MFF Sues Over JFK Assassination Records

[Roger Odisio]

18 hours ago, Lawrence Schnapf said:

Roger Odisio- 

When NARA published a final rule in the federal register on June 27, 2000, NARA moved the ARRB regulations to its part of the code of federal regulations because "NARA has determined that these regulations are still required to provide guidance to agencies." 

NARA went on to state that: "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."

As an administrative agency, NARA cannot assume powers that were not conferred upon it by Congress . The Act did not confer express authority to NARA to assume the powers of the ARRB. Presumably, Congress thought the work of the ARRB would have been finished. 

NARA has certainly has the inherent power to process Assassination Records. However, it does not have the ARRB power to overrule agency objections and NARA has not exercised such power in the three instances of postponement requests .  Thus, I believe it remains an open question if NARA was able to assume the power to identify records as "Assassination Records."

Since MFF has requested the court to order NARA to complete the outstanding records searches, we may have the opportunity to clarify the scope of NARA's authority under the JFK Act as the "successor in function" to the ARRB.   

One of the purposes of the JFK Act is "to require the expeditious public transmission to the Archivist [NARA] and public disclosure of such records [JFKA records]".  25 years was provided for that "expeditious" disclosure to be completed.  The Act also created the ARRB  but limited its existence.  The ARRB closed in 1998, leaving 19 years left until its 2017 deadline (which has been extended) for the release of records.

During its tenure the Board actively sought the release of JFK  records, and not only from federal agencies (see Chap 7 of the ARRB Final Report detailing their pursuit of records from non-federal sources).  That work clearly was not completed when the Board closed.  (e.g., just look at the information included in Chap7 and think of all that we have learned since 1998).

NARA says it is the successor in function to the ARRB.  The function of the ARRB, as shown by what it actually did, was to not only process records, which you acknowledge, but also to seek new records whenever and wherever it found  them.   You agree that NARA "certainly " has the "inherent" power to process records.  If NARA has taken over the functions of the ARRB, it also has the power to search for and identify new records.

You (speculate) that presumably Congress assumed the *work* of the ARRB would be finished by 1998 and so did not specifically grant NARA the powers of the ARRB. Congress surely did not assume the identification and processing of all JFK records would be completed by the ARRB by 1998, which is why it provided the 25 year window.  If not NARA, who was to do the ARRB's job after the Board closed?  Congress must have had a sense of the enormity of the task.  It surely would not have left the problem--how to get public disclosure of all that information--without  an agency in charge of the solution

 The Act created the JFK Records Collection to be housed in NARA.  NARA says it "continues to maintain *and supplement* the collection under the provisions of the Act."  That is, it functions in the ARRB, place. That statement is false, however, and I hope it will be an important focus of your suit.  Last week I sent an email to NARA asking for specifics of what it is doing to update the Collection.

It's my opinion that forcing NARA to do its job in updating the Collection for public view is likely to yield more benefits than whatever the suit succeeds in squeezing out of the CIA, FBI, etc.

 

 

[James DiEugenio]

A judge has been assigned to the case, guy named Seeborg. 

An Obama appointee.

[Lori Spencer]

5 hours ago, James DiEugenio said:

A judge has been assigned to the case, guy named Seeborg. 

An Obama appointee.

Has a hearing date been set? 

[Roger Odisio]

On 11/8/2022 at 5:23 PM, Roger Odisio said:

One of the purposes of the JFK Act is "to require the expeditious public transmission to the Archivist [NARA] and public disclosure of such records [JFKA records]".  25 years was provided for that "expeditious" disclosure to be completed.  The Act also created the ARRB  but limited its existence.  The ARRB closed in 1998, leaving 19 years left until its 2017 deadline (which has been extended) for the release of records.

During its tenure the Board actively sought the release of JFK  records, and not only from federal agencies (see Chap 7 of the ARRB Final Report detailing their pursuit of records from non-federal sources).  That work clearly was not completed when the Board closed.  (e.g., just look at the information included in Chap7 and think of all that we have learned since 1998).

