IPS REPORT ON IMPACT OF THE FOIA AND PRIVACY ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00142R000600040003-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 18
• Document Creation Date: December 12, 2016
• Document Release Date: March 26, 2001
• Sequence Number: 3
• Publication Date: December 6, 1978
• Content Type: MF

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MEMORANDUM FOR: Deputy Director of Central Intelligence
FROM: John F. Blake
Deputy Director for Administration
SUBJECT: IPS Report on Impact of the FOIA and
Privacy Act
In response to your request at the 5 December Goals
Management Conference, attached hereto is a copy of the
paper recently prepared by , Acting Chief, STATINTL
Information and Privacy Sta , en i e impact on the
Agency of the Freedom of Information Act, the Privacy Act,,
and Mandatory Classification Review." While the paper could
use some polish, I believe it effectively tells the FOIA and
Privacy Act story.
John F. Blake
STATINTL
Attachment: a/s
AI/DDA:-:ydc (5 Dec 78)
Distribution:
Original - Addressee w/att
1 Executive Registry w/att
vi***"- DDA Subject w/att
1 - DDA Chrono w/o att
1 - AI Subject w/att
1 - AI Chrono w/o att
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 SEP 1978
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IMPACT ON THE AGENCY OF THE FREEDOM OF INFORMATION ACT,
THE PRIVACY ACT, AND MANDATORY CLASSIFICATION REVIEW
1. Historical Background, Pre-1975
The Freedom of Information Act was passed in.1966 and
took effect the following year. It established: the right. of
the public, citizens or aliens, to demand access to "ident-
ifiable records." Federal agencies were required to publi.sh.
in the Federal Register the procedures to follow in request-
ing records. To the extent authorized by statute, agencies
were permitted to assess fees for services rendered...
Records were to be made "promptly available" to requesters,
but no time limits were specified. If documents were withheld
under one or more of the nine exemptions of the Act, the
requester could bring suit in a U.S. district court and
the burden was on the agency to sustain its action..
One of the exemptions of the Freedom of Information Act,
subsection (b)(1), exempted "matters specifically required by
Executive order to be kept secret in the interest of nationa.]FOIAb5
defense or foreign policy"--i.e., all classified documents. FOIAb5
Another exemption, subsection (b)(3), covered all matters
"specifically exempted from disclosure by statute.."
These
records of the CIA and, consequently, the Freedom of Information
Act initially had little or no impact on the Agency.
With respect to national security classified records, a
key decision was enunciated by the Supreme Court on 22 January
1973 in the case of EPA v. Mink. Patsy T. Mink (Dem., Hawaii)
and 32 congressional colleagues sued to obtain access to
certain EPA records denied them on the basis of exemption
(b)(1) of the Act. The issue before the Court was whether
the presence of a classification marking on a document was
sufficient cause for denial, or whether the court should go
into the question of whether the classification was warranted.,
The Supreme Court ruled in this instance that while an agency
should examine classified documents before invoking exemption
(b)(1), it was not the intent of the Congress that the courts
should rule on whether classification was justified. An
affidavit from the agency to the court was all that was
required to establish the classified status of documents. Thus,
national security classified records could be denied to the
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public without fear of the denial being overruled through
litigation. This opinion, as much as any other single factor,
led to the 1974 amendment of the Freedom of Information Act.
While the Agency received virtually no Freedom of Infor-
mation requests until the 1974 amendments took effect i_n:
February 1975, a number of requests for records were received
under the provisions of Sec. 5(C) of Executive Order 11652,
which became effective on 1 June 1972. Among its other
provisions, this Order required the mandatory classification.
review of any records, 10 years old or older, requested. by a
member of the public, citizen or alien, or by another
Government agency, which were described accurately enough to
permit their identification, retrieval, and review without
undue burden. The records could be withheld only if, under
the criteria of Sec. 5(B) of the Order, they qualified for
exemption from the General Declassification Schedule established
by Executive Order 11652. An Interagency Classification Review
Committee was set up under the National Security Council to
oversee implementation of the Order, and one of the functions,
of this Committee was to hear appeals from denials by Depart-
mental review committees. (CIA's review committee, establishedd,
in compliance with the Order, was named the Information. Review
Committee.
