in part may be postponed under this Act;

(F) organize and make available to the Review Board any record concerning which the office has any uncertainty as to whether the record is an assassination record governed by this Act;

(G) give priority to--

(i) the identification, review, and transmission of all assassination records publicly available or disclosed as of the date of enactment of this Act [Oct. 26, 1992] in a redacted or edited form; and

(ii) the identification, review, and transmission, under the standards for postponement set forth in this Act, of assassination records that on the date of enactment of this Act [Oct. 26, 1992] are the subject of litigation under section 552 of title 5, United States Code; and

(H) make available to the Review Board any additional information and records that the Review Board has reason to believe it requires for conducting a review under this Act.

(3) The Director of each archival depository established under section 2112 of title 44, United States Code, shall have as a priority the expedited review for public disclosure of assassination records in the possession and custody of the depository, and shall make such records available to the Review Board as required by this Act.

(d) Identification aids.

(1)(A) Not later than 45 days after the date of enactment of this Act [Oct. 26, 1992], the Archivist, in consultation with the appropriate Government offices, shall prepare and make available to all Government offices a standard form of identification or finding aid for use with each assassination record subject to review under this Act.

(B) The Archivist shall ensure that the identification aid program is established in such a manner as to result in the creation of a uniform system of electronic records by Government offices that are compatible with each other.

(2) Upon completion of an identification aid, a Government office shall--

(A) attach a printed copy to the record it describes;

(B) transmit to the Review Board a printed copy; and

(C) attach a printed copy to each assassination record it describes when it is transmitted to the Archivist.

(3) Assassination records which are in the possession of the National Archives on the date of enactment of this Act [Oct. 26, 1992], and which have been publicly available in their entirety without redaction, shall be made available in the Collection without any additional review by the Review Board or another authorized office under this Act, and shall not be required to have such an identification aid unless required by the Archivist.

(e) Transmission to the National Archives.

Each Government office shall--

(1) transmit to the Archivist, and make immediately available to the public, all assassination records that can be publicly disclosed, including those that are publicly available on the date of enactment of this Act, without any redaction, adjustment, or withholding under the standards of this Act; and

(2) transmit to the Archivist upon approval for postponement by the Review Board or upon completion of other action authorized by this Act, all assassination records the public disclosure of which has been postponed, in whole or in part, under the standards of this Act, to become part of the protected Collection.

(f) Custody of postponed assassination records.

An assassination record the public disclosure of which has been postponed shall, pending transmission to the Archivist, be held for reasons of security and preservation by the originating body until such time as the information security program has been established at the National Archives as required in section 4(e)(2).

(g) Periodic review of postponed assassination records.

(1) All postponed or redacted records shall be reviewed periodically by the originating agency and the Archivist consistent with the recommendations of the Review Board under section 9(c)(3)(B).--

(2)(A) A periodic review shall address the public disclosure of additional assassination records in the Collection under the standards of this Act.

(B) All postponed assassination records determined to require continued postponement shall require an unclassified written description of the reason for such continued postponement. Such description shall be provided to the Archivist and published in the Federal Register upon determination.

(C) The periodic review of postponed assassination records shall serve to downgrade and declassify security classified information.

(D) Each assassination record shall be publicly disclosed in full, and available in the Collection no later than the date that is 25 years after the date of enactment of this Act [Oct. 26, 1992], unless the President certifies, as required by this Act, that--

(i) continued postponement is made necessary by an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations; and

(ii) the identifiable harm is of such gravity that it outweighs the public interest in disclosure.

(h) Fees for copying.

Executive branch agencies shall--

(1) charge fees for copying assassination records; and

(2) grant waivers of such fees pursuant to the standards established by section 552(a)(4) of title 5, United States Code.

Sec. 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 record 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.

Sec. 7. Establishment and powers of the Assassination Records Review Board

(a) Establishment.--There is established as an independent agency a board to be known as the Assassinations [sic] Records Review Board.

(b) Appointment.

(1) The President, by and with the advice and consent of the Senate, shall appoint, without regard to political affiliation, 5 citizens to serve as members of the Review Board to ensure and facilitate the review, transmission to the Archivist, and public disclosure of Government records related to the assassination of President John F. Kennedy.

(2) The President shall make nominations to the Review Board not later than 90 calendar days after the date of enactment of this Act [Oct. 26, 1992].

