LETTER TO MR. JAMES N. FREY FROM GEORGE L. CARY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000800050072-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 15, 2016
• Document Release Date: August 11, 2004
• Sequence Number: 72
• Publication Date: January 25, 1978
• Content Type: LETTER

OLC 77-5651 a
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WASHINGTON, 0. C. 20505 ^
'? !r. James M. Frey
.Assistant Director for
Legislative Reference
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Frey:
This letter is in further response to your request for our co ments
on the Justice Departmment's proposed amendment on S. 1845, a bill "to
protect the rights of individuals guaranteed by the Constitution of the
United States and to prevent unwarranted invasion of their privacy by
prohibiting the use of polygraph-type equipment for certain purposes."
For the reasons outlined below, we would oppose adoption of the Justice
Department's proposed amen. ent.
In the first place, the scope of the proposal is uncertain. This,
ambiguity, I believe, derives in part from the fact that the proposal
specifically prohibits the use of polygraphs by U.S. officers or employees
for es,loyment-related purposes, but then provides certain exceptions for
"polygraph tests" without modifying or clarifying language, such as the
word "such" before "polygraph testing" at line 11. Without such modifi.catioi
which we believe would be necessary, it is unclear whether all polygraph
testing by the Government would be strictly limited to that authorized in
subparagraphs (b) (1) (A) and (b) (1) (B) of the bill, or whether, as we believe
the intent to be, the exceptions apply only to the described category of
activities--"in connection with.his or her services or duties..."
e'.ployment-related activities).
Furthermore, the Justice Department amendment would place all polygraph
testing authorized by the bill under the control and regulations of the Civil
Service Commission. To vest the Commission with such authority would seriously
impair the ability of the Director of Central Intelligence to protect intel-
ligence sources and methods from unauthorized disclosure as provided for by
the National Security Act of 1947, as amended (50 U.S.C. 403). The Director
,must continue to have the sole authority to prescribe internal regulations
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for the Agency regarding all erployment-related polygraph testing. Presently,
the Agency polygraphs only one category of persons according to Civil. Service
regulations. These persons are in the competitive service and are not Agency
employees but provide a service to the Agency; the Agency can only polygraph
these persons following Civil Service regulations. However, the Agency
follows its own regulations for the polygraph testing of all other personnel
connected with the Agency.
Moreover, under the scheme proposed by the Justice Department amendment,
Agency rules and regulations would become subjected to section 553 of the
Administrative Procedure Act, including advance public notice and the
opportunity for public participation in the.-rule making process. The Intel-
ligence responsibilities performed by the Agency are fully excluded from
the requirements of section 553 of the Administrative Procedure Act because
they fall within the existing exemption for military or.foreign affairs
functions. This intelligence function should remain excluded generally
from the public rule making procedure in order to continue to protect fully
sensitive intelligence matters from public disclosure.
The exemptions on the prohibition of the use of polygraphs proposed in
the Justice Department amendment are inadequate in that the amendment does
not cover assignees, employees of cover facilities, and contractor employees
who only serve as support for intelligence or counterintelligence functions.
Moreover, support and security personnel would have to have duties "directly"
related to intelligence and counterintelligence functions to come within the
scope of the exemption created by the Justice Department language. In addition
to being very restrictive, the "direct" function test is ambiguous and would.
be difficult to apply.
Finally, it should be noted that it is paragraph (b)(2) of the bill, not
(b) (1), which would prohibit the polygraph testing of contractor employees.
Any exec tion created for contractor employees should be an exemption from
paragraph (b) (2).
For these reasons, we could not accept the proposed Justice Department
amendment. We also suggest that any exemption for the Central Intelligence
Agency be provided for separately and apart from that for the Justice
Department. Despite the Justice Department's stated intent to cover intel-
ligence agency polygraph use by general exemptions and by'noting that legislative
history would suffice for the specific identification of personnel, serious
problems in construction and coverage are created when an amendment attempts
to lick guidelines for polygraph use in criminal investigations with a general
authority for intelligence agencies to use the polygraph in security investiga-
tions. Vie therefore propose that OMB support the amendment submitted by this
Agency in our report of 4 Nover^ber 1977 on S. 1845.
Sincerely,
Ann' George L. Cary ]-
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