This note continues my recent look at Andrew Iler’s articles on ARRB’s “Final Determination Form” (FDF). If there were indeed over 26,000 of these forms printed and all of them are now AWOL, what does this mean for the integrity of the ARC? Iler suggests it opens the door for major doubts. This note will suggest otherwise.

Did ARRB run off 27,000+ FDFs?

As we saw in my last note, an FDF was a form the ARRB created to record its decisions to release or postpone text in ARC documents. The format is illustrated in Iler’s first article on this subject. Iler has become convinced that this form was essential to the legal force of the Board’s record determinations, and that the Board had actually printed FDFs for each record that it decided to “postpone” or release information in. The number 27,000+ comes from the Board’s final report (here).

This is a huge volume of paper, and if they were not only printed, but also attached (stapled) to EVERY record the Board voted on, the logistics are of course daunting. This is one reason to wonder if Iler has got this right. Then one can simply ask if there are indeed 26,000 FDFs attached to records in the ARC. I have gone through a really large number of ARC records, and have seen fewer than a hundred of these forms, so there seems to be a problem here too.

Iler is aware of the problems of producing that volume of forms, and he is aware that the vast majority of records in the ARC do not have these forms attached. Yet his reading of the JFK Act, and research in Board records, has convinced him that the ARRB did indeed perform the Herculean task of printing and attaching this huge volume of forms.

One reason is because he has found a number of FDFs in out of the way places. In his hunt for the “missing” FDFs, Iler visited the archives and went through over a dozen boxes of ARRB records. He was able to find about 450 forms in a box that indicated the contents were “PRESS AND PUBLIC CONTACTS”. These FDFs were not attached to any records. Iler also went through the Board’s 1995 Annual Report and found another 301 forms printed in an appendix to show the Board’s early work reviewing the Collection. These records are all in the ARC, but no FDFs are attached to them. None of these discoveries comes close to 27,000+ forms, but his discoveries of “missing” or unattached forms has convinced him that something major has gone astray.

Did the Board actually print out 27,000 plus forms? For at least a portion of records reviewed by the Board, I am not convinced that the Board actually printed out FDFs. The Board had a very complex reviewing system with at least two tracks, “review track” and “fast track”. The reader should refer to the ARRB Final Report for the details of these. I am not convinced that FDFs were printed for every record, regardless of track.

In addition, there were a number of records that the Board decided not to process down to the last detail. These are the NBR records, which the Board decided were not worth reviewing on a word by word basis, due to their lack of relevance to the JFK assassination. I have a number of posts on these, for readers who are interested in the details. Because these were not reviewed word by word, there was simply no way that the ARRB could produce an FDF for them. The FDF gives a page by page count of redactions the Board released or authorized. This count demands a word by word review. We can thus be certain that NBR records did not have FDFs.

Despite my doubts, however, Iler has found interesting evidence worth considering. Much of this is in the emails of the ARRB, which were released by NARA as part of the ARRB’s “Electronic Files” in 2017. There are numerous references to FDFs in the emails, including one from Peter Voth, an analyst who also did computer support work. In one email, dated 22 September 1998, Voth warns ARRB staff that he is going to use the back printer to run off 14,000 CIA FDFs!

Oddly, however, Iler writes that “This message indicates that with only a few days left in the ARRB’s mandate, it was discovered that the CIA had delayed printing out copies of 14,000 Final Determinations.” This has the case upside down. Printing FDFs was the ARRB’s job, not the CIA’s. The software and database tables to produce FDFs were all in the possession of the ARRB. No other agency or office could produce these forms. Why the ARRB had such an enormous FDF backlog for CIA records is unstated in the message. Perhaps there is an explanation elsewhere in the Board’s records.

Regardless of what Voth’s message means, there are many other references in Board emails to the ARRB running off FDFs and sending them out, both to agencies submitting records, and to NARA when records were to be added to the collection. The volume of these emails and the descriptions they give of how and when the FDFs were produced certainly suggests that there should be far more of these forms in the ARC than we see today.

I agree with Iler that this is worth a closer look. Apparently Iler filed an FOIA request and was told that NARA could not find anywhere near this volume of forms. I would say file an FOIA lawsuit, but Iler doesn’t seem to be interested in doing this. Instead, he would prefer to have Representative Pauline Luna and her subcommittee rake NARA officers over the coals in a public hearing. Whatever.

Formal or Final?

Without the FDFs, is there any way we can learn which redactions the board voted to release and when? Yes, there is. Section 9(c)(4)(B) of the JFK Act states: “Following its review and a determination that an assassination record shall be publicly disclosed in the Collection or postponed for disclosure and held in the protected Collection the Review Board shall notify the head of the originating body of its determination and publish a copy of the determination in the Federal Register within 14 days after the determination.”

The Board carefully followed this section of the Act by publishing lists of records it reviewed in the Federal Register (FR). I have a longer description of these notices, as well as links to the online Federal register sections where they were published (available here).

