PROPOSED RESPONSE TO SENATOR LEAHY'S LETTER DATED 5 JAN 1989

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91B00389R000500190003-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 28
• Document Creation Date: December 23, 2016
• Document Release Date: January 3, 2013
• Sequence Number: 3
• Publication Date: January 23, 1989
• Content Type: LETTER

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/*
ROUTING AND RECORD SHEET ___.211?Al AltpefillIT`
SUBJECT: (Optional)
Proposed Response to Senator Leahy's Letter dated 5 Jan 1989
FROM: '
John H. Wright
Information & Privacy Coordinator
1107 Ames Building
EXTENSION
NO.
13e;ei C) i 75-q7
DATE
23 January 1989
TO: (Officer designation, room number, and
building)
DATE
OFFICER'S
INITIALS
COMMENTS (Number each comment to show from whom
to whom. Draw a line across column after each comment.)
RECEIVED
FORWARDED
1. OGC/LD
Attached
to
5 Jan
Please
for
by th-
Atts:
is a suggested response
Senator Leahy's letter dated
1989. Request your input.
note Sen. Leahy has asked
a response from the Agency
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Sen. Leahy's letter
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Response to Peek
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Lee Strickland
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JOSEPH R BIDEN JR , DEL , CHAIRMAN
EDWARD M KENNEDY. MASS
ROBERT C BYRD, W VA
HOWARD M METZENBAUM, OHIO
DENNIS DECONCIN! ARIZ
PATRICK J LEAHN, VT
HOWELL HEFLIN, ALA
PAUL SIMON ILL
COMMITTEE ON THE JUDICIARY
WASHINGTON, DC 20510-6275
STROM THURMOND, S.0
DRAIN 0 HATCH, UTAH
ALAN K SIMPSON. WY?
CHARLES E GRASSLEY, IOWA
ARLEN SPECTER. PA
GORDON J HUMPHREY, N H
MARP GITENSTEIN CHIEF COI.INSE
DIAN,. HUFFMAN STAFF DIRE
DENMS V, SH.EDD MINORCF, CHIEF COUNELI
January 5, 1989
John H. Wright
Information and Privacy Coordinator
Central Intelligence Agency
Washington, D.C. 20505
Dear Mr. Wright:
SUBCOMMITTEE ON TECHNOOGY AND THE -AV.
PATRICK J LEAHY. VT , CHAIRMAP.
DENNIS DECONCINI, ARIZ GORDON J HLJR.F.HIPE` N
AN IA HARKINS CHIEF couNsi
GEORGE C SMITH MINORIT, CHIF, COJNEJ
Thank you for participating in the August 2, 1988 hearing
on the Freedom of Information Act.
Enclosed are questions for the record. Please provide
answers by the end of the month to the Subcommittee on
Technology and the Law, SH-815 Hart Senate Office Building,
Washington, D.C. 20510. If you have any questions, contact Ann
Harkins, Chief Counsel to the Subcommittee, at 224-3406.
Sincerely,
cc: Joyce Woodburn
PJL/kbm
k--4141111";
PATRICK LEAHY
United States Senato
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, ,FOIA OVERSIGHT HEARING, AUGUST 2, 1988,
BEFORE THE SENATE JUDICIARY SUBCOMMITTEE ON TECHNOLOGY AND THE
LAW. QUESTIONS FOR THE HEARING RECORD BY SENATOR PATRICK LEAHY
FOR:
JOHN H. WRIGHT, INFORMATION AND PRIVACY COORDINATOR, CENTRAL
INTELLIGENCE AGENCY
1. Mr. Tim Peek, editor of the Addison County Independent in
Vermont, testified at the hearing about his FOIA requests to
the CIA about CIA recruiting at Middlebury College and his fee
waiver request. Was it correct for the CIA to deny Mr. Peek's
fee waiver?
