The Board plans to announce a final version of this definition during their upcoming visit to Boston's JFK Library, or at ongoing public hearings on the topic of locating records scheduled for March 24 at the Boston State House. The final version adopted will have the weight of law, and will implement the Act in all dealings between the Board and the agencies required to released records.
From the Federal Register, Volume 60, #26, pp. 7506-8:
Assassination Records Review Board
(36 CFR Part 1400)
Guidance on interpreting and implementing the President John F. Kennedy Assassination Records Collection Act of 1992.
Agency: Assassination Records Review Board (ARRB).
Action: Proposed interpretive regulation.
Summary: The ARRB proposed to issue regulations providing guidance on the interpretation of certain terms defined in and the implementation of the President John F. Kennedy Assassination Records Collection Act of 1992.
Dates: To be considered, comments must be received on or before March 10, 1995.
Addresses: Comments should be mailed to the Assassination Records Review Board at 600 E Street, NW, Second Floor, Washington, DC 20530 or delivered in person to that address between the hours of 9:30 a.m. and 4:30 p.m., Monday through Friday (except legal holidays). Comments may also be faxed to the Board at (202) 724-0457. Comments received may be inspected in the Board's public reading room, located at the address shown above, between 10 a.m. and 3 p.m. Monday through Friday (except legal holidays). Persons wishing to inspect comments in the Board's public reading room should call the Board's office beforehand at (202) 724-0088 for further information.
For further information contact: Sheryl L. Walter (General Counsel), (202) 724-0088.
In constructing the proposed guidance set out here, the Board seeks to implement congressional intent that the JFK Collection contain "the most comprehensive dos closure of records related to the assassination of President Kennedy." Id.a] 18. Board is also mindful of Congress's instruction that the Board apply a "broad and encompassing" working definition of "assassination record" in order to achieve the goal of assembling the fullest historical record on this tragic event in American history and on the investigations that were undertaken in the assassination's aftermath. The Board recognizes that many agencies have already begun to organize and review records responsive to the ARCA even before the Board was appointed and began its work. Nevertheless, the Board's aim is that this guidance will aid in the ultimate assembly and public disclosure of the fullest possible historical record on this tragedy and on subsequent investigations and inquiries into it.
The Board's proposed guidance is designed to help government agencies and the Board identify and make available to the public all documents that will enhance, enrich, and broaden the historical record of the assassination of President John F. Kennedy. The Board seeks through this guidance to fulfill Congress's "inten[t] and emphasis that the the search and disclosure of records under this Act must go beyond" the records of previous commissions and committees established to investigate President Kennedy's assassination. Id. at 21. The Board also seeks to provide notice of the scope of its intended exercise of authority to seek additional information or records in order to fulfill its functions and responsibilities under the ARCA.
In addition, the Board proposes to create a mechanism to facilitate the Board's ongoing work and to further ensure future public access to the broadest possible historical record. This mechanism will be known as the "Catalog of Assassination Records" (COAR). The COAR is intended to be an official listing of all records determined by the Board to meet the definition of "assassination record" and included in the JFK Collection.
Request for Comments
The Board seeks public comment on its proposed interpretive regulations intended to provide guidance on the interpretation of the term assassination record, the intended scope of its exercise of authority to seek additional information or records, and its additional proposals for implementation of the ARCA.
List of Subjects in 36 CFR Part 1400
Administrative practice and procedure, Archives and records.
Accordingly, the Assassination Records Review Board hereby proposes to establish a new chapter XIV in title 36 of the Code of Federal Regulations to read as follows:
Chapter XIV -- Assassination Records Review Board
Part 1400 -- Guidance for Interpretation and Implementation of the "President John F. Kennedy Assassination Records Collection Act of 1992" (ARCA)
Section
1400.1 Interpretation of assassination record.
1400.2 Interpretation of additional records and information.
1400.3 Sources of assassination records and additional records and information.
1400.4 Types of materials included in scope of assassination record and additional records and information.
1400.5 Requirement that assassination records be released in their entirety.
1400.6 Originals and copies.
1400.7 Additional guidance.
1400.8 Implementing the ARCA -- Catalog of Assassination Records.
Authority: 44 U.S.C. 2107 note.
