Temporary Certification Under President John F. Kennedy Assassination Records Collection Act of 1992

41 Op. O.L.C. 1

Temporary Certification Under the President John F. Kennedy Assassination Records Collection Act of 1992

No. 17-7

United States Department of Justice

October 26, 2017

CURTIS E. GANNON Acting Assistant Attorney General Office of Legal Counsel.

Temporary Certification Under the President John F. Kennedy Assassination Records Collection Act of 1992

Section 5(g)(2)(D) of the President John f. Kennedy Assassination Records Collection Act of 1992 authorizes the President to issue a temporary certification postponing disclosure of a set of records without articulating record-specific justifications for further postponement of each individual record. The purpose of this postponement would be limited to providing sufficient time to resolve which specific records warrant postponement under section 5(g)(2)(D). There is a strong likelihood that many of the records in question implicate the kinds of sensitivities about national security law enforcement, and foreign affairs contemplated by the statute.

Serious constitutional concerns would arise if the Act were construed to require the President to make premature disclosures of records while they are likely to contain still-sensitive information.

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

Under the President John F. Kennedy Assassination Records Collection Act of 1992, Pub. L. No. 102-526, 106 Stat. 3443 (codified as amended at 44 U.S.C. § 2107 note) (“JFK Act” or “the Act”) approximately 34, 000 records relating to President Kennedy's assassination that have not previously been disclosed in full or in part to the public are to be released by October 26, 2017, unless the President certifies that their release would present identifiable harm that outweighs the public's interest in disclosure. See JFK Act § 5(g)(2)(D). In an October 12, 2017 memorandum, the Archivist of the United States expressed “significant concerns” about the manner in which certain federal agencies had applied that standard in their proposals for postponing the release of some of their records beyond that deadline. Memorandum for the President, from David S Ferriero, Archivist of the United States, Re: Concerns Regarding Agency Proposals to Postpone Records Pursuant to Section 5 of the President John F. Kennedy Assassination Records Collection Act of 1992 (JFK Act) at 1 (Oct. 12 2017) (“Archivist Memorandum”). Although the Archivist acknowledged that legitimate sensitivities “could warrant continued postponement” of some of these records under the Act, he concluded that “there is insufficient time for [the National Archives and Records Administration (“NARA”)] and the pertinent agencies to . . . identify those certain, specific instances” in which continued postponement is appropriate. Id. at 1, 2.

You have asked whether section 5(g)(2)(D) of the Act allows the President to issue a temporary certification postponing disclosure of a set of records without articulating record-specific justifications for further postponement of each individual record. The purpose of this postponement would be limited to providing sufficient time to resolve which specific records warrant postponement under section 5(g)(2)(D). Under the circumstances, in which the initial postponement would last for only a few months and there is a strong likelihood that many of the records in question implicate the kinds of sensitivities about national security law enforcement, and foreign affairs contemplated by the statute, we conclude that section 5(g)(2)(D) authorizes the President to make such a certification.

I.

A.

The Act mandates that governmental entities with records relating to the assassination of President Kennedy collect, review, and transfer those records to the President John F. Kennedy Assassination Records Collection (“JFK Collection”) maintained by NARA. See JFK Act §§ 2(a)(1), 4, 5(a). Approximately 272, 000 records have already been released in full under the Act. See Memorandum for John A. Eisenberg, Legal Adviser to the National Security Council, from John P. Fitzpatrick, Senior Director for Records, Access and Information Security Management, National Security Council, Re: Department and Agency Requests for Continued Postponement of Records under the JFK Assassination Records Collection Act at 1 (Oct. 25, 2017) (“NSC Memorandum”). As relevant now, the Act provides that each yet-to-be-released assassination record “shall be publicly disclosed in full” and made “available in the [JFK] Collection” by October 26, 2017, “unless the President certifies” that “an identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations” necessitates continued postponement of disclosure and “outweighs the public interest in disclosure.” JFK Act § 5(g)(2)(D).^[1]

