[Updated on 7/16/2021]
This is my third note on NARA 21, the revised version of the JFK ARC database (available here). See the earlier notes in this series for more details on the what, when, why of NARA 21.1The list of notes on this subject is available here.
This note deals with one of the most discussed issues relating to the ARC: how many records are withheld in full, and on what basis do they remain withheld despite the passage of the October 2017 “deadline” for the release of ARC records?
NARA 21 is an important clarification of this hotly debated issue. Anyone interested in the issue should be sure they understand this new information.
Withholding in the ARC
The JFK Assassination Records Collection (ARC) was established by the 1992 JFK Act.2A page on this subject is coming soon to this website! The JFK Act mandated the full release of most records relating to President Kennedy’s assassination. Despite what you may have read, however, the JFK Act also provided for records to remain withheld after 2017.3A page on this subject is coming soon too!
Release of the vast majority of government records in the ARC is dealt with under section five of the act. This section left very few loopholes for government agencies to withhold their records. Sections 10 and 11, however, created several exceptions.
The most relevant exception for this note is in section 11(a). This section provided that tax return information held or acquired under section 6103 of the Internal Revenue Code was NOT to be released.
Also built into this section is an exception for documents donated to the federal archives under a “deed of gift”. These deeds sometimes restrict reader access to documents, and the JFK Act allows this. There is no specific code or language for these records in the JFK database; look for phrases like “donor restricted”.
Section 10 provided two more types of exceptions: 10(a)(1) provided for court petitions to release documents under court seal. 10(a)(2) provided for court petitions to release grand jury information.
In addition to these specific exceptions, which were built into the law by Congress, there is also a very important general exception in section 5(g), which allows for appeals to the President to continue postponement (i.e. withholding) of text in assassination records.
The specific citation that NARA now uses for this type of withholding in the JFK database is “5(g)(2)(D).” I will delay a detailed discussion of how this is used until my next note.
Again: the tax info exemption is 11(a), the court document exemptions are 10(a)(1) for sealed documents and 10(a)(2) for grand jury info, and 5(g)(2)(D) means documents which various agencies have appealed to the President to continue postponing.
A comparison with earlier lists of documents withheld in full
NARA 21 is not the first time NARA has tried to answer the question of how many records in the ARC are “withheld in full” (hereafter WIF). The first two times were in response to FOIA requests. These requests produced two lists which I have discussed many times on this blog.
The first list was produced in 2016 (search on the blog for NF16). The second list was produced in 2018 (search on the blog for NF18). NF16 was something of a mess. NF18 was a very important document and I have read it many times. It provided the data for my two previous attempts to account for WIF records in the ARC. These attempts are here and here
To understand what new things the new JFK database tells us, I will look back at the second of these two notes. It included a table that attempted to summarize, by withholding category, all of the records marked “withheld” in NF18.
I have now updated this table to include counts, withholding categories, and current status as reported in NARA 21. (1 means NF18, 2 means NARA 21. OIF means “open in full”, the opposite of WIF, and NAR means “not assassination related”, for which see my notes on the almost synonymous NBR.)
|#||prefix||agency||type||count 1||restrict 1||count 2||restrict 2||status now|
|1||104||CIA||dupl. Oswald 201||180||1B||180||5(g)(2)(D)||Redact|
|12||MISC||MISC||no category||6||[WITHHELD]||0||see below||see below|
The first row is a microfilm duplicate of the CIA’s 201 file on Lee Oswald. Note that this is no longer listed as “withhold” but as “redact”; the restriction code is the new 5(g)(2)(D) code, meaning these are items for which the CIA requested continued postponement. I think this is more a change of label than a change of status; I would be surprised if these records were actually available for inspection now.
The second row is a set of finding aids that NARA can’t find documents for. These also have the 5(g)(2)(D) code; does that mean they found the docs? Why are they still “withheld” then? A puzzle.
The third row is 10 tapes of testimony before the Rockefeller Commission, held by the Gerald Ford Library. These were supposedly unplayable, yet now they are marked as “Redact” and also have the 5(g)(2)(D) code. Did they manage to fix them? I thought there were transcripts for these tapes. Another puzzle.
The tax docs (rows 4-6) are withheld by exemption 11(a). The numbers changed! See below. Row 7, the court docs withheld by exemption 10(a), changed invisibly. See below for what happened.
