[Federal Register Volume 60, Number 169 (Thursday, August 31, 1995)]
[Rules and Regulations]
[Pages 45335-45338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21450]
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ASSASSINATION RECORDS REVIEW BOARD
36 CFR Part 1405
Rules Implementing the Government in the Sunshine Act
AGENCY: Assassination Records Review Board.
ACTION: Final rulemaking.
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SUMMARY: The Assassination Records Review Board (Review Board) was
established by the President John F. Kennedy Assassination Records
Collection Act of 1992 (JFK Act). This final rulemaking will constitute
the Review Board's second rulemaking. All of the Review Board's
regulations will eventually be codified at 36 CFR part 1400 et seq.
This rulemaking is undertaken in response to the Government in the
Sunshine Act (Sunshine Act). The Sunshine Act relates to meetings of
agencies of the United States government that are headed by collegial
bodies composed of two or more members, a majority of whom are
appointed by the President with the advice and consent of the Senate.
The Act provides that meetings, as defined in the Sunshine Act, shall
be held in public except where stated exemptions apply.
EFFECTIVE DATE: These regulations are effective October 2, 1995.
FOR FURTHER INFORMATION CONTACT:
T. Jeremy Gunn, Acting General Counsel, Assassination Records Review
Board, 600 E Street, N.W., 2nd Floor, Washington, D.C. 20530, (202)
724-0088.
SUPPLEMENTARY INFORMATION:
Background
To discharge its responsibilities, the Review Board gathers as a
collegial body at its Washington, D.C., office and at other locations
as appropriate. Since the Review Board, including its staff, is a small
agency, Review Board Members work both personally and collectively in
the discharge of the Review Board's responsibilities. Review Board
activities include such matters as: reviewing classified and restricted
government records relating to the assassination of President Kennedy;
determining whether such classified and restricted records should be
opened and made available to the public; identifying additional
assassination records in the possession of governments and individuals;
holding public hearings related to assassination records; and ensuring
government office compliance with the JFK Act.
The Sunshine Act defines meetings and sets certain requirements for
advance public notice of such meetings (5 U.S.C. 552b(e)) and permits
agencies to close meetings to public attendance and to withhold
information regarding meetings where an agency finds that any of ten
exemptions enumerated in the Sunshine Act applies, 5 U.S.C. 552b(c).
The Act further sets forth the procedures that must be followed by
agencies in invoking one of these exemptions, 5 U.S.C. 552b (d), (f).
The Review Board is required to adopt, after opportunity for public
comment, regulations to implement the Sunshine Act, 5 U.S.C. 552b(g).
Consistent with the requirement of 5 U.S.C. 552b(g), the proposed
regulations implement the provisions of 5 U.S.C. 552(b)-(f). This rule
has been made following a review of the Sunshine Act, regulations
promulgated and implemented by other collegial bodies under the
Sunshine Act, and the opinion of the Supreme Court of the United States
in FCC v. ITT World Communications, Inc., 466 U.S. 463 (1984). The
regulations are intended to follow the exemptions set forth in the
Sunshine Act and to implement fully the Sunshine Act's procedural
requirements regarding public notice of meetings, availability of
transcripts or other records of meetings, and closure of meetings.
Notice and Comment Process
The proposed Sunshine Act regulations were issued for comment in
the Federal Register on June 26, 1995 with a closing date of July 26,
1995. In addition to being published in the Federal Register, the
proposed regulations were sent to six federal agencies with an interest
in the Review Board's work (the Central Intelligence Agency, the
Federal Bureau of Investigation, the Department of Justice, the
National Archives, the Office of Management and Budget, and the
Administrative Conference of the United States (ACUS)). The staff also
sent copies of the regulations directly to fifteen individuals who have
shown a particular interest in the work of the Review Board. Several of
the individuals are closely connected with public interest groups that
also had the opportunity to distribute copies more widely to their
membership.
