LETTER TO ORRIN G. HATCH FROM PHILLIP D. BRADY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87B00858R000500800020-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 22, 2016
• Document Release Date: August 18, 2011
• Sequence Number: 20
• Content Type: LETTER

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Office of Legislative and Intergovernmental Affairs
Office of the Adstant Attorney General NbAkr;ron. D. C. 20530
The Honorable Orrin G. Batch
Chairman, Committee on Labor and
Human Resources
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
The purpose of this letter is to submit the views of
the Department of Justice regarding S. 1815, the proposed
'Polygraph Protection Act of 1985.1 With the following
modifications to Section Be the.Department of Justice
would not oppose the enactment of this legislation.
The bill would prohibit the administration of polygraph
examinations by private sector employers to employees or
prospective employees. Section 8 of the bill exempts indi-
viduals employed by federal, state and local governments.
In addition, this section permits the Department of Defense
to administer polygraph tests, pursuant to the program out-
lined in the Department of Defense Authorization Act for 1986,
to personnel of its contractors who have access to classified
information. The Department of Justice shares the Senate's
concern regarding the sensitive nature of the activities per-
formed by many Department of Defense contractors and agrees
that an exemption for contractor employees engaged in such
activities is justified. This type of contracting is not,
however, limited to the Department of Defense. Other
Executive agencies and departments engage contractors to
perform functions that are directly related to intelligence
and other national security matters. The justifications for
a Department of Defense exemption are equally persuasive when
applied to the national security related contracts of these
other agencies and departments. The Department of Justice,
therefore, recommends a broader exemption that would extend
also to employees of contractors for these other agencies
and departments, provided that the employee has actually
been identified as requiring access to classified infor-
mation before being subjected to a polygraph examination.
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In lieu of Section 8 of S. 1815, the Department of Justice
proposes the followings
[ExemPt ions
Sec. 8:
The provisions of this Act shall not apply
with respect to any individual who is employed
by the United States Government, a state govern-
ment, city, or any political subdivision of a
state or city, nor shall this act prohibit the
administration, in connection with the perfor-
mance of any function requiring access to classi-
fied information, of a polygraph examination to
personnel of a contractor to the Central
Intelligence Agency, the Department of Defense,
the Department of Energy, the Department of State,
the Federal Bureau of Investigation, the National
Security Agency, the Treasury Department, or other
federal agencies or departments whose contractors
require access to classified information
This version of Section 8 would address the concerns of
executive agencies engaged in sensitive governmental functions
and simultaneously protect the privacy interests of employees
by ensuring that access to classified information is the pre-
requisite to administering a polygraph examination.
In addition to the concern cited above, we note that the
language of Sections 3(1) and 3(2) of the bill is extremely
broad and extends beyond the stated purposes. In its present
form, this legislation would not only prohibit employers from
requiring, requesting, or suggesting that employees or
prospective employees submit to polygraph examinations in
connection with their employment, but would also prohibit the
employer from permitting an employee to submit to such tests
for purpose. This language could be construed to place an ' any affirmative duty on an employer to prevent employees, or even
prospective employees, from submitting to such examinations by
any person for any purpose, lest the employer be subject to
the enforcement provisions of Section 7. Because the stated
purpose of the bill is 'to prevent the denial of employment
opportunities based on the use of lie detectors,' the Justice
Department is concerned that the present language may overstep
these objectives. The prospect of being in violation of the
bill's provisions simply by not preventing an employee from
submitting voluntarily to a polygraph examination, especially
if unrelated to the employee's position with an employer and
administered by an entity other than the employer, would do
little to promote the purposes of the bill.
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Section 3(2), in its current form, would prohibit
reference to, or the use of, any polygraph examination
results for any purpose, without regard to whether the
test was administered by an employer who seeks to rely on
the information for employment purposes. As written, the
bill could prohibit reliance on results obtained from a
polygraph test legally administered by an agency with the
authority to do so, such as a local law enforcement organi-
sation. As with Section 3(1), it is not clear that the stated
purpose of the Act calls for this degree of restriction on the
ability of employers to protect their interests.
We believe that Section 8 should be amended as suggested
above and that consideration should be given to narrowing the
breadth of Section 3. Otherwise, the Department of Justice
interposes no objection to enactment of this legislation.
The Office of Management and Budget has advised this
Department that there is no objection to the submission of
this report from the standpoint of the Administration's
program.
Sincerely,
Phillip D. Brady
Acting Assistant Attorney General
Office of Legislative and
Intergovernmental Affairs
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