NSCID MARKINGS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83B00823R000100080012-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 9, 2016
• Document Release Date: March 8, 2001
• Sequence Number: 12
• Publication Date: May 20, 1976
• Content Type: MEMO

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ENERAL CfUNSEL
2 1 MAY 1976
OFFICE or inD G
' Note to Mr. 5~
Here is Defenetlz L?ffexerr l~ts1f ondisclosuSe.IDs
with t.lze statute
Robert T. Andrews
Seflior Advisor to the General Goufsel
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 cc, C- c -71 ads
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tS-,
C)FFiCt OF GENERAL COUNSEL
WASHINGTON, D. C. 20301
May 20, 197 6
MEMORANDUM FOR MR. LATIMER
SUBJECT; NSCID Markings
t a e
deterrni.nation ha?s been made
pursuant to both procedural and substantive criteria, contained in such
Executive Order:." The net effect is that the Goverment has the burden
of showing that national security is involved, and that its release could
reasonably be expected to cause damage to the national security. Zn
support of she latter, the Government must establisz a reasonable basis
to support its classification determination. (120 Cozzg. Rec. H 10865
(November 20, 1974)). In some instances this maybe done through
testimony and affidavits, and in others, the Court znay order the records
turned over for its personal review in camera.
In response to your request, I have reviewed the propasal that the
National. Security Council Intelligence Decisions (N'$CIDs) contain, in
addition to security classification markings, notations that t1ley are
protected from disclosure. by a specified statute. See the suggesst: d S. C.
notations in Attachment A which refer to 5 0 U. S. C.: 403(d)(3),
403g. , -18 U. S. C. 798(a)(3), and Public Law 86-36.''
In my judgment the inclusion of appropriate'not:atioi ss on the NSCIDs,
indicating that the material is specifically exempted from disclosure
by statute, would aid the Government in defending against Freedom. of
Information Act suits to compel disclosure.
The Freedom.. of Information Act, 5 U. S. C. 552(b) permits ail Agency.
citica:.ly
to exempt from public disclosure matters that are (1)(A) spe
required by Executive order to be kept secret in the interest of the
national defense or foreign policy} and (B) are in #a:;t properly classi-
fied pursuant to such Executive order." Previous to the 1974 Ax2~end-
ments to that Act, the Government was only required to establish (A).
~3-1200) notes, the
As the 1974 Conference Report (Senate Report No.
Government is not only required to establish that the record was marked.
classified pursuant to an Executive Order requirement,. but also that a
t tiz record is "properly classified
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Klaus and Halperin v. National Securi Council and Kissinger, LT. S. Dist.
Ct, of D. C. , Civil Action 75-1093, which is now; being litigated, involves
a challenge. to the Government's refusal to declassify and release NSCIDs
published February 17, 1972, The NSCIDs contain the security classifi-
cation markings required by Executive Order, but no statement that the
Directive is protected from, disclosure under a designated statute.
The Freedom of Information Act also perraits an agency to exempt from
public disclosure matters that are "specifically exempted from disclo-
sure by statute." 1-1. Rept. 1497, 89th Cong. 2d Sess., p. 10 states
that there are "nearly 100 statutes or parts of statutes which restrict
public access to specific Government -records. These would not be modi-
fied by the public records provisions of S. 1160 (avhich became the r- ree-
doin of Information AE.t)."
The Attorney General's memorandum on the Public Information Section of
the Administrative Procedure Act, June 1967, commented that there
were a wide variety of statutes which restrict disclosure, and cited spe-
cific examples, including 50 U. S. C. 403g. whichexempts publication or
disclosure of the CIA organization, its functions, or its personnel.
in a Committee Print, "Federal Statutes on the Availability of informa.-
tion", by the House Committee on Government Opnrati.ons, 86th Congress,
Second Session, March 1960, there appears a. nuriiber of statutes which
prohibit public disclosure on the grounds of natioi'ial security. 50 U, S. C.
403g. is again cited, as is 18 U.S.C.. 798 which p'rohibits disclosure of
communications intelligence information. Although not cited in either
compilation it is apparent that Public Law 86-36 (which exempts disclo-
sure of National Security Agency organization, functions and personnel)
deserves the same recognition as its CIA counteri art statute, 50 U. S. U.S.C.
403g.