2. You testified that the Agency reduced its response time
from about 15 months on average in 1985 to about one and
one-half months in 1987. You attributed this improvement to
the Agency's authorization under the CIA Information Act of
1984 to respond to FOIA requests without searching certain CIA
operational files. Does any of the improvement come from
responding only with previously released documents? Does any
of the improvement come from referring requesters to other
agencies? What is the Agency response time for requests_--t-h"a
require searching? In other words, what is the Agency's
response time when the request is for new materials not
previously released and not exempt under the 1984 CIA
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*Information Act? How much new material is the CIA releasing
each year compared to previous years?
3. Various requesters have advised the Subcommittee that the
CIA often uses the so-called "Glomar" response, neither
confirming nor denying the existence of records, while the
Defense Intelligence Agency rarely does so. Why would this be
so?
4. I received a letter from Chuck Babcock, a respected
Washington Post reporter, who uses some very strong language to
describe the Agency's administration of the FOIA. On one of
his requests relating to ITT's involvement in Chile in the
early 1970s' -- an incident of major public interest -- it took
the Agency from 1979 to 1987 to respond and process some 3200
pages. How could that request or any request have taken eight
and one-half years to process?
5. In the cases of Mr. Peek, Mr. Babcock, and a number of
other requesters, it seems that the CIA has taken upon itself
the power to decide what information is of public interest and
newsworthy. At the time of Mr. Peek's request, CIA recruiting
at Middlebury was a prominent issue, with campus demonstrations
and stories in the press. Is it appropriate for the CIA to
substitute its judgement for that of experienced journalists,
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J.-scholars and research groups to decide whether released
information is of public interest?
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ANSWERS TO QUESTIONS ENCLOSED IN SENATOR LEAHY'S 5 JANUARY 1989 LETTER
TO THE CENTRAL INTELLIGENCE AGENCY
1. "Mr. Tim Peek, editor of the Addison County Independent in Vermont,
testified at the hearing about his FOIA requests to CIA about CIA recruiting
at Middlebury College and his fee waiver request."
Question: "Was it correct for the CIA to deny Mr. Peek's fee waiver?"
Answer:
At this time, given the benefit of additional information provided
during the 2 August 1987 hearings and having had the opportunity to review
the file of this particular FOIA request, no, I do not believe that it was
correct for CIA to deny Mr. Peek's fee waiver.
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As I mentioned in my testimony at the hearings, at the time
Mr. Peek's request was received the CIA had had relatively little
experience with the new provisions of the Reform Act, specifically with
administration of the new fee provisions. Since the hearings, I have
reviewed the complete record of Mr. Peek's 29 October 1987 FOIA request,
and conclude that the original determination on fee issues involved in Mr.
Peek's request appears to have been based upon two factors:
One was a decision that a request for records about CIA's open
recruiting and other overt relations with Middlebury College did not
meet the standard that a fee waiver or reduction be granted if the
disclosure of information is in the public interest because it is
likely to contribute significantly to public understanding of the
operations or activities of the government. With the benefit of the
additional information provided at the 2 August hearings, our initial
decision clearly did not give adequate weight to the keen interest
which local subscribers to Mr. Peek's newspaper would have had in
records about CIA's open or acknowledged relationships with
Middlebury College.
2
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The second was a decision that Mr. Peek's a request for such
records was in the commercial interest of the requester. Mr. Peek
made his FOIA request on letterhead of "The Addison Press, Inc." At
the time, this information led to a conclusion that The Addison Press
was a commercial publishing company. This decision clearly appears
to have given inadequate weight to the additional information
provided, namely, to the information which described The Addison
Press as "Printers-Publishers of the ADDISON INDEPENDENT," to Mr.
Peek's statement that "[t]his material will be used in newspaper
articles for general public education ... ," and, to a lesser extent,
to his title of "editor." Again, with the benefit of hindsight and
the information provided at the 2 August hearings, we have no
question at this time that the non-commercial nature of The Addison
Press and Mr. Peek's status as a representative of the news media
have been firmly established.
In my testimony at the 2 August hearings, I invited Mr. Peek to
contact me further about fees associated with his request, and stated that
I was prepared to reconsider our previous fee determinations Such
contact is a routine procedure used by requesters who have reason to
believe that a fee determination has been based on a lack of adequate
information or incorrect interpretation of pertinent information.
