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Approved For Release 000/09/01 : CIA-R 93D CONGRESS SENATE 1st Session j Al 11 0 t00V#f120017-8 R1 roRr No. 93-724 PROTECTING PRIVACY AND THE RIGHTS OF FEDERAL EMPLOYEES Mr. ERVIN, from the Committee on the Judiciary, submitted the following REPORT The Subcommittee on Constitutional Rights to which was referred the bill S. 1688 to protect civilian employees of the executive branch of the U.S. Government in the enjoyment of their constitutional rights and to prevent unwarranted governmental invasions of their privacy, having considered the, same, reports favorably thereon without amend- ments and recommends that the bill do pass. S. 1688 is identical to S. 1438 as unanimously reported by the com- mittee and unanimously approved by the Senate in the last Congress. The report on S. 1438 is therefore reprinted below as approved by the committee. PURPOSE The purpose of the bill is to prohibit indiscr?inuinate executive branch requirements that employees and, in certain instances, appli- cants for Government employment disclose their race, religion, or na- tional origin; attend Government-sponsored meetings and lectures or participate in outside activities unrelated to their employment; report on their outside activities or undertakings unrelated to their work; submit to questioning about their religion, personal relationships or sexual attitudes through interviews, psychological tests, or polygraphs; support political candidates or attend political meetings. The bill would make it illegal to coerce an employee to buy bonds or make charitable contributions. It prohibits officials from requiring him to disclose his own personal assets, liabilities, or expenditures, or those of any member of his family unless, in the case of certain specified employees, such items would tend to show a conflict of interest. It would provide a right to have a counsel or other person present, if the Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Tease 2000/09/01 : CIA-RDP82-57R000700120017-8 2 employee wishes, at an interview which may lead to disciplinary pro- ceedings. It would accord the right to a civil action in a Federal court for violation or threatened violation of the act, and it would establish a Board on Employees' Rights to receive and conduct hearings on com- plaints of violation of the act and to determine and administer reme- dies and penalties. The subcommittee has found a threefold need for this legislation. The first is the immediate need to establish a statutory basis for the preservation of certain rights and liberties of those who work for government, now and those who will work for it in the future. The bill, therefore, not only remedies problems of today but looks to the future, in recognition of the almost certain enlargement of the scope of Federal activity and the continuing rise in the number of Americans employed by their Federal Government or serving it in some capacity. Second, the bill meets the Federal Government's, need to attract the best qualified employees and to retain them. As the former Chair- man of the Civil Service Commission, Robert Ramspeck, testified : Today, the Federal Government affects the lives of every human being in the United States. Therefore, we need better people today, better qualified people, more dedicated people, in Federal service than we ever needed before. And we cannot get them if you are going to deal with them on the basis of suspicion, and delve into their private lives, because if there is anything the average American cherishes, it is his right of freedom of action, and his right to privacy. So I think this bill is hitting at an evil that has grown up, maybe not in- tended, but which is hurting the ability of the Federal Government to acquire the type of personnel that we must have in the career service. Third is the growing need for the beneficial influence which such a statute would provide in view of the present impact of Federal policies,, regulations and practices on those of State and local government and of private business and industry. An example of the interest demon- strated by governmental and private employers is the following com- ment by Allan J. Graham, secretary of the Civil Service Commission of the city of New York : It is my opinion, based on over 25 years of former Govern- ment service, including some years in a fairly high mana- gerial capacity, that your bill, if enacted into law, will be a major step to stern the tide of "Big Brotherism," which con- stitutes a very real threat to our American way of life. In my present position as secretary of the Civil Service Commission of the city of New York, I have taken steps to propose the inclusion of several of the concepts of your bill into the rules and regulations of the city civil service com- mission. Passage of the bill will signify congressional recognition of the threats to individual privacy posed by an advanced technology and by increasingly more complex organizations. Illustrating these trends is Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Release,.2000/09/01 : 3CIA-RDP82-00357Rg00700120017-8 the greatly expanded use of computers and governmental and private development of vast systems for the efficient gathering of information and for data storage and retrieval. While Government enjoys the bene- fit of these developments, there is at the same time an urgent need for defining the areas of individual liberty and privacy which should be exempt from the unwarranted intrustions facilitated by scientific techniques. As Prof. Charles Reich of Yale Law School has stated, this bill "would be a significant step forward in defining the right of privacy today." "One of the most important tasks which faces the Congress and State legislatures in the next decade is the protection of the citizen against invasion of privacy," states Prof. Stanley Anderson of the University of California, Santa Barbara. "No citizens," in his opinion, "arc in more immediate danger of incursion into private affairs than Government employees. When enacted the bill will provide a bulwark of protection against such incursions." The bill is based on several premises which the subcommittee investi- gation has proved valid for purposes of enacting this legislation. The first is that civil servants do not surrender the basic rights and liber- ties which are their due as citizens under the Constitution o~ the United States by their action in accepting Government employment. Chief among these constitutional protections is the first amendment, which protects the employee to privacy in his thoughts, beliefs. and attitudes, to silence in his action and participation or his inaction and nonparticipation in community 1 ife a nd civic affairs. This principle is the essence of constitutional liberty in a free society. The constitutional focus of the bill was emphasized by Senator Ervin in the following terms when he introduced S. 1035 on Febru- ary 21, 1967: If this bill is to have any meaning for those it affects, or, serve as a precedent for those, who seek guidance in these matters, its purpose must be phrased in constitutional terms. Otherwise its goals will be lost. We must have as our point of reference the constitutional. principles which guide every official act of our Federal Gov ernment. I believe that the Constitution, as it was drafted and as it has been implemented, embodies a view of the citi- zen as possessed of an inherent dignity and as enjoying cer- tain basic liberties. Many current practices of Government affecting employees are unconstitutional; they violate not' only the letter but the very spirit of the Constitution. I introduced this hill originally because I believe that, to the extent it has permitted or authorized unwarranted inva- sion of employee privacy and unreasonable restrictions on their liberty, the Federal Government has neglected its con- stitutional duty where its own employees ate concerned, and` it has failed in its role as the model employer for the Nation.. Second, although it is a question of some dispute, I hold that Congress has a duty under the Constitution not only to, consider the constitutionality of the laws it enacts, but to assure as far as possible that those in the executive branch Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Rase 2000/09/01 :CIA-RDP82-(57R000700120017-8 responsible for administering the laws adhere to constitu- tional standards in their programs, policies, and administra- tive techniques. The committee believes that it is time for Congress to forsake its reluctance to tell the executive branch how to treat its employees. When so many American citizens are subject to unfair treatment, to being unreasonably coerced or required without warrant to surrender their liberty, their privacy, or their freedom to act or not to act, to reveal. or not to reveal information about themselves and their private thoughts and actions, then Congress has a duty to call a statutory halt to such practices. It has a duty to remind the executive branch that even though it might have to expend a little more time and effort to obtain some favored policy goal, the techniques and tools must be reasonable and fair. Each section of the bill is based on evidence from many hundreds of cases and complaints showing that generally in the Federal service, as in any similar organizational situation, a request from a superior is equivalent to a command. This evidence refutes the argument that an employee's response to a superior's request for information or action is a voluntary response, and that an employee "consents" to an invasion of his privacy or the. curtailment of his libcrt.y. Where his employment opportunities are at stake, where there is present the economic coercion to submit to questionable practices which are con- trary to our constitutional values, then the presence of consent or voluntarism may be open to serious doubt. For this reason the bill makes it illegal for officials to "request" as well as to "require" an employee to submit to certain inquiries or practices or to take certain