It
still exists today, but its membership was
upgraded to
the
Deputy Director level when the Freedom of
Information
Act
was amended in late 1974.) Request:--:; from the
public
were
to
be answered within 30 days, but requesters
had to
wait
an
additional 30 days before appealing because
of the
lack
of
response. Full or partial denials could be
appealed to
the
Departmental revieia committee, which was
supposed to
act
on appeals within 30 days.
As soon as Executive Order 11652 took effect? journalists
submitted to the CIA what appeared to be "test requests."
The requests usually involved several categories of obviously
sensitive materials, and the requesters were quick to take
advantage of their right to administrative appea.l.. A number
of these initial requests were so broadly phrased that they
had to be rejected as lacking in specificity. After the
initial flurry of activity, the volume of requests received
dropped off, but over the long run there was a. steady increase
in the number of classification review requests logged. A
high percentage of the requests processed under Executive Order
11652 has consisted of referrals from Presidential. libraries,.
where researchers are apprised of the existence of classified
records pertinent to their research interests and given.
assistance in requesting their mandatory classification review.
(Under the provisions of the Presidential Libraries Act of
1955, the holdings of the libraries are "donated't materials,,
rather than public records. As such, the General Services
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Administration has held that these records are not subject
to the Freedom of Information Act. Access to them is governed by
the donor's restrictions and by mandatory classification
review procedures.) Statistics showing request activity under
Executive Order 11652 are presented below. It shoul:d. be pointed
out that many of the documents sent to the Agency for review
are not of CIA origin. Rather, they are often White House
papers or third-agency documents which must be reviewed by
the CIA because they concern, in whole or in part, intelligence
matters.
1972
1973
1974
1975
1976
1977
1978 (th.ru
,
30 Aug)
Requests
received
30
110
191
232
374
568'
284
Granted
in
full
1
50
89
63
81
1.56
47
Granted
in
part
6
19
47
88
220
268
71
Denied
in
full
15
18
23
28
37
101
17
Miscellaneous
0
0
0
5
6
11
1.2
2. 1974 Amendments to the Freedom of Information Act
In 1974, both the Senate and the House passed by over-
whelming majorities essentially similar bills to amend, the
Freedom of Information Act. A conference committee was formed,
and it reported out a modified version of the House bill,
H.R. 12471. It easily passed in both houses, but the bill, was
vetoed by then President Ford. President Ford objected to the
unrealistic time periods allowed for processing requests,.
appeals, and court cases. He also objected to changes in -
the exemption regarding investigatory files, i..e., subsection.
(b)(7). Moreover, he maintained that the courts should be
required to uphold the classified status of records if there
was a reasonable basis for such classification.. UDon its
return from recess, however, the Congress overrode the veto and
the amendments took effect 90 days after enactment., 19 February
1975.
Considerable pressure had been exerted upon the Congress
to liberalize the Freedom of Information Act. Requesters,
particularly representatives of the media, complained that Federal
agencies had succeeded in frustrating the intent of the Act
through delaying tactics, the unreasonable assessment of fees,
and the wholesale invoking of exemptions. Moreover, the
post-Watergate mood of the country called for greater openness
in Government. Some of the principal features of the Act, as
amended, are:
a. Agencies have 10 working days to decide whether to
comply with a request, and 20 working days to respond
to appeals. Upon notification to the requester,
agencies may invoke an extension. of 10 working days
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to the time allowed for processing either the request
or the appeal (but not both). The only circumstances
justifying such an extension, are that the records
are stored in remote locations, that the records are
are voluminous, and/or that intra- or interagency
clearances are required.
b. The failure of an agency to meet deadlines permits
the requester to go directly to court. The court,.
however, if circumstances warrant, may delay action on
the suit until the agency has had sufficient time
to complete the processing of the request.
c. The requester must be notified of his appeal rights
each time a denial occurs, ' along with the namesa.nd
titles of the agency officials responsible for the
denial. If the denials are upheld upon appeal, the
responsible officials must again be identified and
the appellant must be apprised of his recourse to
the courts.
d. Only the direct costs of searching for records and
copying them can be assessed the requesters. At the
discretion of the agency, fees are to be warred if
release of the records sought primarily benefits the
general public.