NARA says it is the successor in function to the ARRB.  The function of the ARRB, as shown by what it actually did, was to not only process records, which you acknowledge, but also to seek new records whenever and wherever it found  them.   You agree that NARA "certainly " has the "inherent" power to process records.  If NARA has taken over the functions of the ARRB, it also has the power to search for and identify new records.

You (speculate) that presumably Congress assumed the *work* of the ARRB would be finished by 1998 and so did not specifically grant NARA the powers of the ARRB. Congress surely did not assume the identification and processing of all JFK records would be completed by the ARRB by 1998, which is why it provided the 25 year window.  If not NARA, who was to do the ARRB's job after the Board closed?  Congress must have had a sense of the enormity of the task.  It surely would not have left the problem--how to get public disclosure of all that information--without  an agency in charge of the solution

 The Act created the JFK Records Collection to be housed in NARA.  NARA says it "continues to maintain *and supplement* the collection under the provisions of the Act."  That is, it functions in the ARRB, place. That statement is false, however, and I hope it will be an important focus of your suit.  Last week I sent an email to NARA asking for specifics of what it is doing to update the Collection.

It's my opinion that forcing NARA to do its job in updating the Collection for public view is likely to yield more benefits than whatever the suit succeeds in squeezing out of the CIA, FBI, etc.

 

 

One more thing about the intent of the JFK Act and its implementation by the ARRB and NARA.

Stone's JFK caused renewed interest in the case.  Particularly when he said at the end that the plan was to release the information still being withheld by 75 years (I think it was) after the event, i.e., by 2037.  Even the densest among us realized, hey, we'll all be dead by then.  It may be a little hard to believe in these times, but Congress actually responded to the public outcry and the JFK Act sailed thru Congress with bipartisan support.  And was signed by George Bush I.  

The Act is written in terms of "all Government records concerning the assassination...should carry a presumption of immediate disclosure".  But when the Board came to define "record" (it took them until the summer of '95 to issue a final definition) they realized that information in the hands of many nongovernment entities also belonged in the Collection "to enable the public to be fully informed about the history surrounding the event".  And, presumably, to fully understand what happened that day.

Chapter 7 of the Board's final report details 43 kinds of nongovernemtal information collected by them in the 3 years of their existence once "record" had been defined.  Look it over and you'll see it barely scratches the surface of what we know to exist today.

One fascinating example.  In November, 1995, the Board launched "a special initiative" asking Dallas residents to donate any film or photograph that may be relevant to the assassination.  They got "important outtakes" from a daughter whose father was a friend of a photographer at station KTVT.  The photographer retrieved the outtakes from the trash and spliced together a 45 minute film that includes footage of "the aftermath of the assassination".  The Collection has a first generation copy of this film.  

But not Darnell?

Lest you think the Board was only able to accept voluntary donations of information, they had the power to designate information as a JFK record and to retrieve it.  They went to court to get the original of the Zapruder film.  They wrested what remained of the Garrison files from the New Orleans DA, also thru a court battle.

Do we really think this power disappeared when the Board closed?  Congress knew the enormity of the task it asked of first, the ARRB and then NARA, and provided for 25 years to do it, cutting in half the originally planned 50 years.  And of course that has not been enough time.

Or take another example--the Hosty notes.  We have been told that there was no recording of Oswald's first interrogation that afternoon and noone, except Hosty, took notes.  And Hosty was supposed to have destroyed his notes.  Well, he didn't.  A few months before he published his book in early 1997, he donated his notes among other things to the Collection.  Years later Bart Kamp discovered the interrogation note buried in stuff Malcolm  Blunt had collected from NARA.  There was Oswald's alibi.  After eating lunch he went outside to watch "the P Parade".

By itself that establishes the importance of the Darnell film to shed light on Oswald's whereabouts during the assassination. 

