[104-10337-10014.pdf — page 36]
# FINAL REPORT OF THE ASSASSINATION RECORDS REVIEW BOARDto the public may be postponed subject to thelimitations of this Act if [agencies provide]clear and convincing evidence that [theharm from disclosure outweighs the publicinterest in release.]a. Review Board guidelines. For each recom-mended postponement, the JFK Act requiresan agency to submit "clear and convincingevidence" that one of the specified groundsfor postponement exists. The Review Boardrequired agencies to submit specific facts insupport of each postponement, according tothe Review Board's guidelines for each post-ponement type.b. Commentary. Although the agenciesargued that the clear and convincing evi-dence standard could besatisfied by a generalexplanation of thoseagencies' positions insupport of postpone-ments, the Review Boarddetermined that the clearand convincing evidencerequirement was a docu-ment-specific one. Thus,the Board required agen-cies to present evidencethat was tailored to indi-vidual postponementswithin individual docu-ments.> I think today a great gulf exists> between people and their> elected officials: Doubts about> this particular matter are a> symptom of that and so I think> the purpose of this hearing is to> ask some questions. Why does> information need to be with-> held? At this moment in time,> what compelling interests: are> there for the holding back of> information? Are there legiti-> mate needs in this respect? Who> and what is being protected?> Which individuals, which> agencies, which institutions are> in the need of protection, and> what national security interests> still remain?> Senator William S. Cohen,> May 12, 1992The JFK Act clearlyrequired agencies to pro-vide clear and convinc-ing evidence in supportof their postponements,but it did not establish amechanism for when andhow such evidence should be presented. Thelegislative history provides a clue as to Con-gress' intent: "[T]o the extent possible, con-sultation with the government offices createsan understanding on each side as to the basisand reasons for their respective recommen-dations and determinations." The ReviewBoard did consult with government offices todetermine fair, efficient, and reasonable pro-cedures for presenting evidence.The Review Board began its review of assas-sination records by considering pre- assassi-nation records on Lee Harvey Oswald. In anattempt to arrive at consistent decisions, theBoard asked the staff to present the recordson an issue-by-issue basis. For example, withFBI records, the Review Board first sched-uled a group of FBI records for review andnotified the FBI of the meeting date at whichit intended to vote on the records. TheReview Board invited the FBI to present itsevidence. Second, the FBI requested that it beallowed to brief the members of the ReviewBoard. At the briefing, the FBI presented itsposition to the Board-both in an oral pre-sentation and in a "position paper." The FBI's"position papers" summarized the FBI's gen-eral policy preferences for continued classifi-cation of certain categories of information.Third, the Review Board staff researchedexisting law on each of the FBI's "positions"and determined that the arguments that theFBI put forth in support of its JFK Act post-ponements were essentially the same argu-ments that the FBI offers to courts for FOIAcases. Of course, in legislating the declassifi-cation standards of the JFK Act, Congressintended for the JFK Act standards-and notthe FOIA standards-to apply. Aware of con-gressional intent, the Review Board rejectedthe FBI's general policy preferences on thebasis that the arguments did not constitutethe clear and convincing evidence necessaryto support a request for a postponementunder section 6. The FBI did appeal theReview Board's decisions to the President,but the Review Board's document-specificinterpretation of the clear and convincingevidence standard ultimately prevailedwhen the vote was withdrawn.i. "Rule of Reason." Of course, some assassi-nation records are of greater interest thanothers. With regard to records that had aclose nexus to the assassination, the ReviewBoard strictly applied the law. For example,the Review Board voted to release in fullnearly all of the information in the FBI's pre-assassination Lee Harvey Oswald file and thebulk of the information in the HSCA's reporton CIA activities in Mexico City-the"Lopez" report-because of the high publicinterest in that material. With regard to theFBI files, the FBI believed that its argumentswere compelling enough to merit appeals tothe President on nearly all of the ReviewBoard's decisions on the pre-assassinationLee Harvey Oswald records. The FBI, theReview Board, the White House Counsel's