DEPARTMENT OF JUSTICE DRAFT REPORT ON S. 1815, THE POLYGRAPH PROTECTION ACT OF 1985

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87M01152R001101420017-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 22, 2016
• Document Release Date: March 24, 2010
• Sequence Number: 17
• Publication Date: December 16, 1985
• Content Type: MEMO

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Office of Legislative Liaison
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Action Officer;
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON. D.C. 20503
December 16, 1985
LEGISLATIVE REFERRAL MEMORANDUM
LEGISLATIVE LIAISON OFFICER
SEE ATTACHED DISTRIBUTION LIST
SUBJECT: Department of Justice draft report on S. 1815, the
Polygraph Protection Act of 1985.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than December 20, 1985.
Direct your questions to Branden Blum (395-3454), the legislative
attorney in this office.
James C. Murr for
Assistant Director for
Legislative Reference
Enclosure
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DISTRIBUTION LIST
AGENCY
CONTACT
PHONE NUMBE
Department of Agriculture (01)
Sid Clemans
382-1516
Department of Commerce (04)
Mike Levitt
377-3151
Department of Defense (06)
Werner Windus
697-1305
Department of Education (07)
JoAnne Durako
732-2670
Department of Energy (09)
Department of Health
Bob Rabben
252-6718
and Human Services (14)
Department of Housing
and Urban Development (15)
Ed Murphy
755-7240
Department of the Interior (16)
Norma Perry
343-6797
Department of Labor (18)
Seth Zinman
523-8201
Department of State (25)
Lee Berkenbile
632-0430
Department of Transportation (26)
John Collins
426-4694
Department of the Treasury (28)
Carole Toth
566-8523
Environmental Protection Agency (08)
Stead Overman
382-5200
Federal Emergency
Management Agency (10)
Spence Perry
646-4105
General Services Administration (13)
Ted Ebert
566-1250
NASA (19)
Toby Costanzo
453-1080
Office of Personnel Management (22)
Bob Moffit
632-6516
United States Postal Service (11)
Fred Eggleston
268-2958
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kt'entral Intelligence Agency
National Security Council
Office of Science & Technology Policy
cc: Fred Fielding
John Cooney
Karen Wilson
Phil Hanna
Arnold Donahue
Lisa Berger
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Office of the Assistant Attorney General
Office of Legislative and Intergovernmental Affairs
Washington, 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." With followi
modifications to Section 8, the.Departmenttof Justiceng
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
t
hat an exemption for contractor employees engaged in such
activities is
however, limitedstofthe. s notThis ,
, limiteof Defense Others is not,
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 following:
Exemptions
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
and simultaneously protect the privacy interestsnoflemployeess
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 any purpose. This language could be construed to place an
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-
zation. 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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