The declassification process should have been concluded years ago. The Luna Committee should call John Tunheim and David Marwell to testify about its Final Determinations immediately.

Why Are We Still Declassifying JFK Records?

Critical ARRB Final Determinations Buried and Ignored.

by Andrew A. Iler

House Task Force on the Declassification of Federal Secrets Hearing - April 1, 2025

PART ONE

Overview

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Part One of this two-part series will initially outline a wider sketch of the circumstances that have perpetuated the controversy around the Kennedy assassination and particularly the continuing refusal on the part of the government to release all of the records related to the assassination. Sharper focus and attention will then be drawn to the subjects of the legal framework created by the John F. Kennedy Assassination Records Collection Act of 1992, and the work of the Assassination Records Review Board (ARRB), an independent federal agency with unprecedented authority to issue binding determinations to release or postpone release of assassination records. Part Two of the series, which will be released soon after, will follow the story of what happened to tens of thousands of agency final orders created by the ARRB and how the (mis)handling of these records resulted in decades long and potentially unlawful delays in the disclosure of assassination records as was required by the law.

This lengthy article will hopefully act as a primer for those wanting to understand better how it is that the American public has continued to be denied transparency and the full truth in respect to government-held records regarding one of the most consequential and traumatic events in the history of the nation.

Why are JFK Assassination Records Still an Issue in 2025?

On April 1, 2025, the House Committee on Oversight and Reform’s Task Force on the Declassification of Federal Secrets (“The Luna Task Force”) met for its first public hearing on the JFK assassination and in part to fulfill President Trump’s commitment to release all of the withheld JFK assassination records. This is the first public hearing in respect to the assassination of President Kennedy in more than thirty (30) years. The last time Congress took up the subject of the assassination was in 1992 when it enacted the John F. Kennedy Assassination Records Collection Act in the wake of Oliver Stone’s blockbuster Academy Award-winning film “JFK”.

In recent weeks and months the public’s attention has once again shifted into high gear in regard to the secret JFK assassination records….. but why are we still here asking how it is that the records are still being withheld from the public, when a law unanimously passed by Congress in 1992 mandated that all assassination records were to be released no later than by October 26, 2017?

With Congress re-examining the Kennedy assassination and especially focusing on the issue of government secrecy, the question of exactly how and why JFK assassination records are still being held in secret regarding the murder of President Kennedy should be front and center for the Task Force.

This article will shed light on a mostly unknown, but profoundly important group of legal documents created by the ARRB in the late 1990s that have been buried and ignored at the National Archives for almost 30 years…resulting in potentially thousands of assassination records being withheld from public disclosure, some for almost twenty (20) years beyond their mandated release dates, despite the existence of legal orders being issued specifically requiring their release.

This is the story of the Assassination Records Review Board FINAL DETERMINATIONS.

Introduction

From even the first hours after gunshots rang out across Dealey Plaza on November 22, 1963, one of the dominant and consistent aspects of the investigations of the assassination of President John F. Kennedy, has been the suppression of evidence, witnesses, critical media, and the hordes of records originated by the investigative agencies, commissions and by ordinary citizens. From the dozens of eye and ear witnesses of a Grassy Knoll shooter who were never called to testify; to the medical evidence arising out of the treatment of the President at Parkland Hospital and the subsequent sham autopsy at Bethesda Naval Hospital; to the Zapruder film that was kept under ironclad wraps by Time/Life for over 12 years; to the fact that Clay Shaw was a highly paid asset of the CIA, to senior CIA officer George Joannides’ connections to CIA operations related to Oswald, and Joannides’ later efforts to obstruct the House Select Committee’s investigation into those same operations in the late 1970s; to the suppression of the FBI’s contacts with Jack Ruby as an informant; to the destruction of assassination records by the secret service; the recent revelations that the CIA had a thick file on Lee Harvey Oswald dating back from 1959 and going right up to November 1963; and finally to the tens of thousands of assassination records collected and reviewed by the ARRB that have remained withheld from public disclosure at the National Archives for more than 30 years despite a law passed in 1992 that said all records were to be released by October 26, 2017.

