MEMO TO(Sanitized)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00142R000600040006-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 41
• Document Creation Date: December 12, 2016
• Document Release Date: April 12, 2001
• Sequence Number: 6
• Publication Date: August 10, 1978
• Content Type: MF

Approved For Releoe0 iN8$(,-RQ1 42R00p ?A0
file
DD/A 78-0838/6
10 August 1978
Attached herewith
are the papers per your
request via telecon.
STA
Att:
Ltr to Mr. Blake frm
Congressman Richarson
Preyer; dated 24 Apr 78
Ltr from Compt to President
of the Senate 4 Speaker of
the House re "Report to
the Congress..Timeliness
4 Completeness of FBI
Responses to Requests Under
Freedom of Info 4 Privacy
Acts Have Improved;copy
of attached DIGEST.
Distribution:
STATINTL
Ori
PRS -
g
w/att
PRS -
DDA
Chrono
CAS- -
DDA
Subject
PRS -
AI
Chrono
P ATlNfrEO/DDA Chrono
;AI; se 8/10/78
AI DDA
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 THE DiFECTOP OF CENTRAL INTELLIGENCE
Approved For ReleQye 2002/011//08~ CIA-RDP810500142ROOQ 0040006-90LC 78-5171
WASH, D. C. 05
Mr. Earl Eisenhower
Minority Staff Director
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
Dear Earl;
2 t SEP 1978
DO/A Die
As I promised in my letter of 8 September, I am herein
enclosing a number of additional items relating to CIA's
continuing problems vis=a--vis-compliance with'the various
provisions of the Freedom of Information Act (FOIA).
Although we trust that all will be useful to you, I would
like to specifically direct your attention to the 17-page paper
entitled "Impact on the Agency of the Freedom of Information.
Act, The Privacy Act, and Mandatory Classification Review,"
which I feel will be of particular interest. As this is an.
internal CIA document I would appreciate it if, after you
have digested it's contents, that, the same be returned to me.
With the end of the '95th in sight, we hope to be able to
focus more of our resources on the issue of FOIA amendments.
I will, of course, keep you informed of our thoughts and
activities in that regard. Your continued concern and interest
is,=as always, most appreciated.
Sincerely,
SIGNED
Deputy PIPP11111ounsel
Distribution:
Org - Addressee
1 - DDA
1 - OLC Subject
1 - OLC Chrono
OLC:MDC:sks:(15 September 1978)
STAT.I NTL
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 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 publish
in the Federal Register the procedures to follow in request-
ing records.To t e 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 national
defense or foreign policy"--i.e., all classified documents.
Another exemption, subsection (b)(3), covered all matters
"specifically exempted from disclosure by statute." The
relevant statutes with respect to CIA records are the National
Security Act of 1947, as amended, and the CIA Act of 1949, as
amended, which pertain to intelligence sources and methods
and the organization, functions, names, official titles,
salaries, or numbers of personnel employed by the Agency. These
two exemptions, (b) (1) and (b) (3), pretty well blanketed the
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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 P4pproWed For RRtel a 200 01 p8 : IA-RD P8 00142R0 6-
pUbi.ic- w].thoU ear or 1'he denial icing 0 CIPWV88 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 in
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. S(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, established
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.) Requests 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 revieta 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 appeal. 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" materials,
rather than public records. As such, the General Services
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 Aprobe Foa-ef 2~211~1/ttl>IA~IIPs>1-~~ffR4 ~'-9subj ect
Adi. . f0SiTP t z a q4M 999 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 should 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
d
d
t
hich
must
be rev
iewed
b
y
s w
ocumen
-agency
papers or thir
the CIA because they concern, in whole or in part, intelligence
matters.
1972 1973
1974
1975
1976
1977
1978 (thru
- -~
30 Aug)
Requests
received
30 110
191
232
374
568
284
Granted
in
full
1 50
.89
63
81
156
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
12
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. Upon 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 names and
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 waived 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 oTa
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.
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-P-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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 `ppQUnder t1v ep F " q46 e ~` i io 60 0femss publish
i
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, information
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
Privacy Act Requests, p1s, and Liti.gatlon
A.#ew 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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