U.S. District Court For The Northern District of California
With the Judge calling off Oral Arguments, he must be confident on relying on the written records already supplied to the court, and I think, from reading the same document at Mary Ferrell archives, I don't think the Defendants have an argument without recognition that they just want to ignore the procedures specifically set out by the JFK Act, the power and authority of the President, and only the President to continue withholding records, and that he must give a specific reason for continued withholding each record.
As for NARA, it is quite clear that the administrative bureaucrats there are cow towing to the military and intelligence agencies and don't really want to enforce the JFK Act or do their duty to continue the work of the Review Board until all the records are identified, located, secured, preserved and released to the public.
For the complete court record please go to Mary Ferrell,- and thank Rex Bradford.
INTRODUCTION
The Mary Ferrell Foundation, Inc., Josiah Thompson, and Gary Aguilar (hereinafter "Plantiffs") seek an order for the Motion to Dismiss to be denied in all respects.
The operative complaint seeks an order for the President to comply with the procedural requirements of the President John F. Kennedy Assassination Records Collection Act of 1992 (the "JFK Records Act" or "JFK Act") when he certifies that information contained in an assassination record poses a "threat" or "identifiable harm" that is of "such gravity that it outweighs the public interest in disclosure that disclosure of the particular assassination [record] may be postponed beyond the due date of 2017. See # 5(g)(3)(D) and # 6 of the Act.
Plantiffs also seek an order for NARA to take action to comply with the Act, the APA and the Federal Records Act to ensure that "all assassination records" are obtained before the Archivist certifies that "all assassination records have been made available to the public" See #2(a)(1) and #12(b) of the Act, and 36 CFR 1290.1 for the "assassination records" definition.
Even the NARA JFK Collection section on line doesn't bother giving you the definition of a JFK Assassination Record that the Assassination Records Review Board (ARRB) published in Chapter 2 of their Final Report:
1. Statutory Definition of "Assassination Record."
The JFK Act defined "assassination record" as a record "related to the assassination of President John F. Kennedy that was created or made available for use by, obtained by, or otherwise came into possession of" the federal government (or state or local law enforcement offices that assisted in an investigation of President Kennedy's assassination."
....The definition of assassination records is a threshold consideration for the successful implementation of the Act. Its scope will be a barometer of public confidence in the release of assassination records. while the records of past presidential commissions and congressional committees established to investigate the assassination of President Kennedy are included as assassination records under this act. It is intended and emphasized that the search and disclosure of records under this Act must go beyond those records....
....Unlike in the cases cited by the Defendants in their motion to dismiss, the President does not have unfettered discretion under the JFK Act. He must apply statutory criteria when making disclosure and postponement decisions. He is not allowed to assert attorney-client or executive privilege or even the deliberative process exemption as grounds to withhold disclosure or assassination records. JFK Act #11(a)
....His decisions to postpone full disclosure are subject to judicial review. # 11(c)
Rather, the plain language of # 5(g)(2)(D) of the Act provides that for "each assassination record" postponed, the President is required to provide to the American people an unclassified explanation of the enumerated "identified harm" posed by each record and why the harm is of such gravity that it outweighs public interest in disclosure.
The President simply issued a blanket certification that "all" the postponed records posed identifiable harm. He did not describe the "identifiable harm" defined in section 6 of the Act for "each assassination record", nor explain how such are was of "such gravity" outweighed the public interest for "each assassination record."
Defendants motion to Dismiss asserts that Plantiffs failed to allege ministerial duties of NARA under the Act pursuant to APA # 705. MTD at 20-22. Defendants failed to state that NARA expressly assumed the mandatory duties of the Assassination Records Review board (hereinafter "Board") in 2000 when it transferred the defunct Board regulations to a new subpart.....
"NARA continues to maintain and supplement the collection under the provisions of the Act. NARA is, therefore, the successor in function to this defunct independent agency."
...The harm suffered by Plaintiffs - and to the public - when the Defendants continue to redact assassination records is not limited to the inability to read the documents. By redacting names of participants or witnesses until the individual die, researchers are prevented from interviewing these historical witnesses to obtain information that may not appear in documents. When these individuals die, their memories pass with them, thereby creating irreparable harm to American history.....
The remaining witnesses to this historical event are now in their 80s or 90s. With each passing year, the facts that they could add to the nation's understanding of this tragic event are gone forever.
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