It is the last acts of suppression and obstruction that this article will explore: the poorly understood black hole of non-compliance related to the statutorily mandated periodic review and release of assassination records after the ARRB ceased its operations on September 30, 1998. Thousands of assassination records were ordered released by the ARRB, but have remained withheld by the National Archives.

For over six decades, historians, lawyers, researchers, and the American public have been perplexed by the stubborn refusal on the part of the CIA and other executive agencies to release tens of thousands of records regarding the 1963 assassination of President John F. Kennedy. Which, to this day, have remained hidden in secret files and kept from public disclosure.

The controversy over the JFK records heightened in October 2017, when President Trump issued the first of a series of en masse postponements that have now spanned three presidential administrations. I wrote a previous article for Kennedys and King on the Trump and Biden postponements in July 2023. A link to that article is here.

Through an examination of the legal underpinnings of the work of the ARRB and an unfortunately obscured legal document called an Assassination Records Review Board Final Determination Notification, it should become clear exactly how, when and why tens of thousands of assassination records remained secretly withheld at the National Archives and Records Administration for now over 63 years.

The Assassination Records Review Board

The John F. Kennedy Assassination Records Collection Act, 1992 (“JFK Records Act”), passed unanimously by Congress, created the Assassination Records Review Board. This was an independent federal agency mandated with the unprecedented authority to collect, review and release Kennedy assassination records that had been classified and withheld by both Congress and by executive agencies and departments, such as the CIA, FBI, Secret Service, National Security Agency, Department of Defense, and even the U.S. Postal Service.

The ARRB’s declassification authority was unprecedented because, for the first time, an independent federal agency had the authority to review and release assassination records, with a presumption of immediate disclosure. In the words of Congress in 1992: “most of the records related to the assassination of President John F. Kennedy are almost 30 years old, and only in the rarest cases is there any legitimate need for continued protection of such records.” That was the mindset that Congress created for the ARRB, and the members of the ARRB adopted that mindset between 1994 and 1998 when they performed this historical function.

The ARRB Creates the “Final Determination Notification”

Sections 2 and 3 of the JFK Records Act lay bare the problems of secrecy and over-classification surrounding the JFK assassination records, which the legislation sought to cure. Of particular importance to the drafters of the JFK Records Act was that the statute needed the teeth of enforcement. Section 2(a)(3) of the Act enshrines this critical purpose and sets up the creation of a complete legal framework that mandates an independent federal agency (the ARRB) with the authority to issue enforceable Agency Final Orders.

Section 2(a)(3) of the JFK Records Act

Senate Report 102-328, which attended the passage of the JFK Records Act in 1992, outlined the purposes of the legislation, stating, “The underlying principles guiding the legislation are independence, public confidence, efficiency and cost effectiveness, speed of records disclosure, and enforceability.” [S. Report 102-328, at page 16] The Report further provided that, “Finally, the determinations of the review board are reviewable and enforceable in a court of law.”

During its four years of existence, between 1994 and 1998, the ARRB collected and reviewed several million pages of assassination records. The Board voted on the release or postponement of release of each separate record and/or parts of records when an agency justifiably sought continued postponement based on clear and convincing evidence on the strict criteria mandated by section 6 of the JFK Records Act. The Board met with the federal agencies that were seeking postponements and gave them every opportunity to prove their case of a compelling or legitimate need for postponement more than 30 years after the assassination. The review process was tedious, detailed and thorough.

Section 9(c)(3) of the JFK Records Act required that the ARRB issue a “report” that became known as the “ARRB Final Determination Notification” for each record that it reviewed. Judge John Tunheim, the former Chair of the ARRB, confirmed in an email that, “All of the Board’s determinations were ‘Final Determinations.’ We did not make any determinations about records that did not fit into that category.”

