Withholding information in the JFK Collection

The 1992 JFK Act which established the JFK ARC strongly emphasized the need to release government documents related to the assassination of President John F. Kennedy.1See the collection history page for a brief description and history of the Act.

Despite what you may have read, however, the JFK Act also provided for withholding collection records. There are many inaccurate statements on the internet about ARC withholding, so I have made a special effort to give an accurate description of it on this page.

The JFK Act on disclosure

The JFK Act §2(a)(2) states, “all Government records concerning the assassination of President John F. Kennedy should carry a presumption of immediate disclosure and all records should be eventually disclosed to enable the public to become fully informed about the history surrounding the assassination”. 2The text of the act is available as Appendix C of the Final Report of the Assassination Records Review Board, available online here and here.

“Eventually” was formally defined as twenty-five years after the Act took effect. The Act took effect on October 25, 1992 when President George Bush signed it into law.

Many people who have not read the entire JFK act thus assume that all records would be opened by October 27, 2017.

The text of later portions of the Act, however, shows that the phrase ‘all records” was in fact qualified by several exceptions.

Section 10: Court documents

Section 10 of the JFK Act did not actually provide “exceptions” to full disclosure of JFK records. Instead, it allowed the ARRB, the independent federal board charged with assembling the Collection, to petition for the release of documents closed to the public by legal prohibitions. §10(a)(1) allowed the ARRB to petition for the release of documents under court seal. 10(a)(2) allowed the ARRB to petition for release of grand jury information.

Records falling under these two categories are almost all FBI documents, most of them relating to the organized crime files which the HSCA accumulated during its investigation of possible Mafia involvement in President Kennedy’s assassination.

I have not found any records that the ARRB ever petitioned to release grand jury testimony. It did, however, petition for the release of court sealed material: this was FBI surveillance tapes of New Orleans Mafioso Carlos Marcello, which supposedly captured Marcello’s claims to participation in the assassination.

The term “under court seal” can actually include a variety of materials. Another note is coming on this subject, so watch this space.

For now, I will just note that although only a handful of documents are withheld in full under these two exceptions, a much larger number of records containing grand jury information and surveillance data are still redacted. The closure of the ARRB closed these two avenues to release, so these records will remain redacted.

Section 11: Tax returns and gifts

Section 11 made two exceptions–mandatory exceptions–to release of information in ARC documents. The first of these is §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.

The Warren Commission investigation devoted much time to collecting all the information it could find on the income, and expenses, of JFK assassin Lee Harvey Oswald, of Oswald’s family members, and of Jack Ruby, the Dallas nightclub owner who assassinated Oswald.

As a result, the ARC holds over five hundred tax returns, or documents primarily containing tax return information, which are withheld in full. An even larger number of tax return documents related to organized crime investigations are redacted in part. Despite much effort on the part of the ARRB, these records and redactions will remain closed unless Congress votes to amend the Act.

Also built into Section 11 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 requires NARA to honor these restrictions. There is no specific code or language for these records in the JFK database; look for phrases like “donor restricted”.

At this point, there is very little donor material still restricted in the ARC. The best known instance is the interviews author William Manchester conducted with Robert Kennedy and Jacqueline Kennedy. These records, however, are not just closed by request. They were the subject of a court settlement that will not allow their release until 2065.

Section 5: Presidential authority to continue postponement

In addition to these four specific exceptions built into the law by Congress, there is also a very important general exception in §5(g)(2)(D), which allows for appeals by the agencies involved to the President to continue postponement (i.e. withholding) of text in assassination records. I have written a great deal about this in a recent series of notes.3See here for my notes on NARA 21, the updated JFK database, especially note 4. Here is the text from the JFK Act:

Each assassination record shall be publicly disclosed in full and available in the Collection no later than the date that is 25 years after the date of enactment of this Act unless the President certifies as required by this Act that continued postponement is made necessary by an identifiable harm to the military defense intelligence operations law enforcement or conduct of foreign relations and the identifiable harm is of such gravity that it outweighs the public interest in disclosure.

For convenience, I will refer to text held back under this exemption as a “5(g) redaction”. These 5(g) redactions are the main subject of President Biden’s October 2021 memo, and have attracted much commentary on the internet. There is a lot that could be said here, look for future notes on this subject. To put this in perspective, however, I suggestion that readers also take a look at my page on Collection releases, coming soon!