e. The requesters need only to "'reasonably"' describe the
records. (Before the amendments, the Act referred to
"identifiable records.")
f. A complainant can file suit in the district where he
resides, has a place of business, or in the District
of Columbia. Agencies have only 30 days to serve an
answer to compaints brought before the courts. The
court can subpoena records and can rule,, after in
camera inspection, whether the classification oFa
document is warranted under the criteria established
by Executive Order 11652 or whether other claimed:
exemptions were correctly asserted. Any reasonably
segregable portion of a document not falling under
the exemptions of the Act shall be provided to the
requester. Furthermore, if the complainant substan-
tially prevails, the court can, require the Government
to pay his attorney's fees and. other litigation costs.
g. If the court has reason to believe that an officer
responsible for withholding documents acted in-an,
arbitrary or capricious manner, it can require the
Civil Service Commission, to conduct an investigation.
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The Civil Service Commission, in turn, can require the
agency to take disciplinary action against the officer.
h. Annual reports must be made to the Congress by each
agency on its administration of the Act.
3. The Privacy Act of 1974
The Privacy Act, which became effective on 27 September
1975, is in a sense a companion law to the Freedom: of Infor-
mation Act. Its enactment was the result of concern over
the amount of personal information collected by Federal agencies
and the ways in which this information was being utilized..
The basic principles of the Act are.:
a. There should be no secret information systems.
b. There should be no unforeseen use of information that
an individual supplies about himself without his
consent.
c. An individual should have access to the records that
are kept about himself.
d. Information collected concerning an individual
should be collected directly from him, whenever feasible,
and then only when it is necessary, and. the information
should not be retained unless it is accurate, timely,
and relevant.
The Privacy Act differs from the Freedom of Information Act
in two important respects--it applies solely to personally
identifiable information, and only U.S. citizens and permanent
resident aliens are entitled to its benefits. Subsection (j)(1)
of the Act afforded the CIA the possibility of exempting
itself from many of the provisions of the Act:, including the
provisions whereby individuals can request access to records
pertaining to themselves and, if the accuracy of these records
is in question, request their amendment or expungement. How-
ever, the Agency did not fully avail itself of this subsection,
limiting the application of (j)(1) to the exemption of such
categories of information as intelligence sources and methods
and polygraph records. (Even if the CIA had, exempted itself
from the access provisions of the Privacy Act, individuals
could request the same records under the Freedom of Information
Act.) Another difference between the Privacy Act and. the
Freedom of Information Act is that no search fees may be
charged for requests processed under the Privacy Act. The
CIA, while permitted to do so, does not assess copying fees
either.
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Under the Privacy Act, the Agency is required to publish
in the Federal Register descriptions of those systems of
records w is contain information on U.S. citizens and per-
manent resident aliens and which are indexed by personal.
name or some equivalent identifier. Steps have to be taken
to ensure that access to personal information is limited. to
those with a need to know, and records must be maintained
of all disclosures. Except for routine uses covered in the
Agency's implementing regulations, and other circumstances
specifically covered in the law, personal information cannot
be disclosed to a third party without the express consent of
the person concerned. To the extent possible, informati-on
is to be collected' directly from the subject individual.
Whenever the information is being used in making a. determin-
ation about the individual, to the 'degree practicable, steps
must be taken to ensure that the information is accurate,
relevant, timely, and complete. In addition, no records may
be maintained describing how any individual exercises rights
guaranteed by the First Amendment.
When an individual requests access to records under the
Privacy Act, we first require from him proof that he is who
he purports to be--a notarized statement of identity which
includes his date and place of birth. Unlike the Freedom of
Information Act, there is no statutory deadline for responding
to access requests, but guidelines promulgated by the Office
of Management and Budget call for answering such requests
within 30 days. The exemptions are roughly equivalent to those
of the Freedom of Information Act. For example, classified
information is withheld under subsection (k)(1); sources and
methods are protected under (j) (1) ; the personal privacy of
others is covered by subsection (b); and the identity of
sources utilized in compiling investigatory reports is afforded
protection under subsection (k)(5).