Further, pursuant to section 9(c)(3), each Final Determination was required to contain a description of the actions of the ARRB, including justification for the actions (i.e., postponing the release of a record) and a description of the proceedings of the ARRB relating to the specific record or action. In addition, each Final Determination required the ARRB to indicate a specified time or occurrence following which the associated record or postponement should be reviewed by the Archivist and the originating agency or the date or occurrence when the record or postponement is deemed appropriate for release to the public.

The legal framework created by the JFK Records Act ensures that for each and every assassination record that the ARRB reviewed, an ARRB Final Determination was issued and that each ARRB Final Determination is an Agency Final Order.

Agency Final Orders

Agency final orders (more properly… final agency actions under the APA style) carry legal significance in administrative law. Namely, agency final orders are the final binding legal decisions made by a government agency, much like how a court order operates in the civil or criminal law systems. Agency final orders mark the end of the administrative process with respect to a matter. Once a final order is issued on a matter, a party cannot go back and attempt to re-litigate a dispute before the relevant agency, on the same issue, which has been finally decided. Agency final orders are essential to administrative law processes, because they are supposed to give agencies and affected parties some sense of finality over issues and to provide an enforceable conclusive decision at the end of the process.

Only agency final orders can be appealed. The JFK Records Act recognized this through section 9(d)(1), which provides the originating agency with what amounts to an implicit “appeal” process to the President for any ARRB final decision to release an assassination record. More details on agency “appeals” pursuant to section 9(d)(1) will be discussed in later sections of this article.

One further and very important legal consequence of an agency (such as the ARRB) issuing an Agency final order is that such orders can be enforced by an individual or entity who is seeking to hold a government official or agency to account for non-compliance with statutory and ministerial duties.

In his 1995 analysis of the JFK Records Act [page 16], ARRB Chief Legal Counsel Jeremy Gunn wrote that,

To further complete the legal framework of JFK Records Act and to ensure the Act’s overarching purposes of creating an enforceable and accountable process for the public disclosure of assassination records, Congress made it absolutely clear in sections 11(b) and 11(c) of the JFK Records Act that ARRB Final Determinations were subject to Judicial Review under the Administrative Procedures Act.

Section 11(b)&(c) of the JFK Records Act

Section 7(o)(3) of the JFK Records Act (below) mandates that once the ARRB’s operations come to an end, all of the ARRB’s records are to be transferred to the Archivist to be included in the Collection and that no ARRB record shall be destroyed.

It is indisputable that section 7(o)(3) covers ARRB Final Determinations. The ARRB Final Determination Notifications reflect the final decisions of the ARRB on each and every record reviewed by the Board. They are final agency orders that ensure the enforceable and accountable process intended by Congress. They are not classified or protected in any way by the JFK Records Act. The Archivist should have them organized and readily accessible for anyone wishing to review them through a records request.

In an email dated October 26, 2024, ARRB Legal Counsel Jeremy Gunn confirmed, “... we planned that the wording of the forms be such that even if the record were postponed from release, the form should be subject to release even if the content of the record remained classified. I have a vague memory from an oral statement by Kermit Hall at a Board meeting that the wording on the forms should be preserved so that future scholars could better understand the thinking process that went into decisions to release or postpone. There was no dissent from that observation. Thus, from my understanding and recollection, 100% of the Final Determination forms should be housed at NARA and available for inspection, even if the associated document has not been released.”

ARRB Final Determination Notifications – The Nuts and Bolts

Below is a copy of the first page of the ARRB Final Determination for the assassination record catalogued as Record Identification Number (“RIF”) 104-10015-10385.

Key parts of the Final Determination Notification form are:

1. The Record Identification Number, which associates the Determination with a specific assassination record in the Collection;
2. The date on which the Final Determination was issued by the ARRB, which starts the clock ticking on the appeal period for any disputing agency;
3. The specific section 6 criteria on which the Board has based its decision to postpone a part of a record; and
4. The specific disposition Order of the ARRB, which had to be one of the following four options:
   1. Release In Full;
   2. Review on a specified date or occurrence;
   3. Postpone In Part; or
   4. Postpone in Full

In the example provided above, the Final Determination for RIF# 104-10015-10385, shows that for Postponement #1, the ARRB ordered that the redacted information on the first page of the record was to be periodically reviewed in March 1996, and for Postponement #2, the ARRB ordered the redacted information also on page one of the assassination record to be released in January 2006. When cross-referenced with the actual corresponding assassination record linked here, you can fully appreciate how the ARRB Final Determinations operate. This distinction between orders by the Board for future periodic review versus future release is critical, as will become crystal clear in the rest of this article and in Part Two.

