[104-10337-10014.pdf — page 33]
# CHAPTER 5: THE STANDARDS FOR REVIEW: REVIEW Board "ComMON LAW"Board found that “agency heads” tended to be quite reluctant to release their agencies’ secrets. The Executive Order, while well-intentioned, failed to provide for any independent review of “agency heads'” decisions on declassification. Thus, although the Executive Order’s standards for declassification appeared to be disclosure-oriented, the Executive Order failed to hold agency heads accountable for their decisionmaking.The JFK Act did require agencies to account for their decisions. To ensure such account-ability, Congress included four essential provisions in the JFK Act: *first*, the JFK Act presumed that assassination records may be released; *second*, the JFK Act stated that an agency could rebut the presumption of dis-closure only by proving, with clear and convincing evidence, that disclosure would result in harm and that the expected harm would outweigh any public benefit in the disclo-sure; *third*, the JFK Act created an independent agency—the Review Board—whose mandate was to ensure that agencies respected the presumption of disclosure and honestly pre-sented clear and convincing evidence of the need to protect information; and *fourth*, the JFK Act required agencies to provide the Review Board with access to government records, even when those records would not become part of the JFK Collection. Without these accountability provisions, the JFK Act would not have accomplished its objective of maximum release of assassination records to the public. So, while the FOIA and the Executive Order each expressed the goal of obtaining maximum disclosure, the JFK Act ensured that the goal would be met. The two accountability provisions that relate directly to the Section 6 grounds for postponement—the presumption of release and the standard of proof—are discussed in detail below. The third provision discussed below is the Review Board’s obligation to balance the weight of the evidence in favor of postpone-ment against the public interest in release.a. JFK Act presumes disclosure of assassination records.The most pertinent language of the JFK Act was the standard for release of information. According to the statute, “all Government records concerning the assassination of President John F. Kennedy should carry a pre-sumption of immediate disclosure.”[^14] The statute further declared that “only in the rarest cases is there any legitimate need for continued protection of such records.”[^15]b. JFK Act requires agencies to provide clear and convincing evidence.If agencies wished to withhold information in a document, the JFK Act required the agency to submit clear and convincing evidence that the informa-tion fell within one of the narrow postponement criteria.[^16]Congress selected the clear and convincing evi-dence standard because “less exacting standards, such as substantial evi-dence or a preponder-ance of the evidence, were not consistent with the legislation’s stated goal” of prompt and full release.[^17] The legislative history of the JFK Act emphasized the statutory require-ment that agencies provide clear and con-vincing evidence.There is no justification for perpetual secrecy for any class of records. Nor can *the withholding of any individual record be justified on the basis of general confidentiality concerns applicable to an entire class*. Every record must be judged on its own merits, and every record will ultimately be made available for public disclosure.[^18]When agencies did present to the Review Board evidence of harm that would result from disclosure, it had to consist of more than speculation.The [Review] Board cannot postpone release because it might cause some conceivable or speculative harm to national security. Rather in a democracy the demonstrable harm from disclosure must be weighed against the benefits of release of the information to the public.[^19]The Review Board’s application of the clear and convincing evidence standard is covered in more detail in Section B of this chapter.[^14]: The bill creates a strong presumption on releasing documents. The onus will be on those who would withhold documents to prove to the Review Board and the American people why those documents must be shielded from public scrutiny.-Senator John GlennMay 12, 1992[^15]:[^16]:[^17]:[^18]:[^19]: