INTELLIGENCE SOURCES AND METHODS, RESTRICTED DATA, & COMMUNICATION INTELLIGENCE UNDER THE PROPOSED FREEDOM OF INFORMATION ACT AMEND

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000700010006-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 11
• Document Creation Date: December 16, 2016
• Document Release Date: June 2, 2005
• Sequence Number: 6
• Content Type: REGULATION

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INTELLIGENCE SOURCES AND METHODS, RESTRICTED DATA,
AND COMMUNICATION INTELLIGENCE UNDER THE PROPOSED
FREEDOM OF INFORMATION ACT AMENDMENTS
Senate Report: Recognition of Special
Categories of Sensitive Information (Tab A)
House Report: Recognition of Statutory
("born classified") Sensitive Information (Tab B)
S. 2543, Reported Provision (Tab C)
Excerpt Senator Kennedy's Comments on
S. 2543 Committee Report (Tab D)
Letter to Senator McClellan (Tab E)
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Amendments to Proposed Freedom of Information Act Amendments
S. 2543
1. Section (b)(1) of S. 2543 as amended in Committee would overrule the
decision of the Supreme Court in the Environmental Protection Agency
v. Mink, 93 S. Ct. 827 (1973), by authorizing court review of the
contents of records withheld by a Federal agency under the nine
specific exemptions set forth in Title 5 U. S. C. A. 552(b). The purpose
of such review would be to determine if the information withheld meets
the criteria of the exemption involved.
2. Matters specifically exempted from public inspection by section 552(b)
of the Freedom of Information Act include those "specifically required
by Executive Order to be kept secret in the interest of the national
defense or foreign policy" [552(b)(1)]. It was this exemption which was
at issue in the Mink case. A separate exemption from public inspection
is afforded matters "specifically exempted from disclosure by statute"
[552(b)(3)].
3. There is an important distinction between these two exemptions. The
former refers to classification of information under Executive Order,
which specifies criteria for evaluating and classifying governmental
documents. The latter exemption, based upon express statutory
authority, involves an act of Congress approved by the President
which directs the proper handling of especially sensitive information.
Three such categories of information are: Restricted Data [42 U. S. C. A.
2162], relating to atomic energy matters; Communication Intelligence
[18 U. S. C. A. 798]; and Intelligence Sources and Methods [50 U. S. C. A.
403(d)(3) and g]. It should be made abundantly clear that it is not the
intent of Congress to encourage or authorize a detailed court review
of information which has been specifically designated in an act of
Congress as deserving of statutory protection. This distinction is
recognized by the Judiciary Committee in its report on S. 2543 (Tab A).
The House report on H. R. 12471, a similar bill, also recognized this
distinction for Restricted Data (Tab B).
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4. As reported out, S. 2543 recognizes that with respect to sensitive
information a presumption should be accorded by the court to an agency
head who has personally examined and determined that the records in
question are secret. Senator Kennedy in a floor statement has noted
this requirement (Tab D) which is also commented upon in greater detail
in the Committee report (Tab A).
5. If S. 2543 as reported is amended to drop the procedures for the
in camera court review recommended by the Committee, adoption of
the Agency's original position (Tab E) is strongly urged.
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Excerpt from Senate Judiciary Committee
Report on S. 2543
By statute certain special categories of sensitive information-Re-
stricted Data (42 U.S.C. ? 2169), Communication Intelligence (18
U.S.C. s sind Tnip11irxc~nrn Sources and Methods (50 U.S.C. ? 403
(d) (3) and (g))-must be given special protection from unauthor-
ized disclosure. These categories of information have been exempted
from public inspection under section 552(b) (3), "specifically ex-
empted from disclosure by statute," and (b) (1), "specifically required
by Execrative Order to be kept secret in the interest of the national
cle Tense or foreign policy." The Committee believes that these cate-
gories of information will be adequatey protected under S. 2543. If
such information is ever subject to court review, the review will be
conducted in camera under the procedures established in the bill for
information exempt under section 552(b) (1), which has been amended
to include matters specifically required to be kept secret "by an Ex-
ecutive Order or statute." It is also expected that in such cases the court
will recognize that such information in inherently sensitive and that
the latitude for discretion permitted under Executive Order 11652
does not apply to such information.
The specific procedures delineated in section 552(a) (4) (B) (ii) ap-
ply only to cases where exemption (b) (1) is invoked.
S. Rept. 93-854, pp. 16-17
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House Report 93-876
Page 8
Even with the broader language of these amendments as they apply
to exemption (b) (1), information may still be protected under the
exemption of 552(b)(3): "specifically exempted from disclosure by
statute." This would be the case, for example, with the Atomic
Energy Act of 1954, as amended. It features the "born classified"
concept. This means that there is no administrative discretion to
classify, if information is defined as "restricted data" under that Act,
but only to declassify such data.
The in camera provision is permissive and not mandatory. It is the
intent of the committee that each court be free to employ whatever
means it finds necessary to discharge its responsibilities.