4. CIA's Experience in Handling Freedom of information and. I'll Privacy Act Requests, ppea s, and LitIga_t_i.on
A few rather complex requests, notably those submitted by
Morton Halperin, were received shortly after the amended
Freedom of Information Act took effect on 19 February 1975.
These were apparently intended as "test" cases by the
requesters. Requests were not received in large volume how-
ever, until late March of that year. Bella Abzug, then a
Member of Congress, had been provided, at her request,. copies
of records pertaining to her which the Agency had collected,
including intercepted mail. Ms. Abzug was very indignant over
what she regarded. as a gross invasion of her personal privacy,.
and she had a heated exchange with Director William Colby-over
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the matter. Much publicity resulted, and the Agency began
to receive a large number of requests from other persons who
wished to know whether the CIA had established. files on them.
(Around that time, it was decided by Mr. Colby that no fees
would be charged for requests from U.S. citizens for their
personal files.) The volume of requests for personal. files
rose dramatically in July, August, and September of 1975, with
approximately 200 letters a day coming in on peak days. This
development can be attributed to a campaign by the Center
for Constitutional Government, which flooded-the country
with form letters addressed to the CIA and, urged everyone to
write to "Big Brother" and to send copies of the Agency's
replies to the Center. There was no way that the Agency
could cope with this deluge of requests, and: a processing
backlog developed that persists with us to this day. Requests
dropped off for some reason during 1976, and for a, time we
managed to reduce the unprocessed backlog to 1,000 cases.
However, the backlog increased during 1977 at the rate of
about 22 cases per week, and although the volume' has declined.
somewhat during 1978, the backlog has continued to rise this
year by approximately 16 cases per week. We are currently
logging an average of about 86 new reques:t.s. (Freedom of
Information, Privacy, and Executive Order) a week, _and
available resources enable us to answer only about 70 a
week. The total backlog of unprocessed requests now amounts
to over 2,700 cases, and the appeals backlog exceeds 300
cases.
Other than requests for personal files--and these requests
are usually now processed under the Privacy Act rather than
the Freedom of Information Act--the types of requests we receive
can often be predicted from the previous week's newspaper head.
lines. In addition, there have been other organized campaigns
to encourage Freedom of Information requests, with the CIA as
the target. It should be emphasized that., although foreigners
have the right to use the Act, most of the requests have., been,
submitted by U.S. citizens. We do not maintain. statistics on
the citizenship of requesters--indeed, this is often. difficult
to determine; however, an analysis of the first 468 Freedom of
Information Act requests logged during 1978 revealed that only
16 of them (3.4 percent) came from persons who were definitely
neither U.S. citizens nor permanent resident aliens. We are
unable to recall having received any requests from Communist
China or Sovbloc countries, but, of course, such.. requests could,
conceivably have come to the Agency through intermediaries.
Some of the most popular topics for requests have been.:
a. Unidentified Flying Objects (UFOs). (There are
several organizations of UFO affi.cionados, whose
members keep in close contact with, one another.)
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b. CIA's past and present relationships with academia..
(The American Civil Liberties Union and the Center
for National Security Studies have encouraged such
requests.)
c. The assassination of John F. Kennedy.
d. Past programs of the Agency in the field of drug and
behavioral control experimentation. (In addition, we
have received a large number of Privacy Act. requests
from persons who suspect that they were the subjects
of Agency-sponsored tests.)
e. CIA's past and present relationships with state and
local law enforcement agencies.
f. Persons missing in action in Southeast Asia. (The
next-of-kin of MIAs are using the Freedom. of Infor-
mation Act to delay status hearings which would change
the status of the MIAs to that of presumed killed
in action. The relatives have a financial stake in.
the matter.)
g. Copies of procurement contracts. (Many of these
requests have concerned EDP-related contracts. Some
persons regard such requests as a form of industrial
espionage.)
i. Personal files of prisoners. (These are processed
under the Privacy Act, and we seldom have any "hits.."
The volume is large, however.)
j. The use of newsmen, missionaries, etc., as sources.
k. Covert action projects, particularly of the political
action type.
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1. OSS operations. (Everybody seems to be writing a
book on the OSS.)
m. Foreign economic, financial, and trade developments.
n. Biographical data on foreign leaders.
0. Improper payments by U.S. industrial firms to
foreigners.
p. CIA records on U.S. domestic organizations.