actions. Each section of the bill reflects a balancing of the interests involved : The interest of the Government in attracting the best qualified indi- viduals to its service; and its interest in pursuing laudable goals such as protecting the national security, promoting equal employment op- portunities, assuring mental health, or conducting successful bond- selling campaigns. There is, however, also the interest of the individual in protection of his rights and liberties as a private citizen. When he becomes an employee of his Government, lie has a right to expect that the policies and practices applicable to him will reflect the best values of his society. The balance of interests achieved assures him this right. While it places no absolute prohibition on Government inquiries, the bill does assure that restrictions on his rights and liberties as a Government employee are reasonable ones. As Senator Bible stated : There is a line between what is Federal business and what is personal business, and Congress must draw that line. The right of privacy must be spelled out. The weight of evidence, as Senator Fong has said : "points to the fact that the invasions of privacy under threats and coercion, and economic intimidation are rampant in our Federal civil service system today. The degree of privacy in the lives of our civil servants is small enough as it is, and it is still shrinking with further advances in tech- Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Release 2000/09/01 : CIA-RDP82-00357 p00700120017-8 nical know-how. That these citizens are being forced by economic coercion to surrender this precious liberty in order to obtain and hold jobs is an invasion of privacy which should disturb every American. I, therefore, strongly believe that congressional action to protect our civil servants is long overdue." The national president of the National Association of Internal Revenue Employees, Vincent Connery, told the Subcommittee of this proposal in the 89th Congress : Senate, bill 3779 is soundly conceived and perfectly timed. It appears on the legislative scene during a season of public employee unrest, and a. period of rapidly accelerating demand among Federal employees for truly first-class citizenship. For the first time within my meinory, at least, a proposed bill holds out the serious hope of attaining such a citizenship. S. 3 7 79, therefore, amply deserves the fullest support of all employee organizations, both public and private, federation affiliated, and independent alike. Similar statements endorsing the broad purpose of the bill were made by many others, including the following witnesses : John F. Griner, national president, American Federation of Gov- ernment Employees. E. C. Hallbeck, national president, United Federation of Postal Clerks. Jerome Keating, president, National Association of Letter Carriers. Kenneth T. Lyons, national president, National Association of Government Employees. John A. McCart, operations director, Government Employees, Council of AFL-CIO. Hon. Robert Ranispeck, former Chairman, Civil Service Commis Sion. Vincent Jay, executive vice president, Federal Professional Associ- ation. Francis J. Speh, president, 14th District Department, American Federation of Government. Employees. Lawrence Speiser, director, 1,N ashington office, American Civil Liberties Union. Nathan Woikomir, national president, National Federation of Fed- eral Employees. Following is a chronological account of committee action on this legislation to date. S. 1688 was preceded by S. 1438 of the 92d Congress, S. 782 of the 91st Congress, by S. 1035 of the 90th Congress, and by S. 3079 and S. 3703 of the 89th Congress. Violations of rights covered by the bill as well as other areas of employee rights have been the subject of intensive hearings and in- vestigation by the subcommittee for the last five Congresses. In addition to investigation of individual cases, the Subcommittee on Constitutional Rights has conducted annual surveys of agency policies on numerous aspects of Government personnel practices. In Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Rbase 2000/09/01 : CIA-RDP82-0 57R000700120017-8 6 1965, pursuant to Senate Resolution 43, hearings were conducted on due process and improper use of information acquired through psy- chological testing, psychiatric examinations, and security and per- sonnel interviews. In a letter to the Chief Executive on August 3, 1966, the subcom- mittee chairman stated : For some time, the Constitutional Rights Subcommittee has received disturbing reports from responsible sources concerning violations of the rights of Federal employees. I have attempted to direct the attention of appropriate officials to these matters, and although replies have been uniformly courteous, the subcommittee has received no satisfaction whatsoever, or even any indication of awareness that any problem exists. The invasions of privacy have reached such alarming proportions and are assuming such varied forms that the matter demands your immediate and personal attention. The misuse of privacy-invading personality tests for per- sonnel purposes has already been the subject of hearings by the subcommittee. Other matters, such as improper and in- sulting questioning during background investigations and due process guarantees in denial of security clearances have also been the subject of study. Other employee complaints, fast becoming too numerous to catalog, concern such diverse matters as psychiatric interviews; lie detectors; race ques- tionnaires; restrictions on communicating with Congress; pressure to support political parties yet restrictions on political activities ; coercion to buy savings bonds ; extensive limitations on outside activities vet administrative influence to participate in agency-approved functions; rules for writ- ing, speaking and even thinking; and requirements to disclose personal information concerning finances, property and cred- itors of employees and members of their families. After describing in detail the operation of two current programs to illustrate the problems, Senator Ervin commented : Many of the practices now in extensive use have little or nothing to do with an individual's ability or his qualification to perform a job. The Civil Service Commission has estab- lished rules and examinations to determine the qualifications of applicants. Apparently, the Civil Service Commission and the agencies are failing in their assignment to operate a merit system for our Federal civil service. It would seem in the interest of the administration to make an immediate review of these practices and questionnaires to determine whether the scope of the programs is not ex- ceeding your original intent and whether the violations of employee rights are not more harmful to your long-range goals than the personnel shortcuts involved. Following this letter and others addressed to the Chairman of the Civil Service Commission and the Secretaries of other departments, Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Release 2000/09/01 : CIA-RDP82-00357~,p00700120017-8 7 legislation to protect employee rights was introduced in the Senate. This proposal, S. 3703 was introduced by the chairman on August 9, 1966, and referred to the Judiciary Committee. On August 25, 1966, the chairman received unanimous consent to a request to add the names of 33 cosponsors to the bill. On August 26, 1966, he introduced a bill similar to S. 3703, containing an amendment reducing the criminal penalties provided in section 2. This bill, S. 3779, was also referred to the Judiciary Committee, and both S. 3703 and S. 3779 were then re- ferred to the Subcommittee on Constitutional Rights. Comments on the bill and on problems related to it were made by the chairman in the Senate on July 18, August 9, August 25, August 26, September 29, October 17 and 18, 1966, and on February 21, 1.967. Hearings on S. 3779 were conducted before the subcommittee on September 23, 29, 30, and October 3, 4, and 5, 1966. Reporting to the Senate on these hearings, the subcommittee chairman made the following statement: The recent hearings on S. 3779 showed that every major employee organization and union, thousands of individual. employees who have written Congress, law professors, the American Civil Liberties Union, and a number of bar asso- ciations agree on the need for statutory protections such as those in this measure. We often find that ,is the saying goes "things are never as bad as we think they are," but in this case, the hearings show that privacy invasions are worse than we thought they were. Case after case of intimidation, of threats of loss of job or security clearance were brought to our attention in connec- tion with bond sales, and Government charity drives. Case after case was cited of privacy invasion and denial of due process in connection with the new financial disclosure requirements. A typical case is the attorney threatened with disciplinary action or loss of his job because he is both unable and unwilling to list all gifts, including Christmas presents from his family, which he had received in the past year. He felt this had nothing to do with his job. There was the. supervisory engineer who was told by the personnel officer that he would have to take disciplinary action against the 25 professional employees in his division who resented being forced to disclose the creditors and financial interests of them- selves and members of their families. Yet there are no pro- cedures for appealing the decisions of supervisors and person- nel officers who are acting under the Commission's directive. These are not isolated instances ; rather, they represent a pattern of privacy invasion reported from almost every State. The subcommittee was told that supervisors are ordered to supply names of employees who attend PTA meetings and engage in Great Books discussions. Under one department's regulations, employees are requested to participate in specific community activities promoting local and Federal anti- poverty, beautification, and equal employment programs; they are told to lobby