QUESTIONS AND ANSWERS FOR USE WITH THE APEX NONDISCLOSURE AGREEMENT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85T00788R000100100008-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 16
• Document Creation Date: December 15, 2016
• Document Release Date: December 9, 2003
• Sequence Number: 8
• Publication Date: August 19, 1980
• Content Type: MF

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STAT
19 August 1980
MEMORANDUM FOR: APEX Steering Group Members
FROM:
Chairman, APEX Steering Group
SUBJECT: Questions and Answers for Use with the
APEX Nondisclosure Agreement
Attached is a series of questions and answers for
use by security officers in government and industry
who will be briefing persons required to sign the APEX
Nondisclosure Agreement. The first page may be read to
the persons being briefed, but it is not recommended
that the questions and answers be routinely disseminated.
Instead, they should be retained by the briefing officer
and used in responding to questions. These questions
and answers will be provided to the briefing officers
through the APEX Working Group #1 membership. Any addi-
tional. queries may be directed to the APEX Control'Staff.
STAT
STAT
Attachment
As stated
STAT
STAT
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19 August 1980
APEX Nondisclosure Agreement
Questions and Answers
Introduction: The President has determined that the U.S.
Government will establish a new system to handle Sensitive
Compartmented Information (SCI). The new system is called
the APEX Special Access Control System.
Before you can gain access to information controlled
under the APEX system, you will be required to sign an APEX
Nondisclosure Agreement. Every effort has been made to
write the Nondisclosure Agreement simply and clearly so that
you the reader can readily understand all of the provisions
of the Agreement.
In simplest terms the Agreement provides that in return
for granting you access to Sensitive Compartmented Information,
the Government asks you to agree never to disclose this
information to an unauthorized party. The Agreement provides
a way for you to be certain whether or not information you
wish to disclose or publish is controlled under the APEX
System and also specifies certain sanctions or penalties
which may be imposed if you violate this Agreement.
We want to make sure that you have read the Agreement
carefully and understand it. Therefore, we are prepared to
answer any questions you may have about the meaning of any
provision of this Agreement. Many of your questions have
been addressed before and we have obtained authoritative
answers from the APEX Control Staff and its legal advisor.
If we are uncertain about the answers to any question, we
will consult with the Control Staff and get the answer for
you.
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QUESTION: I have (or had) access to Sensitive Compartmented
Information and signed a different form. Why do I now need
to sign this Agreement?
ANSWER: In the interest of uniformity, every person who
will be given access to SCI will have to sign the same
Agreement - the APEX Nondisclosure Agreement. The major
differences between this and previous Agreements is that
this one provides a procedure whereby you can determine
in advance whether material you intend to publish contains
SCI. This helps to avoid the risk of Government legal action
against you as a consequence of your publication or disclosure
of information. In addition, this Agreement makes explicit
your obligations and gives you a better understanding of the
actions which may be taken against you if you fail to live
up to these obligations.
DO I NEED AN ATTORNEY
QUESTION: Do I need to show this Agreement to an attorney
before I sign it?
ANSWER: It is entirely up to you whether you show the
Agreement to a lawyer. We believe the Agreement is simple
and straight forward. If we agree to provide you access to
SCI information, you agree never to disclose the information
to an unauthorized party. However, if we have failed to
answer any questions to your satisfaction or if you simply
prefer to show the Agreement to your lawyer and have him
clarify any points you may do so.
Let us know before you see an attorney because in
certain cases it will be necessary for us to obtain a
clearance for your attorney. We also will be pleased to
provide your attorney with the name of a Government attorney
with whom he may speak if he has any questions.
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QUESTION: Will the Government pay for the cost of an attorney?
ANSWER: No. In this and similar situations you must pay
for your own lawyer. For example, if you go to a bank or
finance company for a loan, you must agree to repay the
money and also consent to certain actions should you fail
to abide by the terms of the loan agreement. You can sign
the required forms without going to a lawyer or you can ask
your lawyer for advice, but the bank or finance company is
not going to pay for your lawyer. A similar situation
applies with respect to the APEX Nondisclosure Agreement.
