COMMENTS ON S. 3399

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000800060016-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 9, 2016
• Document Release Date: September 2, 2001
• Sequence Number: 16
• Publication Date: May 9, 1974
• Content Type: MF

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OGC 74-0796
9 May 1974
MEMORANDUM FOR: Office of Legislative Counsel
ATTENTION:
SUBJECT: Comments on S. 3399
1. Senator Metcalf's proposed bill, S. 3399, to amend the
Freedom of Information Act to provide for the classification and
declassification of official information in the interest of national
defense, if enacted in its present form, would seriously impair
the Agency's ability to perform its mission and functions and
would make it virtually impossible for the DCI to fulfill his
statutory responsibilities under the National Security Act of
1947, as amended, particularly his responsibility for protecting
intelligence sources and methods from unauthorized disclosure.
If this bill is given serious consideration by Congress, it is our
position that we must seek an exemption from the bill.
2. Section 5(b) of Executive Order 11652 provides for
exemptions from the General Declassification Schedule for cer-
tain classified information as follows:
a) Classified information or material furnished by foreign
governments or international organizations and held by the
United States on the understanding that it be kept in
confidence;
b) Classified information or material specifically covered
by statute, or pertaining to cryptography, or disclosing
intelligence sources or methods;
c) Classified information or material disclosing a system,
plan, installation, project or specific foreign relations
matter the continuing protection of which is essential to
the national security, and
d) Classified information or material the disclosure of
which would place a person in immediate jeopardy.
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3. Any materials or information exempted under the above
provisions are subject to mandatory review after ten years (10)
from the date of origin. At that time a determination is made by
the originating agency whether the material should be declassified
or continue to be classified. In the latter case, the material would
not need to be declassified until the expiration of thirty (30) full
calendar years from the date of its original classification. Even
then, the head of the originating department could require con-
tinued protection if he determined that such continued protection
was essential to the national security or disclosure would place
a person in immediate jeopardy.
4. The provisions in S. 3399 dealing with declassification
of national security information would significantly reduce the
number of years that classified information could be protected
and would, for all practical purposes, nullify E. 0. 11652.
5. The proposed new subsection, 5 U. S. C. 552 (e)(1)(B)(ii),
to the Freedom of Information Act provides that any official
information, with certain exceptions discussed below in paragraph
8, which was originally classified in the interest of national
defense, as Top Secret, Secret, or Confidential during the
fifteen-year (15) period preceding the effective date of the
Freedom of Information Act Security Classification Amendment
of 1973 shall be downgraded or declassified according to a
declassification schedule contained elsewhere in the act.
6. Moreover, 5 U. S. C. 552 (e)(1)(C) provides for automatic
declassification of any official information classified in the interest
of the national defense prior to the fifteen-year (15) period
immediately preceding the effective date of the Freedom of
Information Act Security Classification Amendment of 1973.
Under this provision classified materials predating 1958 would
be automatically declassified, with certain exceptions discussed
below in paragraph 8.
7. The declassification schedule in the bill provides
essentially that Top Secret information shall be downgraded to
Secret in one year, Secret information to Confidential in one
year; Confidential information shall be declassified after the
expiration of a year, with the following exceptions.
-2-
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8. The proposed subsections 5 U, S. C. 552 (e)(3)(A), (B),
(C), & (D) provide that information which is classified Top Secret
and is specifically exempted from disclosure by statute, or per-
tains to cryptographic systems, or would disclose intelligence
sources or methods, or special defense information, shall be
exempted from the above declassification schedule. Such informa-
tion shall be downgraded to Secret in one year, but, the
Classification Review Commission (which would be established
by S. 3399) may, by majority vote of its full membership, allow
such information to continue to be classified at the Secret level
for a period of 24 months from the date it was downgraded to
Secret, and then -- again by majority vote of the Commission --
may continue the Secret classification for an additional 12 months,
and finally, by a two-thirds (2/3) vote, continue the Secret
classification for another 12 months. The information would then
be downgraded to Confidential and, one year later, declassified,
unless the President in writing provides the Commission with
detailed justification, based on national defense interests, for
maintaining the Secret classification. Even so, the Commission,
by a two-thirds vote, could reject such justification.
9. From the above it appears that the maximum protection
the exempted Top Secret information could receive under this
bill would be one year at the Top Secret level, five years at the
Secret level -- at the discretion of the Commission -- and one
year at the Confidential level; or a total of seven years from date
of classification to date of declassification. Seven years is, of
course, considerably less protection than the ten to thirty years
of protection now provided by E. O. 11652. Obviously, the Agency
cannot live with the declassification provisions of S. 3399. It
would be impossible to retain the confidence of foreign govern-
ments or agents under such circumstances. Moreover, it would
be impossible for the DCI to meet his statutory responsibility
to protect intelligence sources and methods from unauthorized
disclosure if highly sensitive information could only receive a
maximum -- and not even a guaranteed maximum -- of seven
years` protection.
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10. Another new subsection (5 U. S. C. 552 (f)) would be
added to the Freedom of Information Act establishing a Classifi-
cation Review Commission, composed of nine high ranking
members. The Commission would be provided broad authority
for a) prescribing standards and procedures for handling
national defense information, b) dissemination of such informa-
tion throughout the Government and the intelligence community,
c) accountability for the information, d) subpoena authority, etc.
As already indicated above, the Commission would also have
the authority to decide by majority, or in certain instances two-
thirds vote, whether national defense information should be
declassified or not. In addition, the Commission would be given
the authority to conduct a "thorough and continuing investigation
and appraisal of the policies, standards, and operations of
agencies classifying information, in the interest of national
defense... . .." The Commission would also be used as a vehicle
to furnish to Congress, Committees of Congress, and the
Comptroller-General of the United States, upon request, certain
classified information necessary for Congress to discharge
fully and properly all of its constitutional responsibilities.
11. In addition to the obvious sources and methods problems
created by such broad grants of authority to the Commission, it is
clear that the DCI`s statutory responsibilities under the National
Security Act of 1947 to provide for the appropriate dissemination,
correlation, and evaluation of intelligence within the Government
would be so eroded by the bill as to render his responsibilities
meaningless.
Attachment
S. 3399
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