Informal inquiries of this sort from requesters are welcomed, and are
weighed on the merits of the information presented. Additionally, CIA's
regulations for implementing the FOIA provide for a formal reexamination
of initial fee determinations via the administrative fee appeal.
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To date, I have not been contacted by Mr. Peek, and again I invite
him to write to me to request reconsideration of the fee issues involved
in his 29 October 1987 FOIA request.
2. "You testified that the Agency reduced its response time from about
15 months on average in 1985 to about one and one?half months in 1987. You
attributed this improvement to the Agency's authorization under the CIA
Information Act of 1984 to respond to FOIA requests without searching certain
CIA operational files."
Question: "Does any of the improvement come from responding only with
previously released documents?"
Answer: There are no data upon which to base an answer to this
question. We can advise you, however, that since our computerized data
base of previously released documents was initiated in 1980, it has been
routinely searched in connection with incoming requests in order to locate
documents responsive to those requests. As the size of the data base has
increased over the years, it is reasonable to conclude the number of
incoming requests which can be appropriately satisfied by documents in
this data base has also increased. Hence, we conclude that some portion,
although probably a relatively small portion, of our improved response
time can reasonably be attributed to the ready availability of previously
released documents. Unquestionably, however, the major factor
contributing to improved response time has been the provisions of the CIA
Information Act of 1984.
4
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Question: "Does any improvement come from referring requesters to other
agencies?"
Answer: Although no data are available, we estimate that the proportion
of requests for which referrals to other agencies are appropriate has
remained more or less constant. It has always been the policy of this
agency to refer requesters to other agencies when the topics of their
requests involve matters or records under the purview of other agencies
and outside of the purview of this agency.
Question: "What is the Agency response time for requests that require
searching? In other words, what is the Agency's response time when the
request is for new materials not previously released and not exempt under
the 1984 CIA Information Act?"
Answer: There are no readily available data on which to base an answer
to this question. Obtaining this data would 'require a computer search to
identify requests that require search, and then a file-by-file review of
such FOIA requests received and of the responses made within any one
specific time frame.
5
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Question: "How much new material is the CIA releasing each year compared
to previous years?"
Answer: We have no data based on year of release, but we can provide the
following data which are based upon the year in which released documents
were entered into our computerized data base:
1980:
148 pages
1985:
32,318 pages
1981:
23,907 pages
1986:
22,971 pages
1982:
5,924 pages
1987:
8,880 pages
1983:
23,662 pages
1988:
22,291 pages
1984:
7,064 pages
Total number of pages entered from 1980-1988: 147,165
3. "Various requesters have advised the Subcommittee that the CIA often uses
the so?called 'Glomar' response, neither confirming nor denying the existence
of records, while the Defense Intelligence Agency rarely does so."
6
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Question: "Why would this be so?"
Answer: We cannot speak to determinations made by the Defense
Intelligence Agency, but only to determinations made by the Central
Intelligence Agency. In accordance with the provisions of Section
3.4(f)(1) of Executive Order 12356, the CIA can neither confirm nor deny
the fact of the existence or nonexistence of records whenever the fact of
the existence or nonexistence of such records is itself classifiable under
the Order. Determinations to neither confirm nor deny the fact of the
existence or nonexistence of records are also frequently based upon the
Director's statutory responsibility and authority to protect sources and
methods from unauthorized disclosure. The applicable statutes are
subsection 102(d)(3) of the National Security Act of 1947, as amended, 50
U.S.C. ?403(d)(3), and the Central Intelligence Act of 1949, as amended,
50 U.S.C. ?403g.
4. "I received a letter from Chuck Babcock, a respected Washington Post
reporter, who uses some very strong language to describe the Agency's
administration of the FOIA. On one of his requests relating to ITT's
involvement in Chile in the early 1970's -- an incident of major public
interest -- it took the Agency from 1979 to 1987 to respond and process some
3200 pages."
7
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t I.
Question: "How could that request or any request have taken eight and
one?half years to process?"
Answer:
The 3200 pages referenced above represent only a portion of the total
pages reviewed on behalf of Mr. Babcock and five additional requesters
pursuant to their FOIA requests to the Department of Justice for records
about ITT.