QUESTION: What will the Government do if I refuse to sign
the APEX Nondisclosure Agreeement?
ANSWER: The Government will not provide you with access
to Sensitive Compartmented Information or, if you now have
such access, will terminate that access. If your current
access is terminated, you will still have to abide by the
terms of any agreement which you previously signed.
RETENTION OF AGREEMENT
QUESTION: Can I keep a signed copy of the Nondisclosure
Agreement?
ANSWER: The Agreement itself is not classified. However,
the fact that a particular person signed it at a particular
time may be classified. In such a case, you would not be
able to keep a signed copy.
If, for example, you were a Government employee and
your ostensible duties would not require access to APEX
information, the fact that you had signed an APEX Agreement
would be classified. If you were a contractor employee and
the corporation was working on a project which could not be
acknowledged as requiring access to APEX information, the
fact that you, a corporate employee, had signed the Agreement
would be classified.
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NUMBER OF AGREEMENTS TO BE SIGNED
QUESTION: Will I have to sign a new APEX Nondisclosure
Agreement every time I change employment?
ANSWER: Ordinarily no. It is intended that you will sign
only one APEX Nondisclosure Agreement. Your obligations
under this Agreement will apply to any information you
receive access to under the APEX System regardless of
whether you are in Government or the private sector, regard-
less of which company or Government agency you work for and
regardless of which Government agency may provide you with
access to SCI. Of course, there may be circumstances
which will require that you sign another APEX Nondisclosure
Agreement. For example, if you change employers and need to
begin work on a particular project immediately, you may be
asked to sign a new Nondisclosure Agreement if confirmation
that you had previously signed an Agreement would be delayed.
B. Questions About Individual Paragraphs in the APEX
Nondisclosure Agreement
QUESTION: This paragraph mentions the Director of Central
Intelligence. Does this mean that if I sign this Agree-
ment I will have access to CIA information?
ANSWER: Not necessarily. Appropriate information from the
Department of State, Department of Energy, Department of
Treasury, Department of Justice and Department of Defense as
well as from CIA can be protected under the APEX Control
System. The DCI is involved because he is responsible for
creating or continuing certain special access programs
(Section 4-201 of Executive Order 12065) and for ensuring
the establishment of common security and access standards
for managing and handling certain systems, information and
products (Section 1-601(1) of Executive Order 12036).
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QUESTION: This paragraph mentions information which is
classified or classifiable. What does classifiable mean?
ANSWER: This refers to information which meets the criteria
for classification under Executive Order 12065, but which
has not yet been properly marked. For example, if I give
you a briefing on a project which involves classified
information, your notes, before they are reviewed and
appropriately stamped to indicate their classification, are
"classifiable."
QUESTION: This paragraph indicates that I have received
a security indoctrination. What happens if after receiving
this indoctrination, I decide not to sign the Nondisclosure
Agreement.
ANSWER: The indoctrination does not include classified
information and you will be given access to SCI only
after you sign the Agreement.
QUESTION: This paragraph indicates that I "may" be required
to sign an acknowledgement when being granted access to
each category of Sensitive Compartmented Information. Does
this mean I have the choice of signing or refusing to sign
such acknowledgements.
ANSWER: No, you do not have this choice. If a particular
Government Agency requires that an acknowledgement be signed
and you refuse to sign, you will be denied access to the
particular category of SCI in question. Government agencies,
however, in administering APEX compartments may either
require that you sign an acknowledgment or allow a security
officer to record the fact that he briefed you on a particular
category of SCI. It is expected that each Agency will
develop procedures with respect to acknowledgements.
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QUESTION: What is meant by "indirect unauthorized disclosure"?
ANSWER: One example of indirect unauthorized disclosure
would be if instead of relating classified details about an
APEX project you told an unauthorized individual where he
might obtain the information, for example, that he should
read the story on pages 30-33 of a particular magazine
because it was entirely accurate.