(3) If the Senate votes not to confirm a nomination to the Review Board, the President shall make an additional nomination not later than 30 days thereafter.

(4)(A) The President shall make nominations to the Review Board after considering persons recommended by the American Historical Association, the Organization of American Historians, the Society of American Archivists, and the American Bar Association.

(B) If an organization described in subparagraph (A) does not recommend at least 2 nominees meeting the qualifications stated in paragraph (5) by the date that is 45 days after the date of enactment of this Act [Oct. 26, 1992], the President shall consider for nomination the persons recommended by the other organizations described in subparagraph (A).

(C) The President may request an organization described in subparagraph (A) to submit additional nominations.

(5) Persons nominated to the Review Board--

(A) shall be impartial private citizens, none of whom is presently employed by any branch of the Government, and none of whom shall have had any previous involvement with any official investigation or inquiry conducted by a Federal, State, or local government, relating to the assassination of President John F. Kennedy;

(B) shall be distinguished persons of high national professional reputation in their respective fields who are capable of exercising the independent and objective judgment necessary to the fulfillment of their role in ensuring and facilitating the review, transmission to the public, and public disclosure of records related to the assassination of President John F. Kennedy and who possess an appreciation of the value of such material to the public, scholars, and government; and

(C) shall include at least 1 professional historian and 1 attorney.

(c) Security clearances.

(1) All Review Board nominees shall be granted the necessary security clearances in an accelerated manner subject to the standard procedures for granting such clearances.

(2) All nominees shall qualify for the necessary security clearance prior to being considered for confirmation by the Committee on Governmental Affairs of the Senate.

(d) Confirmation hearings.

(1) The Committee on Governmental Affairs of the Senate shall hold confirmation hearings within 30 days in which the Senate is in session after the nomination of 3 Review Board members.

(2) The Committee on Governmental Affairs shall vote on the nominations within 14 days in which the Senate is in session after the confirmation hearings, and shall report its results to the full Senate immediately.

(3) The Senate shall vote on each nominee to confirm or reject within 14 days in which the Senate is in session after reported by the Committee on Governmental Affairs.

(e) Vacancy.

A vacancy on the Review Board shall be filled in the same manner as specified for original appointment within 30 days of the occurrence of the vacancy.

(f) Chairperson.--The Members of the Review Board shall elect one of its members as chairperson at its initial meeting.

(g) Removal of Review Board member.

(1) No member of the Review Board shall be removed from office, other than--

(A) by impeachment and conviction; or

(B) by the action of the President for inefficiency, neglect of duty, malfeasance in office, physical disability, mental incapacity, or any other condition that substantially impairs the performance of the member’s duties.

(2)(A) If a member of the Review Board is removed from office, and that removal is by the President, not later than 10 days after the removal the President shall submit to the Committee on Government Operations of the House of Representatives and the Committee on Governmental Affairs of the Senate a report specifying the facts found and the grounds for the removal.

(B) The President shall publish in the Federal Register a report submitted under paragraph (2)(A), except that the President may, if necessary to protect the rights of a person named in the report or to prevent undue interference with any pending prosecution, postpone or refrain from publishing any or all of the report until the completion of such pending cases or pursuant to privacy protection requirements in law.

(3)(A) A member of the Review Board removed from office may obtain judicial review of the removal in a civil action commenced in the United States District Court for the District of Columbia.

(B) The member may be reinstated or granted other appropriate relief by order of the court.

(h) Compensation of members.

(1) A member of the Review Board shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay prescribed for level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day (including travel time) during which the member is engaged in the performance of the duties of the Review Board.

(2) A member of the Review Board shall be allowed reasonable travel expenses, including per diem in lieu of subsistence, at rates for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from the member’s home or regular place of business in the performance of services for the Review Board.

(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;

(F) hold hearings, administer oaths, and subpoena witnesses and documents; and

(G) use the Federal Supply Service in the same manner and under the same conditions as other departments and agencies of the United States; and

(H) use the United States mails in the same manner and under the same conditions as other departments and agencies of the United States.

(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 September 30, 1998.

(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.

Sec. 8. Assassination Records Review Board personnel

(a) Executive director.

(1) Not later than 45 days after the initial meeting of the Review Board, the Review Board shall appoint one citizen, without regard to political affiliation, to the position of Executive Director.