So what is the difference between these FR notices and FDFs? One difference is that the FDFs give the Board’s reason for releasing, or postponing, portions of each record. This is done in terms of the provisions in the JFK Act, citing which section of the act justifies release (or postponement).

FDFs also provide details of the Boards review, such as when review took place, and a description of where text was released or postponed in the document. The purpose of this detailed accounting is to allow the public, Congress, and the President to understand the details of every action the Board took for every record in the ARC.

The FR notices, on the other hand, give only a small amount of all this detail. The most common format is to give the RIF record number, the number of redactions released, the number of postponements approved, and the release date for postponements approved.

These notices are called “Formal determinations” in the FR. In addition to releases and postponements, the FR notices also describe decisions such as recissions, corrections, reconsiderations and so on (see my note for details).

There are thus two formats in which the Board published its review decisions: the Final Determination Forms, and the Formal determinations listed in the FR. The JFK Act does not stipulate the Board should use two formats, however. It refers to all Board decisions as “formal determinations”, specifying when and where the Board should give reasons for its determinations.

So where did this distinction of “formal determination” and “final determination” come from? The ARRB’s final report states that “After the Review Board voted on an assassination record, the JFK Act required the staff to attach a ‘final determination form’ to the record.”

In fact, this language does not appear in the JFK Act as passed by Congress, and I have not found any mention of it in any of the Congressional hearings on the JFK Act. Specific information about Board determinations was required for various parties, but as far as I can tell the FDF does not have an official status in the JFK Act. This contrasts with the RIF sheets attached to records in the JFK Collection. The JFK Act calls these “identification aids” and goes into some detail about their content and use.

Iler’s articles, however, treat the FDFs as a statutory requirement, citing sections of the Act concerning them. None of the place he cites, however, use the term “final determination form” Instead, each passage says only “Formal Determination.”

This is part of what I think is a problematic claim in Iler’s articles. Iler believes that the FDFs are necessary to bind the Federal Government to release information in the JFK Collection, and that the delays in releasing records, such as the postponements ordered by Presidents Trump and Biden, were due in part to the lack of FDFs! This is hard case to make, and I won’t discuss it further here.

FR ≈ FDF?

Returning to the question posed above, do we have access to a record of Board decisions on releasing and postponing records? My answer is yes, the FR notices provide this record, though there are almost certainly some errors in the lists, and gaps such as the NBR records I discussed above.

Apparently Iler does not share this view. Instead, he writes that “without having access to, or being aware of the existence of the ARRB Final Determination Notifications or the legal basis for these absolutely critical agency final orders, there is nothing [for researchers] but a fuzzy notion that releases that were supposed to happen mysteriously just did not.”

Iler is of course aware of the FR notices, but what does he think is the relation between the FR notices and the FDFs? I am not certain. Does he believe that there are major differences between the records listed in the FR notices and the records accounted for in the FDFs? Without all of the FDFs, such a claim would be pure speculation.

For the very limited number of records with FDFs currently in the ARC, I have checked these against the FR notices. They are all listed in the notices, so no difference there. However, Iler has found 751 FDFs that apparently are not currently attached to records in the ARC. Are any of these for records not listed in the FR notices? Iler does not discuss this in his articles.

Based on a careful study of the FR notices, which are accessible to everyone, I could believe that the FR notices do NOT list all the record with redactions in the ARC, but I find it impossible to believe that “thousands” of records with redactions were omitted from the lists.

Does Iler believe that there are major differences in the release and postponement information given in the FR notices and the FDFs? This is an interesting question, especially considering that Iler believes that one reason for the small number of FDFs in the ARC was to conceal Board approved release dates.

Thus, Iler argues in his second article that release dates on the FDFs sometimes show that records were not released on the dates the Board stipulated. In my previous note on Iler’s article, I discussed one example he gave of this. The record in question was ARC 104-10016-10021, CIA cable MELB 2517. One of the unattached FDFs Iler found was generated for this record. Based on this FDF, Iler argued that the Board’s release date was not followed by NARA and the CIA. Read for yourself what my views on this claim are.

My question here though is different: Did the FR notice for 104-10016-10021 have the same release info that the FDF for 104-10016-10021 had, or did it have different release info? It turns out that the release info in the FR notice is identical to the release info in the FDF that Iler found.

If this holds true for ALL the unattached FDFs Iler found, then we are perhaps justified in relying on the FR notices for release info. They lack some of the FDF details, but the basic info is the same. If that is the case, then the enormous uncertainty that missing FDFs has evoked in Iler is misplaced.

If, on the other hand, some of the information is different, this gives us interesting leads for research.

My two cents

I have many questions about the FR notices the Board published over its four years of operation. As I said elsewhere, I am certain that there are omissions and errors aplenty in them. The job the Board was doing was far too large and complex for it to be otherwise.

I am also sure that careful research in the Board’s records can answer most of these questions. Board members and staff are still around, which is a great help as well. The written records, however, are primary. This is a comment I will come back to in the future.