1400.1 Interpretation of assassination record.
(a) An assassination record includes, but is not limited to, all records, public and private, regardless of how labeled or identified, that document, describe, report, analyze, or interpret activities and events that may have led to the assassination of President John F. Kennedy; the assassination itself; and investigations of or inquiries into the assassination.
(b) An assassination record further includes without limitation:
(1) All records as defined in Sec. 3(2) of the ARCA;
(2) All records collected by or segregated by all federal, state, and local government agencies in conjunction with any investigation or analysis of or inquiry into the assassination of President Kennedy (for example, any intra-agency investigation or analysis of or inquiry into the assassination; any inter-agency communication regarding the assassination; any request by the House Select Committee on Assassinations to collect documents and other materials; or any inter- or intra-agency collection or segregation of documents and other materials);
(3) Other records or groups of records listed in the Catalog of Assassination Records, as described in 1400.8 of this chapter.
1400.2 Interpretation of additional records and information
The term additional information and records includes:
(a) All documents used by government offices and agencies during their declassification review of assassination records as well as all other documents, indices, records, and other material that disclose cryptonyms, code names, or other identification material in assassination records.
(b) All training manuals, instructional materials, and guidelines created or used by agencies in furtherance of their review of assassination records.
(c) All records, lists, and documents describing the procedure by which the agencies identified or selected assassination records for review.
(d) Organizational charts of government agencies.
(e) Records necessary and sufficient to describe the agency's:
(1) Records policies and schedules;
(2) Filing systems and organizations; and
(3) Storage facilities and locations.
1400.3 Sources of assassination records and additional records and information.
Assassination records and additional records and information may be located at, or under the control of, without limitation:
(a) Agencies, offices, and entities of the executive, legislative, and judicial branches of the federal government;
(b) Agencies, offices, and entities of the executive, legislative, and judicial branches of state and local governments;
(c) Record repositories and archives of federal, state, and local governments, including presidential libraries;
(d) Record repositories and archives of universities, libraries, historical societies, and other similar organizations;
(e) Individuals who possess such records by virtue of service with a government agency, office, or entity;
(f) Persons, including individuals and corporations, who have obtained such records from sources identified in paragraphs (a) through (e) of this section;
(g) Federal, state, and local courts where such records are being held under seal; or
(h) Foreign governments.
1400.4 Types of materials included in scope of assassination record and additional records and information.
The term record in assassination record and additional records information includes, for purposes of interpreting and implementing the ARCA:
(a) papers, maps, and other documentary material;
(b) photographs;
(c) motion pictures;
(d) sound and video recordings;
(e) machine readable information in any form; and
(f) artifacts.
1400.5 Requirement that assassination records be released in their entirety.
An assassination record shall be disclosed in its entirety except for portions specifically postponed pursuant to the grounds for postponement of public disclosure of records established in Se. 6 of the ARCA, and no portions of any assassination records shall be withheld form public disclosure solely on grounds of non-relevance.
1400.6 Originals and copies.
(a) For purposes of determining whether originals or copies of assassination records may be made part of the President John F. Kennedy Assassination Records Collection (the JFK Records Collection) to be established under the ARCA:
(1) In the case of papers, maps, and other documentary material, the Assassinaton Records Review Board (the Board) may determine that a true and accurate copy of the original is sufficient;
(2) In the case of photographs, the term record means the original negative if available, otherwise, the earliest generation print;
(3) In the case of motion pictures, the term record means the camera original if available, otherwise, the earliest generation print;
(4) In the case of sound and video recordings, the term record means the original recording, if available, otherwise, the earliest generation copy;
(5) In the case of machine-readable information, the Board may determine that a true and accurate copy of the original is sufficient; and
(6) Artifacts means the original object itself.
(b) In cases where a copy, as defined in paragraph (a) of this section above, is authorized by the Board to be included in the JFK Records Collection the Board may, at its discretion, require a certified copy. In cases where an original, as defined in paragraph (a) of this section, is required for inclusion in the JFK Records Collection the Board may, at its discretion, accept the best available copy.