in local city councils for fair housing Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Rase 2000/09/01 : CIA-RDP82-01 57R000700120017-8 ordinances, to go out and make speeches on any number of subjects, to supply flower and grass seed for beautification projects, and to paint other people's houses. When those regu- lations were brought to the subcommittee's attention several weeks ago, we were told that they were in draft form. Yet, we then discovered they had already been implemented and employees whose official duties had nothing to do with such programs were being informed that failure to participate would indicate an uncooperative attitude and would be re- flected in their efficiency records. The subcommittee hearings have produced ample evidence of the outright intimidation, arm twisting and more subtle forms of coercion which result when a superior is requested to obtain employee participation in a program. We have seen this in the operation of the. bond sale campaign, the drives of charitable contributions, and the use of self-identification minority status questionnaires. We have seen it in the sanctioning of polygraphs, personality tests, and improper questioning of applicants for employment. In view of some of the current practices reported by employee organizations and unions, it seems those who endorse these techniques for mind probing and thought control of employees have sworn hostility against the idea that every man has a right to be free of every form of tyranny over his mind ; they forget that to be free a man must have the right to think foolish thoughts as well as wise ones. They forget that the first amendment implies the right to remain silent as well as the right to speak freely-the right to do nothing as well as the right to help implement lofty ideals. It is not under this administration alone that there has been a failure to respect employee rights in a zeal to obtain certain goals. While some of the problems are new, others have been prevalent for many years with little or no adminis- trative action taken to attempt to ameliorate them. Despite congressional concern, administrative officials have failed to discern patterns of practice in denial of rights. They seem to think that if they can belatedly remedy one case which is brought to the attention of the Congress, the public and the press, that this is enough-that the "heat" will subside. With glittering generalities, qualified until they mean nothing in substance, they have sought to throw Congress off the track in its pursuit of permanent corrective action. We have seen this in the case of personality testing, in the use of poly- graphs, and all the practices which the bill would prohibit. The Chairman of the Civil Service Commission informed the sub- committee that there is no need for a law to protect employee rights. He believes the answer is- to permit executive branch management and executive branch employees as individuals and through their unions, to work together to resolve these issues as part of their normal discourse. Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Release 2000/09/01 :9CIA-RDP82-003578 00700120017-8 It is quite clear from the fearful tenor of the letters and telephone calls received by the subcommittee and Members of Congress that there is no discourse and is not likely to be any discourse on these mat- ters between the Commission and employees. Furthermore, there are many who do not even fall within the Commission's jurisdiction. For them, there is no appeal but to Congress. As for the argument that the discourse between the unions and the Commission will remedy the wrongs, the testimony of the union.rep- resentatives adequately demolishes that, dream. The typical attitude of those responsible for personnel management is reflected in Mr. Macy's answer that there may be instances where policy is not adhered to, but "There is always someone who doesn't get the word." Corrective administration action, he says, is fully `ade- quate to protect employee rights. Administrative action is not sufficient. Furthermore, in the majority of complaints, the wrong actually stems from the stated policy of the agency or the Commission. How can these people be expected to judge objectively the reasonableness and constitutionality of their own poli- cies? This is the role of Congress, and in my opinion, Congress has waited too long as it is to provide the guidance that is desperately needed in these matters. S. 1035, 90th Congress On the basis of the subcommittee hearings, agency reports, and the suggestions of many experts, the bill was amended to meet legitimate objections to the scope and language raised by administrative wit- nesses and to clarify the intent of its cosponsors that it does not apply to the proper exercise of management authority and supervisory discretion, or to matters now governed by statute. This amended version of S. 3779 was introduced in the Senate by the chairman on February 21, 1967, as S. 1035 with 54 cosponsors. It was considered by the Constitutional Rights Subcommittee and unanimously reported with amendments by the Judiciary Committee on August 21, 1967. [S. Rept. No. 534, 90th Cong. 1st Sess.] The pro- posal was considered by the Senate on September 13, 1967, and ap- proved, with floor amendments, by a 79 to 4 vote. After absentee approvals were recorded, the record showed a total of 90 Members supported passage of the bill. The amendments adopted on the Senate floor deleted a complete exemption which the committee bill provided for the Federal Bureau of Investigation; instead, it was provided that the Federal Bureau of Investigation should be accorded the same limited exemptions provided for the Central Intelligence Agency and the National Security Agency. A provision was added to allow the three Directors to delegate the power to make certain personal findings required by section 6 of the bill. Committee amendments to S. 1035, 90th Congress 1. Amendment to section 1(a) page 2, line 13: Provided further, That nothing contained in this subsection shall be construed to prohibit inquiry concerning the national origin of any such employee when such inquiry is deemed necessary or advisable to determine suitability for assign- ment to activities or undertakings related to the national Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Rebase 2000/09/01 : CIA-RDP82-0ft57R000700120017-8 10 security within the United States or to activities or under- takings of any nature outside the United States. 2. Amendment to section 1(b), page 2, line 25 strike "to" (techni- cal amendment.) 3. Delete section 1(e), page 4, lines 1-4 (prohibitions on patron- izing business establishments) and renumber following sections as sections 1(e), (f), (g), (h), (i), (j). (k)', and (1), respectively. 4. Delete section 4, page 10, lines 12-23 (criminal penalties), and renumber following sections as sections 4 and 5, respectively. 5. Amendment to section 1(f), page 4, line 25: Provided further, however, That nothing contained in this subsection shall be construed to prohibit an officer of the department or agency from advising any civilian employee or applicant of a specific charge of sexual misconduct made against that person, and affording him an opportunity to refute the charge. 6. Amendments to section 1(f), page 4, at lines 17 and 19, change "psychiatrist" to "physician.". 7. Amendment to section 1(k), page 7, at line 10, change (i) to (i). 8. Amendment to section 2(b), page 9, at line 6 and line 9, change "psychiatrist" to "physician". 9. Amendment to section 2(b), page 9, at line 15: Provided further, however, That nothing contained in this subsection shall be construed to prohibit an officer of the Civil. Service Commission from advising any civilian employee or applicant of a specific charge of sexual misconduct made against that person, and affording him an opportunity to refute the charge. 10. Amendment to section 5, page 11., line 21, insert after the word "violation." the following : The Attorney General shall defend all officers or persons sued under this section who acted pursuant to an order, regulation, or directive, or who, in his opinion, did not will- fully violate the provisions of this Act. 11. Amendment to section 6(1), page 16, at line 24, strike "sign charges and specifications under section 830 (art. 30)" and insert in lieu thereof "convene general courts-martial under section 822 (art. 22)" (technical amendment). 12. Amendment to section 6 (in), page 17, line 14, change subsection (j) to (k) (technical amendment). 13. Amendment, page 18, add new section 6: SEC. 6. Nothing contained in this Act shall be construed to prohibit an officer of the Central Intelligence Agency or of the National Security Agency from requesting any civilian employee or applicant to take a polygraph test, or to take a psychological test designed to elicit from him information concerning his personal relationship with any person con- nected with him by blood or marriage, or concerning his religious beliefs or practices, or concerning his attitude or Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Release 2000/09/01 11CIA-RDP82-00357$p00700120017-8 conduct with respect to sexual matters, or to provide a per- sonal financial statementy if the Director of the Central In- telligence Agency' or the Director of the National Security, Agency makes a personal finding with regard to each indi- vidual to be so tested or examined that such test or informa- tion is required to protect the national security. 