A breakdown of the number of Freedom of Information and
Privacy Act requests processed since the start of 1975 is
provided below.
1975 1976 1977 1978 (thru
30 Aug)
Requests received 6609 761 1252 1126
Granted in full 300 148 167 113
Granted in part 428 562 241 189
Denied in full 174 122 95 92
Miscellaneous* 4577 523 269 483
Requests received 552 2356 3023 1578
Granted in full 4 154 195 131
Granted in part 3 404 520 314
Denied in full 0 56 124 76
Miscellaneous* 189 1500 1559 873
A large number of other requests (ca. 4,750),. principally
requests for access to personal records, have been received
since 1975 but never processed because of the failure of the
requesters to provide the information needed to establish their
identity, or other data. Although never fully processed, each
of these unlogged requests has required, at the minimum, the
establishment of a case file and at least one letter of response,
thereby adding to our workload.
Miscellaneous category includes "no record available"
and "no CIA record available" responses; canceled and withdrawn
requests; requests referred to other agencies; and requests
appealed due to lack of response.
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5. Agency Organization, Manpower Costs, and Fees Collected
The Agency program for administering the Acts is decentral-
ized, reflecting the decentralized nature of our files. The
Information Review Committee, which is chaired by the Deputy
Director for Administration, sets overall Agency policy and
rules on all appeals. The Information and Privacy Staff,
which is located organizationally within the Office of the
DDA, is the focal point for the receipt of requests from
the public, coordination of their processing, the preparation of
replies, and the maintenance of records of all transactions.
Each of the Directorates has a person who serves as Directorate
Freedom of Information officer, and, within the Directorates,
each major component (office or division) has its own Freedom
of Information officer (some full-time; others part-time).
The program within the Operations Directorate is somewhat
more centralized than is the case with the other Directorates.
All contacts with the Information and Privacy Staff are through
the Freedom and Privacy Group of the Information Management
Staff, whereas, in the other Directorates, the Information
and Privacy Staff usually deals directly with offices below
the Directorate level. In addition to the above, there is
a Freedom of Information officer in the Office of the DCI
and an officer for each of the major components within that
Office., The Office of General Council has an entire division.,
the Freedom of Information and Privacy Law Division, working
full-time on appeals and litigation. Requests involving
Intelligence Community Staff records are processed through the
CIA mechanism, as well, and the IC Staff has appointed a
Freedom of Information Officer to serve as the contact point.
There are about 65-70 persons in the Agency who are
employed on a full-time basis in complying with. the demands
of the Freedom of Information Act, the Privacy Act, and
mandatory classification review requests. Hundreds of other
Agency employees, however, get involved in the programs on a
part-time, ad hoc basis--conducting searches, reviewing
records-for releasability, etc. According to manpower statistics
collected on a weekly basis during 1977, a total of 192,800
man-hours was expended in processing requests, appeals, and
litigation--the equivalent of approximately 109 man-years.
The manpower commitment thus far in 1978 has run somewhat
higher, but it is believed that we have just about reached
the limit of the resources that can be employed without detract-
ing from our ability to carry out our foreign intelligence
mission.
A great deal of manpower can be expended on individual
requests, particularly if they go into the appeal and/or
litigation stages. For example, we estimate that we have
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already devoted 11.5 man-years to processing a request from
John D. Marks, now in litigation, for records pertaining to
MKULTRA and other drug/behavior modification programs. A
request from David Belin (others have submitted the same
request) for copies of all records dealing with John F.
Kennedy's assassination has already cost us some 8.75
man-years of labor.
We estimate that the manpower costs for 1975 amounted.
to $1,400,000; for 1976, $2,000,000; and for 1977, $2,377,000.
Almost half of these sums can be attributed to the Freedom
of Information Act alone. Although considerably less than
half of our total requests are handled under the Freedom.
of Information Act, these requests tend to be more complex and.
are more likely to lead to expensive litigation.. By contrast,
very little has been collected in the way of fees. As was
pointed out earlier in this paper, there are no charges for
processing Privacy Act requests and, in addition, we are
required to waive or reduce fees whenever it is in the public
interest to do so. Only $1,867 was collected in. 1975;
$10,035 in 1976; and $16,439 in 1977. We anticipate that
the total fees collected in 1978 will fall below last year's
figure.
