This note corrects a major error in my recent comment “Formal and final in the JFK Act”. In that note, I incorrectly stated that there were less than one hundred instances of the ARRB’s “Final determination form” (FDF) in the ARC. In fact there are over seven hundred. After looking at all these instances, I have also changed my views on the use of these forms in the ARC. This note explains how I missed over 600 FDFs and my current views.
A counting error
I have worked long and hard on “munging” ARC pdfs, by which I mean pasting pdf pages together in new and useful ways. To do this accurately, one needs to know how many non-record (NR) pages are attached to the actual record material in a pdf. These non-record pages include a variety of things: MFF cover pages, blank cover pages, RIF sheets, document withdrawal notices, and FDFs. I have therefore done a lot of work on identifying, counting, and discounting, which records have this kind of stuff.
However, it is hard to keep track of exactly WHICH NR material is where in each pdf. This is where I failed in my last note. As a result, I came up with only a handful of docs with FDFs attached, missing the vast majority of FDFs actually present in the ARC documents online.
Because of how I recorded NR material counts, it is difficult to correct this error. After a lot of head scratching, however, I can say there are over 770, perhaps as many as 800, Collection records with FDFs attached.
In the note where I gave this bad FDF count, I also discussed the research of Andrew Iler, who wrote two articles on FDFs earlier this year. (The note has links to Iler’s articles.)
Iler’s second article on FDFs discusses his search for these elusive forms, which he considers very important for the legal status of the Collection records. However, he apparently did not spend much time looking in the MFF online collection of ARC docs for FDFs; he does not mention finding any. Nor does he mention looking through the ARC pdfs NARA has posted online.
Instead, he visited NARA’s College Park facilities to search the ARRB’s records. In this search, he had some success. He found 450 FDFs in an ARRB storage box marked “PRESS AND PUBLIC CONTACTS”, an oddity which aroused his suspicions that the FDFs were somehow being concealed.
He found another 301 FDFs in the appendices of the ARRB’s 1995 annual report to Congress. It is difficult to find this report complete with all its appendices, a circumstance which further aroused his suspicions.
Now that I have found a large number of FDFs, I think it’s a fair question of how many of the ones I found duplicate the ones Iler found. I am sure that there is some overlap between our finds, but I don’t believe they completely overlap.
Why? My first note on Iler’s article (available here) discussed a single FDF Iler posted in his article. This FDF was for ARC 104-10016-10021. This FDF was NOT one of forms I found online, so at least some of Iler’s discoveries are not duplicated in my discoveries.
On the other hand, I would not be surprised if I have all, or most, of the FDFs Iler found in the 1995 ARRB annual report. As I wrote, Iler found only 301 FDFs in the report, even though the Board reviewed significantly more records than this in 1995.
This is reflected in the FDFs online as well. I have found 160 FDFs for HSCA records, 359 FDFs for CIA records, and 58 FDFs for FBI records which the Board reviewed in 1995. A number of these records were reviewed in December 1995, and hence were probably not included in the 1995 report. Other than that, I can’t be sure where the difference is.
The remainder of the FDFs I found in the MFF collection, and in the pdfs NARA has posted online, were mostly for FBI records the Board voted on in its 1996 meetings.
I have found fewer than 10 FDFs for records the Board voted on in 1997 and 1998. The Board processed tens of thousands of records in this period, so this is where the largest number of “missing” FDFs come from.
Postponements, FR notices, and FDFs
As a reminder yet again, “postponement” here does not mean “withhold entirely from public inspection.” Postponement refers to holding back one or more portion of the information in a record. The Board was extremely stingy in agreeing to hold back information, and as anyone who has bothered to track the release of ARC redactions since 2017 will know, it is not unusual for these to consist of just one name in documents dozens, even hundreds of pages long.
Now back to the FDFs. The FDFs provide a record of the Board’s postponements and releases. For which records did the Board agree to “postponements”? How many? When was the postponed information to be released? These are the questions that the FDFs can answer.
The FDFs were produced by the ARRB using a database system. One important point that Iler’s articles make is that NARA received copies of the ARRB’s databases, so we may hope that the information in the FDFs is preserved electronically in the database copies in NARA’s possession.
The number of printed FDFs, however, is very limited. Does this mean we have no printed, publicly available information about the ARRB’s decisions on which records had postponements, how many postponements there were in these records, or when these postponements were to be released? This is stated and/or strongly implied in Iler’s article.
In response to this, my note pointed out that the JFK Act also required the ARRB to publish its decisions in the Federal Register, including which records should have portions released, which records should have portions postponed, how many portions were to be postoned, and when these postponements were to be released.
The FDFs provide more detail than the FR notices, that is for sure. But for the basic information they provide, do they differ?
Iler ignores this question in favor of a claim about the legal importance of the FDFs. I don’t care about this, I just want the basic information. Since I thought I had only a few instances of FDFs, however, I had to leave the question of whether there were differences between the FDFs and the FR notices up in the air.
Having found 770+ instances of FDFs, a more general statement is now possible.
FR notices compared to FDFs
The good news is that releases and postponements on all the FDFs I found match the information in the FR notices. This allows us to say something much stronger than I said in my last note.
However, it is also worth noting that there were records for which the ARRB put up more than one FR notice. This occurred when they corrected errors in earlier notices, or when they reconsidered their decisions. Does this occur with the FDFs?
This non-finality is implicit in a number of the FDFs, where they note a “review date” for some decisions. An example of this is where the Board was considering releasing the name of CIA officer John Whitten. Whitten learned that his name was up for release and objected strongly. The Board regarded his role as an important one in the CIA’inquiries into the JFK assassination, but gave CIA and Whitten a chance to make arguments for a delay in the release of Whitten’s name. Eventually, the Board decided in May 1996 to postpone release of Whitten’s name until his death, or the year 2001. The FDFs indicate a December 1995 review date for Whitten’s name. I have found no FDFs recording the Board’s final decision in this matter.
There is, however, an FR notice explaining the Board’s decision and listing the records affected by it. Here is a case where the FR notices give more complete information that the FDFs we have copies of.
Who needs FDFs?
Since the basic information in the FR notices duplicates the basic information in the FDF, we have a reliable guide to the Board’s decisions already at hand. We do not need to fret that we only have a limited number of FDFs.
I agree that the issue of the “missing” FDFs should be followed up, since there is interesting information in them which is not available in the FR notices. However, the claim that without the FDFs we don’t know which records the Board reviewed and made determinations on is simply false. The FDFs available only confirm what we learned when the Board published its notices in the Federal Register almost thirty years ago.
I have said before and I’ll repeat here that the FR notices present many questions. they are not a complete list of all Board determinations, and there are errors in what they do record, but they are not fundamentally flawed.
The notices are well worth a detailed look. I did a basic count and survey seven years ago. A note describing what I found is available here. A follow up note is available here. A table listing notices and record counts is available here.
I am now working on a comparison of the notices with the final releases which began in 2017. I will post a note on that later this year.