14. Amendment, page 18, add new section 8, and renumber follow- ing section as section 9: ,',c: S. Nothing contained in sections 4 and 5 shall be construed to prevent establishment of department and agency grievance procedures to enforce this Act,, but the existence of such procedures shall not preclude any applicant or employee from pursuing the remedies established by this Act or any other remedies provided by law : Provided, however, That if under the procedures established, the employee or applicant has obtained complete protection against th reaten.ed viola- tions or complete redress for violations, such action may be pleaded in bar in the United States District Court or in proceedings before the Board on Employees' Rights: Pro- vided further, however, 'chat if an employee elects to seek a remedy under either section 4 or section 5, lie waives his right to proceed by an independent action under the remaining section. Comparison of S. 1035, 90th Congress, as introduced, and S. 3779, 89th Congress As introduced, the revised bill, S. 1035, differed from S. 3779 of the 89th Congress in the following respects : 1. The section banning requirements to disclose race, religion, or national origin was amended to permit inquiry on citizenship where it is a statutory condition of employment.. 2. The provision against coercion of employees to buy bonds or make charitable donations was amended to make it clear that it does not prohibit calling meetings or taking any action appropriate to afford the employee the opportunity voluntarily to invest or donate. 3. A new section providing for administrative remedies and penal- ties establishes a Board on Employees' Rights to receive and coliduct hearings on complaints of violation of the act, and to determine and administer remedies and penalties. There is judicial review of the decision under the Administrative Procedure Act. 4. A specific exemption for the Federal Bureau of Investigation is. included. 5. Exceptions to the prohibitions on privacy-invading questions by examination, interrogations, and psychological tests are provided upon psychiatric determination that the information is necessary in the diagnosis and treatment of mental illness in individual cases, and provided that it is not elicited pursuant to general practice or regula- tion governing the examination of employees or applicants ou the basis of grade, job, or agency. 6. The section prohibiting requirements to disclose personal finan- cial information contains technical amendments to assure that only Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Rase 2000/09/01 :1cIA-RDP82-057R000700120017-8 persons with final authority in certain areas may be subject to dis- closure requirements. 7. For those employees excluded from the bar} on disclosure require- ments, a new section (j), provides that they may only be required to disclose items tending to show a conflict of interest. 8. Military supervisors of civilian employees are included within the prohibitions of the bill, and violation of the act is made a punish- able offense under the Uniform Code of Military Justice. 9. A new section 2 has been added to assure that the same prohibi- tions in section 1 on actions of department and agency officials with respect to employees in their departments and agencies apply alike to officers of the Civil Service Commission with respect to the employees and applicants with whom they deal. 1.0. Section (b) of S. 3779, relating to the calling or holding of meetings or lectures to indoctrinate employees, was deleted. 11. Sections (c), (d), and (e) of S. 3779-sections (b),'(c), and (d) of S. 1035-containing prohibitions on requiring attendance at out- side meetings, reports on personal activities and participation in out- side activities, were amended to make it clear that they do not apply to the performance of official duties or to the development of skill, knowledge, and abilities which qualify the person for his duties or to participation in professional groups or associations. 12. The criminal penalties were reduced from a maximum of $500 and 6 months' imprisonment to $300 and 30 days. 13. Section (h) of S. 3779 prohibiting requirements to support can- didates, programs, or policies of any political party was revised to prohibit requirements to support the nomination or election of persons or to attend meetings to promote or support activities or undertakings of any political party. I.I. Other amendments of a technical nature. S. 788, 91st Congress-Committee amendments S. 782, as introduced by Senator Ervin with 54 cosponsors, was identical to S. 1035 of the 90th Congress as passed by the Senate. As amended in Committee, it was reported to the Senate on May 15, 1970, and passed by unanimous consent on May 19. The Subcommittee met in executive session on July 22, 1969, to receive testimony from Richard Helms, Director of the Central In- telligence Agency and other agency representatives. On the basis of this testimony and after a number of meetings of subcommittee mem- bers with officials of the Central Intelligence Agency, the National Security Agency, and the Federal Bureau of Investigation, the lan- guage contained in the committee amendments was drafted and meets with the approval of the Directors of those agencies. Amendments 1. Amendment to section 1(a), page 2, line 15 insert after the word "origin" the words "or citizenship" and after the word "employee", the words "or person, or his forebears". 2. Amendment to section 1(k), page 8, line 5 after the word "re- quests", strike the period and insert the following : : Provided, however, That a civilian employee of the United States serving in the Central Intelligence Agency, or the Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Release 2000/09/01 : CIA-RDP82-00357&000700120017-8 13 National Security Agency may be accompanied only by a person of his choice who serves in the agency in which the employee serves or by counsel who has been approved by the agency for access to the information involved. 3. Amendment to section 6, page 18, lines 15 and 16 delete "or of the Federal Bureau of Investigation". 4. Amendment to section. 6, page, 18, line 25, and page 19, line 1 delete "or the Director of the Federal Bureau of Investigation or his. designee". 5. On page 19, add a new section 7 as follows : SEC. T. No civilian employee of the United States serving in the Central Intelligence Agency or the National Security Agency, and no individual or organization acting in behalf of such employee, shall be permitted to invoke the provisions of sections 4 and 5 without first submitting a written complaint to the agency concerned about the threatened or actual violation of this Act and affording such agency 120 days from the date of such complaint to prevent the threatened viola- tion or to redress the actual violation : Provided, however, That nothing in this Act shall be construed to affect any existing authority of the Director of Central Intelligence under 50 U.S.C. 403(c), and any authorities available to the, National Security Agency under 50 U.S.C. 833 to terminate the employment of any employee. 6. On page 19, add a new section 8 as follows : SEC. S. Nothing in this act shall be construed to affect in any way the authority of the Directors of the Central Intel- ligence Agency or the National Security Agency to protect or withhold information pursuant to statute or executive order, The personal certification by the Director of the agency that disclosure of any information is inconsistent with the pro- vision of any statute or executive order shall be conclusive and no such information shall be admissible in evidence in any interrogation under section 1(k) or in any civil action under section 4 or in any proceeding or civil action under section 5. 7. On page 19, add a new section D as follows : SEC. 9. This act shall not be applicable to the Federal Bureau of Investigation. 8. On page 19, at line 5, renumber "SEc. 7" as "SEC. 10" and at line 20, renumber "SEC. 8" as "SEC. 11". S. 1438, 92d Congress As introduced by Senator Ervin with 53 cosponsors, S. 1438 was identical to S. 782 of the 91st Congress as unanimously reported by the Committee and unanimously approved by the Senate. S. 1438 way, ap- proved by the Committee without amendment on December 6, 1971, passed by the Senate by unanimous consent on December 8, 1971, and was referred to the House Post Office and Civil Service Committee. There a majority of the, full committee voted to table the bill. Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For R06ase 2000/09/01 : CIA-RDP82-09WR000700120017-8 14 On August 1, 1972, upon a motion by Senator Ervin, the Committee added the text of S. 1438 as Title II of the House-passed bill II.R. 12652, extending the life of the Civil Rights Commission and expand- ing its jurisdiction to include a study of the rights of women. On August 4, 1972, the Senate unanimously passed H.R. 12652 as amended. This marked the fourth time in six years that the Senate had approved the provisions of the employee privacy bill.. The House rejected the Senate amendment and requested a confer- ence. The Senate conferees stood by the Senate amendment until it became apparent that it might jeopardize passage of the entire legis- lation. When the Senate passed the Civil Rights Commission authori- zation, it accepted the conference committee's decision to delete Title II from the bill. QUESTIONS ON RACE, RELIGION, AND NATIONAL ORIGIN Many complaints received by the subcommittee concerned official requests or requirements that employees disclose their race, religion, or ethnic or national origin. This information has been obtained from employees through the systematic use of questionnaires or oral in- quiries by supervisors. Chief concern has focused on a policy inaugurated by the Civil Service Commission in 1966, under which present employees and future employees would be asked to indicate on a questionnaire whether they were "American Indian," "oriental," "Negro," "Spanish- American" or "none of these." Approximately 1.7 million employees were told to complete the forms, while some agencies including some in the Department of Defense continued their former practice of acquir- ing such information through the "head count" method. Although the Civil Service Commission directive stated that disclosure of such in- formation was voluntary, complaints show that employees and super- visors generally felt it to be mandatory. Administrative efforts to obtain compliance included in some instances harassment, threats, and intimidation. Complaints in different agencies showed that employees who did not comply received airmail letters at their homes with