1400.7 Additional guidance.
(a) A government agency, office or entity includes, for purposes of interpreting and implementing the ARCA, all departments, agencies, offices, divisions, foreign offices, bureaus, and deliberative bodies of any federal, state, or local government and includes all inter- or intra-agency working groups, committees, and meetings that possess or created records relating to the assassination of President John F. Kennedy.
(b) The inclusion of artifacts in the scope of the term assassination record is understood to apply solely for purposes of establishing the President John F. Kennedy Assassination Records Collection and for fully implementing the terms of the ARCA and has no direct or indirect bearing on the interpretation or implementation of any other statute or regulation.
(c) In the case of artifacts deemed to be assassination records and included in the John F. Kennedy Assassination Records Collection, provision to the public of photographs, drawings, or similar materials depicting the artifacts shall be sufficient to comply with the ARCA's requirements that copies of assassination records be provided to the public upon request. Other display to or examination by the public of artifacts in the John F. Kennedy Assassination Records Collection shall occur under terms and conditions established by the National Archives and Records Administration that are adequate to preserve and protect the artifacts for posterity.
(d) The terms and, or, any, all and the plural and singular forms of nouns shall be understood in their broadest and most inclusive sense and shall not be understood to be terms of limitation. Any records identified with respect to a particular person also includes any records for that person by any other name, pseudonym, codeword, symbol, number, cryptonym or alias. Any record described with respect to an operation or program includes any record pertaining to that program by any other name, pseudonym, codeword, symbol, number or cryptonym.
1400.8 Implementing the ARCA -- Catalog of Assassination Records
(a) A Catalog of Assassination Records (COAR) shall be created as the official listing of all records determined by the Board to meet the definition of assassination record.
(b) Notice of all decisions to include records in the COAR will be published in the Federal Register within 30 days of the decision.
(c) In listing records or groups of records in the COAR, the Board must determine that the record or group of records will more likely than not enhance, enrich, and broaden the historical record of the assassination.
Dated: February 3, 1995
David G. Marwell
Executive Director
Assassination Records Review Board
Coalition member organizations, AARC and COA, and other researchers are concerned that the [preceding] proposed language is too narrow in defining related records, and does not completely track the language of the law itself. Although included by inference, records of foreign government and government contracting companies are not mentioned specifically. Both groups noted that the list of related names being used by agencies in their document search falls short of the names of people and organizations in the various literature, indexes and databases compiled by assassination researchers over the years.
Jim Lesar submitted a lengthy letter to the Board expressing concern that the language of the proposed definition ("activities and events that may have led to the assassination") may be used by various agencies to rely on a very narrow causality standard, that may limit released to documents concerning Lee Harvey Oswald, the official lone assassin whose "activities" are sen as the sole cause of Kennedy's murder. The following is excerpted from his comments:
I have three primary concerns with the phrase "that may have led to." First, this phrase establishes a causation test which narrows the definition considerably...Second, the definition is also limited in that it pertains only to "activities and events"...; it does not include "persons and organizations" who have figured in the various investigations of the assassination. Third, the definition also fails to make clear that it includes records related to government programs and operations which my assist in understanding...the Kennedy assassination controversy. In my opinion, all three of these omissions are constraints which can greatly limit the universe of records which will become part of the JFK Collection...[T]he definition set for in Section 1400.1(a) should be modified as follows:
An assassination record includes, but is not limited to, all records, public and private, regardless of how labeled or identified, that document, describe, report, analyze, or interpretWith respect to my first point...I note that these regulations are to be implemented in the first instance by agencies which for the past three decades have been unrelenting in their indifference or hostility towards inquiries about the assassination of President Kennedy. Even conceding that a bureaucratic leopard may change its spots, it is not likely to do so readily. Defining "assassination record" in terms of a causation test invites the agencies to adopt a restrictive view of the scope of this term. This has in fact been the past history of the FBI and the CIA, which have tried to define this term so as to exclude records made available to the House Select Committee on Assassinations in connection with its probe into the Kennedy assassination...
(a) activities and events that may shed light on the assassination of President John F. Kennedy or any investigations or inquiries related thereto;
(b) persons or organizations which figure in any official or unofficial investigation of the assassination and the published literature relating thereto; and
(c) all programs or operations which may shed light on the events, activities, persons and organizations which come within the scope of Section 1400.1(a) and (b).