(2) The person appointed as Executive Director shall be a private citizen of integrity and impartiality who is a distinguished professional and who is not a present employee of any branch of the Government and has had no previous involvement with any official investigation or inquiry relating to the assassination of President John F. Kennedy.

(3)(A) A candidate for Executive Director shall be granted the necessary security clearances in an accelerated manner subject to the standard procedures for granting such clearances.

(B) A candidate shall qualify for the necessary security clearance prior to being approved by the Review Board.

(4) The Executive Director shall--

(A) serve as principal liaison to Government offices;

(B) be responsible for the administration and coordination of the Review Board’s review of records;

(C) be responsible for the administration of all official activities conducted by the Review Board; and

(D) have no authority to decide or determine whether any record should be disclosed to the public or postponed for disclosure.

(5) The Executive Director shall not be removed for reasons other than by a majority vote of the Review Board for cause on the grounds of inefficiency, neglect of duty, malfeasance in office, physical disability, mental incapacity, or any other condition that substantially impairs the performance of the responsibilities of the Executive Director or the staff of the Review Board.

(b) Staff.

(1) The Review Board, without regard to the civil service laws, may appoint and terminate additional personnel as are necessary to enable the Review Board and its Executive Director to perform the duties of the Review Board.

(2)(A) Except as provided in subparagraph (B), a person appointed to the staff of the Review Board shall be a private citizen of integrity and impartiality who is not a present employee of any branch of the Government and who has had no previous involvement with any official investigation or inquiry relating to the assassination of President John F. Kennedy.

(B) An individual who is an employee of the Government may be appointed to the staff of the Review Board if in that position the individual will perform only administrative functions.

(3)(A) A candidate for staff shall be granted the necessary security clearances in an accelerated manner subject to the standard procedures for granting such clearances.

(B)(i) The Review Board may offer conditional employment to a candidate for a staff position pending the completion of security clearance background investigations. During the pendency of such investigations, the Review Board shall ensure that any such employee does not have access to, or responsibility involving, classified or otherwise restricted assassination record materials.

(ii) If a person hired on a conditional basis under clause (i) is denied or otherwise does not qualify for all security clearances necessary to carry out the responsibilities of the position for which conditional employment has been offered, the Review Board shall immediately terminate the person’s employment.

(c) Compensation.

Subject to such rules as may be adopted by the Review Board, the chairperson, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service and without regard to the provisions of chapter 51 and subchapter III of chapter 53 of that title relating to classification and General Schedule pay rates, may--

(1) appoint an Executive Director, who shall be paid at a rate not to exceed the rate of basic pay for level V of the Executive Schedule; and

(2) appoint and fix compensation of such other personnel as may be necessary to carry out this Act.

(d) Advisory committees.

(1) The Review Board shall have the authority to create advisory committees to assist in fulfilling the responsibilities of the Review Board under this Act.

(2) Any advisory committee created by the Review Board shall be subject to the Federal Advisory Committee Act (5 U.S.C. App. 2).

(e) Security clearance required.--An individual employed in any position by the Review Board (including an individual appointed as Executive Director) shall be required to qualify for any necessary security clearance prior to taking office in that position, but may be employed conditionally in accordance with subsection (b)(3)(B) before qualifying for that clearance.

Sec. 9. Review of records by the Assassination Records Review Board

(a) Custody of records reviewed by Board.

Pending the outcome of the Review Board’s review activity, a Government office shall retain custody of its assassination records for purposes of preservation, security, and efficiency, unless--

(1) the Review Board requires the physical transfer of records for reasons of conducting an independent and impartial review; or

(2) such transfer is necessary for an administrative hearing or other official Review Board function.

(b) Startup requirements.

The Review Board shall--

(1) not later than 90 days after the date of its appointment, publish a schedule for review of all assassination records in the Federal Register; and

(2) not later than 180 days after the date of enactment of this Act [Oct. 26, 1992], begin its review of assassination records under this Act.

(c) Determinations of the Review Board.

(1) The Review Board shall direct that all assassination records be transmitted to the Archivist and disclosed to the public in the Collection in the absence of clear and convincing evidence that--

(A) a Government record is not an assassination record; or

(B) a Government record or particular information within an assassination record qualifies for postponement of public disclosure under this Act.