new forms ; or their names were placed on administrative lists for "follow- up" procedures, and supervisors were advised to obtain the informa- tion from delinquent employees by a certain date. In the view of John McCart, representing the Government Em- ployes' Council, AFL-CIO : When the Civil Service Commission and the regulations note that participation by the employee will be voluntary, this removes some of the onus of the encroachment on an individual's privacy. But in an organizational operation of the size and complexity of the Federal Government, it is just impossible to guarantee that each individual's right to privacy and confidentiality will be observed. In addition to that, there have been a large number of com- plaints from all kinds of Federal employees. In the interest of maintaining the rights of individual workers against the possibility of invading those rights, it would seem to us it would be better to abandon the present approach, because Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Release_2000/09/01 : C,JA-RDP82-00357R, 000700120017-8 J there are other alternatives available for determining whether that program is being carried out. The hearing record contains numerous examples of disruption of employee-management relations, and of employee dissatisfaction with such official inquiries. Many told the subcommittee that they refused to complete the questionnaires because the matter was none of the Government's business; others, because of their mixed parentage, felt unable to state the information. Since 1963, the policy of the American Civil Liberties Union on the method of collecting information about race has favored the head count wherever possible. Although the policy is presently under re- view, the subcommittee finds merit in the statement that : The collection and dissemination of information about race creates a conflict among several equally important civil liberties: the right of free speech and free inquiry, on the one hand, and the rights of privacy and of equality of treatment and of opportunity, on the other. The ACLU approves them all. But at this time in human history, when the principle of equality and nondiscrimination must be vigorously defended, it is necessary that the. union oppose collection and disseminia.- tion of information regarding race, except only where rigor- ous justification is shown for such action. Where such collec- tion and dissemination is shown to be justified, the gathering of information should be kept to the most limited form, where- ever possible by use of the head count method, and the con- fidential nature of original records should be protected as far as possible. Former Civil Service Commission Chairman Robert Ramspeck told the subcommittee : To consider race, color, religion,- and national origin in making appointments, in promotions and retention of Federal employees is, in my opinion, contrary to the merit system. There should be no discrimination for or against minority persons in Federal Government employment. As the hearings and complaints have demonstrated, the most tilling argument against the use of such a questionnaire, other than the consti- tutional issue, is the fact that it does not work. This is shown by the admission by many employees that they either did not complete the forms or that they gave inaccurate data. Mr. Macy informed the subcommittee : In the State of Hawaii the entire program was cut out because it had not been done there before, and it -was inad- vertently included in this one, and the feelinm was that be- cause of the racial composition there it would to exceedingly difficult to come up with any kind of identification along the lines of the card that we were distributing. The Civil Service Commission on May 9 informed the subcommittee that it had "recently approved regulations which will end the use of voluntary self-identification of race as a moans of obtaining minority Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For 'ease 2000/09/01 : CIA-RDP82-57R000700120017-8 16 group statistics for the Federal work force." The Commission indi- cated its decision was based on the failure of the program to produce meaningful statistics. In its place the Commission will rely on super- visory reports based solely on observation, which would not be pro- hibited by the bill. As Senator Fong stated : It should be noted that the bill would not bar head counts of employee racial extraction for statistical purposes by su- pervisors. However, the Congress has authorized the merit system for the Federal service and the race, national origin or religion of the individual or his forebears should have nothing to do with his ability or qualifications to do a job. Section 1(a) of the bill was included to assure that employees will not again be subjected to such unwarranted invasion of ther privacy. It is designed to protect the merit system which Congress has author- ized for the Federal service. Its passage will reaffirm the intent of Congress that a person's religion, race, and national or ethnic origin or that of his forebears have nothing to do with his ability or qualification to perform the requisite duties of a Federal position, or to qualify for a promotion. By eliminating official authority to place the employee in a position in which he feels compelled to disclose this personal data, the bill will help to eliminate the basis for such complaints of invasion of privacy and discrimination as Congress has received for a number of years. It will protect. Americans from the dilemma of the grandson of an Amer- ican Indian who told the subcommittee that he had exercised his option and did not complete the minority status questionnaire. He did not know how to fill it out. Shortly thereafter lie received a personal memorandum from his supervisor "requesting" him to complete a new questionnaire and "return it immediately." He wrote : "I personally feel that if I do not comply with this request (order), my job or any promotion which comes up could be in jeopardy." The prohibitions in section 1(a) against official inquiries about religion, and in section 1(e) concerning religious beliefs and practices together constitute a bulh0 ark to protect the individual's right to silence concerning his religious convictions and to refrain from an indication of his religious beliefs. Referring to these two sections, Lawrence Speiser, director of the Washington office of the American Civil Liberties Union testified : These provisions would help, we hope, eliminate a con- stantly recurring problem involving those new Government employees who prefer to affirm their allegiance rather than swearing to it. All Government employees must sign an appointment affidavit and take an oath or affirmation of office. A problem arises not just when new employees enter Gov- ernment employment but in all situations where the Govern- ment requires an oath, and there is an attempt made on the part of those who prefer to affirm. It is amazing the intransi- gence that arises on the part of clerks or those who require the filling out of these forms, or the giving of the statement in permitting individuals to affirm. Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Release 2000/09/011~CIA-RDP82-00357,00700120017-8 The excuses that are made vary tremendously, either that the form can only be signed and they cannot accept a form in which "so help me God" is struck out, because that is an amendment, and they are bound by their instructions which do not permit any changes to be made on the forms at all. Also, in connection with the giving of oaths, I have had one case in which an investigator asked a young man this question : "For the purposes of administering the oath, do you believe in God?" It is to be hoped that the provisions of this bill would bar practices of that kind.. The law should be clear at this time. Title I, United States Code, section 1 has a number of rules of construction, one of which says that wherever the word "oath" appears, that includes "affirmation," and wherever the word "swear" appears, that includes "affirm." This issue comes up sometimes when clerks will ask, "Why do you want to affirm? Do you belong to a religious group that requires an affirmation rather than taking an oath?" And unless the individual gives the right answer, the clerks won't let him affirm. It is clear under the Toreaso case that religious beliefs and lack of religious beliefs are equally entitled to the protection of the first amendment. The objection has been raised that, the prohibition against inquiries into race, religion, or national origin would hinder investigation of discrimination complaints. in effect. however, it is expected to aid rather than hinder in this area of the law, by decreasing the oppor- tunities for discrimination initially. It does not hinder acquisition of the information elsewhere; nor does it prevent a person from volun- teering the information if he wishes to supply it in filing a complaint or in the course of an investigation. CONTROL Or EMPLOYEE OPINIONS, OUTSIDE ACTIVITIES Reports have come to the subcommittee of infringements and threatened infringements on first amendment freedoms of employees: freedom to think for themselves free of Government indoctrination, freedom to choose their outside civic, social, and political activities as citizens free of official guidance; or even freedom to refuse to par- ticipate at all without reporting to supervisors. Illustrative of the climate of surveillance the subcommittee has found was a 13-year-old Navy Department directive, reportedly sirni- lar to those in other agencies, warning employees to guard against "indirect remarks" and to seek "wise and mature" counsel within their agencies before joining civic or political associations. In the view of the United Federation of Postal Clerks : Perhaps no other right is so essential to employee morale as the right to personal freedom and the absence of inter- ference by the Government in the, private lives and activities of its employees. Attempts to place prohibitions on the private, associations of employees; mandatory