The Act defines an “assassination record” as “a record that is related to the assassination of President John F. Kennedy, that was created or made [ 2] available for use by, obtained by, or otherwise came into the possession of ” various governmental entities. Id. § 3(2). In 1995, the Assassination Records Review Board (“Board”)-a short-lived agency established by the Act, see id. § 7-issued regulations interpreting “assassination record” broadly, to encompass “[a]ll records collected by or segregated by all Federal, state, and local government agencies in conjunction with any investigation or analysis of or inquiry into the assassination of President Kennedy.” 36 C.F.R. § 1290.1(b)(2). Under the Board's interpretation, “assassination record[s]” include documents created well into the 1990s pertaining to investigations, analyses, or inquiries into President Kennedy's assassination.^[2]

The Act gave federal offices until late 1993 to identify and review all assassination records in their possession and to begin transferring them to NARA for immediate public release. See JFK Act § 5(c)(1). The Act, however, also established an exception under section 6, which allowed public disclosure to be postponed up to October 26, 2017. A postponement under section 6 required “clear and convincing evidence that” the record in question implicated (1) certain sensitive information whose disclosure would threaten national security or foreign affairs; (2) living individuals who provided confidential information and would face a substantial risk of harm if their identities were revealed; (3) unwarranted intrusions into personal privacy; (4) confidential understandings between United States agents and cooperating individuals or foreign governments that would be compromised and cause harm if publicly revealed; or (5) security or protective procedures that the government uses or might use, where disclosure of those procedures would be sufficiently harmful.^[3] [ 3] The Board reviewed every record that a “[g]overnment office” identified as subject to postponement of disclosure under section 6 and made its own determination whether the record qualified as an “assassination record” and whether postponement was warranted. See id. § 7(i)(2). The Board began its work in April 1994 and ceased operating on September 30, 1998. See Final Report of the Assassination Records Review Board at 13, 15 (Sept. 30, 1998) (“ARRB Report”), https://www.archives.gov/ files/research/jfk/review-board/report/arrb-final-report.pdf. In many cases, the Board appears not only to have upheld the postponement of disclosure but also to have concluded that postponement until 2017 was warranted. See id. at 30 (“[T]he Review Board employs the term ‘postponed' to mean ‘redacted until the year 2017.'”); see generally id. at 48-74 (identifying various types of records as “postponed”; explicitly identifying certain types of records as postponed for shorter periods of time when appropriate). The Act also allowed agencies to appeal the Board's determinations to the President, who was to issue a written certification specifying his [ 4] determination “under the standards set forth in section 6” whether to postpone or disclose a record. JFK Act § 9(d)(1).

Even when the Board found that an assassination record qualified for a postponement under section 6, the Act thereafter required periodic review “by the originating agency and the Archivist” of whether the justifications for postponement remained valid. See id. § 5(g)(1)-(2). Under this process, many records that previously qualified for postponement of disclosure under section 6 have already been released. Most recently, in July 2017, NARA released “3, 810 documents, including 441 formerly with-held-in-full documents and 3, 369 documents formerly released with portions redacted, ” originating from the Federal Bureau of Investigation and the Central Intelligence Agency. NARA, JFK Assassination Records - 2017 Additional Documents Release, https://www.archives.gov/research/ jfk/2017-release (last visited Oct. 26, 2017).

While approximately 272, 000 assassination records have already been released in full, approximately 34, 000 documents have yet to be disclosed, in whole or in part, because they have continued to satisfy section 6. NSC Memorandum at 1, 2. In other words, federal agencies identified these records as being subject to postponed disclosure under section 6, the Board confirmed that “clear and convincing evidence” established that one of the section 6 criteria applied, and the Act required periodic re-review to confirm that postponed disclosure remained justified. “Over 90% of the remaining postponed records originated from or contain equities of the Central Intelligence Agency or the Federal Bureau of Investigation.” Id. at 2 n.5.

In light of section 5(g)(2)(D), the authority to withhold assassination records under section 6 expires on October 26 2017. At that point, each remaining record “shall...