The ARRB took its responsibility to issue Final Determinations quite seriously. The staff and Board Members worked tirelessly and diligently to collect tens of thousands of assassination records from dozens of government agencies and from private holdings. Each record was diligently scrutinized by the originating agencies and the ARRB. Disputes were hammered out between the ARRB and the originating agencies at tedious meetings over a four-year period. An entire computer and software system was created by the ARRB to track the review process to its culmination in an ARRB Final Determination Notification.

Chet Rhodes was the computer specialist who was hired by the ARRB in its formative days, before the agency moved into its permanent secured office. Rhodes was responsible for creating the software and hardware architecture of the ARRB’s Fast Track and Review Track record tracking system, which was built on the Lotus Notes platform. Through this software, the ARRB was able to track critical data regarding the ARRB’s activities and actions on each record and generate reports, including ARRB Final Determination Notifications, which were physically printed and stapled to each assassination record once the Board issued its Final Determination on a record. The Final Determination Notifications were also stored on the system and could be reproduced in both digital and paper formats. Rhodes worked for the ARRB until the very last day of the ARRB’s operations on September 30, 1998. We will hear more about his work later in this article.

The entire point of the computerized review and tracking system used by the ARRB was to culminate in the production of the ARRB Final Determination Notifications. The time and effort invested in this tracking system show the ultimate importance of the ARRB Final Determination Notifications in ensuring that the purposes of the JFK Records Act were fully carried out when the ARRB’s historical work was done.

At page 38 of the ARRB Final Report, it states that,

The Review Board’s most basic task was to review postponements claimed by federal agencies in their assassination records and to vote either to sustain or release the information at issue. The review of claimed postponements consumed more Review Board staff hours than any other task and was the primary focus of most of the Review Board’s interactions with the agencies. The Review Board voted on more than 27,000 documents in which the agencies had requested that the Review Board postpone information. Each of these documents required the attention of a Review Board analyst to shepherd the document through the process of: (1) evaluating the postponed information according to the Board’s guidelines; (2) presenting the document to the Review Board for a vote; (3) recording the Review Board’s vote on the postponed information; (4) notifying the agency of the Review Board’s decision; (5) publishing the decision in the Federal Register; and (6) preparing the document for transfer to the JFK Collection. The Review Board’s review process ensured that it scrutinized each piece of withheld information so that the American public could have confidence that it did not postpone any significant information.

Delays and More Delays

Although the JFK Records Act became law on October 26, 1992, it took until around April 1994 for the full Review Board to be appointed. The JFK Records Act included a sunset clause that ended the ARRB’s mandated term exactly two years after the date of the passage of the Act (which would have been October 26, 1994). Given this unacceptable situation, one of the Board’s first actions was to seek a “resetting of the clock” on its term. Congress passed a revision to the President John F. Kennedy Assassination Records Collection Extension Act of 1994, which established September 30, 1996, as the new termination date for the ARRB. Pursuant to section 7(o)(1) of the Act, the Board quickly authorized a further one-year extension of its term until September 30, 1997.

Further delays due to securing its funding from Congress, and given that the ARRB was a new agency, with no staff, no security clearances, no secured office facilities, no computers or equipment, and no structure for its operations, including there being no statutory definition of an “assassination record”, caused much of the first year of the ARRB’s existence to be spent spinning up the new organization and putting in place the policies, processes and tools they needed to fulfill their mandate. As a result of these additional delays, the Board did not start reviewing records and issuing Final Determinations until June 1995, as is reflected in a June 20, 1995, letter from the ARRB to President Clinton.

