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104-10331-10071 JFK Assassination Records Archives 1 (6/14/1995)

handle is hein.jfk/jfkarch47943 and id is 1 raw text is: 104-10331-10071
                                                               ADMINISTRATIVE -   INTERNAL   USE ONLY



                                                           From the Desk of Robert J. Eatinger




                   NOTE  FOR:         J. Barry Harrelson @ DA
                   FROM:               Robert J. Eatinger
                   DATE:              06114195  06:14:47 PM
                   SUBJECT:           ARRB   Questions


                   The JFK Assassination Records Review Board (ARRB)  has indicated that they wish to take possession of the original records from CIA in
                   order to conduct their review of the postponements sought by the Agency those records. Further, the ARRB has stated that the JFK Act
                   (44 USC 2107  note) gives them the responsibility for transferring records to the National Archives and Records Administration, not the
                   originating agency. You asked me to review the JFK Act and comment on these positions.

                   The JFK Act provides that the original records are to.be held by the originating agency unless physical transfer is required to let the Board
                   do its job. The Act states at section 9(a):

                             Pending the outcome of the Review Board's review activity, a Government
                             office shall retain custody of assassination records for purposes of preservation,
                             security, and efficiency, unless--

                                (1) the Review Board requires the physical transfer of records for reasons of
                              conducting an independent and impartial review; or

                                (2) such transfer is necessary for an administrative hearing or other official
                                Review Board function.

                   You should see also Section 5(b) of the Act which reposes in the originating agencies the responsibility to retain assassination records
                   pending review activity by the ARRB.

                   I understand that the Board believes that the process of it coming to CIA to review the records may not be working well. It may then be
                   arguing that it cannot adequately perform its function of reviewing unless it has the records. Unfortunately, if the Agency disagrees for
                   security reasons, there is no arbiter set forth in the Act.

                   On the second issue, the JFK Act is clear. The Board does not transfer records to NARA. The powers of the Board are set forth in
                   section 7(j) of the Act. In that section, the Board has the power to direct Government offices to transmit to the Archivist assassination
                   records as required under this Act... Further, Section 9(c), which discusses determinations of the Board provides that (1) The Review
                   Board shall direct that all assassination records be transmitted to the Archivist and disclosed to the public in the Collection in the absence
                   of clear and convincing evidence that ... Section 5(e) of the JFK Act provides the actual responsibility to transfer records to NARA to the
                   originating agencies, not to the ARRB.

                   Section 7(i) sets forth the duties of the Review Board and it does not list the transfer of assassination records to NARA. Its duties are
                   only to render decisions whether records are assassination records under the Act, and whether information in an assassination record
                   qualifies for postponement under the Act.

                   Thus, if the ARRB is arguing that it must take custody of the original records in order to meet its duty to transfer those records to NARA
                   it is wrong. The statute clearly contemplates that the records remain with the originating agency in normal circumstances and only that
                   the ARRB  can direct its transfer once it has ruled on postponements.

                   CC:                           @ DCI


ADMINISTRATIVE -   INTERNAL  USE  ONLY

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