QUESTION: The Nondisclosure Agreement mentions the need for
prior written authorization. Won't there be cases in which
oral approval would be sufficient?
ANSWER: In order to avoid any possible misunderstanding at
the time of publication or disclosure and the possibility of
disputes at some later date, we must insist on written
authorization.
QUESTION: Why do I have to submit material for security
review to the Department or Agency which last authorized my
SCI access? For example, if my last SCI access was from the
Navy but I am writing a book about an Army project, wouldn't
it make more sense for me to submit the book to the Army -
rather than to the Navy? Alternatively, if I have been out
of the SCI area for some years and can't remember which
Department or Agency gave me my last access but I do remember
working on an SCI project for the Air Force, will I get in
trouble if I send my book to the Air Force?
ANSWER: The requirement that you submit materials for
review to the Department or Agency which last issued you an
SCI access was designed to make things as easy for you as
possible. If you were working with SCI at the time of
submission, we felt it would be easiest for you to submit
the book to the Department or Agency which was sponsoring
your SCI access. If you were retired or not working with
SCI, we felt you would be more likely to remember the last
SCI access you had than the first one.
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You need not worry about submitting a book on an Army
subject to the Navy because, as indicated in paragraph five
of the Agreement, it is the responsibility of the Department
or Agency receiving your submission to coordinate with other
concerned Departments or Agencies. Indeed, this requirement
works in your favor because you are not required to guess
which Department or Agency should review the submitted
material and, if your book covers a number of subjects, you
do not have to be concerned about submitting copies to more
than one agency.
It also should be clear that so long as material is
received by any Department or Agency under the APEX Control.
System, the review process can be accomplished and we will
not object or penalize you if you send your material to any
Department or Agency from whom you received SCI access.
QUESTION: I still am not sure what materials I need to
submit for review.
ANSWER: Any proposed disclosure or publication whether
written or oral which may relate to, be based upon, or
contain SCI should be submitted for review. For your own
protection we recommend that you submit for review all
material relating to intelligence or intelligence activities.
In that way we can inform you whether Sensitive Compartmented
Information could be jeopardized and assist you to avoid
causing inadvertent harm to the national security. You will
also avoid any risk that Government legal action would have
to be taken against you.
QUESTION: As a contractor employee I regularly draft
proposals. Can SCI be used in such proposals and disseminated
without the need to obtain prior written authorization?
ANSWER: Only if the recipients of the proposal are cleared
for that category of SCI.
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QUESTION: Certain information which I know to be SCI has
appeared in a newspaper article. Can I consider this
information declassified and freely quote the article and
disseminate the SCI information without obtaining prior
written authorization?
ANSWER: An unauthorized disclosure of classified information
does not result in declassification of the information. Of
course, in the abstract, merely quoting a newspaper article
is not a problem. However, if you quote the article in a
context which confirms its accuracy you will have breached
this Nondisclosure Agreement.
QUESTION: What can I expect to happen in the course of the
security review of the materials I have submitted?
ANSWER: The Department or Agency which receives the submitted
material will make certain that all of the other Departments
and Agencies which have given you SCI access have an opportunity
to review the material. If the information you wish to
disclose does not involve SCI or classified information,
you will be so advised in writing by the Department or
Agency which received the material. If the reverse is
true, either the Department or Agency to which you sent the
material or the Department or Agency whose material is most
heavily involved will inform you of this fact and, following
this notification, discuss with you recommended deletions or
revisions which would avoid exposure of SCI.
We would hope that in a majority of cases a way could be
found to accommodate your publication requirements, maintain the
the sense of what you wish to convey and at the same time avoid
possible damage to the national security. Considerable experience
with prepublication review supports such optimism.
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QUESTION: Will the review process be used to prevent me from
writing articles which may be critical of, or embarrassing to,
the Government?
ANSWER: No. You are free to criticize or embarrass the
Government as much as,you desire. The only information
that the Government can oblige you to delete is information
which is classified.
