World War II, two developments occurred which presaged the political struggle which took place over the next half century (and beyond) to provide access to, and to control, government information. The first was the passage in 1946 of the Administrative Procedure Act ("APA"), which sought to regulate the activities of the federal government. Section 3 of the APA provided a nebulous and totally ineffectual provision for access to the records of federal agencies. The National Security Act of 1947, sought to tighten control over the release of information thought to be protectable on grounds of national security.
In 1966, the APA would be amended by the FOIA, and the FOIA would impact on the power of agencies to withhold information on national security grounds. But making the FOIA effective proved to be a very rocky road. How this happened is a fascinating story which involved the AARC and its predecessor, the CTIA.
C. The FOIA and the Assassination of President Kennedy
This JFK Act Disk conceived by Rex Bradford is the culmination of an arduous and persistent effort by those trying to learn the truth about the trifecta of American political assassinations in the 1960s which turned America, as Bernard "Bud" Fensterwald used to say, into a Banana
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Republic. It is also an absorbing history of how the American law on disclosure of information was profoundly affected by the activities of those trying to unearth the truth about the assassination of JFK and other political leaders.
1969 Bernard ("Bud") Fensterwald, Jr., founded the Committee to Investigate Assassinations ("C.T.I.A."), the predecessor to the Assassination Archives and Research Center ("AARC"). While working on Capitol Hill as a top Senate Aide, Bud had become absorbed by the spate of political assassinations of America's leading political figures, particularly those of President John F. Kennedy ("JFK"), Dr. Martin Luther King, Jr. ("MLK") and Senator Robert F. Kennedy ("RFK"). America was becoming a Banana Republic, he thought\ While still with the Senate, he visited New Orleans District Attorney Jim Garrison and had a number of meetings and conferences with Garrison and his staff.
In May 1970, the year after I graduated from the University of Wisconsin School of Law, my wife and I moved to Washington, D.C. My wife took a real job as an instructor in radiology at Georgetown University; I
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volunteered to work for the C.T.I.A. Soon after I arrived in D.C., I became aware that Bud's investigation of assassinations would involve efforts to computerize data. Computerization was then in its infancy. Richard E. ("Dick") Sprague, a computer scientist, was deeply involved in Garrison's investigation, particularly when it came to collecting photographs related to Garrison's assassination investigation. He wrote articles on the JFK assassination for Computers and Automation Magazine, which was edited by Edmund C. Berkeley. Both men were interested in using computers to solve the JFK assassination case, as was Bud Fensterwald .
This was, however, back when computerization involved punching holes in IBM cards. These early efforts bore little if any fruit, and were trenchantly criticized by some of the early critics. When Sprague authored an article in Computers and Automation which featured pictures of the so-called "Three Tramps" in Dealey Plaza, Warren Commission critic Harold Weisberg fulminated. He denounced the early computerization efforts as "garbage-in garbage-out." And all during the 1970s and 1980s, computerization of data in any form that might be helpful to assassination researchers remained a distant dream, a mere will-o-the-wisp.
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In any event, in the early and mid 1970s, efforts to obtain information under the FOIA were seldom successful. Effective July 4, 1967, the FOIA had replaced section 3 of the APA. The FOIA was a novel attempt to make government information public. It placed the burden of proof on the government to sustain its actions. In a marked departure from prior administrative law, which gave deference to the decisions of administrative agencies, the FOIA provided for de novo review of agency actions. This meant that courts were not to defer to the decisions made by agencies but would judge their decisions afresh, as if on a blank slate. The number of exemptions to compulsory disclosure was limited to nine, and these were to be narrowly interpreted. It was also sweeping in its scope. It applied to any person in the world. A person living in a Mongolian yurt could in theory file a suit in a U.S. court seeking information from the U.S. government.
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