APEX NONDISCLOSURE AGREEMENT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85T00788R000100100028-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 15, 2016
• Document Release Date: December 9, 2003
• Sequence Number: 28
• Publication Date: April 16, 1980
• Content Type: MF

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ROUTING AND RECORD SHEET
TA
STA
SUBJECT: (Optional)
Policy and Plans Group
4E-70, Hdqs.
TO: (Officer designation, room number, and
building)
T-
AC/PPG
ADD/PFIM
ADD/SEC
AD/SEC
/Wo
LE
40
ly
COMMENTS (Number each comment to show from whom
to whom. Draw a line across column after each comment.)
The attached memorandum was
prepared before the pre-SEC(M
meeting which occurred at 1630
hours 26 February. During the
meeting, it was learned for the
first time IC (i.e. , S AT
had been
involved in producing the wording
of the proposed agreement. It is
noted, as stated in the attached
is currently reviewing
e agreement. (Presumably,
this is the second time around
for 0GC.) While this 0GC
development negates the recom-
mended :Agency position for the
27 February 1980 SECC1M meeting,
the remainder of the memorandum
remains valid and is being for-
warded for your information.
STA
1-3 and 4: I was astounded
to hear that OGC prepared the
I attached proposal. The sug-
gested gramatical correction
is about as effective as a
Ba
nd-Aid after Hiroshima. T
A a-al, -
vv. 3-`\6s_-z ~.
V1 rvb_~
9TA
FORM 61 0 USE PREVIOUS 'J C-) 0 4
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DIRECTOR OF CENTRAL INTELLIGENCE
Security Committee
"M,EPORANDUM FOR: Members, DC1 Security Committee
Executive Secretary
SUBJECT: APEX Nondisclosure Agreement
16 April 1980
1. The Special Assistant to the DCI for Compartmentation
has requested the Security Committee to devise and recommend
to him an appropriate Nondisclosure Agreement to cover
Sensitive Compartmented Information protected within the
APEX Special Access Control. System. He has repeated his
request recently with a note of some urgency since he
would like to have a nondisclosure agreement for the
5 - 6 May 1980 APEX Seminar.
2. Recent Security Committee efforts to devise a
common nondisclosure agreement did not result in endorse-
ment of the version produced by the Compartmentation
Subcommittee. That version was provided the DCI General
Counsel for legal consultation around the Community. They
have not achieved a unanimous acceptance and the Department
of Justice member recently reported that there were legal
questions about the current draft.
3. To demonstrate Security Committee support of the
APEX proposal and in satisfaction of the urgent request
of the Special Assistant to the DCI for Compartmentation,
it is proposed that members endorse and recommend to the
SA/DC1/Comnartmentation adoption of the Nondisclosure
Agree;,lent for Sensitive Cornpart,nented Information,
previously approved by the DCI`s General Counsel, and now
el:?ployed by departments aiid agencies as Form C66
d~ . Copy attached. 'inch actions :gill permit
/j
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3. It was noted that several components voiced the
opinion that the wording of the draft seemed amateurish,
simplistic and written at an elementary school level. In
considering these comments, it should be borne in mind that
this Agreement will be utilized for persons with widely
diverse educational backgrounds, and, as long as the Agree-
ment is legally binding, then the more easily understood
the better.
4. Should the above recommended Agency position be
rejected and the proposed line in-line out revision be under-
taken at the 27 February 1980 SECOM meeting, the following
comments, received during coordination, are set forth for
your guidance and consideration:
a. An objection was voiced regarding the last
sentence of paragraph 1. In the past, individual
Secrecy Agreements were executed each time persons
were briefed on individual programs and these oaths
were subsequently used for recording and account-
ability purposes. However, under paragraph 1 of
the proposed draft, a single, blanket agreement
would be executed and this has raised a concern
that accountability would be diminished should
subsequent access be granted for additional APEX
compartments/subcompartments.
b. Recommendations regarding paragraph 5:
(1) A minor grammatical change to be effected
by deleting the word "about" at the end of
sentence 1 and inserting it ("about") before
the word "which" in line 2 of paragraph S.
(2) In support of the NSA objection #1
(as set forth in the attachment entitled
"Major Objections to Straw Man Non-Disclosure
Agreement,") it was suggested that the govern-
ment review (pre-publication and pre-speaking
engagement) as set forth in paragraph 5 not
be restricted to SCI material only but be
expanded to cover any classified information
obtained by virtue oT an individual's employ-
ment or access covered by the Non-Disclosure
Agreement.
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c. Recommendations regarding paragraph 6:
(1) Sentence 2 was considered too arbitrary
and the following rewording is suggested to link
behaviorial standards to the APEX Manual: "I
also understand that if I do anything or behave
in a manner contrary to the APEX Manual, thereby
showing that I might not be willing or able to
protect this Sensitive Compartmented Information,
the government may take away my access to it and
require me to return any of the information
which I then have."
(2) For clarity, the following additional
sentence is suggested as sentence 3 in para-
graph 6: "I agree to surrender all such
material upon demand to an appropriate official
of the government."
(3) A concern was raised regarding the last
sentence of paragraph 6 which allows the removal
of access, under certain conditions, without
"giving notice or holding a hearing." The
suggestion was voiced that "the reasons for
the action should be provided the individual
at the time the access is withdrawn." No
alternate language was offered by the concerned
component. It is noted that the issue of appeals
to SCI denials was at one time being reviewed by
SECOM. However, the issue was never concluded
and has been in a suspended status for the past
6-9 months.
d. Regarding the signature section on
page 4, it has been suggested that a line be
added requesting the individual's date of birth.