In increments dating from 7 August 1979 to 18 December 1980, DOJ
referred approximately two linear feet of documents for our review and
direct response to the requesters. Of this volume, approximately one
linear foot (equivalent of 3200 pages) was released in whole or in part.
The remaining documents were reviewed, and either referred to other
government agencies for direct response or denied in full; the number and
page count of the denied documents remains currently and properly
classified.
The documents were referred from Justice in the same form as
submitted to Justice by CIA pursuant to congressional hearings held in the
1970's; most were in redacted form, and many were heavily redacted.
During our preliminary review of the referred documents, it became readily
apparent that the redacted copies did not lend themselves to equitable
FOIA review. Accordingly, further review was delayed by the time required
to locate and duplicate as many full text copies of the referred documents
as possible.
8
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As our review progressed, information originated by four other
government agencies was identified in over 100 CIA documents. Outgoing
requests for coordination on these documents began in March 1982, and all
incoming responses had been received by January 1986. The coordination
responses then required followup review by the responsible CIA component
before a final determination could be made. Additionally, over 70
documents were reviewed and referred to five other government agencies for
their review and direct response to the requesters.
Following completion of CIA component review, the case was assigned
to FOIA officers for compilation of determinations, final review, and
response to the six requesters on whose behalf the referrals had been
made. A response was sent to Mr. Babcock on 22 October 1987.
5. "In the cases of Mr. Peek, Mr. Babcock, and a number of other requesters,
it seems that the CIA has taken upon itself the power to decide what
information is of public interest and newsworthy. At the time of Mr. Peek's
request, CIA recruiting at Middlebury was a prominent issue, with campus
demonstrations and stories in the press."
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Question: "Is it appropriate for the CIA to substitute its judgement for
that of experienced journalists, scholars and research groups to decide
whether released information is of public interest?"
Answer:
As set forth in CIA regulations, 32 CFR Part 1900, published pursuant
to the provisions of the FOIA, as amended by the Freedom of Information
Reform Act of 1986, it is the responsibility of the designated CIA
officials to make determinations on fee issues, including but not limited
to evaluation of the merits of a particular request vis?a?vis "public
interest." Such a determination frequently involves a judgment call to
one degree or another, but the responsibility for making that judgment
clearly lies with the responsible official and not with the individual
requester. The Agency carefully considers the merits of each request
based upon the information provided by the requester and guidelines issued
by the Office of Management and Budget and the Department of Justice.
Specifically with respect to the term "public interest," the
Department's 2 April 1987 Memorandum, entitled "New Fee Waiver Policy
Guidance," states that "[t]he new fee waiver standard, found at U.S.C.
?552(a)(4)(A)(iii), more specifically defines the term 'public interest'
and provides:
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"Documents shall be furnished without any charge or at a charge
reduced below the fees established under clause (ii) if disclosure of
the information is in the public interest because it is likely to
contrubute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial
interest of the requester."
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Department of Health and Human Services.
Mr. Wright, Mr. Faulk, Mr. Roberts, it is good to have
you all here. Mr. Faulk, it is good to see you again, and I
should add that somebody had asked me whether we had had an
earlier hearing and in the interests of appropriate reflec-
tions of freedom of information, when I had mentioned
chatting with Mr. Faulk before this was over the weekend in
simply a chance encounter.
Mr. Faulk is a dedicated and hard-working public servant
and we have known each other for years and I have had the
benefit of his expertise as a member of the State Department
going back to an early trip to China to normalization. So 7
just wanted to hasten to add we did not rehearse testimony
before we started. It was more a discussion of the weather
than anything else.
Mr. Wright, I wonder if I might ask you--and all of the
statements will be put in the record and we will go back to
that, but just in case we have another vote, you 1-2_e_a_rd-Xr.
Peek, who is the Editor for the Addison Independent, tell us
he was treated as commercial requestor by the CIA. That sort
of puts him in the same category as Exxon or Citibank.
Was that a right decision?
MILLER REPORTING CO., INC.