There are other costs, such as office space, supplies,
equipment rentals, and computer support, which we have not
attempted to calculate, but these would be minor in comparison
with our personnel costs. Fees collected from requesters
are turned over to the Treasury Department, and the total
cost of administering these programs must be absorbed by the
Agency within overall operating funds.
There are severe limitations on the costs that we can
pass on to requesters. As noted earlier, no charge is made
for requests processed under the Privacy Act, and, inasmuch
as most of our mandatory classification review requests are
referrals from other Federal agencies, fees are seldom collected.
by our Agency for them either. Under the Freedom of Information
Act, we are authorized to levy charges only for copying costs
and for the time spent in locating relevant documents. No
fees may be charged for the far more time-consuming and
costly process of reviewing and sanitizing. documents. Until
such time that the fee structure takes into account actual
processing costs, we are unlikely to see any significant
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drop in the number of requests, and large amounts of the tax-
payers' money will continue to be spent reviewing and sanitizing
material for release to a relatively small number of individuals.
In the meantime, the fee structure which we do have affords,
some protection against capricious "fishing expeditions" and
omnibus-type queries which would be extremely costly to process.
For example, during the period 1 January 1977 through 8 March
1978, 67 Freedom of Information were canceled or withdrawn
because of the refusal of requesters to agree to the payment of
reasonable search and copying fees. Although not large, the
number provides some indication that fees cause requesters to
exercise restraint in pursuing their informational needs.
Moreover, we must assume that many others are deterred. from
submitting requests because they are aware that fees may be
charged. We estimate that if our current authorization to
charge fees were to be drastically limited through judicial
interpretation or legislative amendment of the Act, the volume
of requests might very well double. We do, of course,
voluntarily waive fees, in whole or in. part, when the subject
matter sought is clearly of public interest and it is our
judgment that release of the material would significantly
benefit the general public. It is not our policy, however,
to automatically waive fees whenever the requester states his
intention to publish the results of his research, as many of
our critics contend that we should. Our stand in this regard
is weakened somewhat by the divergent policies followed by
other Federal agencies. It is our understanding, for example,
that the Department of Defense always waives fees when the
requester is a newsman.
6. Problems for the Agency in Complying With the Law
a. It has been impossible to meet the deadlines for
responses. Requests are generally processed. on a
first-in, first-out basis and, in view of our huge
backlog, the statutory time for responding to
Freedom of Information requests usually has elapsed
before we can even commence searching for the docu-
ments requested.
b. Even if the processing backlog did. not exist,
would be very difficult to meet the statutory
deadlines. Because of the specialized missions of
various Agency components and the security require-
ment for compartmentalization, the CIA, unlike many
other agencies, has no central file or index to its
holdings. A search for "all" information on a given
topic or topics may therefore entail the searching
of several file systems, under different command
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authorities and with varying degrees of retrieval
capabilities. Our date of completion of the search
is governed by the time required to thoroughly search
the least efficient of these systems. (By way of
contrast, it is our understanding that a search of
the FBI's central files seldom takes more than 10
minutes.)
c. The search task is further complicated by the fact
that many of the Agency's records have become inactive
and, as an economy measure, are stored in a records
center. If "hits" made during the index search phase
relate to such records, a not infrequent occurrence,
it takes from two to three days to retrieve them from
remote storage in order that their relevance= can
be determined, thereby delaying the process..
d. Searches in one component will often surface records
originated by, or of subject-matter interest to, other
CIA components or other departments and agencies.
The time required for reproduction and referral of
such documents to the organization having cognizance in
order that they can be reviewed further delays
completion of processing. This problem, of course,
is not unique to the CIA, but an unusually large
proportion of our reports are jointly produced, or
contain inputs provided by other agencies.
e. The biggest single factor in slowing down our response
times is the absolute necessity that all records
be carefully reviewed before release. At best, the
review of classified intelligence documents is a
time-consuming process. A single request can involve
the review of hundreds or thousands of documents and.,
depending upon the subject matter, there are- a limited
number of experts qualified to perform this task.