One consequence of the "may have led to" language is that it seemingly excludes "activities and events" which occurred subsequent to the assassination [and which] might shed some light on it, revealing, for example, aims, objectives, strategies, modus operandi, personal and organizational relationships, and other matters germane to the controversies which have arisen concerning persons, organizations or forces allegedly behind the assassination. As presently written, the definition might exclude "events and activities" pertaining to Watergate because this event occurred long after the assassination. Yet some of those involved in Watergate have also figured in the Kennedy assassination controversies, and have been investigated in connection with it...
Many matters which are pertinent to and enhance historical understanding have nothing to do with causation, at least in the narrow legal sense of the word. I believe Congress recognized this when it declared its intent that the JFK Collection contain "the most comprehensive disclosure or records related to the assassination of President Kennedy," ...and when it instructed the Board to apply a "broad and encompassing" working definition of "assassination record" in order "to achieve the goal of assembling the fullest historical record of this tragic event in American history and the investigations that were undertaken in the assassination's aftermath."
I do not suppose for a moment that records related to the activities of David Phillips, E. Howard Hunt, John Martino or Johnny Roselli in connection with the overthrow of the Arbenz regime in Guatemala in 1954 could be characterized as records which relate to "activities or events" which "may have led to" the assassination of President Kennedy...This example is partly factual, partly hypothetical. The involvement of Hunt and Phillips in the overthrow of the Arbenz regime is well known. I am not aware of any evidence linking either Roselli or Martino to the Arbenz coup. The best that can be said is that is has been asserted that Roselli's link to the CIA traces back to Guatemala right after the Arbenz overthrow, and that Martino was allegedly involved in selling guns and bulletproof vests to the Guatemala right after the Arbenz overthrow., and that Martino was allegedly involved in selling guns and bulletproof vests to the Guatemala government at some unspecified time. Another person of interest to Kennedy assassination researchers, William George Gaudet, apparently also played a role in the ouster of the Arbenz regime. See Schlesinger, and Stephen Kinzer, Bitter Fruit: The Untold Story of the American Coup in Guatemala (Garden City, NY: Anchor Books, 1983), p. 82. In New Orleans, on September 17, 1963, the same day that Lee Harvey Oswald applied for a "tourist card" to go to Mexico, Gaudet was also issued a tourist card, the one immediately preceding Oswald's. See Summers, Anthony, Conspiracy: The Definitive Book on the JFK Assassination (New York, Paragon House, 1989), pp. 335-338.
My second concern is...that the definition...omits persons and organizations of interest to Kennedy assassination researchers...It is obvious from...the records of [the] Warren Commission and the House Select Committee on Assassinations that much valuable information is derived from government records that are maintained on persons and organizations rather than on activities or events. Indeed, in many agencies--the FBI and the CIA, to name two--huge amounts of information are in filing systems that are organized according to individuals and organizations...
It is critical to study of the assassination that all records in possession of the Government regarding certain persons and organizations who figure in the Kennedy assassination literature be made available to researchers...[T]his problem may be solved to a large extent by reliance on two indices which have been compiled by students of the assassination. These are (1) the Meagher-Owens index to the Warren Commission and the House Select Committee on Assassinations, an (2) the Meek index to Kennedy assassination literature. Because these indices do not cover literature published after 1980, they should be updated...
[T]he phrase "events and activities" may not be construed as including "programs and operations." ...The crux of the problem, as I see it, is that it is no longer possible to write authoritatively about many matters of historical importance, including the assassination of President Kennedy, without taking intelligence factors into account. as a consequence of the exigencies created by World War II and the Cold War, the American people ceded substantial political sovereignty to intelligence agencies which conducted all manner of operations shrouded in deepest secrecy. Such agencies were, by and large, unaccountable for their activities. Now, the operations and personnel of such agencies have become embroiled in the Kennedy assassination controversies. In order to understand this complex secret world and whatever relationship it may--or may not--have to the assassination of President Kennedy, it is necessary to divulge the full record of programs and operations which pertain to...the Kennedy assassination literature. Nothing short of this will suffice to quench the thirst for truth on this subject and to end cascading speculation.
* * *