Presidential Authority to Override ARRB Final Determinations

At page 9 of the ARRB’s Final Report, the ARRB explains its authority to issue ‘final and binding decisions.

While the JFK Act authorized the Review Board to make final and binding determinations concerning the release or postponement of a record, it provided that the President could reconsider any Board determination: “After the Review Board has made a formal determination concerning the public disclosure or postponement of disclosure of an executive branch assassination record or information within such a record,...the President shall have the sole and non-delegable authority to require the disclosure or postponement of such record or information under the standards set forth in section 6 [of the JFK Act]....” Thus, if agencies disagreed with a Review Board determination to release information in a record, the affected agency could “appeal” to the President and request that he overturn the Review Board’s decision.

Section 9(d)(1) of the JFK Records Act mandated that once the ARRB issued a Final Determination, the President had thirty (30) days to override the ARRB’s Final Order. This means that any agency that wished to dispute an ARRB decision to release a record had only 30 days in which to contest an ARRB release decision to the President.

To be clear, section 9(d)(1) recognizes the President’s sole and non-delegable authority over Executive Branch Records. And while the President had full discretion to order either the postponement or release of an assassination record, the only situation wherein the President would be called into play to exercise his authority under section 9(d)(1) was when/if an agency disputed an ARRB decision to release a record within the time period specified in section 9(d)(1).

If an agency did dispute an ARRB Final Determination, the JFK Records Act imposed, what in law are called “ministerial duties” on the President to issue an unclassified written certification postponing the release of an assassination record, if it was the President’s decision to override the ARRB Final Determination.

The use of the word “shall” in section 9(d)(1) indicates that the President’s duty to issue a written and unclassified certification within 30 days of the ARRB’s Final Determination was a mandatory and non-discretionary (ministerial) duty. If the President failed to issue his certification within the prescribed 30-day period, his authority to override the ARRB Final Determination would lapse.

Also part of the mandatory ministerial or non-discretionary duties explicitly mandated under section 9(d)(1) was that the President’s unclassified written certification had to include both the grounds for postponement under section 6 of the Act and a copy of the Identification Aid form (RIF) for the specific record. Each of these requirements (i.e., the 30-day period, the section 6 grounds for postponement, and the inclusion of an Identification Aid) is an explicit ministerial duty.

Again, to be clear, no one is suggesting that the JFK Records Act was attempting to impede or fetter the President’s discretion to either release or postpone the release of any record. The Act only imposed on the President mandatory non-discretionary ministerial duties that dictated how and when the President exercised his discretion.

The JFK Records Act put the onus and burden on the President to take action within the 30 days prescribed in section 9(d)(1). Further, the JFK Records Act does not require that the ARRB take further steps to confirm the binding legal status of their Final Determinations should the President fail to issue an override certification pursuant to section 9(d)(1).

Section 9(d)(1) was not created to be some kind of trap door for the President to indefinitely frustrate the release of assassination records without any justification or affirmative steps being taken.

All of the above falls into complete alignment with the purposes of the JFK Records Act, which mandates its primary goal as the timely release of assassination records and the creation of an accountable and enforceable process for the release of assassination records, and the availability of judicial review to enforce Final Determinations to release the records in accordance with the Act. It would be an absurdity for Congress to have created a statutory scheme with such clear goals and purposes only to allow for presidential inaction to derail the entire process.

In his Analysis of the JFK Records Act [page 18], ARRB Chief Legal Counsel, Jeremy Gunn, presaged that given the 30-day time period for the President to provide a written certification to release or postpone a record after the ARRB has issued a formal determination,

… it would seem advisable for the Review Board to begin negotiations with the White House for the disposition of records once the Board has made its “formal determination.” It may be that the White House, which no doubt does not want to be distracted from its other duties by confronting the task of a document-by-document review, will be willing [to] adopt a procedure that effectively ratifies the Board's decision within thirty days [after] an agency makes a particularized appeal. The Statute does not seem to require the President to make such an agreement, but it would seem to be consistent with the Statute, to be time and effort efficient, and to spare all parties needless confusion.