Response to Comments
The Review Board received only four sets of comments, including one
from the ACUS and the other three from the public (one of which was
complimentary and offered no substantive changes).
ACUS proposed four possible amendments to the regulations, each of
which was effectively incorporated in the final regulations. The first
suggestion pertains to Section 1405.2, which permits the staff to brief
Review Board members outside of formal meetings. ACUS stated that
although the proposed regulation complied with the Sunshine Act, it
would be advisable to ensure that briefings do not devolve into
deliberations regarding Review Board business. The ACUS suggestion was
incorporated by amending the section to include the following
provision: ``The General Counsel will inform the Review Board if
developing discussions at a briefing or gathering should be deferred
until a notice of an open meeting can be published in the Federal
Register.''
ACUS also proposed that the Review Board amend the regulations to
require a vote for all changes to its agenda, including deletions.
Although other agencies have permitted agenda deletions to be made
without a recorded vote, the Review Board decided that it would be
advisable to adopt the proposal of ACUS and delete Section 1405.7(c).
ACUS found some ambiguity with respect to the standard that would
be applied towards the eventual release of the Review Board's own
records in Section 1405.8, particularly those of the closed meetings.
It is the Review Board's position that the eventual release of Review
Board records should be made under the terms of the JFK Act (rather
than FOIA). In order to clarify the standard under which Review Board
records will themselves be reviewed for declassification, clarifying
language was added.
[[Page 45336]]
Finally, ACUS made some practical proposals with respect to
recording or taking notes at Board meetings as described in Section
1405.5(f). Because the Review Board has decided to record its closed
meetings, it had previously addressed these remaining issues.
As a member of the public, the Committee on Political
Assassinations asserted that the Review Board (COPA) should bear in
mind that the public interest should be taken into account when the
Review Board considers whether to close a meeting under Section 1405.4.
The Review Board approved the comment by COPA and adopted new language
to reflect COPA's suggestion.
One member of the public ``protested'' restrictions (e), (g), and
(h) of Section 1405.4 (pertaining to reasons for which the Review Board
may properly close meetings). These restrictions are authorized by the
Sunshine Act. If the commentator's suggestions were to be adopted, the
Review Board would lose its discretion to close a meeting with respect
to these three exceptions. Accordingly, the Review Board did not adopt
the proposal, although it recognized that it may open a meeting in its
sound discretion when these subjects are being discussed.
This member of the public also requested that Section 1405.5(b) be
abolished. This section provides that a member of the public who may be
directly affected by matters that the Review Board would discuss at an
open meeting may request that the meeting be closed. This suggestion
also was not adopted in order to continue the Review Board's discretion
within the parameters of the law. Finally, the member of the public
requested that notice of meetings be published in the Federal Register
two weeks (rather than one week) in advance. Although the comment
raises a legitimate concern (sufficient notice), it can be addressed in
a different manner. Because Review Board agenda items frequently
change, additional notice of the particular items to be addressed
cannot always be known two weeks before meetings. But in order to
address the concern, the Review Board will attempt to provide as much
advance notice as it can of the dates of Review Board meetings and
distribute the information through its mailing lists. This will provide
the public with notice of Board meetings months in advance of the time
they will be held, but gives the Board somewhat more flexibility to
change the particular agenda items as circumstances develop.
Paperwork Reduction Act Statement
The proposed rule is not subject to the provisions of the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501 et seq.) because it does not
contain any information collection requirements with the meaning of 44
U.S.C. 3502(4).
Regulatory Flexibility Act Certification
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
601-12, the Review Board certifies that this rule will not have a
significant economic impact upon a substantial number of small entities
and that a regulatory flexibility analysis need not be prepared. 5
U.S.C. 605(b). The rule does not impose any obligations, including any
obligations on ``small entities,'' as set forth in 5 U.S.C. 601(3) of
the Regulatory Flexibility Act, or within the definition of ``small
business,'' as found in 15 U.S.C. 632, or within the Small Business
Size Standards in regulations issued by the Small Business
Administration and codified in 13 CFR part 121. Since the impact of the
rule is confined to the Review Board, the rule does not fall within the
purview of the Regulatory Flexibility Act.
