JFK assassination records challenge revamped at Ninth Circuit

(CN) — Researchers interested in the 1963 assassination of President John F. Kennedy reignited a challenge to the National Archives and Records Administration at the Ninth Circuit Court of Appeals on Wednesday.

The Mary Ferrell Foundation, a Massachusetts-based nonprofit that maintains the largest searchable electronic collection of materials on Kennedy’s assassination, accuses the federal agency of violating the John F. Kennedy Assassination Records Collection Act of 1992 by withholding the release of certain records without explanation.

The foundation sued President Joe Biden and the National Archives in 2022. U.S. District Judge Richard Seeborg, a Barack Obama appointee, denied its motion for a preliminary injunction and dismissed most of its claims in late 2022 and early 2023.

Seeking to reverse those orders, the foundation argues that the Kennedy Act was passed to bridge a gap that excludes some records from the Freedom of Information Act.

“Many, many documents were released due to the good work of this body by 1998. But there were problems,” Oakland-based attorney William Simpich said.

Those problems Simpich identified included missing documents and standards that weren’t adhered to.

U.S. Circuit Judge Eric D. Miller, a Donald Trump appointee, pointed out that the Kennedy Act has its own exclusions, specifically for records that threaten defense, intelligence or foreign relations.

“Here we have a determination by the president almost in precisely those terms that says the remaining records meet that exception. What do you want us to do with that?” Miller asked.

Simpich said the court should take a liberal reading of the exceptions outlined in the act and make it clear why a particular record remains unreleased, as had been the case until 2017 when then-President Donald Trump issued a memorandum instructing the National Archives to temporarily postpone the public disclosure of some unidentified records for six months —just before the statutory deadline to put out the remaining secret assassination records.

The postponement was extended for another three and a half years. In 2021, President Joe Biden issued an executive memorandum continuing the delay.

“The president is free to make a decision about national security or law enforcement,” Simpich said. “All we’re asking is that he or she state what it is.”

The Mary Ferrell Foundation argues that the government is required to undertake a periodic record-by-record review and the president is must state the specific reason a record is being withheld.

“They did that until 2017. Now the government is taking the position that this is not necessary anymore, and we’re saying it’s just as necessary as it ever was,” Simpich said.

Though Biden was originally named as a defendant in the lawsuit, the lower court dismissed him from the case in its original order.

“It’s not seemly in most instances to be seeking an injunction against the president, but we can seek an injunction against [the National Archives] and that’s the option we’re taking today,” Simpich said.

The foundation is asking for an injunction against the National Archives barring it from withholding records under Biden’s executive memorandum.

“The purpose of the act is to get these documents out as fast as we can — and, if you can’t do it now, say what the problem is and don’t take it off the president’s desk,” Simpich said.

Part of the information the foundation seeks relates to witnesses of the assassination, whose identities have long been concealed and who are reaching old age at this point. Simpich also argued that records previously excluded as national security threats have been released and generally had to do with U.S.-Mexico relations.

“Foreign relations with Mexico are important,” Judge Miller said.

Simpich argued in response that not everything classified as a security concern comprises an actual threat. “Most of these things are often embarrassing, not national security,” he said.

In a response that lasted just 30 seconds, U.S. Justice Department attorney Jack Starcher directed the panel to the National Archives’ briefing and said the lower court didn’t abuse its discretion before soliciting questions from the judges.

With no questions for Starcher, the panel turned back to Simpich.

“I can’t rebut that,” Simpich said.

The panel took the matter under advisement and did not indicate when it would rule.