Larry Schnapf Writes:
On
Friday nite, the court issued an opinion which partially granted some aspects
of the Defendants' motion to dismiss and while denying the government's request
to dismiss other counts. The court dismissed the claims against President Biden
but allows some of the claims involving the National Archives to
continue.
Here is
the official MFF statement:
“The July
14 court order provided several victories for the Plaintiffs, including
the right to seek immediate release of 1,720 assassination records created due
to legislative action by the Church Committee and the House Select Committee on
Assassinations, the right to investigate the history of the documents destroyed
in the course of the JFK investigations and the right to compel
improvement in the usability of the National Archive's JFK
Collection. However, the court’s order also narrowed the scope of our
lawsuit by not providing a transparent process for the release of other
assassination records. We are reviewing all of our options.”
Bill
Simpich writes:
NARA is
not barred from adding new items to the JFK Collection. The court's
order did not address that issue.
There
will be more analysis after MFF reviews its options. Here is the
MFF press statement:
“The July
14 court order provided several victories for the Plaintiffs, including
the right to seek immediate release of 1,720 assassination records created due
to legislative action by the Church Committee and the House Select Committee on
Assassinations, the right to investigate the history of the documents destroyed
in the course of the JFK investigations and the right to compel
improvement in the usability of the National Archives JFK
Collection. However, the court’s order also narrowed the scope of our
lawsuit by not providing a transparent process for the release of other
assassination records. We are reviewing all of our options.”
Here was
what I posted on the Ed Forum today:
The
judge's decision was a mixed bag, with victories and defeats for both
sides. Both sides have the option to take action to affect the shape of
the lawsuit in the days to come. This is not a hard-and-fixed situation
yet.
MFF,
Tink Thompson and Gary Aguilar will take the next few days to review their
options.
I can't
attach the entire decision, but it will be posted at Mary Ferrell Foundation's
JFK site in the next day or two.
One item
worth thinking about is below. We have created a good list of destroyed and missing
documents at the Assassinations Archives and Research Center.
website. As many know, AARC, Jim Lesar and Dan Alcorn are indefatigable
allies in these battles for openness and transparency. If anyone has any
additions, please post them on this thread - after reviewing these two ARRC
lists highlighted above?
Below is
the excerpt:
Federal
Records Act
Plaintiffs
plead that NARA has violated the Federal Records Act by failing to request that
the Attorney General take action after the ARRB identified destruction of
assassination records by certain agencies. Under the Federal Records Act, if
the Archivist becomes aware of “any actual, impending, or threatened unlawful
removal, defacing, alteration, or destruction of records in the custody of” an
agency, they are required to notify that agency’s head and assist them “in
initiating action through the Attorney General for the recovery of records
unlawfully removed and for other redress provided by law.” 44 U.S.C. § 2905(a).
If the agency head “does not initiate an action for such recovery or other
redress within a reasonable period of time after being notified of any such
unlawful action,” the Archivist must “request the Attorney General to initiate
such an action.” Id.
Plaintiffs
aver that the ARRB Final Report identified intentional destruction of records
by the CIA, FBI, and Secret Service, SAC ¶ 61(f), thus triggering the
Archivist’s duty to ask the Attorney General to initiate an action for their
recovery. Defendants argue this count should be dismissed because a referral to
the Attorney General is only required under § 2905(a) for the recovery of
records unlawfully removed, rather than destroyed. Defendants cite several
cases interpreting an analogous provision to § 2905(a)—44 U.S.C. § 3106(a),
which governs federal agencies—holding that agencies only have a duty to
involve the Attorney General when records have been unlawfully removed. See,
e.g., Bioscience Advisors, Inc. v. United States Sec. & Exch. Comm’n,
No. 21-CV-00866-HSG, 2023 WL 163144, at *6 (N.D. Cal. Jan. 11, 2023); Citizens
for Resp. & Ethics in Washington v. U.S. S.E.C., 916 F. Supp. 2d 141,
146–148 (D.D.C. 2013).