307 C Street, N E
WuhLngton, D C 20C22
(202) )46-6666
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STATEMENT OF A PANEL CONSISTING OF JOHN H. WRIGHT,
INFORMATION AND PRIVACY COORDINATOR, CENTRAL
INTELLIGENCE AGENCY; RUSSELL M. ROBERTS, DIRECTOR,
FREEDOM OF INFORMATION/PRIVACY ACTS DIVISION,
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES; AND RICHARD C. FAULK, DEPUTY ASSISTANT
SECRETARY FOR OPERATIONS, DEPARTMENT OF STATE.
Mx. Wright. It is not really clear at this point. I
think that, well, first of all, in many of the FOIA requests
we get, many requestors allege that they have journalist
connections and we do require a fairly high degree of
specificity before we can make that determination.
And in the case of Mr. Peek, we do offer administrative
appeal rights in the event that the initial determination
either denies the fee waiver or the requester is not satisfied
with the initial category determination.
At the time that request was serviced, we had relatively
little experience with the new provisions of thef-et-Act,
and my advice to Mr. Peek at this point would be, if he did
not exercise his administrative appeal rights, to do so
because in the process of doing that, we do expand the
record. There is an exchange of information, and so forth.
The request for other fee considerations is looked at
more broadly in our organization, and that really is the
MILLER REPORTING CO., INC.
507 C SumNI 25 proper course of action at this point.
,
CCuhington. D C 20002
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Senator Leahy. Well, let me tell you the statute is
fairly clear. It says, "Fees shall be limited to reasonable
standard charges for document duplication when records are
not sought for commercial use and the request is made by a
representative of the news media.
Now, a description of a newspaper which has county-wide
circulation in a county where there is a well-known college,
and one with which your agency has had a long and open
relationship, I might add, as has the Foreign Service and
others because of the language programs and all--members of
the agency give lectures and open-to-the-public forums at
Middlebury. Mr. Peek is an editor for that newspaper.
I mean, just based on what he has said here today, is
there any reason why he has to go through an appeal process?
I mean, isn't it pretty much on the face of it that he
qualifies as a representative of the news media, or are
editors precluded?
Mr. Wright. Well, I believe he identified hims 11 in
the letterhead as Editor of the Addison Press, and it may not
have been entirely clear to our professional officers who
processed the case that he was indeed the editor of a
newspaper.
He did say in his request letter, and I have just had
the opportunity to look at it today, that newspaper articles
miLLERREPonlmcco?mt
25 would be Written based on the information disclosed. And the
5,07 C Sucm NI.
Washington. D.C.me:
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MILLER REPORTING CO., 5
507 C Sum, N E
only thing I can say at this point is that the initial
reaction to that request may have been to not see a connection.
between him as editor as Addison Press and editor of the
newspaper.
[Laughter.]
Mr. Wright. Based on what has been said today, my cuess
is that were he to supply us additional information, he might
well qualify for a fee waiver, or at least placement in the
news media category.
The issue of whether he would be entitled to a fee
waiver is--that would be considered on other merits.
Senator Leahy. Well, I don't think he is going to have
any difficulty proving the fact that he is a member of the
news media, and if you would like an affidavit from me, I
will be happy to do that. I have been both praised and
damned by his newspaper, usually with even-handed heavy-
handedness. So it is not for any other reason that I say
that.
But, you know, the thing that bothers me more than
anything else is in your letter, or your agency's letter that
was written by Mr. Strickland, it says this: "Although you
are an editor of the Addison Press, Inc., the information yo',1
seek does not meet the regulatory requirement of current
events or information that would be of current interest to
the general public.
CC2.1hInglon, D C 2007:
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Now, that is kind of an outrageous statement, not to put
too fine a point on it, isn't it?
Mr. Wright. Well, I think you have to look at the
information requested, and essentially, as I recall, there
were three items in that request. One of those items clearly
involved .a request for information on the possible conduct of 1
intelligence activities involving representatives from the
college.
Another of the items asked for information dealing with
relationships with individuals associated with Middlebury
College, and what we indicated there was that any records
which might reflect the existence of a covert relationship,
we would neither confirm nor deny the existence of any such
records.
