MEMO: DECLASSIFICATION GUIDELINES ESTABLISHED BY THE JFK ASSASSINATION RECORDS COLLECTION ACT OF 1992
Agency: CIA
Originator: CIA
From: CHIEF, HISTORICAL REVIEW GROUP
To: ASST. GENERAL COUNSEL
Document date: 12/14/1992
Document type: PAPER - TEXTUAL DOCUMENT

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JEK ASSASSINATION SYSTEM

IDENTIFICATION FORM

AGENCY INFORMATION

AGENCY : CIA

RECORD NUMBER

104-10331-10019

RECORD SERIES : JEK

AGENCY FILE NUMBER

: PROJFILES-CORRESPONDENCE

DOCUMENT INFORMATION

Released under the John

. Kennedy

Assassination Records

Collection Act of 1992

144 USC 2107 Notel.

Case#:NW 53217 Date:

16-22-2017

AGENCY ORIGINATOR : CIA

FROM : ASST. GENERAL COUNSEL

TO : CHIEF, HISTORICAL REVIEW GROUP

TITLE

: MEMO: DECLASSIFICATION GUIDELINES ESTABLISHED BY THE

JEK ASSASSINATION RECORDS COLLECTION ACT OF 1992

DATE :

PAGES

SUBJECTS :

POSTPONEMENT

JFK ASSASSINATION

JEK ACT OF 92

DOCUMENT TYPE : PAPER

CLASSIFICATION

UNCLASSIFIED

RESTRICTIONS

: 1A

CURRENT STATUS

RELEASED IN PART PUBLIC - RELEASED WITH DELETIONS

DATE OF LAST REVIEW

04/23/03

COMMENTS : JFK-M-16 : F1 : 2000.02.07.14:05:17:857054

[R] - ITEM IS RESTRICTED

104-10331-10019

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OGC-92-53256

14 December 1992

MEMORANDUM FOR:

VIA:

Chief, Historical Review Group

FROM:

SUBJECT:

Litigation Divisi

Robert J. Eatinger, Jr.

Assistant General Counsel

Litigation Division, OGC

Declassification Guidelines Established by the

President John F. Kennedy Assassination Records

Collection Act of 1992

1. The enactment of the President John F. Kennedy

Assassination Records Collection Act of 1992 ("the Act") has

created declassification guidelines that are to some extent

different from the Historical Review Program guidelines

established by the Director of Central Intelligence.

In the

continuing review of material related to the assassination of

President Kennedy, the guidelines established by the Act must be

used.

2. The Act's most fundamental changes are the burden it

creates on agencies to justify continued classification of

information, and a requirement that agencies balance the national

security concerns against the public interest.

Under the Act,

information must be declassified unless a showing is made by

clear and convincing evidence that release of the information

would demonstrably impair the national security.

3. The Act's guidelines for declassification are found in

its Section 6 and are as

follows:

Sec 6.

GROUND FOR POSTPONEMENT OF PUBLIC DISCLOSURE OF

RECORDS.

Disclosure of assassination records or particular

information in assassination records to the public may be

postponed subject to the limitations of this Act if there is

clear and convincing evidence that--

(1) the threat to the military defense,

intelligence operations, of conduct of foreign

relations of the United

States posed by the public

disclosure of the assassination is of such gravity that

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it outweighs the public interest, and such public

disclosure would reveal--

(A) an intelligence agent whose identity

currently requires protection;

(B) an intelligence source or method which

is currently utilized, by the United States

Government and which has not been officially

disclosed, the disclosure of which would interfere

with the conduct of intelligence activities; or

(C) Any other matter currently relating to

the military defense, intelligence operations or

conduct of foreign relations of the United States,

the disclosure of which would demonstrably impair

the national security of the United States;

(2) the public disclosure of the assassination

record would reveal the name or identity of a living

would reveal

person who provided confidential information to the

United

States and would pose a substantial risk to that

oscare i nick to chat

person;

(3) the public disclosure of the assassination

record could reasonably be expected to constitute an

unwarranted invasion of personal privacy, and that

invasion of privacy is so substantial that it outweighs

the public interest;

(4) the public disclosure of the assassination

record

would compromise the existence of an

understanding of confidentiality currently requiring

protection between a Government agent and a cooperating

individual or a foreign government, and public

disclosure would be so harmful that it outweighs the

public interest; or

(5) the public disclosure of the assassination

record would reveal a security or protective procedure

currently utilized, or reasonably expected to be

utilized, by the Secret service or another Government

agency responsible for protecting Government officials,

and public disclosure would be so harmful that it

outweighs the public interest.