But that won't happen at the moment because NBC Universal, currently part of the Comcast empire, has turned down all requests to see and enhance the film.  The Darnell film is clearly a JFK record.  More so than those photo outtakes the Board was so pleased to have retrieved.  But viewing it will only happen if Darnell is declared a JFK record and retrieved by the collection from NBC Universal (a "news" organization (!!) whose Dallas affiliate that owns the film operates under the public interest standards of its FCC license).  Like Zapruder was declared a record.

There is an important principle here.  One thing leads to another.  What we didn't know or understand yesterday may become clear tomorrow by what we learn today. 

Clearly NARA has not continued the work begun by the ARRB of updating the Collection.  I have been told by a NARA archivist the NARA is currently engaged in what seems to be wide ranging review of the Collection, including "a mechanism to determine whether or not newly available records would be declared assassination records". 

What a propitious development the suit is.  Now is the time to press NARA to continue what the ARRB started, devise a mechanism to identify new records, and follow it.

 

[Roger Odisio]

On 11/10/2022 at 1:05 PM, Roger Odisio said:

One more thing about the intent of the JFK Act and its implementation by the ARRB and NARA.

Stone's JFK caused renewed interest in the case.  Particularly when he said at the end that the plan was to release the information still being withheld by 75 years (I think it was) after the event, i.e., by 2037.  Even the densest among us realized, hey, we'll all be dead by then.  It may be a little hard to believe in these times, but Congress actually responded to the public outcry and the JFK Act sailed thru Congress with bipartisan support.  And was signed by George Bush I.  

The Act is written in terms of "all Government records concerning the assassination...should carry a presumption of immediate disclosure".  But when the Board came to define "record" (it took them until the summer of '95 to issue a final definition) they realized that information in the hands of many nongovernment entities also belonged in the Collection "to enable the public to be fully informed about the history surrounding the event".  And, presumably, to fully understand what happened that day.

Chapter 7 of the Board's final report details 43 kinds of nongovernemtal information collected by them in the 3 years of their existence once "record" had been defined.  Look it over and you'll see it barely scratches the surface of what we know to exist today.

One fascinating example.  In November, 1995, the Board launched "a special initiative" asking Dallas residents to donate any film or photograph that may be relevant to the assassination.  They got "important outtakes" from a daughter whose father was a friend of a photographer at station KTVT.  The photographer retrieved the outtakes from the trash and spliced together a 45 minute film that includes footage of "the aftermath of the assassination".  The Collection has a first generation copy of this film.  

But not Darnell?

Lest you think the Board was only able to accept voluntary donations of information, they had the power to designate information as a JFK record and to retrieve it.  They went to court to get the original of the Zapruder film.  They wrested what remained of the Garrison files from the New Orleans DA, also thru a court battle.

Do we really think this power disappeared when the Board closed?  Congress knew the enormity of the task it asked of first, the ARRB and then NARA, and provided for 25 years to do it, cutting in half the originally planned 50 years.  And of course that has not been enough time.

Or take another example--the Hosty notes.  We have been told that there was no recording of Oswald's first interrogation that afternoon and noone, except Hosty, took notes.  And Hosty was supposed to have destroyed his notes.  Well, he didn't.  A few months before he published his book in early 1997, he donated his notes among other things to the Collection.  Years later Bart Kamp discovered the interrogation note buried in stuff Malcolm  Blunt had collected from NARA.  There was Oswald's alibi.  After eating lunch he went outside to watch "the P Parade".

By itself that establishes the importance of the Darnell film to shed light on Oswald's whereabouts during the assassination. 

But that won't happen at the moment because NBC Universal, currently part of the Comcast empire, has turned down all requests to see and enhance the film.  The Darnell film is clearly a JFK record.  More so than those photo outtakes the Board was so pleased to have retrieved.  But viewing it will only happen if Darnell is declared a JFK record and retrieved by the collection from NBC Universal (a "news" organization (!!) whose Dallas affiliate that owns the film operates under the public interest standards of its FCC license).  Like Zapruder was declared a record.