Often, the review must be done by senior officers a.nd.
managers, with numerous other demands, often more
urgent, placed upon their time. Experience has
taught us, also, that a very careful review by at least two
levels of authority is required to ensure that sen-
sitive information is not inadvertently released.
Mistakes, needless to say, would be costly. Unless
our sources are afforded protection from. disclosure,
they.could lose confidence in our ability to maintain
secrets, thereby impairing the Agency's ability to
collect the foreign intelligence essential to national
survival in this atomic age.
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f. Foreign nationals and other persons holding views
inimical to U.S. national interests can and do seek
information from the CIA under the Freedom of Infor-
mation Act. This is well-known throughout the world.
Compliance with their requests and the resultant
publicity given to any information released appears
to have had the cumulative effect of leading persons
or organizations who were once willing to cooperate
with the Agency to question whether they can safely
continue their collaboration without the risk of
exposure. Compared with unauthorizeds..elevations by
former employees and others, very little sensitive
intelligence information has been inadvertently
released through Freedom of Information channels.
Yet the possibility of such releases exists, and
the Operations Directorate can document specific
instances of the loss of real or potential sources
where the Freedom of Information. Act was in part
responsible. There is, accordingly, widespread concern
within the Agency over what is widely, and not wholly
incorrectly, perceived by our information sources to
be a problem for the Agency in protecting its legit--
imate. secrets.
g. Despite the expense involved in processing Freedom
of Information requests, the public is not always
served by the information we are able to relea.se.
Some requests are for records concerning sensitive
covert operations, the existence of which we are not
even free to acknowledge. No information is released,.
but Agency manpower is diverted from other tasks,
particularly so if the denials are appealed or
litigated. In other instances, compliance with the
Act has led to the release of fragmentary and some-
times inaccurate raw intelligence data, which, rather
than enlightening the public, results in a misinter-
pretation of what actually occurred. More accurate
reports often. had to be withheld to protect sensitive
sources or collection ,systems.
7. Legislative Relief
The Agency has long been committed to a policy of
openness believed to be unprecedented for a foreign intelligence
agency. For example, the Agency's analytical products, to
the degree consistent with our obligation to protect intelligence
sources and methods, have often been made available to the
public on a voluntary basis. Numerous unclassified-monographs,
reference aids, maps, and translations of the foreign media
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are released by the CIA each year through the distribution
facilities of the Library of Congress, the Government Printing
Office, and the Department of Commerce. Moreover, there has
been no serious objection on the part of the Agency to
complying with the access provisions of the Privacy Act,
burdensome though they may be. Indeed, subsection (j)(l)
of the Privacy Act contains the authority for exemption of
the Agency from many provisions of the Act if we saw fit to
do so. Similarly, compliance with the requirement for the
mandatory classification review of 10-year--old: records
pursuant to Executive Order 11652 (almost identical provisions
are contained in Executive Order 12065, which supersedes
Executive Order 11652 on 1 December 1978) is not so troublesome
as to be unacceptable. However, the burden imposed on the
CIA by compliance with the Freedom of Information Act as it
now stands, and the associated risks to our intelligence sources
and methods, have been brought to the attention of our over-
sight committees and individual Members of Congress. While
we take no issue with the concept that the American public
has a right to know what its Government is doing, we do submit
that in the case of foreign intelligence records the public
benefits deriving from the Act have not been commensurate with
the costs. As pointed out earlier in this paper, because of
our statutory mandate to withhold protected information, only a
very small portion of the information requested of us under
the Freedom of Information Act can be released. Thus, in most
cases, a search for and review of thousands of pages of
documents relating to a particular request might result in
the release of only a few pages of sanitized, disjointed
information which neither truly responds to the requester's
interests nor satisfies the intent of the Congress.. And the
price to the taxpayer for this dubious service is enormous.
At the same time, the Agency's work suffers from the drain on
its resources, the chilling effect that the Act has had on
cooperating liaison services, the fears of agents overseas of
exposure, and the concern of various U.S. corporations and
CIA contractors that their activities with or on behalf of
the CIA might become public.