QUESTION: Can the review process be used as a device to
prevent me from bringing illegal, improper or wasteful
activities to the attention of the proper authorities?
ANSWER: No. Whether or not classified information is
involved you are free to bring evidence of such activities
to the attention of the head of the Department or Agency,
or to the Inspector General or General Counsel; to the
Attorney General of the United States; to the Intelligence
Oversight Board or to the House or Senate Intelligence
Committees.
QUESTION: Am I free to publish if I do not receive a
response within thirty working days?
ANSWER: No, you should not consider yourself free to
publish until you have received the written authorization
mentioned in paragraph four of this Agreement. However,
should the Government fail to respond within thirty working
days you should notify the head of the Agency to which you
submitted the material or the DCI. Every effort will be
made to expedite your case.
QUESTION: What recourse do I have if I disagree with the
Government's position on classification?
ANSWER: You can appeal to the Senior Intelligence Officer and,
if still dissatisfied, you can sue for a judicial determination
on the issue of classification.
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QUESTION: Can the Government keep me from publishing or
d1s is osing information?
ANSWER: In an appropriate case the Government can go into
court and seek a Temporary Restraining Order. This Order,
backed by the power of the court, would forbid you from
publishing or disclosing the information until the court
-could hold a hearing on the matter and determine what relief
is appropriate. The court could rule in your favor and
sanction publication or it could issue a permanent injunction
forbidding publication.
QUESTION: This paragraph indicates that a breach of this
Agreement may result in the termination of my employment.
If I am in military service and breach this Agreement will
I receive an automatic discharge?
ANSWER: Breach of the Nondisclosure Agreement does not
result in an automatic discharge from military service.
The specific administrative sanctions which your Service
will take against you will be determined by that Service.
QUESTION: I am a contractor employee. Can I be fired for
breaching my Nondisclosure Agreement?
ANSWER: The U.S. Government cannot fire a person who is not
a U.S. Government employee nor can it order your employer to
fire you. Indeed, the Government will not make any employment
or discharge recommendations to the company. It can,
however, revoke your access to SCI and your security clearances.
It also can forbid the company from using your services on
SCI and classified projects.
QUESTION: What is the meaning of the sentence "Nothing in
this Agreement constitutes a waiver by the United States of
the right to prosecute me for any statutory violation?"
ANSWER: It means you may be prosecuted for any law which.
you may have violated, not just the laws specifically mentioned
in this Agreement.
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PARAGRAPH SEVEN
QUESTION: This paragraph informs me that the Government may
"seek any remedy available to it" to enforce the Agreement.
What does this mean?
ANSWER: The Government may seek a court injunction to
prevent an unauthorized disclosure of SCI. It also may take a
variety of administrative or legal steps either to prevent
the violation of this Agreement or to punish you if you have breached
the Agreement. These steps may include:
a. imposition of penalties prescribed for
security violations;
b. revocation of SCI access and security clearances;
c. imposition of appropriate administrative
sanctions up to and including termination
of Government employment;
d. assessment of any financial penalties which
may be provided by contract between the Government
and the contractor;
e. seeking injunctive relief from a court which would
forbid disclosure of SCI information;
f. institution of a civil suit for recovery of damages
suffered by the Government as a result of your
breach of this Agreement and recovery of any
financial gain you may have realized as a result of
the breach; and
initiation of criminal prosecution against you.
QUESTION: Why should I pay the Government's court costs if
the Government doesn't want me to publish certain information.
ANSWER: The Government at its own expense. will review any
material you desire to disseminate or publish in order to
determine whether it contains information which requires
protection under the APEX Control System. The Government
also is willing to work with you in an attempt to find an
alternative wording which will convey the substance of what
you wish to communicate but without exposing such information.
If, however, the Government must go to court to enforce this
Agreement, it will ask the court to require that you pay
court costs and attorney fees which it incurs as a result.
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QUESTION: Will the Nondisclosure Agreement prevent me
from seeking a patent for a device which is based on SCI?
