Memorandum for the
Heads of Executive Departments and Agencies on the Temporary Certification
Regarding Disclosure of Information in Certain Records Related to the
Assassination of President John F. Kennedy
OCTOBER 22, 2021
Section 1. Policy. In the
President John F. Kennedy Assassination Records Collection Act of 1992 (44
U.S.C. 2107 note) (the “Act”), the Congress declared that “all Government
records concerning the assassination of President John F. Kennedy . . . should
be eventually disclosed to enable the public to become fully informed about the
history surrounding the assassination.” The Congress also found that
“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.” Almost 30 years since the
Act, the profound national tragedy of President Kennedy’s assassination
continues to resonate in American history and in the memories of so many
Americans who were alive on that terrible day; meanwhile, the need to protect
records concerning the assassination has only grown weaker with the passage of
time. It is therefore critical to ensure that the United States
Government maximizes transparency, disclosing all information in records
concerning the assassination, except when the strongest possible reasons
counsel otherwise.
Sec. 2. Background. The Act permits
the continued postponement of disclosure of information in records concerning
President Kennedy’s assassination only when postponement remains necessary to
protect against an identifiable harm to the military defense, intelligence
operations, law enforcement, or the conduct of foreign relations that is of
such gravity that it outweighs the public interest in disclosure. Since
2018, executive departments and agencies (agencies) have been reviewing under
this statutory standard each redaction they have proposed that would result in
the continued postponement of full public disclosure. This year, the
National Archives and Records Administration (NARA) has been reviewing whether
it agrees that each redaction continues to meet the statutory standard.
The Archivist of the United States (Archivist), however, has reported that
“unfortunately, the pandemic has had a significant impact on the agencies” and
NARA and that NARA “require[s] additional time to engage with the agencies and
to conduct research within the larger collection to maximize the amount of
information released.” The Archivist has also noted that “making these
decisions is a matter that requires a professional, scholarly, and orderly
process; not decisions or releases made in haste.” The Archivist therefore
recommends that the President “temporarily certify the continued withholding of
all of the information certified in 2018” and “direct two public releases of
the information that has” ultimately “been determined to be appropriate for
release to the public,” with one interim release later this year and one more
comprehensive release in late 2022.
Sec. 3. Temporary Certification. In
light of the agencies’ proposals for continued postponement under the statutory
standard, the Archivist’s request for an extension of time to engage with the
agencies, and the need for an appropriate review and disclosure process, I
agree with the Archivist’s recommendation. Temporary continued
postponement is necessary to protect against identifiable harm to the military
defense, intelligence operations, law enforcement, or the conduct of foreign
relations that is of such gravity that it outweighs the public interest in
immediate disclosure. Accordingly, by the authority vested in me as
President by the Constitution and the laws of the United States of America,
including section 5(g)(2)(D) of the Act, I hereby certify that all information
within records that agencies have proposed for continued postponement under
section 5(g)(2)(D) shall be withheld from full public disclosure until December
15, 2022.
Sec. 4. Interim Release. Any
information currently withheld from public disclosure that agencies have not
proposed for continued postponement shall be reviewed by NARA before December
15, 2021, and shall be publicly released on that date. Out of respect for
the anniversary of President Kennedy’s assassination, such release shall not
occur before December 15, 2021.
Sec. 5. Intensive 1-Year Review. (a) Over the next year,
agencies proposing continued postponement and NARA shall conduct an intensive
review of each remaining redaction to ensure that the United States Government
maximizes transparency, disclosing all information in records concerning the
assassination, except when the strongest possible reasons counsel otherwise.
This review shall include documents within the assassination records collection
designated as “not believed relevant” by the Assassination Records Review Board
established under the Act, but nonetheless placed within the collection by the
Assassination Records Review Board.
(b) Any information that an agency proposes for
continued postponement beyond December 15, 2022, shall be limited to the
absolute minimum under the statutory standard. An agency shall not
propose to continue redacting information unless the redaction is necessary to
protect against an identifiable harm to the military defense, intelligence
operations, law enforcement, or the conduct of foreign relations that is of
such gravity that it outweighs the public interest in disclosure. In
applying this statutory standard, an agency shall:
(i) Accord
substantial weight to the public interest in transparency and full disclosure
of any record that falls within the scope of the Act; and
(ii) Give due consideration
that some degree of harm is not grounds for continued postponement unless the
degree of harm is of such gravity that it outweighs the public interest.