(2) In approving postponement of public disclosure of an assassination record, the Review Board shall seek to--

(A) provide for the disclosure of segregable parts, substitutes, or summaries of such a record; and

(B) determine, in consultation with the originating body and consistent with the standards for postponement under this Act, which of the following alternative forms of disclosure shall be made by the originating body:

(i) Any reasonably segregable particular information in an assassination record.

(ii) A substitute record for that information which is postponed.

(iii) A summary of an assassination record.

(3) With respect to each assassination record or particular information in assassination records the public disclosure of which is postponed pursuant to section 6, or for which only substitutions or summaries have been disclosed to the public, the Review Board shall create and transmit to the Archivist a report containing--

(A) a description of actions by the Review Board, the originating body, the President, or any Government office (including a justification of any such action to postpone disclosure of any record or part of any record) and of any official proceedings conducted by the Review Board with regard to specific assassination records; and

(B) a statement, based on a review of the proceedings and in conformity with the decisions reflected therein, designating a recommended specified time at which or a specified occurrence following which the material may be appropriately disclosed to the public under this Act.

(4)(A) Following its review and a determination that an assassination record shall be publicly disclosed in the Collection or postponed for disclosure and held in the protected Collection, the Review Board shall notify the head of the originating body of its determination and publish a copy of the determination in the Federal Register within 14 days after the determination is made.

(B) Contemporaneous notice shall be made to the President for Review Board determinations regarding executive branch assassination records, and to the oversight committees designated in this Act in the case of legislative branch records. Such notice shall contain a written unclassified justification for public disclosure or postponement of disclosure, including an explanation of the application of any standards contained in section 6.

(d) Presidential authority over Review Board determination.--

(1) Public disclosure or postponement of disclosure.--After the Review Board has made a formal determination concerning the public disclosure or postponement of disclosure of an executive branch assassination record or information within such a record, or of any information contained in an assassination record, obtained or developed solely within the executive branch, the President shall have the sole and nondelegable authority to require the disclosure or postponement of such record or information under the standards set forth in section 6, and the President shall provide the Review Board with an unclassified written certification specifying the President’s decision within 30 days after the Review Board’s determination and notice to the executive branch agency as required under this Act, stating the justification for the President’s decision, including the applicable grounds for postponement under section 6, accompanied by a copy of the identification aid required under section 4.

(2) Periodic review.--Any executive branch assassination record postponed by the President shall be subject to the requirements of periodic review, downgrading and declassification of classified information, and public disclosure in the collection set forth in section 4.

(3) Record of presidential postponement.--The Review Board shall, upon its receipt, publish in the Federal Register a copy of any unclassified written certification, statement, and other materials transmitted by or on behalf of the President with regard to postponement of assassination records.

(e) Notice to public.--Every 30 calendar days, beginning on the date that is 60 calendar days after the date on which the Review Board first approves the postponement of disclosure of an assassination record, the Review Board shall publish in the Federal Register a notice that summarizes the postponements approved by the Review Board or initiated by the President, the House of Representatives, or the Senate, including a description of the subject, originating agency, length or other physical description, and each ground for postponement that is relied upon.

(f) Reports by the review board.

(1) The Review Board shall report its activities to the leadership of the Congress, the Committee on Government Operations of the House of Representatives, the Committee on Governmental Affairs of the Senate, the President, the Archivist, and the head of any Government office whose records have been the subject of Review Board activity.

(2) The first report shall be issued on the date that is 1 year after the date of enactment of this Act [Oct. 26, 1992], and subsequent reports every 12 months thereafter until termination of the Review Board.

(3) A report under paragraph (1) shall include the following information:

(A) A financial report of the expenses for all official activities and requirements of the Review Board and its personnel.

(B) The progress made on review, transmission to the Archivist, and public disclosure of assassination records.

(C) The estimated time and volume of assassination records involved in the completion of the Review Board’s performance under this Act.

(D) Any special problems, including requests and the level of cooperation of Government offices, with regard to the ability of the Review Board to operate as required by this Act.

(E) A record of review activities, including a record of postponement decisions by the Review Board or other related actions authorized by this Act, and a record of the volume of records reviewed and postponed.

(F) Suggestions and requests to Congress for additional legislative authority needs.

(G) An appendix containing copies of reports of postponed records to the Archivist required under section 9(c)(3) made since the date of the preceding report under this subsection. (4) At least 90 calendar days before completing its work, the Review Board shall provide written notice to the President and Congress of its intention to terminate its operations at a specified date.