reporting of social. contacts with Members of Congress and the press; attempts to "orient" or "indoctrinate" Federal employees. on Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For R^ase 2000/09/01 : CIA-RDP82-0M57R000700120017-8 16 subjects outside their immediate areas of professional inter- est; attempts to "encourage" participation in outside activities or discourage patronage of selected business establishments and coercive campaigns for charitable donations are among the most noteworthy abuses of Federal employees' right to personal freedom. An example of improper on-the-job indoctrination of employees about sociological and political matters was cited in his testimony by John Griner, president of the AFL-CIO affiliated American Federation of Government Employees : One instance of disregard of individual rights of employees as well as responsibility to the taxpayers, which has come to my attention, seems to illustrate the objectives of sub- sections (b), (c), and (d), of section 1 of the Ervin bill. It happened at a large field installation under the Department of Defense. The office chief called meetings of different groups of em- ployees throughout the day * ~' *. A recording was played while employees listened about 30 minutes. It was supposedly a speech made at a university, which went deeply into the importance of integration of the races in this country. There was discussion of the United Nations-what a great thing it was-and how there never could be another world war. The parson who reported this incident made this comment : "Think of the taxpayers' money used that day to hear that record." I think that speaks for itself. Other witnesses were in agreement with Mr. Griner's view on the need for protecting employees now and in the future from any form of indoctrination on issues unrelated to their work. The issue was defined at hearings on S. 3779 in the following colloquy between the subcommittee chairman and Mr. Griner. If they are permitted to hold sessions such as this on Gov- ernment time and at Government expense, they might then also hold sessions as to whether or not we should be involved in the Vietnam war or whether we should not be, whether we should pull out or whether we should stay, and I think it could go to any extreme under those conditions. Of course, we are concerned with it, yes. But that is not a matter for the daily routine of work. Senator ERVIN. Can you think of anything which has more ,direful implications for a free America than a practice by which a government would attempt to indoctrinate any man with respect to a particular view on any subject other than the proper performance of his work? Mr. GRLNER. I think if we attempted to do that we would be violating the individual's, constitutional rights. Senator ERVZN. Is there any reason whatever why a Federal civil service employee should not have the same right to have his freedom of thought on all things under the sun outside of the restricted sphere of the proper performance of his work that any other American enjoys? Mr. GRINER. No, sir. Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Release 2000/09/011] CIA-RDP82-00357R000700120017-8 low With one complaint of attempted indoctrination of employees at a Federal installation, a civil servant enclosed a memorandum taken from a bulletin board stating the time, place, and date of a lecture by a sociology professor on the subject of the importance of racial integration. Attendance was to be voluntary but the notice stated that a record would be made of those attending or not attending. Concerning such a practice, one witness commented : "If I had been a Federal employee and I cared anything about my job, I would have been at that lecture." Employees of an installation in Pennsylvania complained of require- ments to attend film lectures on issues of the cold war. Witnesses a(-reed that taking notice of attendance at such meetings constituted a form of coercion to attend. Section 1(b) will eliminate such intimidation. It leaves unaffected existing authority to use any appropriate means, including publicity, to provide employees infor- mation about meetings concerning matters such as charity drives and bond-selling campaigns. Section (c) protests a basic constitutional right of the individual employee to be free of official pressure on him to engage in any civic or political activity or undertaking which might involve him as a private citizen, but which has no relation to his Federal employment. It preserves his freedom of thought and expression, including his right to keep silent, or to remain inactive. This section will place a statutory bar against the recurrence of employee complaints such as the following received by a Member of the Senate : Dear Senator : On ,1966, a group of Treasury Department administrators were called to Miami for a con- ference led by , Treasury Personnel Officer, with regard to new revisions in chapter 713 of the Treasury Personnel Manual. Over the years the Treasury Department has placed spe- cial emphasis on the hiring of Negroes under the equal em- ployment opportunity program, and considerable progress in that regard has been made. However, the emphasis of the present conference was that our efforts in the field of equal employment opportunity have not been sufficient.. Under the leadership of President Johnson and based on his strong statement with regard to the need for direct action to cure the basic causes leading to discrimination, the Treasury Department has now issued specific instructions requiring all supervisors and line managers to become actively and aggres- sively involved in the total civil rights, problem. The requirements laid down by chapter 713 and its appen- dix include participation in such groups as the Urban league, NAACP, etcetera (these are named specifically) and involve- ment in the total community action program, including open housing, integration of schools= at cetera. The policies laid down in this regulation, as verbally ex- plained by the Treasury representatives at the conference, go far beyond any concept of employee personnel responsi- bility previously expressed. In essence, this regulation re- quires every Treasury manager or supervisor to, become a Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Reaase 2000/09/01 : CIA-RDP82-0(S''S7R000700120017-8 20 social worker, both during his official hours and on his own time. This was only tangentially referred to in the regulation and its appendages, but was brought out forcefully in verbal statements by Mr. and . Frankly, this is tre- nmendously disturbing to me and to many of the other persons with whom I have discussed the matter. We do not deny the need for strong action in the field of civil rights, but we do sincerely question the authority of our Government to lay out requirements to be met on our own time which are repug- nant to our personal beliefs and desires. The question was asked as to what disciplinary measures would be taken against individuals declining to participate in these community action programs. The reply was given by the equal employment officer, that such refusal would constitute an undesirable work attitude bordering on insub- ordination and should at the very least be reflected on the annual efficiency rating of the employee. The principles expressed in these regulations and in this conference strike me as being of highly dangerous potential. If we, who have no connection with welfare or social pro- grams, can be required to take time from our full time re- sponsibilities in our particular agencies and from the hours normally reserved for our own refreshment and recreation to work toward integration of white neighborhoods, integration of schools by artificial means, and to train Negroes who have not availed themselves of the public schooling available, then it would seem quite possible that under other leadership, we could be required to perform other actions which would actually be detrimental to the interests of our Nation. Testifying on the issue of reporting outside activities, the American Civil Liberties Union representative commented : To the extent that individuals are apprehensive they are going to have to, at some future time, tell the Government about what organizations they have belonged to or been asso- ciated with, that is going to inhibit them in their willingness to explore all kinds of ideas, their willingness to hear speakers, their willingness to do all kinds of things. That has almost as deadening an effect on free speech in a democ- racy as if the opportunities were actually cut off. The feeling of inhibition which these kinds of questions cause is as dangerous, it seems to me, as if the Government were making actual edicts. Witnesses gave other examples of invasion of employees' private lives which would be halted by passage of the bill. In the southwest a division chief dispatched a buck slip to his group supervisors demanding: "the names * * of employees * * * who are participating in any activities including such things as : PTA in integrated schools, sports activities which are inter-social, and such things as Great Books discussion groups which have integrated memberships." Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Release 2000/09/01 21CIA-RDP82-00357 $ 00700120017-8 In a Washington office of the Department of Defense, a branch chief by telephone asked supervisors to obtain from employees the names of any organizations they belonged to. The purpose apparently was to obtain invitations for Federal Government officials to speak before such organizations. Reports have come to the subcommittee that the Federal Maritime Commission, pursuant to civil service regulations, requested employees to participate in community activities to improve the employability of minority groups, and to report to the chairman any outside activities. * * * * * In addition to such directives, many other instances involving this type of restriction have come to the attention of the subcommittee over a period of years. For example, some agencies have either prohibited flatly, or required employees to report, all contacts, social or otherwise, with Members of Congress or congressional staff members. In many cases reported to the subcommittee, officials have taken reprisals against employees who communicated with their Congressmen and have issued directives threatening such action. * * * * * * * The Civil Service Commission on its Form 85 for nonsensitive posi- tions requires an individual to list: "Organizations with which affili- ated (past and present) other than religious or political organizations or those with religious or political affiliations (if none, so state)." * * * * * * PRIVACY INVASIONS IN INTERVIEWS, INTERROGATIONS, AND PERSONALITY TESTS Although it does not outlaw all of the unwarranted personal prying to which employees and applicants are now subjected, section 1(e) of the reported bill will prohibit the more serious invasions of personal privacy reported. The subcommittee believes it will also result in limitations beyond its specific prohibitions by encouraging admistra- tive adherence to the principles it reflects. It will halt mass programs in which, as a general rule, agency officials conduct interviews during which they require or request ap- plicants or employees to reveal intimate details about their habits, thoughts, and attitudes on matters unrelated to their qualifications and ability to perform a job. It will also halt individual interrogations such as that involving an 18-year-old college sophomore applying fora summer job as a secretary at a Federal department. In the course of an interview with a department investigator, she was asked wide-ranging personal questions. For instance, regarding a boy whom she was dating, she was asked questions which denoted assumptions made by the investigator, such as : Did he abuse you? Did he do anything unnatural with you? You didn't get pregnant, did you ? Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For R96ase 2000/09/01 : CIA-RDP82-0@057R000700120017-8 22 There's kissing, petting, and intercourse, and after that, did he force you to do anything to him, or did he do anything to you? The parent of this student wrote : This interview greatly transcended the bounds of normal areas and many probing personal questions were propounded. Most questions were leading and either a negative or positive answer resulted in an appearance of self-incrimination. Dur- ing this experience, my husband was on an unaccompanied tour of duty in Korea and I attempted alone, without success, to do battle with the Department. I called and was denied any opportunity to review what had been recorded in my daughter's file. Likewise my daughter was denied any review of the file in order to verify or refute any of the record made by the State Department interviewer. This entire matter was handled as if applicants for State Department employment must subject themselves to the personal and intimate questions and abdicate all claims to personal rights and privileges. As a result of this improper intrusion into my daughter's privacy which caused all great mental anguish, I had her application for employment withdrawn from the State Department. This loss of income made her college education that much more difficult. Upon my husband's return, we discussed this entire situa- tion and felt rather than subjecting her again to the sanc- tioned methods of Government investigation we would have her work for private industry. This she did in the summer of 1966, with great success and without embarrassing or humiliating Gestapo-type investigation. Upon subcommittee investigation of this case, the Department indi- cated that this was not a unique case, because it used a "uniform policy in handling the applications of summer employees as followed with all other applicant categories." It stated that its procedure under Executive Order 10450 is a basic one "used by the Department and other executive agencies concerning the processing of any category of applicants who will be dealing with sensitive, classified material." Its only other comment on the case was to assure that "any information developed during the course of any of our investigations that is of a medical nature, is referred to our Medical Division for proper evalua- tion and judgment." In response to a request for copies of depart- mental guidelines governing such investigations and interviews, the subcommittee was told they were classified. Section 1(e) would protect every employee and every civilian who offers his services to his Government from indiscriminate and un- authorized reeuests to submit to any test designed to elicit such infor- mation as the following : My sex life is satisfactory, I have never been in trouble because of my sex behavior. F,vervtliing is turning out just like the prophets of the Bible said it would. Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Release 2000/09/01 : CIA-RDP82-00357p00700120017-8 23 I loved my father. I am very strongly attracted by members of my own sex. I go to church almost every week. I believe in the second coming of Christ. I believe in a life hereafter. I have never indulged in any unusual sex practices. I am worried about sex matters. I am very religious (more than most people). I loved my mother. I believe there is a Devil and a Hell in afterlife. I believe there is a God. Once in a while I feel hate toward members of my family. whom I usually love. I wish I were not bothered by thoughts about sex. The subcommittee hearings in 1965 on "Psychological tests and constitutional rights" and its subsequent investigations support the need for such statutory prohibitions on the use of tests. In another case, the subcommittee, was told, a women was ques- tioned for 6 hours "about every aspect, of her sex life-real, imagined, and gossiped-with an intensity that could only have been the product of inordinately salacious minds." The specific limitation on the three areas of questioning proscribed in S. 1035 in no way is intended as a grant of authority to continue or initiate the official eliciting of personal data from individnals on subjects not directly proscribed. It would prohibit investigators, or personnel, security and medical specialists from indiscriminately re- quiring or requesting the individual to supply, orally or through tests, data on religion, family, or sex. It does not prevent a physician from doing so if lie has reason to believe the employee is "suffering from mental illness" and believes the information is necessary to make a diagnosis. Such a standard is stricter than the broad "fitness for duty" standard now generally applied by psychiatrists and physicians in the interviews and testing which an employee can be requested and re- quired to undergo. There is nothing in this section to prohibit an official from advising an individual of a specific charge of sexual misconduct and affording him an opportunity to refute the charge voluntarily. Section 1(f) makes it unlawful for any officer of any executive de- partment or agency or any person acting under his authority to require or request or attempt to require or request any civilian employee or any applicant for employment to take any polygraph test designed to elicit from him information concerning his personal relationship with any person connected with him by blood or marriage, or concern- ing his religious beliefs, practices or concerning his attitude or conduct with respect to sexual matters. While this section does not eliminate the use of so-called lie detectors by Government, it assures that where such devices are used for these purposes it will be only in limited areas. John McCart, representing the Government Employees Council of AFL-CIO, supported this section of the bill, citing a 1.965 tvenort. by a special subcommittee of the AFL-CIO executive council thjt : Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Rbase 2000/09/01 : CIA-RDP82-0ft57R000700120017-8 24 The use of lie detectors violates basic considerations of human dignity in that they involve the invasion of privacy, self-incrimination, and the concept of guilt until proven innocent. Congressional investigation, has shown that there is no scientific validation for the effectiveness or accuracy of lie detectors. Yet despite this and the invasion of privacy involved, lie detectors are being used or may be used in various agencies of the Federal Government for purposes of screening applicants or for pursuing investigations. This section of the bill is based on complaints such as the following received by the subcommittee : When I graduated from college, in 1965, I applied at NSA. I went to 2 days of testing, which apparently I passed because the interviewer seemed pleased and he told me that they could always find a place for someone with my type of degree. About 1 month later, I reported for a polygraph test at an office on Wisconsin Avenue in the District or just over the District line in Maryland. I talked with the polygraph operator, a young man around 25 years of age. He explained how the machine worked, etc. He ran through some of the questions before he attached the wires to me. Some of the questions I can remember are- "When was the first time you had sexual relations with a woman? "How many times have you had sexual intercourse? "Have you ever engaged in homosexual activities? "Have you ever engaged in sexual activities with an animal? "When was the first time you had intercourse with your wife? "Did you have intercourse with her before you were mar- ried ? I-low many times ?" He also asked questions about my parents, Communist activities, etc. I remember that I thought this thing was pretty outrageous, but the operator assured me that lie asked everybody the same cpiestions and lie has heard all the answers before, it just didn't mean a thing to him. I wondered how he could ever get away with asking a girl those kinds of cuestions. When T was finished, I felt as though I had been in a, 15 round championship boxing match. T felt exhausted. I made up my mind then and there that I wouldn't take the iob even if they wanted me to take it. Also. I concluded that I would never again apply for a job with the Government, es- pecially where they make you take one of these tests. Commenting on this complaint, the subcommittee chairman ob- served : t TT-in en(i rennr+q on the iGn of .