In anticipation of reviewing and issuing tens of thousands of Final Determinations, the ARRB recognized that it would simply not be feasible for the President to certify such a potential deluge of records. In order to circumvent this problem, in early June 1995, the ARRB drafted a Memorandum of Understanding (“MOU”) between itself and the President. The recitals in the Memorandum of Understanding (MOU) provide an illuminating interpretation of the statutory requirements of the JFK Records Act with respect to the duties of both the ARRB and the President regarding the ARRB’s Final Determinations. The most important sections of the MOU are copied below.

Whereas the Review Board will be reviewing tens of thousands of executive branch records; and Whereas a document-by-document review of assassination records by the President would be a time-consuming effort; and

Whereas the JFK Act allows the President only “30 days after the Review Board's determination and notice to the executive branch agency . . . stating the justification for the President's decision" [Sec. 9(d)(1)], and;

Whereas the JFK Act requires the President to provide a written “justification for the President's decision, including the applicable grounds for postponement” [Sec. 9(d)(1)] and;

Whereas there is a need to establish an efficient procedure for the review of executive branch assassination records to ensure that both the President and the Review Board properly comply with the letter and the spirit of the JFK Act;

Therefore it is agreed between the President and the Review Board that a protocol should be established to provide for efficient procedures for the review and disposition of the records that the JFK Act presumes will be disclosed and made available to the public.

The Protocol established by the MOU included the following:

1. As provided by the JFK Act, the Review Board will promptly notify the President or his designee once a formal determination has been made to release immediately or to postpone release of information in executive branch assassination records and such notification shall in any event be made no later than 14 days after the decision has been made.
2. The President or his designee shall be informed of all formal determinations by means of a Listing that shall be hand delivered to the White House or to any other location specified by the President or his designee. The Listing shall identify with specificity the documents on which a formal determination has been rendered and the basis for the formal determination.
3. Unless the President, within 30 days of receiving the Listing, makes a specific finding rejecting a Review Board determination with respect to specific assassination records, the Review Board shall be authorized by the President to release assassination records to the National Archives consistent with the Review Board’s prior determinations as recorded on the Listing.
4. For each specific assassination record where the President disagrees with the formal determination of the Review Board, the President shall notify the Review Board, in writing, within 30 days of the date that the Listing is provided to the President.
5. For each specific assassination record where the President disagrees with the formal determination of the Review Board, the President shall explain with specificity the basis for his disagreement so that the explanation can be attached to the record identification form that is to be sent to the National Archives.
6. The President or his designee(s) shall be granted full access to the assassination records at the Review Board's office, 600 E Street, N.W., Washington, D.C.

While no copy of the executed Memorandum of Understanding between the ARRB and the President has been made available by the National Archives or is accessible on any of the popular websites providing archives of assassination records, I was able to obtain copies of internal White House Memoranda regarding the ARRB MOU and the President’s approval of ARRB Final Determinations. These White House documents show that the Chair of the ARRB, John Tunheim, along with Executive Director David Marwell, and ARRB General Counsel Jeremy Gunn, met with Marvin Krislov and Bill Leary of the National Security Council on June 8, 1995, to discuss the ARRB MOU and to seek its approval by the President. The resulting June 17, 1995, memo, addressed to White House Counsel Abner Mikva and then White House Staff Secretary John Podesta, recommended that the White House approve the approach outlined in the ARRB MOU.

A June 27, 1995, Memorandum for the President, authored by National Security Advisor Anthony Lake, Abner Mikva and John Podesta, all recommended that the President approve the ARRB MOU. This Memorandum to the President was stamped “THE PRESIDENT HAS SEEN 7-11-95” and a handwritten note indicates that “President approved 7/11/95”.

The existence of these records showing that President Clinton approved the terms set out in the ARRB Memorandum of Understanding closes the circle tightly on ARRB Final Determinations becoming binding and enforceable legal orders, as will be discussed below.