ANSWER: If you would be entitled to a patent but your
invention is based upon SCI you are required to submit
.the invention for a classification determination to
the Department or Agency which granted the SCI access.
If the invention is classified, appropriate procedures
would have to be followed. Ultimate declassification of
the invention would have to include a determination that
Sensitive Compartmented Information would not be jeopardized
thereby. Upon declassification, however, your patent rights
would not be affected by this Nondisclosure Agreement.
QUESTION: This paragraph uses the term "authorized represen-
tative" of the Department or Agency. Who is an "authorized
representative?"
ANSWER: By authorized representative it is meant the SIO or
his designee. Ordinarily responses to questions relating
to this Agreement will come from the APEX Control Officer or
a member of the Office of General Counsel of the Department
or Agency to which you submitted your material. Such
persons should be considered authorized representatives.
QUESTION: Does this paragraph mean that my obligations
under the Agreement apply even if I do not currently have
SCI access and even if I am no longer employed by the
Government or working on any Government contracts?
ANSWER: Yes. You are obligated to protect Sensitive
Compartmented Information from unauthorized disclosure in
perpetuity from the time you receive access to this infor-
mation. Clearly the injury to the United States which may
result from unauthorized disclosure of SCI does not depend
on your employment status but rather on the exposure of
information which may enable foreign nations to take steps
to deny us information or neutralize our intelligence
efforts. In order to prevent such injury, you are required
to submit for review any material you wish to publish or
disclose which contains or which may be based upon SCI, even
though you may no longer have SCI access.
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QUESTION: This paragraph notes that if a court should find
any provision of this Agreement to be unenforceable, all
other provisions remain in full force and effect.. Which
provisions are of doubtful legality and thus unenforceable?
ANSWER: We do not believe, and do not mean to imply, that
there are any provisions of doubtful legality. Nor do we
expect a court to find any portion of the Nondisclosure
Agreement to be unenforceable. This Agreement is designed
to be used for many years and, realizing that certain legal
changes will occur from decade to decade, we have included
standard language used in drafting legislation as well as
contractual agreements as a precaution in case of unforseen
changes in the law.
QUESTION: This paragraph indicates that the Nondisclosure
Agreement only relates to SCI. Paragraph 3, however,
states that "I further understand that I am obligated by law
and regulation not to disclose any classified information.
How do these paragraphs relate to each other?
ANSWER: The statement in paragraph 3 was included to
remind you of your obligation to protect other classified
information and to prevent the erroneous conclusion that by
signing the APEX Nondisclosure Agreement and obtaining SCI
access you are relieved of a duty to protect such classified
information.
QUESTION: Does this paragraph mean that if I sign the
Nondisclosure Agreement and then write a book, I will not be
entitled to retain any royalties I may earn.
ANSWER: The assignment clause refers to royalties which
result from disclosures, publications or revelations
not consistent with the terms of this Agreement. If, for
example, the subject matter of your book is such that you
should have had reason to believe that it was based on SCI
and you did not give the Government an opportunity to review
the book, then the assignment clause would apply. If you
submitted the book for review and were informed that it did
not contain SCI or if you deleted any SCI so identified, no
royalties would be at risk. Similarly, if the subject
matter of the book was such that you would have no reason to
believe that it contained SCI information, (for example, a_
book on early American furniture) there would be no reason
to submit it for review and no reason to expect that your
royalties would be in jeopardy.
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NONDISCLOSURE AGREEMENT
SENSITIVE COMPARTMENTED INFORMATION
1. I, (print full name) , hereby acknowledge
that I have received a security indoctrination concerning the nature and protection
of certain classified information and intelligence sources and methods, which are
known as Sensitive Compartmented Information, designated as:
and hereinafter referred to as "the designated Sensitive Compartmented Information."
2. I have been advised that direct or indirect unauthorized disclosure,
unauthorized retention or negligent handling of the designated Sensitive
Compartmented Information by me could cause irreparable injury to the
United States and be used to advantage by a foreign nation.