There is an important principle here.  One thing leads to another.  What we didn't know or understand yesterday may become clear tomorrow by what we learn today. 

Clearly NARA has not continued the work begun by the ARRB of updating the Collection.  I have been told by a NARA archivist the NARA is currently engaged in what seems to be wide ranging review of the Collection, including "a mechanism to determine whether or not newly available records would be declared assassination records". 

What a propitious development the suit is.  Now is the time to press NARA to continue what the ARRB started, devise a mechanism to identify new records, and follow it.

 

I have now listened to the latest installments on Jeff Morley's weekly podcast with you and others discussing the lawsuit.  They are very informative.

You said again that NARA does not have the authority to Identify information as a JFK record.  The ARRB asked Congress to do that but it was not done.  Do you have a cite for that?

You acknowledge that Congress left it to the ARRB to define what a JFK record is.  My understanding is Congress wanted to leave that job to the experts appointed to the Board as the appropriate body to make that determination.  Using expertise that Congress lacked.

The Act is written in terms of information possessed by  federal government agencies.  "The Collection shall consist of all record copies of all Government records relation to the assassination of President John F Kennedy".

However, the Board, in its wisdom, considered that definition to be much too narrow.  It chose instead to define record to include all information relevant to the public's  understanding of what happened, information possessed by private institutions and individuals, local governments, etc.  The public's understanding of what happened was the purpose of creating the Collection.  The need for a broader definition was quickly realized by the Board and it took them until August, 1995, with much input from the public as well as agencies, to settle on a final rule. Presumably that definition is still in place to be used by NARA.  

That broadening of the definition of record is important to understanding the role of NARA going forward in place of the ARRB.

Thus, when NARA talks about supplementing the Collection, they are talking about more than what agencies like the CIA and FBI are withholding (which your lawsuit currently is mostly focused on).  In an email to me by a NARA archivist saying NARA was currently considering "a mechanism  to determine whether or not newly available records would be declared assassination records", two things are apparent.  (1) they are talking about all new information beyond that held by government agencies  (which was apparent in my question to them) and (2) they don't agree with you that they lack the authority to declare new information a JFK record.

So much more information has emerged in the last 24 years since the Board closed by directive of Congress.  In responding to the public by passing the JFK Act in the first place, that Congress wouldn't have been surprised.  It also wouldn't have wanted additions to the Collection, which the ARRB had only begun in a haphazard way in the 3 years remaining after it defined "record"(see Chap 6 in the ARRB final report), to cease with 1989, to include only that which was known at that time. 

I hope the Judge gives your suit serious consideration.  But much will be lost if you don't push for NARA to update the Collection using the full ARRB definition, besides cleaning up the Collection, and following what the JFK Act requires NARA and the President to do before allowing record disclosure to be postponed.  NARA is considering doing that first part now, as we speak.

 

[Joseph Backes]

Do you have a link for Morley's podcast where they discuss the lawsuit?

Joe

 

[Joseph Backes]

I think this is it - https://www.buzzsprout.com/2061015/11626912-ep-5-can-litigation-prompt-jfk-disclosure

 

[Roger Odisio]

1 hour ago, Joseph Backes said:

I think this is it - https://www.buzzsprout.com/2061015/11626912-ep-5-can-litigation-prompt-jfk-disclosure

 

https://jfkfacts.substack.com/p/jfk-facts-ep-6-59-years-of-secrecy#comments.  This is the latest one on Nov. 8.  But I think you have to join Morley's site to get it.  The last 3 podcasts have been about the lawsuit.

[Joseph Backes]

Only Larry Snafu would try to show slides on a podcast.  

[Lori Spencer]

We covered the JFK Act lawsuit October 22 on our nightly news program (Maverick News, 6-9 P.M. Eastern) that reaches about 50,000 viewers on all the various live-streaming platforms. 
 