However,
Defendants fail to contend with the differences in language between § 2905(a)
and § 3106(a). While § 3106(a) only requires an agency head to “initiate action
through the Attorney General for the recovery of records the head of the Federal
agency knows or has reason to believe have been unlawfully removed,” § 2905(a)
requires the Archivist to assist an agency head in “initiating action through
the Attorney General for the recovery of records unlawfully removed and for
other redress provided by law.” 44 U.S.C. §§ 2905(a), 3106(a) (emphasis added).
Likewise,
if the agency head fails to “initiate an action for such recovery or other
redress” after being notified of “any such unlawful action,” the Archivist must
request the Attorney General to initiate such action. 44 U.S.C. § 2905(a)
(emphasis added).
In other
words, as compared with § 3106(a), § 2905(a) includes an additional clause
enabling the Archivist to initiate action through the Attorney General. §
2905(a) thereby seems to impose a broader referral duty on the Archivist than §
3106(a) imposes on agency heads because of its inclusion of “other redress
provided by law.” Such a distinction also seems to be made within § 3106.
Compare 44 U.S.C. § 3106(a) (requiring agency heads to take action for “the
recovery of records . . . unlawfully removed”) with § 3106(b) (requiring the
Archivist to make a referral when an agency head fails to “initiate an action
for such recovery or other redress” after notification of “any such unlawful
action described in subsection (a)”).
The
legislative history of § 2905 and § 3106 supports this interpretation. In 1984,
Congress amended § 2905 and § 3106 to require an Attorney General referral by
the Archivist if an agency head failed to take action. The House committee
report only discusses the provision in the context of initiating action for the
“recovery of records unlawfully removed.” H.R. Rep. 98-707, at 21. By contrast,
the final conference report explained the provision as requiring the Archivist
to make a referral to the Attorney General if they are aware of “any such
unlawful action,” where “destruction” was listed several sentences before as
one action prohibited by law. H.R. Conf. Rep. 98-1124, at 27, as reprinted
in 1984 U.S.C.C.A.N. 3894, 3902. The conference report then explained that
Congress would be notified in such instances “because of the frequency of
incidents of removal or destruction.” Id. at 28 (emphasis added).10 Because the
language of § 2905(a) and § 3106(a) are markedly different, Defendants’
references to cases interpreting § 3106(a) are not persuasive. § 3106(a) seems
to require the Archivist to make an Attorney General referral in more
circumstances than unlawful removal of records. It instead seems to require
that the Archivist make a referral to the Attorney General if the agency head
has failed to act and the Archivist is aware of, among other unlawful conduct,
destruction of agency records.
Plaintiffs
aver that certain agencies intentionally destroyed records, these agencies’
destruction of records was reported in the ARRB final report, and both the
Archivist and the agencies failed to refer the matter to the Attorney General,
thereby stating a plausible claim. Accordingly, the motion to dismiss Count 5
is denied, except to the extent it references NARA’s failure to pursue
outstanding record searches.
From my reading he gave them 3 things- MF can continue to press for
NARA to release the Church Committee documents (legislative documents);
MF can press for NARA to create the Finding Aids; and MF can press for
the Archivist to report destruction of documents to the Attorney
General. All else is dismissed or denied. The Judge's tone is harsh
at
times.- Dan
Judge
limits lawsuit to congressional records and destroyed assassination files
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Jefferson Morley writes: |
On July
14 Judge Richard Seeborg dismissed three counts of the Mary Ferrell
Foundation's lawsuit against President Biden and the National Archives but
allowed the litigation to proceed over two other counts.
Judge
Richard Seeborg
The
judge’s decision gives the foundation, the sponsor of the
largest online collection of JFK records, the right to:
seek
immediate release of all still-redacted assassination records created by
Congressional investigations of the Senate’s Church Committee and the House
Select Committee on Assassinations;
investigate
the destruction of JFK documents the course of three official investigations,
and
compel
improvements in the usability of the National Archives' JFK Collection.
The
Foundation's attorneys are considering all options concerning this litigation.
See Mary Ferrelll Foundations’s “JFK Records Lawsuit” page for more information about Judge Seeborg’s decision and the lawsuit.
Dan
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