Deeded docs (rows 8 and 9) are docs at the JFK Library and the LBJ Library from Jacqueline and Robert Kennedy that are withheld by court orders or donor agreements. Rows 10 and 11 were documents listed in NF18 that were either already released in 2017 or were released after NF18 came out in Jan 2018. No category docs (row 12) were labeled “withheld” but had nothing in the “restrictions” field. All of these are now categorized or released.
The next table shows documents that were “withheld” in NF18 and are now either “Release” or have changed withholding categories:
|#||record||comments||type||restrict 1||restrict 2||new status|
|1||119-10003-10216||[1967 memo]||unresolved RIF||REFERRED||Release|
|2||124-10175-10480||[379 p EBF]||no category||NAR||NAR; OIF||Release|
|3||179-20002-10389||[Marcello doc]||no category||REFERRED||11(a)||Withhold|
|4||179-20004-10021||RESPONSE RE WC REPORT||no category||REFERRED||11(a)||Withhold|
|5||180-10116-10076||MLK doc||No category||10(a)(1)||Withhold|
|6||124-10286-10391||[1953 FBI doc]||Sec 10||10(a)(1)||11(a)||Withhold|
|7||180-10142-10194||typewriter ribbon||no category||REFERRED||Consulted||Withhold|
|8||180-10142-10055||class. typewriter ribbon||no category||REFERRED||OIF||Release|
These corrections cleared up some puzzles. NARA had stated there were five 10(a) docs withheld in full. I misidentified these because the MLK doc in row 5 had no withholding category, and the FBI doc in row 6 was mislabeled as 10(a). Row 1 is a finding aid for a missing/non-existent doc. This one is released, so now there are only 78 of these. Two other records are also released, including a “classified typewriter ribbon cartridge in a classified NARA file”. One other ribbon is still withheld.
Here’s how to count these messy tables: Duplicate Oswald and bad tapes are now “Redact”, not “Withhold”. Orphan iden aids are now 78, because one was released (guess they found it). Tax docs are now 501, not 498. (Three tax docs were mislabeled, but now they are fixed.) 12 donor restricted docs, 5 court docs, and 1 typewriter ribbon. (And a partridge in a pear tree!) So there are 597 records in the “withhold” category.
More withheld docs
In addition to these 597, there are five more records in NARA 21 that have been added to the “withhold” category. These records were not listed as withheld in NF18, but they were listed as withheld in NF16:
|#||record||comments||restrict 1||restrict 2||new status|
|1||104-10063-10229||1967 FBI doc||1B||Withhold|
|2||176-10011-10187||ARTHUR SCHLESINGER PAPERS||1C||Withhold|
|3||177-10001-10080||DREW PEARSON PAPERS||DONOR RESTRICTION||RESTRICTED||Withhold|
|4||177-10001-10180||CONFIDENTIAL LBJ FILE||DONOR RESTRICTION||RESTRICTED||Withhold|
|5||180-10143-10135||SENSITIVE CIA DOC||REFERRED||Open in Full [?!]||Withhold|
Summing up the types of records recategorized as “withhold”, three seem to be donor records, one is an FBI record held by the CIA, and one is a CIA record held by the HSCA, which, oddly, has a restriction of open in full yet is listed as “withhold”. Perhaps NARA is still working on these…
Other than that, no idea what’s going on here. In my previous note on “declassify” records in NARA 21, we saw what look like donor records that are scheduled for future release. Perhaps some of these will be released as well. Donor records seem to have been tough to straighten out in the JFK database.
Adding these all together, you get 602 records with the current status of “withhold”. NARA’s documentation for this category is now quite detailed. It may still not be 100% correct, but I am confident that NARA has been diligent in documenting the ARC, and I am equally confident that they will continue to correct errors as they find them.
Compare what we found this time to NARA’s previous estimate of WIF records. Their previous estimate was 520 WIF records. The main difference this time is 78 unresolved RIF sheets are now counted as “Withhold”. Another 5 “withhold” records have been added in NARA 21, and two records originally categorized as withheld are now released. It is still hard to see which “520” records NARA was referring to, but the difference between then and now is only one record. Considering the uncertainties of the Collection withholdings this is pretty good.
There is still stuff to write about here another day. The Ford Library tapes are an interesting topic; unfortunately, the few internet discussions of them are usually full of careless mistakes. The duplicate Oswald file is also one of my research interests, but an incredibly boring subject to write about. Before I start on these topics, however, the most important, and complicated, subject still remains: redacted records! Stay tuned!