The ARRB Gets to Work

Once the ARRB Board got down to the business of reviewing assassination records and issuing Final Determinations, it did not take long for disputes to arise between the ARRB and the originating agencies. The FBI, CIA and Secret Service all contested ARRB determinations to the President, with the FBI being the most aggressive agency in disputing ARRB decisions. Not a lot of information is available regarding the agencies’ appeal briefs in these disputes. But ARRB records show that the Board and staff were ready to do battle with the recalcitrant agencies, including fighting the FBI’s efforts to withhold its records pertaining to its pre-assassination files on Lee Harvey Oswald [ARRB Final Report, pp. 46-47]. According to Appendix 5 of the draft ARRB Annual Report for Year 1996 [at page 24], the multiple appeals filed by the FBI in 1995 alone accounted for a ten-month delay in establishing what type of evidence would support continued postponement.

The CIA contested three decisions of the ARRB to the President. A draft letter from the ARRB to President Clinton opposing the CIA’s appeal sheds significant light on the ARRB’s interpretation of the law, particularly section 9(d)(1) of the JFK Records Act and the 30-day appeal period. The draft letter states,

First, it should be noted that this appeal is untimely. The appeal deadline for each of the records at question has long since tolled, and this appeal falls outside any provision of the JFK Act. The CIA’s dire warnings of the serious harm that would follow the release of the information in question lacks credibility if one considers that each of the records could have been released to the public thirty days after the CIA was notified of the Board’s decision. If we are to believe the CIA’s claim of harm, then we must consider their delay in raising the appeal as reckless. [Emphasis added.]

While the final draft of the letter that Judge Tunheim would send to President Clinton softens the language from the earlier draft letter, the message is very clear….. agencies only had thirty (30) days to contest Final Determinations of the ARRB after notice from the ARRB of its decision, and the President was required to issue a written certification of his decision within the same 30 days.

The CIA ended up withdrawing all of its appeals, and so did the FBI and all other agencies.

In the end, the President did not overturn or override any of the ARRB’s Final Determinations. Once the 30-day period passed without the President taking any steps to exercise his authority pursuant to section 9(d)(1), the ARRB Final Determination became the final and binding legal order governing the disposition of the subject assassination record.

Therefore, all of the ARRB Final Determinations stand as binding Agency Final Orders, and by law, the Archivist and NARA were required to comply with those final agency orders without delay.

THE ARRB’s FINAL DETERMINATIONS ARE THE LAW REGARDING THE RELEASE AND PUBLIC DISCLOSURE OF ASSASSINATION RECORDS.

The Race to Issue Tens of Thousands of ARRB Final Determinations

The JFK Records Act only initially provided for a two-year term for the ARRB to complete its work, although the Board had the option to extend its mandate by an extra year. However due to a year and a half delay in appointing the Board members (as discussed above), by the end of 1995, the ARRB had only issued a few hundred Final Determinations, most of these were “Consent Release” decisions.

The ARRB Board exercised its option to extend its term by an additional year, which would allow it to continue its work until the fall of 1997.

At the start of 1996, the clock was already quickly ticking down on the expiry of the ARRB’s temporary mandate, and the pressure was mounting to complete the job of reviewing and issuing Final Determinations for tens of thousands of assassination records.

On January 29, 1996, ARRB Executive Director David Marwell sent the Board Members of the ARRB a Memorandum “The State of the Board,” in which he provided the Board Members with something of a reality check in regard to the status of their progress. He wrote:

We will have to review at a rate that will exceed an average of 1100 records for each of the next eight months. As daunting as these numbers appear, they pale in comparison to the review rate that will need to be reached in the Board’s last year if we are to succeed in reviewing the remaining estimated 66,000 records from the CIA’s Sequestered Collection and the FBI’s HSCA Collection. One thing is absolutely certain: we cannot achieve these review rates and complete our mandate unless we make changes in the way we conduct our business.