Sec. 10. Disclosure of other materials and additional study

(a) Materials under seal of court.

(1) The Review Board may request the Attorney General to petition any court in the United States or abroad to release any information relevant to the assassination of President John F. Kennedy that is held under seal of the court.

(2)(A) The Review Board may request the Attorney General to petition any court in the United States to release any information relevant to the assassination of President John F. Kennedy that is held under the injunction of secrecy of a grand jury.

(B) A request for disclosure of assassination materials under this Act shall be deemed to constitute a showing of particularized need under Rule 6 of the Federal Rules of Criminal Procedure [18 U.S.C.A.].

(b) Sense of congress.

It is the sense of the Congress that--

(1) the Attorney General should assist the Review Board in good faith to unseal any records that the Review Board determines to be relevant and held under seal by a court or under the injunction of secrecy of a grand jury;

(2) the Secretary of State should contact the Government of the Republic of Russia and seek the disclosure of all records of the government of the former Soviet Union, including the records of the Komitet Gosudarstvennoy Bezopasnosti (KGB) and the Glaynoye Razvedyvatelnoye Upravleniye (GRU), relevant to the assassination of President Kennedy, and contact any other foreign government that may hold information relevant to the assassination of President Kennedy and seek disclosure of such information; and

(3) all Executive agencies should cooperate in full with the Review Board to seek the disclosure of all information relevant to the assassination of President John F. Kennedy consistent with the public interest.

Sec. 11. Rules of construction

(a) Precedence over other law.

When this Act requires transmission of a record to the Archivist or public disclosure, it shall take precedence over any other law (except section 6103 of the Internal Revenue Code), judicial decision construing such law, or common law doctrine that would otherwise prohibit such transmission or disclosure, with the exception of deeds governing access to or transfer or release of gifts and donations of records to the United States Government.

(b) Freedom of Information Act.

Nothing in this Act shall be construed to eliminate or limit any right to file requests with any executive agency or seek judicial review of the decisions pursuant to section 552 of title 5, United States Code.

(c) Judicial review.

Nothing in this Act shall be construed to preclude judicial review, under chapter 7 of title 5, United States Code, of final actions taken or required to be taken under this Act.

(d) Existing authority.

Nothing in this Act revokes or limits the existing authority of the President, any executive agency, the Senate, or the House of Representatives, or any other entity of the Government to publicly disclose records in its possession.

(e) Rules of the Senate and House of Representatives.

To the extent that any provision of this Act establishes a procedure to be followed in the Senate or the House of Representatives, such provision is adopted--

(1) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and is deemed to be part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House, and it supersedes other rules only to the extent that it is inconsistent with such rules; and

(2) with full recognition of the constitutional right of either House to change the rules (so far as they relate to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

Sec. 12. Termination of effect of Act

(a) Provisions pertaining to the Review Board.

The provisions of this Act that pertain to the appointment and operation of the Review Board shall cease to be effective when the Review Board and the terms of its members have terminated pursuant to section 7(o).

(b) Other provisions.

The remaining provisions of this Act shall continue in effect until (b) Other provisions.-- The remaining provisions of this Act shall continue in effect until such time as the Archivist certifies to the President and the Congress that all assassination records have been made available to the public in accordance with this Act.

Sec. 13. Authorization of appropriations

(a) In general.

There are authorized to be appropriated to carry out the provisions of this Act $1,600,000 for fiscal year 1998.

(b) Interim funding.

Until such time as funds are appropriated pursuant to subsection (a), the President may use such sums as are available for discretionary use to carry out this Act.

Sec. 14. Severability

If any provision of this Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application of that provision to other persons not similarly situated or to other circumstances shall not be affected by the invalidation.

[Any reference in any provision of law enacted before Jan. 4, 1995, to the Committee on Government Operations of the House of Representatives treated as referring to the Committee on Government Reform and Oversight of the House of Representatives, except that any reference in any provision of law enacted before Jan. 4, 1995, to the Committee on Government Operations of the House of Representatives treated as referring to the Committee on the Budget of the House of Representatives in the case of a provision of law relating to the establishment, extension, and enforcement of special controls over the Federal budget, see section 1(a)(6) and (c)(2) of Pub. L. 104-14, set out as a note preceding section 21 of Title 2, The Congress.]