List of the Subjects in 36 CFR Part 1405
Sunshine Act.
The Regulations
Title 36 of the Code of Federal Regulations, chapter XIV, is
amended by adding part 1405 to read as follows:
PART 1405--RULES IMPLEMENTING THE GOVERNMENT IN THE SUNSHINE ACT
Sec.
1405.1 Applicability.
1405.2 Definitions.
1405.3 Open meetings requirement.
1405.4 Grounds on which meetings may be closed or information may
be withheld.
1405.5 Procedures for closing meetings, or withholding information,
and requests by affected persons to close a meeting.
1405.6 Procedures for public announcement of meetings.
1405.7 Changes affecting a meeting following the public
announcement of a meeting.
1405.8 Availability and retention of transcripts, recordings, and
minutes and applicable fees.
1405.9 Severability.
Authority: 5 U.S.C. 552b; 44 U.S.C. 2107.
Sec. 1405.1 Applicability.
(a) This part implements the provisions of the Government in the
Sunshine Act (5 U.S.C. 552b). These procedures apply to meetings of the
Review Board. The Review Board may waive the provisions set forth in
this Part to the extent authorized by law.
(b) Requests for all documents other than the transcripts,
recordings, and minutes described in 1405.8 shall be governed by Review
Board regulations pursuant to the Freedom of Information Act (5 U.S.C.
552).
Sec. 1405.2 Definitions.
As used in this part:
Chairperson means the Member elected by the Board to serve in said
position pursuant to 44 U.S.C. 2107.7(f).
General Counsel means the Review Board's principal legal officer,
or an attorney serving as Acting General Counsel.
Government office means any office of the Federal Government that
has possession or control of assassination records as set forth in 44
U.S.C. 2107.3(5).
Meeting means the deliberations of three or more Members where such
deliberations determine or result in the joint conduct or disposition
of official Review Board business. A meeting does not include:
(1) Notation voting or similar consideration of business, whether
by circulation of material to the Members individually in writing or by
a polling of the Members individually by telephone.
(2) Action by three or more Members to:
(i) Open or to close a meeting or to release or to withhold
information pursuant to Sec. 1405.5;
(ii) Set an agenda for a proposed meeting;
(iii) Call a meeting on less than seven days' notice as permitted
by Sec. 1405.6(b); or
(iv) Change the subject matter or the determinations to open or to
close a publicly announced meeting under Sec. 1405.7(b).
(3) A session attended by three or more Members for which the
purpose is to receive briefings from the Review Board's staff or expert
consultants, provided that members of the Review Board do not engage in
deliberations at such sessions that determine or result in the joint
conduct or disposition of official Review Board business on such
matters. The General Counsel will inform the Review Board if developing
discussions at a briefing or gathering should be deferred until a
notice of an open meeting can be published in the Federal Register.
(4) A session attended by three or more Members for which the
purpose is to receive informational briefings from representatives of
government offices discussing classified or otherwise restricted
information in accordance with the provisions of the JFK Act,
[[Page 45337]]
provided that Members of the Review Board do not engage in
deliberations at such sessions that determine or result in the joint
conduct or disposition of official Review Board business on such
matters.
(5) A gathering of three or more Members for the purpose of holding
informal preliminary discussions or exchanges of views, but that does
not effectively predetermine official Review Board action.
Member means a current member of the Review Board as provided by
law.
Presiding Officer means the Chairperson or any other Member
authorized by the Review Board to preside at a meeting.
Review Board means the Assassination Records Review Board created
pursuant to 44 U.S.C. 2107.7.
Sec. 1405.3 Open meetings requirement.