4. The Act therefore superseded the guidelines established

for the Historical Review Program to the extent

the Historical

Review Group (HRG) is processing information related to the

assassination of President Kennedy. The specific changes are as

follows.

a. The most basic change is that you must apply a

balancing test before maintaining the classification of any

information.

You must balance continued classification

against the public interest in the information.

Therefore,

the greater light disclosure of the information would shed

on the assassination of the President, or on the

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government's investigation into that assassination, the more

serious must be the need to continue to withhold the

information for classification to be maintained.

b.

HR 70-14.e(2) states the reviewers of information

advocating continued classification of information will bear

the burden identifying any damage that disclosure could

reasonably be expected to cause to the national security.

The Act defines that burden as one of "clear and convincing

evidence."

Further, the Act changes "reasonably could be

expected to cause" to "demonstrably." Therefore, unless a

showing is made by clear and convincing evidence that

release of the information would demonstrably impair the

national security, the information must be declassified.

c.

HR 70-14.e(4) addresses the standards for

maintaining the classification of foreign government

' information, the identity of a foreign source, and

intelligence sources and methods.

It notes that Executive

Order 12,356 presumes that this information is classified.

Under the Act, with respect to these categories of

classified information found with records related to the

assassination of President Kennedy, you must still find

demonstrable damage by clear and convincing evidence

regardless of the presumption in the Executive Order.

Further, with respect to intelligence sources and methods,

the Act

requires that they--

(1) be either currently utilized or reasonably

expected to be utilized by the U.S. Government; and

and

(2) that they not have been officially disclosed;

(3) that their disclosure would interfere with the

conduct of intelligence activities.

All of these factors must be met by a showing of clear and

convincing

evidence.

d. HR 70-14.e(4) also discusses CIA personnel and

The Act only permits the

continued withholding of the identity of an "intelligence

agent" if, by clear and convincing evidence, it can be shown

the person's identity requires protection.

Further, the Act

does not permit the withholding of organizational

information unless, by clear and convincing evidence, it can

be shown the disclosure of the organizational data would

demonstrably impair the national security.

e.

HR 70-14.e(7) states that the HRG will determine

whether information

warrants continued protection pursuant

to statutory or other requirements.

The Act supersedes all

other statutory authority for withholding information except

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for a provision of the Internal Revenue Code dealing with

tax return information.

This

means the Act takes precedence

over 50 U.S.C. § 403(d) (3)

and § 4039, as well as the

Privacy Act, when determining whether to release records

related to the assassination of President Kennedy.

The Act

also makes no provision for protecting information on the

basis of executive privilege, such as deliberative process

and attorney-client communications.

Certain categories of

information may fall into more

than one of the grounds set forth in section 6 of the Act.

We

recommend that you review all of the grounds when determining

whether to release or withhold specific information. For

example, a human intelligence source may fall into grounds (1) (A)

("intelligence agent"), (1) (B) ("intelligence source"), (2)

("living person who provided confidential information to the

United States"), and/or (4) ("understanding of confidentiality

currently requiring protection between a Government agent and a

cooperating individual").

At this point, we do not know how the

Assassination Records Review Board will

interpret each of these

grounds.

Therefore, if you determine the standards of the Act

are met to permit withholding of certain information, you should

assert as many grounds as may arguably apply as authority for

that withholding.

6. Although the Act severely limits what information may be

withheld from disclosure, it may be possible to protect

information not expressly covered by the Act.

However, such

information may be withheld only with the personal authorization

of the President.

When the President signed the Act, he issued a

statement that included the following:

My authority to protect [executive branch

deliberations, law enforcement information of the

executive branch, and national

security information]

comes from the Constitution and cannot be limited by

statute.

Although only the most extraordinary

circumstances would require postponement of the

disclosure of documents for reasons other than those

recognized in the bill, I cannot abdicate my

constitutional responsibility to take such action when

necessary.

7. The Act provides individuals the ability under the

Administrative Procedures

Act to challenge in court final

decisions of the Assassination Records Board. We can expect,

then, court challenges to the Board's decisions to uphold any of

our determinations that certain information meets the criteria

for postponement of release.

Additionally, as you know, there

are FOIA litigations for this same material. Plaintiff's counsel

has indicated in court pleadings and orally that he wants the

court to review our redactions not under FOIA standards, but

under the standards of the Act.

Thus, you should apply the Act's

standards knowing your judgments may be questioned by the Board,'

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.:.

subsequent court challenges to the Board's action, and the FOIA

cases .

8. If you have any questions concerning the application of

the Act to your review of the assassination records, please call

me on secure extension 76105..

Robert J Eatinge

5

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DCI/OGC/RJE: ig

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Distribution:

76105/ 15 Dec 1992

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