(c) For any record containing information that
an agency proposes for continued postponement beyond December 15, 2022, the
agency shall provide, no later than December 15, 2021:
(i) an
unclassified letter, to be signed by the head of the agency, providing a
written description of the types of information for which the agency is proposing
continued postponement and reasons for which the agency is proposing continued
postponement of such information;
(ii) an unclassified
index identifying for each such record the reasons for which the agency is
proposing continued postponement of information in such record; and
(iii) a specific proposed
date identifying for each such record when the agency reasonably anticipates
that continued postponement of information in such record no longer would be
necessary or, if that is not possible, a specific proposed date for each such
record identifying when the agency would propose to next review again after
December 15, 2022, whether the information proposed for continued postponement
in such record still satisfies the statutory standard for postponement.
(d) NARA shall review each proposed redaction,
no later than September 1, 2022, in consultation with:
(i) The Department of
Defense if the agency proposing the redaction asserts an anticipated harm to
the military defense;
(ii) The Office of the
Director of National Intelligence if the agency proposing the redaction asserts
an anticipated harm to intelligence operations;
(iii) The Department of Justice
if the agency proposing the redaction asserts an anticipated harm to law
enforcement; and
(iv) The Department
of State if the agency proposing the redaction asserts an anticipated harm to
the conduct of foreign relations.
(e) The relevant consulting agency, as
designated pursuant to subsection (d) of this section, shall provide its
assessment to NARA as to whether the information proposed for continued
postponement satisfies the statutory standard for such postponement. In
reviewing a proposed redaction, NARA or the relevant consulting agency, as
designated pursuant to subsection (d) of this section, should consult with the
agency that proposed the redaction.
(f) If NARA does not agree that a proposed
redaction meets the statutory standard for continued postponement, it shall
inform the agency that proposed the redaction. After consultation with
NARA, the agency that proposed the redaction may, no later than October 1,
2022:
(i) withdraw the
proposed redaction; or
(ii) refer the decision on
continued postponement to the President through the Counsel to the President,
accompanied by an explanation of why continued postponement remains necessary
to protect against an identifiable harm to the military defense, intelligence
operations, law enforcement, or the conduct of foreign relations that is of
such gravity that it outweighs the public interest in disclosure.
(g) If NARA agrees that a proposed redaction
meets the asserted statutory standard for continued postponement, the Archivist
shall recommend to the President, no later than October 1, 2022, that continued
postponement from public disclosure of the information is warranted after
December 15, 2022.
(h) At the conclusion of the 1-year review, any
information still withheld from public disclosure that agencies do not propose
for continued postponement beyond December 15, 2022, shall be released to the
public on that date.
(i) At the conclusion of the 1-year review,
each unclassified letter described in subsection (c)(i) of this section and
each unclassified index described in subsection (c)(ii) of this section shall
be disclosed to the public on December 15, 2022, with any updates made to
account for any information initially proposed for continued postponement that
is not postponed from public disclosure beyond December 15, 2022.
Sec. 6. Digitization and Democratization of
Records. (a) Since the 1990s, more than 250,000 records
concerning President Kennedy’s assassination — more than 90 percent of NARA’s
collection — have been released in full to the public. Only a small
fraction of the records contains any remaining redactions. But many
records that have been fully disclosed are inaccessible to most members of the
public unless they travel to NARA’s location in College Park, Maryland.
(b) The Archivist shall issue a plan, no later than
December 15, 2021, to digitize and make available online NARA’s entire
collection of records concerning President Kennedy’s assassination.
(c) The Archivist shall provide additional context
online about the records that have been withheld in full under sections 10
and 11 of the Act — primarily documents containing tax-related information of
the Internal Revenue Service or the Social Security Administration — that are
not subject to the Presidential certification requirement under section 5 of
the Act.
Sec. 7. Publication. The Archivist
is hereby authorized and directed to publish this memorandum in the Federal
Register.
JOSEPH R. BIDEN JR.
No comments:
Post a Comment