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Court Review Provision in S. 2543
11
(B) (i,) On carnplr_r.int, the district court of the United
12 States in the cli.str?ict in which the complainant resides, or
13
14
has his principal place of business, or in which the agency
records are situated, or in the District of Columbia, hasjuris-
15 diction to enjoin the ac/errcy from withholding agency records
18
21
and to order the production of any agency records improperly
withheld from the complainant. In such a case the court sluill
consider the case de noro, with such. in camera exanai.natiorr.
of the requested records as it finds appropriate to determine
whether such records or anr/ port thereof may be withheld
under crr7r/ of the exemptions set forth. in subsection (b) of
this section, and the burrlear is nn the ac/evey to sustain its
action.
"(ii) In deternrinine/ whether a document i5 in fact spe-
c(/icalli/ 'required by arr E.reerltire order or statute to be kept
(continued on next page)
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Court Review Provision in S. 2543 (continued)
1 secret in the interest of national defense, or forcir~ra hulicy,
2 a court may review; the contested document in camera if it is
3 unable to rresolve the matter on the basis of affidavits and other
I irr%ornration- submitted by tlrc parties. In con junction with
5 its in camera examination, the court may consider further
6 crryument; or an ex parrte showing by the Government, in ex -
7 planation of the zvithholdi.ng. If there has been filed in the
8 record an affidavit by the head of the agency certifying that
9 he has personally examined the documents withheld and has
10 determined after such examination that they should be with-
11 held under the criteria established by a statute or Executive
12 order referred to in subsection (b) (1) of this section, the
13 court shall sustain such, withholding unless, following its in
11 camera examination, it finds the withholding is without a 2-
ea-1.5 sorrable basis under such criteria.
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Excerpt from Senator Kennedy's Floor Comments on
Judiciary Committee Report on S. 2543
Where agencies want to withhold docu-
ments under a statute or Executive order
as being classified in the interest of na-
tional defense or foreign policy S. 2543
as amended provides that courts may ex--
^ the d^ en ht themselves i> carn-
erayand must determine whether in fact
the documents were properly classified.
The bill sets out procedures to protect
particularly sensitive information, and it
provides that courts should utilize an in
camera examination only if they cannot
resolve the matter on the basis of argu-
ments and affidavits. But it firmly estab-
lishes the principle of judicial review of-
and accountability outside the executive
branch for--agency decisions to classify'
material.
Congressional Record, May 16, 1974
Page S8347
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C N T R A L INT LLIGZ'NC AGENCY
WASHINGTON, D.C. 20505
OLC 74-0836
30 April 1974
Honorable John L. McClellan, Chairman
Intelligence Operations Subcommittee
Committee on Appropriations
United States Senate
Washington, D. C. 20510
Dear Mr. Chairman:
This letter responds to your request for comments on the pgssible
impact upon the operations of this Agency of S. 2543 which amends the
Freedom of Information Act (5 U. S. C. 522).
Presently, this Agency's records are for the most part not
available for public inspection because the Act exempts, among other
things, mattors that are:
"(b)(1) specifically required by Executive order to
be kept secret in the interest of the national defense
or foreign policy;
(3) specifically exempted from disclosure by statute;"
Although S. 2543 retains these general exemptions, it adds a
new provision which would permit an in camera court review of any or
all records to determine whether they shall be subject to public inspection.
This provision appears to be designed to overrule a Supreme Court
decision that the contents of records withheld under exemption (b)(1)
are not reviewable by the courts (Environmental Protection Agency v. Mink,
93 S. Ct. 827 (1973)).
The National Security Act of 1947 provides:
". . . That the Director of Central Intelligence shall
be responsible for protecting intelligence sources
and methods from unauthorized disclosure;" (Sec.102(d)(3))
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This language is designed to protect the lives and welfare of sources
of sensitive foreign intelligence information and to protect against the
compromise of technical collection efforts.
I do not believe that the nation's interest would best be served
by legislation which would make it possible for the most sensitive of
Agency records to be subject to court review as a result of a suit by
an individual, who under the statute may not even be a U. S. citizen,
for their public inspection. It is recommended that information
which is made inherently sensitive by statute be exempted from the
court review provisions of S. 2543. Suggested language accomplishing
this for three categories of sensitive information recognized by statute
(Intelligence Sources and Methods, Communications Intelligence and
Restricted Data) is enclosed.
If S. 2543 or similar legislation is favorably considered, it is
hoped that you would be able to support appropriate exemption for this
Agency as proposed.
Sincerely,
/s/
W. E. Colby
Director
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AMENDMENT TO S. 2543 (Committee Print, Tanuar 29, 1974
The added language is underlined and would be inserted at line 16, page 3:
"($) On complaint, the district court of the United States
in the district in which the complainant resides, or has his
principal place of business, or in which the agency records are
situated, or in the District of Columbia, has jurisdiction to
enjoin the agency from withholding agency records and to order
the production of'any agency records improperly withheld from
the complainant. In such a case the court shall consider the
case de novo, with, except for matters withheld under section
552(b)(3), involving, but not .limited to, Restricted Data,_
intelligence sources and methods, and communication
intelligence under sections 2162 of Title 42, 403(d)(3) and 403g_
? of Title 50, 798 of Title 18 and 73 Stat.64, such in camera
examination of the requested records as it finds appropriate
to determine whether such records or any part thereof may
be withheld under .any of the exemptions set forth in subsection
(b) of this section, and the burden is on the agency to sustain
its action.
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