Clearly, the CIA and the other foreign intelligence agencies
of the U.S. Government are in a distinctly different position
vis-a-vis the Freedom of Information Act than are other depart-
ments and agencies, and a good case could be made for total
exemption from the Act, or, if that is impossible, partial
relief. Critics will be sure to charge that the CIA seeks
only to cover up continued illegal domestic surveillance oper-
ations and other abuses. We maintain, however, that all of
our old "dirty linen" has by now been thoroughly exposed to
public scrutiny. The public's interest in preventing future
abuses or illegalities by U.S. intelligence organizations
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will be adequately served by the elaborate oversight mechanisms
that have been established in the Agency, the Intelligence
Community, the White House, and the Congress. There is no
compelling need, therefore, for the Freedom of Information
Act to be a means of monitoring Agency activities.
To date, the Agency has not submitted any formal legis-
lative proposals to the Office of Management and Budget. We
have, however, raised the question of amendments in correspon-
dence with Members of Congress, including Senator Birch Bayh,
Congressman Bill D. Burlison, and Congressman Samuel. L. Devine.
The latter subsequently introduced a bill in the House of
Representatives that incorporated certain aspects of the-
suggestions contained in our letter to him. The questions that
we have posed have dealt primarily with procedural, changes
and fees, although the need for broader exemptions for raw
intelligence reports and operational data was also mentioned.
The questions were as follows:
a. Should the benefits of the Freedom of Information.
Act, like those of the Privacy Act, be available
to U.S. citizens and permanent resident aliens- only?
b. Should the mandatory response time on initial pro-
cessing of requests be changed from the present.
10 working days to 30 calendar days, plus an additional
week for every 100 pages, or fraction thereof, of
material requiring a review? At the same time, should
the mandatory response time on appeals be changed,
from the present 20 working days to 60 calendar days,
plus two additional weeks for every 1.00 pages, or
fraction thereof, requiring a second. review?
c. Should agencies be permitted to charge requesters
for review time as well as search time?
d. Should requests be limited to one specific subject
of manageable proportions rather than permitting
blanket omnibus-type requests which cover a wide date
span and a variety-of topics?
If the above suggestions were acted upon by the Congress,.
the Agency's problems in administering the Freedom of Infor-
mation Act would be somewhat ameliorated, but not to any great
extent. Proposal a. would be difficult to.enforce inasmuch
as it would be no problem for a foreigner to arrange for a
U.S. citizen to act as his agent. Even with the more reasonable
response deadlines suggested in proposal b., we would, still be
unable to comply as long as the current processing backlogs
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exist. Proposal c. would be very helpful if enacted, but
requesters would still have the right to ask that all fees be
waived in the public interest. (There has been one court
case in which our refusal to waive fees was overruled by
the judge.) Proposal d. would provide a basis for, not
acting on certain requests, although it would be possible to
finesse the requirement by merely submitting several related
requests in lieu of one complex request.
The Office of Legislative Counsel is currently endeavoring
to draft an amendment to the Freedom of Information Act.. for
presentation to the appropriate committees of the Congress after
clearance by the Office of Managment and Budget. The Infor-
mation Review Committee, through its Working Group, is assisting
in this matter. The major thrust of the amendment proposal
will be either to list certain categories of foreign intel-
ligence information (e.g., covert operations, raw intelligence
reports) as not being subject to the provisions of the Act,
or, conversely, to state that all foreign intelligence records
are not subject to the Act except for specified categories
(e.g.., finished intelligence). The latter approach has certain
merit in that it seems positive, rather than negative. More-
over, in any attempt to list types of information not subject
to the Act, there is always the danger that sensitive categories
may be overlooked. Another decision to be made is whether the
draft amendment should apply only to CIA records or to all Intel-
ligence Community records. Many of the problems that the
CIA has encountered in administering the Freedom of Information
Act have undoubtedly been experienced by other intelligence
agencies as well. It might also be better for the CIA's
public image if it were not singled out.
All indications are that the prospects for obtaining
relief though amendments to the Freedom of Information Act are
not bright. The suggestion has been made that, we might be:
able to achieve the same results through appropriate charter
legislation provisions, with the charter legislation then
providing the basis for invoking exemption (b)(3) of the Free-
dom of Information Act. The-feasibility of this approach
should be explored. We could presumably expect a more sympa-
thetic hearing from our oversight committees than from the
committees having jurisdiction over Freedom of Information
legislation.
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