In June 1997, the ARRB circulated an internal memo to its staff titled the “ARRB Final Determination Form Project”. Dated June 16-18, 1997, this brief memo (below) demonstrates that the ARRB’s productivity in issuing Final Determinations was in full swing, and that staff were being actively tasked with physically attaching copies of the ARRB Final Determinations to each assassination record, before the records were transferred over to the National Archives to be entered into the JFK Assassination Records Collection. A copy of the full Memo is immediately below.

The Final Days of the ARRB

On September 22, 1998, Peter Voth, who was an Analyst and Computer Specialist at the ARRB, wrote an email that was distributed to all staff at the ARRB (September 22, 1998, was only 8 days before the ARRB’s final day of operations). In his email, Voth stated the following:

 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, so that these critical legal orders could be attached to the assassination records and transferred to the National Archives before the ARRB ceased to exist. This operation had to take place at the last minute in order to meet the ARRB’s mandated termination date.

According to Chet Rhodes, the ARRB Board and staff worked feverishly reviewing records and issuing Final Determinations right to the very last hours on its final day of operations on September 30, 1998, before the Agency was shuttered and its lights turned off for good. This is supported by notes to the last meeting in the ARRB Federal Register Publication dated October 6, 1998. This was the final meeting of the Board, happening on September 28, 1998, with numerous Final Determinations having been issued that day. This Federal Register entry advises that individual document-by-document determinations can be obtained by contacting Eileen Sullivan at the ARRB.

Rhodes further explained that it was largely his responsibility at the end of the ARRB’s operations to manage the winding up of the agency’s computer and records system so that core parts of it could be safely and securely transferred over to the National Archives, which was to assume responsibility for the management of the continuing periodic review and release of the records--in accordance with the ARRB Final Determinations mandated by section 5(g)(1) of the JFK Records Act.

In fulfilling his responsibilities to wind up and transfer the ARRB computer system, Rhodes advised that he prepared 2-3 computers and the servers to contain all of the software and data from the ARRB’s system, including the full Lotus Notes tracking system which held all of the ARRB Final Determinations, along with all of the other records, communications, and materials created by the ARRB and stored electronically during its operations. He packaged up the entire system, along with back-up copies of the data, before it was transferred to the National Archives, along with a detailed memo that Rhodes had prepared for the Archives staff, so that they could continue to operate the tracking system and comply with the ARRB Final Determinations. The rest of the ARRB’s computers were decommissioned in keeping with government policies.

Rhodes also ensured that the National Archives had his contact information so that he could continue to consult with them about using and maintaining the tracking system. Much to Rhodes’s surprise and disappointment, the National Archives never reached out to him.

Conclusion of Part One

The ARRB was clearly under extreme pressure to complete its mandate by its sunset date of September 30, 1998, and it was pushing records and determinations out the door right up to the last minute. The Final Determinations were the pinnacle of the ARRB’s work and the embodiment of the purpose of the JFK Records Act to create an accountable and enforceable process for the public disclosure of all Kennedy assassination records.

The American public demanded accountability and transparency from its government with respect to the JFK assassination. Congress responded by passing the John F. Kennedy Assassination Records Collection Act in 1992. Congress further authorized significant funding for the Assassination Records Review Board to undertake and complete the gargantuan task of collecting and reviewing millions of pages of records, but more importantly…. Issuing tens of thousands of legal agency final orders dictating the final disposition and release of each of these records.

Given the resources invested in the project, as outlined in the pages above, it would be reasonable to believe that the government ensured that the work of the Assassination Records Review Board would receive a high level of care and scrutiny by Congress, and also by the agency mandated with the duty to maintain the JFK Assassination Records Collection and implement the orders contained in each ARRB Final Determination.

In Part Two of this story, we will learn what actually happened to the ARRB Final Determinations and how much of the ARRB’s work was thwarted once the National Archives gained full control over the periodic review and release processes mandated by the JFK Records Act. Part Two will conclude with legal recommendations on what current Congressional Oversight Committees and Task Forces can do to ensure that all ARRB Final Determination Forms are located, properly archived, and fully complied with in accordance with the ARRB’s final agency orders for release of assassination records.

(Part Two will be available soon)