I pulled a 11 minute highlight clip about the lawsuit w/ guest Jim DiEugeno and posted it on my YouTube channel so you don’t have to search through the full 3 hour broadcast to find it. 

 

Edited November 27, 2022 by Lori Spencer

[Bill Simpich]

 

Roger Odisio is doing great things by letting people know many of the details about our lawsuit.  Many of the aspects of the suit (and the suit itself) can also be reviewed by visiting the MFF website.   

He writes: "....much will be lost if you don't push for NARA to update the Collection using the full ARRB definition, besides cleaning up the Collection, and following what the JFK Act requires NARA and the President to do before allowing record disclosure to be postponed."

I want to assure Roger and everyone that we are pushing for NARA to update the Collection on exactly that basis - and that we want documents added to the Collection from all relevant entities, public and private. 

As stated in the complaint, it is our position that NARA has the power to identify new assassination records and add them to the Collection:  

"53. Defendant NARA is the successor agency to the ARRB, and has assumed responsibility for ensuring compliance with the Act.  (footnote 62) The ministerial non-discretionary duties include following up with agencies to complete outstanding ARRB search requests, to search for additional information and Assassination Records as well as to direct agencies to locate lost and missing records as their existence becomes known."

Footnote 62 refers to 65 FR 39550 (June 27, 2000).   This section states:  "The Assassination Records Review Board was established by the John F. Kennedy Assassination Records Collection Act of 1992 (106 Stat. 3443). At the termination of the Review Board on September 30, 1998, its records were transferred to the Archivist of the United States. 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."

 

 

[James DiEugenio]

Thanks for that Lori. pretty good for just eleven minutes.

 

 

[Roger Odisio]

10 hours ago, Bill Simpich said:

 

Roger Odisio is doing great things by letting people know many of the details about our lawsuit.  Many of the aspects of the suit (and the suit itself) can also be reviewed by visiting the MFF website.   

He writes: "....much will be lost if you don't push for NARA to update the Collection using the full ARRB definition, besides cleaning up the Collection, and following what the JFK Act requires NARA and the President to do before allowing record disclosure to be postponed."

I want to assure Roger and everyone that we are pushing for NARA to update the Collection on exactly that basis - and that we want documents added to the Collection from all relevant entities, public and private. 

As stated in the complaint, it is our position that NARA has the power to identify new assassination records and add them to the Collection:  

"53. Defendant NARA is the successor agency to the ARRB, and has assumed responsibility for ensuring compliance with the Act.  (footnote 62) The ministerial non-discretionary duties include following up with agencies to complete outstanding ARRB search requests, to search for additional information and Assassination Records as well as to direct agencies to locate lost and missing records as their existence becomes known."

Footnote 62 refers to 65 FR 39550 (June 27, 2000).   This section states:  "The Assassination Records Review Board was established by the John F. Kennedy Assassination Records Collection Act of 1992 (106 Stat. 3443). At the termination of the Review Board on September 30, 1998, its records were transferred to the Archivist of the United States. 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."

 

 

Thanks for that, Bill.  I might add that  NARA has verified your position that it has the power to identify new records and add them to the Collection by asking for recommendations of what to add.

From a 11/17 email to me from NARA:  "The short answer is: yes, we do accept recommendations....If an agency locates assassination records that should have been transferred to the ARRB, it must transfer them to NARA.  If you believe that there may be records outside the custody of NARA that belong in our holdings, we ask that you provide the details to NARA's General Counsel."  

 

I hope you can use that if they try to backtrack.

[Lawrence Schnapf]

roger- can you send Bill and me an image of the email you received from the NARA general counsel? My email is Larry@schnapflaw.com. Bill is bsimpich@gmail.com. tx

[James DiEugenio]

To reply to Lori ,Larry  do you have a court date for mid January?  That is what I heard.