+o1. ~r~niic pc "lie Ao~.'tmrs " by +11e 1re'eroi cov hef nro snheommittee of the House Committee on Government Operations, April 1904 through 19fi ii. Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Release 2000/09/01 : CIA-RDP82-00357 p00700120017-8 Certainly such practices should not be tolerated even by agencies charged with security missions. Surely, the finan- cial, scientific, and investigative resources of the Federal Gov- ernment are sufficient to determine whether a person is a security risk, without strapping an applicant to a. machine and subjecting him to salacious questioning. The Federal Bureau of Investigation does not use personality tests or polygraphs on applicants for employment. I fail to see why the National Security Agency finds them so fascinating. The hearing record and subcommittee complaint files amply docu- ment the need for statutory protections against all forms of coercion of employees to buy bonds and contribute to causes. Involved here is the freedom of the individual to invest and donate his money as he sees fit, without official coercion. As the subcommittee chairman explained : It certainly seems to me that each Federal employee, like any other citizen in the United States, is the best judge of his capacity, in the light of his financial obligations, to par- ticipate or decide whether he will participate and the extent of his participation in a bond drive. That is a basic determi- nation which lie and he alone should make. I think there is an interference with fundamental rights when coercion of a psychological or economic nature i; brought on a Federal employee, even to make him do right. I think a man has to have it choice of acting unwisely as well as wisely, if he is going to have any freedom at all. The subcommittee has received from employees and their organiza- tions numerous reports of intimidation, threats of loss of job, and security clearances and of denial of promotion for employees who do not participate. to the extent supervisors wish. The hearing record contains examples of documented cases of reprisals, many of which have been investigated at the subcommittee's request and confirmed by the agency involved. It is apparent that policy statements and administrative rules are not sufficient to protect individuals from such coercion. The president of the United Federation of Postal Clerks informed the subcommittee : Section 1, paragraph (i) of S. 3770 is particularly impor- tant to all Federal employees and certainly to our postal clerks. The extreme arrm-twisting coercion, and pressure tac- tics exerted by some postmasters on our members earlier this year during the savings bond drive must not be permitted at any future time in the Government service. Our union received complaints from all. over the country where low-paid postal clerks, most having the almost impossi- ble problem of trying to support a family and exist on sub- standard wages, were practically being ordered to sign up for purchase of U.S. savings bonds, or else. The patriotism of our postal employees cannot be challenged. I recently was Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Rase 2000/09/01 : CIA-RDP82-0ft57R000700120017-8 26 advised that almost 75 percent of postal workers are veterans of the Armed Forces and have proven their loyalty and patriotism to this great country of ours on the battlefield in many wars. Yet, some postmasters questioned this patriotism and loyalty if any employee could not afford to purchase a savings bond during the drive. The president of the National Association of Government Employ- ees testified : We are aware of instances wherein employees were told that if they failed to participate in the bond program they would be frozen in their position without promotional oppor- tunities. In another agency the names of individuals who did not participate were posted for all to see. We have been made aware of this situation for some years and we know that Con- gress has been advised of the many instances and injustices Federal employees faced concerning their refusal or inability to purchase bonds. Certainly, the Government, which has thousands of public relations men in its agencies and departments, should be capable of promoting a bond program that does not include the sledge-hammer approach. Some concern has been expressed by officials of the TJnited Com- munity Funds and Councils of America, the American Heart, Associa- tion, Inc., and other charitable organizations, that the bill would hamper their campaigns in Federal agencies. For this reason, the bill contains a proviso to express the intent of the sponsors that officials may still schedule meetings and take any appropriate action to publicize campaigns and to afford employees the opportunity to invest or donate their money voluntarily. It is felt that this section leaves a wide scope for reasonable action in promoting bond selling and charity drives. The bill will prohibit such practices as were reported to the sub- committee in the following complaints : `V,e have not yet sold our former home and cannot afford to buy bonds while we have both mortgage payments and rental payments to meet. Yet I have been forced to buy bonds, as I was told the policy at this base is, "Buy bonds or by-by." In short, after moving 1,700 miles for the good of the Government, I was told I would be. fired if I didn't invest my money as my employer directed. I cannot afford to buy bonds, but I can't afford to be fired even more. Not only were we forced to buy bonds, but our superiors stood by the time clock with the blanks for the United Givers Fund, and refused to let us leave until we simied un. I am afraid to sign my name, but I am employed at Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 A representative of the 14th District Department of the American Federation of Government Employees, Lodge 421, reported : The case of a GS-13 professional employee who has had the misfortune this past year of underwriting the expenses incurred by the last illness and death of both his mother and father just prior to this recent bond drive. This employee had been unofficially informed by his supervisor that he had been selected for a then existing GS-14 vacancy. When it became known that he was declining to increase his participation in the savings bond drive by increasing his payroll deduction for that purpose, he was informed that he might as well, in effect, kiss that grade 14 goodby. DISCLOSURE OF ASSETS, DE11TS, AND PROPERTY Sections (i) and (j) meet a, need for imposing a reasonable statutory limitation on the extent to which an employee must reveal the details of his or his family's personal finances, debts, or ownership of property. The subcommittee believes that the conflict-of-interest statutes, and the many other laws g overning conduct of employees, together with appropriate implementing regulations, are sufficient to protect the Government from dishonest employees. More zealous informational activities on the part of management were recommended by witnesses in lieu of the many questionnaires now required. The employee criticism of such inquiries was summarized as fol- lows : There are ample laws on the statute books dealing with fraudulent employment, conflict of interest, etc. The invasion of privacy of the individual employee is serious enough, but the invasion of the privacy of family, relatives and children of the employee is an outrage against a free society. This forced financial disclosure has caused serious moral problems and feelings by employees that the agencies dis- trust their integrity. We do not doubt that if every employee was required to file an absolutely honest financial disclosure, that a few, though insignificant number of conflict-of-interest cases may result. However, the discovery of the few legal infractions could in no way justify the damaging effects of forced disclosures of a private nature. Further, it is our opinion that those who are intent on engaging in activities which result in a conflict of interest would hardly supply that information on a questionnaire or financial statemm'ut. Many employees have indicated that rather than subject their families to any such unwarranted invasion of their right to privacy, that they are seriously considering other employ- ment outside of Government. The bill will reduce to reasonable proportions such inquiries as the following questionnaire, which many thousands of employees have periodically been required to submit. - (Questionnaire follows:) Approved For Release 2000/09/01 : CIA-RDP82-00357R000700120017-8 Approved For Rase 2000/09/01 : CIA-RDP82-09457R000700120017-8 CONFIDENTIAL STATEMENT OF EMPLOYMENT AND FINANCIAL INTERESTS ' (FOR USE By REGULAR GOVERNMENT EMPLOYEES) pAT F. OF,4PP.IHTVENT IN --ENT -PO-10 Nl On~a.Nr ZAT ION COCA T ION (Op.r.fln4 .a?nC), Bva.., Di rl.Io.. I List the names of .11 corporations, companies, firms, or other business enl erprises, ships; organitariuns, and educatiooel, or ocher institutions: (.) with which you arc con netted an employee, officer, owner, director, member, trustee partner, advise', or coosu;tam; .,W i. which yrn have any potinuing financial i through a pen . . ant T- NAME ANO RING OF ORGANIZATION (Vn Pe,r1 e..IPn+N.n. _._` n.r..aprcanr.) plan, shared income, or other vrangement as It result of ry carrent of prior employment or business or professional as- tion; or (c) in which you have any financial interest through the ownership of slack, s?nck options, bonds, seeari+ ocher arrangemcors ln:fudiog trusts. If none, Mite NONE. POSITION IN ORGANIZATION (V.. P.rr I(.) L..ign.Il a., .$1 aypllc.L1.. NATURE OF FINAMCtAL INTEREST, ..g., STOCRS. PRIOR INCOME (U.. Parr I(by a tc) 4..1@r,.ti.ns /r .pPr:uar.!? wom yo List then of your ctedi eons ocher d,.n those to h snny be indebted by reason of It ortgagc on property which you occupy as n pe:sonai tesidenvt or to whom you may b