This request was made by the Security Records
Division since the Office of Security record
indices (SANCA) utilizes date of birth as the
primary means of identification as opposed to
Social Security Number.
STAT
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NONDISCLOSURE AGREEMENT
1. I, , by signing this agreement, acknowledge
(Print full name.
that I have been told about and given access to certain. classified infor-
mation and intelligence sources and methods witich were explained to me to
be protected within the APEX Special Access Control System. At other
pllces in this agreement, this information is called "-this Sensitive
Compartmented Information. .' This agreement applies to any additional
information or programs, falling within the APEX Special Access Control
System, to which I may later be granted access..
2. I have been told that if this Sensitive Compartmented Information
becomes known to people who are not permitted by the U ni?ted States
Government to have it, this could cause serious harm to the United States
of America.
3.? I.have been told how to handle and store this Sensitive Compartmented
Information and how to find out which people I can show is to or talk to
about it.
4. In return for being given access to this Sensitive Compartmented
Information, I agree that I will never reveal this information, in any
way, to any person who is not permitted by the United States Government
to have it.
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5. I also agree to submit for review by the United States Government
ABoN-r
any information concerning intelligence subjects or activities which I
want to publish or speak.. I agree to let the government review
this information before I talk about it or show it to anyone who is not
permitted to have this Sensitive Compartmented Information. I will not
publish or speak about the information until I get'written permission
from the government to do so. I understand that the reason for the
government's review of this information is to'be sure that it does not
contain any of this Sensitive Compartmented Information.
U. I understand that i , I reveal ;his Sensitive Como,artm nted fnfnrrria-
tion to anyone who is not permitted to have it, I may no longer be
permitted to have access to the information myself and I may be required
to return any of the information which I have. I also understand that
rAft1VNe4C LuN7(2RNy7aTMe A(Pe-V-mANNIL' r)r,?eet/ SNOW)N7
if I do anything or behave in that I might.not be
willing or able to protect this Sensitive Compartmented Information,. the
government may take away my access to it and require me to return any
= AGRzE To ,Nacre ,t ALL 34c,14 eYJ4V9-14L
of the information which I. then have.A The government may take away my
~,/~i~JANfl ro yn. op"nv4r;' re, oA 'e, 4 61--
access at any time it judges such action to be in the best interest of
national security and may do this without giving me notice or holding a
hearing.
7. Also, I understand that if I reveal this Sensitive Compartmented
Information to people who are not permitted to have it, this might
violate the civil or criminal laws of the United States. I understand
that a violation of civil law might cause me to have to pay the cost of
any damage which resulted from my action. I understand that a violation
of crimina: law could result in my being fired or imprisoned or oerhac-s
both.
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8. If I reveal this Sensitive Compartmented Information without the per-
mission of the United States Government, I assign to the United States
Government any money or other thing of value which I receive or have
already received for doing so, or any right to receive such money or
thing of value.
9. I agree that this Sensitive Compartmented Information is now and will
always be the property of the United States Government. I agree that I
will return all of this information which T have or for which I am
responsible when I an asked for it by an authorized representative of
the U!iited States Government. IF I do not return it when IT am asked,
this too may be a violation of United States criminal law for which I
can be punished.
10. Nothing said in this agreement means that the United States Govern-
ment will give up any right it has to prosecute me if I violate the.
laws of the United States. Also, nothing said in this agreement means
that I give up any basis for defending myself if the United States
Government tries to prosecute me for violating the laws of the United
.States.
11. Each of the numbered paragraphs in this agreement stands by itself.
If a court decides that any of these paragraphs do not apply to me, the
rest of the paragraphs will still apply.
12. I have read this agreement and I understand it, I have asked any
questions which 1 have about this agreement, the laws which apply to
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violation of it, and the rules and regulations which govern the handling
and storage of this Sensitive Compartmented Information, and my questions
have been answered in a way I understand.
13. 1 am making this agreement in good faith, and I intend to live up
to it.
SIGNATURE
ORGANIZATION
SOCIAL SECURITY ACCOUNT NUMBER
i witnessed the signature which appears above. I accept this agreement
on behalf of the United States Government as a prior condition of this
individual being permitted access to and use of the designated Sensitive
Compartmented Information.
SIGA;t1TURE
PRIIN T ED NAME
ORGANIZATION
4
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Major Objectives to Strawman Nondisclosure Agreement
1. A secrecy agreement devoted solely to APEX ignores other designated
intelligence categories, and does not address information which may be
unclassified but is otherwise protected from disclosure by statute (e.g.,
50 USC Section 403(d)(3) or Public-Law 86-36). The agreement should
explicitly be extended to include all matters of a sensitive or pro-
tected nature garnered by virtue of the employment which the agreement
concerns.
2. The agreement, as written, appears to be legally insufficient in
respect of the requisite contractual element "consideration." In order
to be legally binding, a contract must have sufficient consideration.
in order to be thus sufficient, there must be a legal detriment or
benefit that has been bargained for and exchanged for a promise. "Access"
does not appear to be adequate consideration. For employees, it is
,`mployinent which c?r?v?s is the basis of the bargain. For the prospec-
tive employee it is the position, not the access, which is sought. Since
access appears insufficient to establish the requisite bargain element of
"consideration," the-agreement would not be binding.
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