Any meetings of the Review Board, as defined in Sec. 1504.2, shall
be conducted in accordance with this part. Except as provided in
Sec. 1405.4, the Review Board's meetings, or portions thereof, shall be
open to public observation.
Sec. 1405.4 Grounds on which meetings may be closed or information may
be withheld.
A meeting may be closed when the Review Board properly determines
that an open meeting would disclose information that may be withheld
under the criteria enumerated below. Similarly, information that
otherwise would be required to be disclosed under Secs. 1405.5, 1405.6,
and 1405.7 may also be withheld under these criteria. All records of
closed meetings shall, however, be disclosed at a future date
consistent with the terms and requirements of the JFK Act. Except in a
case where the Review Board finds that the public interest requires
otherwise, the criteria for closing meetings are whether information
disclosed at such meetings is likely to:
(a) Disclose matters that are:
(1) Specifically authorized under criteria established by the
Executive Order to be kept secret in the interests of national defense
or foreign policy; and
(2) In fact properly classified pursuant to such Executive order;
(b) Relate solely to the internal personnel rules and practices of
the Review Board;
(c) Disclose matters specifically exempted from disclosure by
statute (other than 5 U.S.C. 552), provided that such statute:
(1) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(2) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld.
(d) Discloses trade secrets and commercial or financial information
obtained from a person and is privileged or confidential;
(e) Involves accusing any person of a crime, or formally censuring
any person;
(f) Discloses information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal privacy;
(g) Discloses investigatory records compiled for law enforcement
purposes, or information which, if written, would be contained in such
records, but only to the extent that the production of such records or
information would:
(1) Interfere with enforcement proceedings;
(2) Deprive a person of a right to a fair trial or an impartial
adjudication;
(3) Constitute an unwarranted invasion to personal privacy;
(4) Disclose the identity of a confidential source and, in the case
of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential information
furnished only by the confidential source;
(5) Disclose investigative techniques and procedures; or
(6) Endanger the life or physical safety of law enforcement
personnel;
(h) Specifically concern the Review Board's issuance of a subpoena,
or the Review Board's participation in a civil action or proceeding, an
action in a foreign court or international tribunal, or an arbitration,
or the initiation, conduct, or disposition by the Review Board of a
particular case of formal agency adjudication pursuant to the
procedures in 5 U.S.C. 554 or otherwise involving a determination on
the record after opportunity for a hearing; or
(i) Disclose other information for which the Sunshine Act provides
an exemption to the open meeting requirements of the Act.
Sec. 1405.5 Procedures for closing meetings, or withholding
information, and requests by affected persons to close a meeting.
(a) A majority of all Members may vote to close a meeting or
withhold information pertaining to that meeting. A separate vote shall
be taken with respect to each action under Sec. 1405.4. A majority of
the Review Board may act by taking a single vote with respect to a
series of meetings, a portion or portions of which are proposed to be
closed to the public, or with respect to any information concerning
such series of meetings, so long as each meeting in such series
involves the same particular matters and is scheduled to be held no
more than thirty days after the initial meeting in such series. Each
Member's vote under the paragraph shall be recorded and no proxies
shall be permitted.
(b) Any person whose interests may be directly affected if a
portion of a meeting is open may request the Review Board to close that
portion of the meeting on the grounds referred to in Sec. 1405.4 (e),
(f), or (g). Requests, with reasons in support thereof, should be
submitted to the Office of the General Counsel, Assassination Records
Review Board, 600 E Street, NW., 2nd Floor, Washington, DC 20530. On
the motion of any Member, the Review Board shall determine by recorded
vote whether to grant the request.
(c) Within one working day of any vote taken pursuant to this
section, the Review Board shall make publicly available a written copy
of such vote reflecting the vote of each Member on the question. If a
portion of a meeting is to be closed to the public, the Review Board
shall make available a full written explanation of its action closing
the meeting (or portion thereof) and a list of all persons expected to
attend the meeting and their affiliation.
