PROPOSED LEGISLATION ON PRESIDENTIAL RECORDS: H. R. 10998 AND S. 2596

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R001900070095-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 19, 2016
• Document Release Date: July 31, 2006
• Sequence Number: 95
• Publication Date: March 23, 1978
• Content Type: MF

0~/
Approved For Release 2006/08/01: CIA-RDP81 M00980R0019000700Q5G 7j7
b/
OGC 78-1824
23 March 1978 06
SUBJECT : Proposed Legislation on Presidential Records:
H.R. 10998 and S. 2596
1. I have reviewed the proposed legislation pursuant to your request,
believe you have covered the essential points, and agree with your conclusions .?
that these bills raise some problems for the CIA. As you point out in paragraph
3a of your paper, it is clear that CIA documents sent to the President will be
among those presidential records covered by the legislation. I am not sure,
however, whether your paragraph 3b points to a problem which should be of
particular concern to us since it concerns merely disposal of presidential records,
presumably in accordance with existing schedules for destruction of non-essential
Government materials. Existing legislation contains a similar provision. Never-
theless, it might help to request clarification of this provision.
2. Cause for greater concern is to be found in those portions of the
legislation which would permit the Archivist, who would be custodian of the
records, to make final decisions as to public access to the documents. Although
the additional exemption under the Freedom of Information Act in H. R. 10998
seems to be designed to protect information now protected under exemption b (1)
and b (3), two factors pose problems: first, the provision which we would view
as a sources and methods exemption applies only to statutes which re wire that
matters be withheld from the public and leaves no discretion on the issue. While
today we assert that our statutory exemption meets this criterion, I am not at all
confident that this proposal maintains the status quo.
3. The second point for consideration concerns the placing of discretion
for utilizing these exemptions in the hands of the Archivist or the director of
a presidential archival depository. You are absolutely correct that the bill
would place in their hands the authority to make decisions regarding matters
which at the present time are the responsibility of this Agency. Finally, I
think it is also clear that the 15 year period during which information would
be protected under S. 2596 is too short, but that it does not damage or affect
CIA equities in view of the other FOIA exemptions; however, the powers granted
to the Archivist are, as in H.R. 10998, too broad.
MORI/CDF
 Approved For Release 2006/08/01: CIA-RDP81 M00980R001900070095-1
4. At the present time requests to a Government agency for documents
which have been originated by another agency are referred to the originator
under what is known as the "third agency rule." The CIA and the National
Archives alike are subject to this rule. It is for this reason that Agency
documents found in presidential libraries are referred to CIA on classification
questions. Furthermore, NARS does not pretend to have the expertise or the
time which is necessary for an appropriate review of Agency materials. Quite
willingly, therefore, matters are referred to CIA. Perhaps because of extensive
guidelines prepared for NARS by this Agency, certain instances may arise in
which further consultation is unnecessary; however, such instances are few and
far between. The position of this Agency consistently has been that we must be
consulted prior to the declassification of Agency materials. STAT
5. I believe you should contact the DDA' or Information
Systems Analysis Staff for more information on the cooperation between CIA and "'.
STAT the Archives. should be able to help you out. They
may, for example, find a distinction between declassification of documents for
which Agency permission would be required and access to documents which
might not require consultation. My own view is that this is unlikely.
6. In conclusion I agree that these bills pose potential problems for this
Agency in that they place the control of Agency documents, received by a
president, into the control of a third party. While the Archivist under existing
legislation is custodian, his discretion is tempered somewhat by the donor's
deed of gift, which generally requires adherence to Executive Order 11652 on
classification.and, at least inferentially, the third agency rule. The proposed
bill seems to take all classification. decisions out of the control of the originator
of a document. I believe that we should comment on the inappropriateness of
such a requirement, perhaps after coordinating with Mike Cardozo at the
White House. You should note also that the same objections would apply to
vice presidential records which are treated in the same manner. Do not hesitate
to contact me if you have any further questions or comments. STAT
Approved For Release 2006/08/01: CIA-RDP81 M00980R001900070095-1