Turning to the case law on the subject, there are a number of decisions
supporting the statutory exemption provision. Administrator, Federal
Aviation Administration v, Robertson, 95 S. Ct. 2140 (1975) noted (p. 2148)
that "when Congress amended the Freedom of Information Act in 1974, it
reaffirmed the continued validity of this particular Exemption, covering
statutes vesting in agencies wide authority." 50 U. S. C. 403 (d)(3), 50
U.S. C. 403 (g) and Public. Law 86-36 are such statutes.
in Richardson v. Spahr, et al., U. S. Dist.. Ct. W.' Dist. Pa. (January 30,
1976), Civil Action 75297, the Court granted the Government's motion
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fo.. :; nma.ry judgment o.1n. the, grounds that the Freedom of Information Act,
spe< ifica.7ly exempts from disclosure financial records which reflect GIB
transactions from the inception of the agency. Spdcafically cited were
the statutes, 50 U.S.C. 403g; 50 U.S.C. 403j (b); 50 U.S.C. 403j (a) which,
in the words of the court "clearly and unequivocally reflects the approval
of Congress for the secrecy involved in funding and operating intelligence .
operations." Also cited in support of denying the request was the responsi-.
bility of the. Director of Central Intelligence to protect intelligence sources
and methods from unauthorized disclosure. 50 U.:5. C 403 (d) (3).
A. similar holding was made in Philli Spi v. CIA, t.7. S. Dist. Ct. for D. D.C.
(1975), Civil Action 75-1265. When Plaintiff sought perlydaeio;l to take
part in an in camera. examination of certain CIA docunzer1ts, the Defendant
objected. After reviewing the agency's affidavits the court ruled that
any materials which fit the description of materials sought by the Plaintiff
~. ~~
are exempt under the "statutory exemption , citing Administrator, Federal
Aviation Adrilinistration v. Robertson (supra), anO Kno Inc. V. 1b
509 F. Zd 1362, cert. denied, 95 S. Ct. 1555 (197:5). Two other District
Court holdings are to like effect. Z3acl. ck v. CI!)., anti Galb Civil Action
.75-3727, and Weissman v. CIA, et al, Civil Action 75-1583. Both the
Ricbardson. and Philli pl cases have been appealed.
T at dal and,
In summary, the legislative history of the Freedom f Informatioil Act
case law support the proposal that if NSCID docur~ients contain
protected by the aforementioned, statutes, they should be so tnarlced. As.
indicated heretofore, proving that documents are exempt on security classi-
fication grounds is more difficult under 50 U. S. C. 552b(1), than. proving the
existence of a. statute which specifically exempts 'info rrn.ation.from disclo-
sure. As Justice Stewart noted. in his concurring opinion in A.dmiuiistra.tor,
Federal Aviation Administration v. Robertson (sV* pra), "As matters now stand,
when an agency asserts a right to withhold inform atiof based on a specific
statute of the kind described in Exemption 3, the only question to be deter.
mined in a. district court's de novo inquiry is the: factual existence of such a
statute, regardless of how unwise, self -pr'otectite, or inadvertent the enact-
ment might be."
Robert T. Andrev~rs
Senior Advisor to the Geiieral Counsel
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b
i'tr.i irectiva,'.authorized by the 001004 0612-6
ecurity
Director of Central Intelligence' is diroated to protect fr m
disclosure..
Council, 'relates to intelligence sources, and m ~thods, a defined
in 50 U, S. C. 403(4)(3), which, by statute and tt'ie'directive, the
sFurity
This directive, authorized by the National
ottncil,?
pertains to functions to be performed by the Ce6 ra1 Int lligence
`Agency and the Director of Central Intel,ltgence which t is Director..
from disclosure; It also pertains to th4 organic ation or 'urIct:ion.
or activities of the National Security Agency which are 'pt otec'te'd.
by statute; 18 U. S. C. 798(a)(3), and. this directive are o empt
This. directive (a) relatea to commu~nicatiot s inte'tlig nce which
and this directivd.
s likewise directed to protect from disclosure lay 50 U. s; C. 403p
1
frarn disclosure under P. L; 86..36. r'
Additionally actin'puratuant to l .0.' 1,.16521-the Nati rial. ecu it?
oh tho grounds that its disclosure could re a sona.iby t>v ,ex' ected to
f
cause ;. r" damage tti:tthei.iiational security.
:AU D END TJm
The General. Counsel recaxi ix ,ehda that. the. th`ixd.lpa.xagxapli of',4ttaclzmi
st:atu.tes cited. Instead; it w ouald state* thiat t>h,6 i.nfoi?mation is protectei
,A be modified so that the nota.ti.oxts woxxltl not be confined to,the speciti~
'by statutes, including among others 18 U.S.C. 7980)(3) and Public
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L .Nv 86-36! .
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D
T2AN1MITTAL SLIP "--'25 May 76
TO:
6
Mr FX-1 5Ms
ROOM NO. BUILDING
REMARKS:
I seem to have convinced somebody
at DoD.
Ernie
FROM:
OG BX-5
ROOM NO. EXTENSION
FORM RFEB M 55 n4I REPLACES FORM 36-8
WHICH MAY BE USED.
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