(d) For each closed meeting, the General Counsel shall publicly
certify that, in his or her opinion, the meeting may be closed to the
public and shall state each relevant exemptive provision. A copy of
such certification shall be available for public inspection.
(e) For each closed meeting, the Presiding Officer shall issue a
statement setting forth the time, place, and persons present. A copy of
such statement shall be available for public inspection.
(f) For each closed meeting, with the exception of a meeting closed
pursuant to Sec. 1405.4(h), the Review Board shall maintain a complete
transcript or electronic recording adequate to record fully the
proceedings of each meeting. For meetings or portions thereof that are
closed pursuant to 1405.4(h), the Review Board may maintain a set of
minutes in lieu of such transcript or recording. Such minutes shall
fully and clearly describe all matters discussed and shall provide a
full and accurate summary of any actions taken, and the reasons
therefor, including a description of each of the views expressed on any
item and the record of any roll call vote. The records of closed
meetings, in addition to all other records of the Review Board, shall
be included as permanent records in the JFK Collection
[[Page 45338]]
at the National Archives as provided by the JFK Act.
Sec. 1405.6 Procedures for public announcements of meetings.
(a) For each meeting, the Review Board shall make public
announcement, at least one week before the meeting, of the:
(1) Time of the meeting;
(2) Place of the meeting;
(3) Subject matter of the meeting;
(4) Whether the meeting is to be open or closed; and
(5) The name and business telephone number of the official
designated by the Review Board to respond to requests for information
about the meeting.
(b) The one week advance notice required by paragraph (a) of this
section may be reduced only if:
(1) A majority of all Members determines by recorded vote that
Review Board business requires that such meeting be scheduled in less
than seven days; and
(2) The public announcement required by paragraph (a) of this
section is made at the earliest practicable time.
Sec. 1405.7 Changes affecting a meeting following the public
announcement of a meeting.
(a) After there has been a public announcement of a meeting, the
time or place of such meeting may be changed only if the Review Board
publicly announces such change at the earliest practicable time.
Members need not approve such change by recorded vote.
(b) After there has been a public announcement of a meeting, the
subject matter of such meeting, or the determination of the Review
Board to open or to close a meeting or a portion thereof to the public,
may be changed only when:
(1) A majority of all Members determines, by recorded vote, the
Review Board business so requires and that no earlier announcement of
the change was possible; and
(2) The Review Board publicly announces such change and the vote of
each Member thereof at the earliest practicable time.
Sec. 1405.8 Availability and retention of transcripts, recordings, and
minutes, and applicable fees.
In accordance with the provisions of the JFK Act, the Review Board
shall retain the transcript, electronic recording, or minutes of the
discussion of any item on the agenda or of any testimony received at a
closed meeting for inclusion as a permanent record in the JFK
Collection at the National Archives once the work of the Review Board
is completed. The public shall have access to such records consistent
with the provisions of the JFK Act which, according to the
understanding of the Review Board, supersedes the Sunshine Act and
FOIA. Copies of any nonexempt transcript or minutes, or transaction of
such recordings disclosing the identity of each speaker, shall be
furnished to any person at the actual cost of transcript or duplication
unless otherwise provided by the terms of the JFK Act. If at some later
time the Review Board determines that there is no further justification
for withholding a portion of a transcript, electronic recording, or
minutes or other item of information for the public which had been
previously withheld, such portion or information shall be made publicly
available.
Sec. 1405.9 Severability.
If any provision of this part of the application of such provision
to any person or circumstance, is held invalid, the reminder of this
part of the application of such provision to persons or circumstances
other than those as to which it is held invalid, shall not be affected
thereby.
Dated: August 24, 1995.
T. Jeremy Gunn,
Acting General Counsel.
[FR Doc. 95-21450 Filed 8-30-95; 8:45 am]
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