3. I have been advised of the security handling, storage, and transmittal
procedures which are to be used to protect the designated Sensitive Compartmented
Information, and the procedures to be followed in ascertaining whether other persons
to whom I contemplate disclosing this information have been approved for access
to it, and I understand these procedures.
4. In consideration of being granted access to the designated Sensitive
Compartmented Information, I pledge that I will never divulge such information,
in any form or any manner, to anyone who is not authorized to receive it, with-
out prior written authorization from an appropriate official of the United States
Government.
5. I have been advised that any unauthorized disclosure of the designated
Sensitive Compartmented Information by me may be a substantial violation of this
agreement, and may result in the termination of my access. In addition, I have
been advised that any such unauthorized disclosure by me may constitute viola-
tions of United States civil or criminal laws, including, as to the latter, the
provisions of Sections 793, 794, and 798, Title 18, United States Code, and of
Section 783, Title 50, United States Code.
6. I understand and agree that the United States Government may choose to
apply, prior to any unauthorized disclosure of the designated Sensitive Compart-
mented Information by me, for a court order prohibiting such disclosure.
7. In any civil action which may be brought by the United States Government
for breach of this agreement, the law of the District of Columbia shall govern
the interpretation of this agreement. 'I have been advised that the action can
be brought against me in any of the several appropriate United States District
Courts where the United States Government may elect to file the action. Court
costs, and reasonable attorneys fees incurred by the United States Government
may be assessed against me if I lose such action.
8. I hereby assign to the United States Government all rights, title and
interest, and all royalties, remunerations, and emoluments that have resulted,
will result or may result from any such disclosure, publication or revelation
not consistent with the terms of this agreement.
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9. I understand that, upon demand by an authorized representative of the
United States Government, I must surrender all materials concerning the designated
Sensitive Compartmented Information which are then in my possession or for which I
am then responsible. I understand that the designated Sensitive Compartmented
Information is, and will continue to be, the property of the United States Govern-
ment, and my failure to return all materials reflecting this information to the
United States Government upon demand, may subject me to the penalties set out in
Section 793 of Title 18, United States Code.
10. Unless I am released in writing by an authorized representative of the
United States Government, I understand that all the conditions and obligations
imposed upon me by this agreement apply during the time I am granted access to
the designated Sensitive Compartmented Information, and at all times thereafter.
11. Nothing in this agreement constitutes a waiver on the part of the
United States of the right to prosecute me for any statutory violation. Nothing
in this agreement constitutes a waiver on my part of any defenses I may otherwise
have in any civil or criminal proceedings.
12. Each provision of this agreement is severable. If a court should find
any provision of this agreement to be unenforceable, all other provisions of this
agreement shall remain in full force and effect.
13. I have read this agreement carefully and my questions, if any, have been
answered to my satisfaction. I acknowledge that the briefing officer has made avail-
able Sections 793, 794, 798, and 1001 of Title 18, United States Code, Section 783 of
Title 50, United States Code, Executive Order 12065, as amended, and the Information
Security Oversight Office Directive No. 1 of 2 October 1978, as amended, which imple-
ments this Executive Order, so that I may read them at this time, if I so choose.
14. I have been advised that any false statement made by me in this agreement
may subject me to the penalties set out in Section 1001 of Title 18, United States
Code.
15. I make this agreement without any mental reservation or purpose of evasion.
(Signature of Witness) (Signature of individual briefed)
(Briefing Date)
(Organization)
(SSN-See Notice below)
The Privacy Act, 5 U.S.C. 552a, requires that federal agencies inform individuals, at the time information
is solicited from them, whether the disclosure is mandatory or voluntary, by what authority such information is
solicited, and what uses will be made of the information. You are hereby advised that authority for soliciting
your Social Security Account Number (SSN) is Executive Order 9397. Your SSN will be used to identify you pre-
cisely when it is necessary to certify that you have access to the information indicated above. While your dis-
closure of SSN is not mandtory, your failure to do so may delay the processing of such certification.
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