:Senator Leahy. But that is not the point. It says,
"would not be of current interest to the general public.
Now, any ongoing intelligence activity may be of current
interest, and none of us disagree that you have !_r_ription
for that and you neither confirm nor deny, and so on.
Er. Wright. Yes.
Senator Leahy. I have no problem with that; I strongly
support that. But on his specific request, to say that it
could be of current interest to the general public--I mean,
isn't this exercising an editorial function that goes way
4141L.L.ER.m.c)pamcco
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Mr. Wright. Well, yes, I agree with that, but I would
like to, if I could, come back to the nature of the request.
In essence, the way that request was treated--and, again,
forgive me; I do not have the correspondence in front of me
and I am trying to recall this from memory.
Senator Leahy. Sure.
Mr. Wright. Essentially, a significant portion of that
request was denied, and we cited exemptions, named a denying
official, and gave Mr. Peek appeal rights. We focus,
however, down to what was left, and the remaining portion of
the request focused primarily, as I recall--again, I do not
have the letter in front of me--on CIA recruiting activities
at Middlebury College.
The CIA does recruit at colleges and universities
throughout the nation; it is a matter of public record. That
fact has been made known many times with regard to many
colleges and universities.
And, again, I come back to the point as to whether the
information on the fact that we are, again, recruiting on a
college campus in the U.S. would be of public interest or,
and I believe we may have stated in the response letter,
contribute significantly to an understanding of the operations
of the U.S. government.
And I think depending on which of those two criteria
you
MILLERM:PORTMCCO,N.C.
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as to whether a fee waiver should be granted.
Senator Leahy. Mr. Wright, I might say in that recar,t,
along with one of the administrators of the CIA I went to
Middlebury in a public forum. We discussed why it was very
appropriate for the CIA to be there. I did this at the
request of the Director of the CIA, who was at that time
hearing from a number of different schools not only in my
State, but in a lot of other States, about why the CIA
shouldn't be there recruiting.
I felt they had the absolute right to be there recruit-
ing, as well as any company would or anything else. But if
one agrees or disagrees with it, that is a choice for the
student to make.
Middlebury had invited in somebody who was strongly
opposed to the CIA who spoke one night, or a couple of people
did, and then one of the assistant directors of the CIA and
myself spoke of why they should be allowed to be there.
Again, they are public things.
The only reason I mention this is that it was an
overflow crowd each time. Trust me, there was a great deal
of public interest, and I suspect there would be today.
(The statement of Mr. Wright follows:)
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background. It takes a long time to get that, and so we do
miss some of the hiring opportunities that other agencies
have.
Given the background and the information that people
deal with, they have to have a good clearance, and high-leve
clearances take time. But we are working on trying to
improve the working area of our people, and also their grade
levels, and bring in more people.
Senator Leahy. Mr. Wright, what about over at the CIA?
Is this considered almost--well, in an open session I am not
going to mention a couple of the assignments that are
considered one step short of Alcatraz.
But going into the FOIA part of the CIA probably would
not be the most sought after area for a career CIA officer,
would it?
11?. 'Wright. Senator Leahy, actually, some of the FOIA
positions are highly coveted. We do have a career track in
records management activities and an assignment in t FOIA
office would be considered an important tour of duty for an
individual on that career track.
As far as the review of records for releasability is
concerned, the CIA operates on the basis of using its most
senior intelligence officers to conduct those reviews. So
outside of the main workforce cadre, you do find a very
miLLERREpoRTmGco..Alic
25 substantial number of intelligence officers, both operations
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officers and intelligence analysts, and what have you,
involved in the review of records to determine their ultimate
releasability.
Senator Leahy. So then if somebody gets well trained
into handling FOIA, they actually do have a career available
to them there. They would not be in a position where they
would almost immediately be looking for somewhere else to go?
Mr. Wright. Yes, sir, that is correct. It would be in,
overall, our records management field.
Senator Leahy. Now, Mr. Faulk, in regard to the fee
issues, I looked at the form letter that the department sends
to requestors to inquire as to their credentials and intent.
It seems like there is an awful lot of paperwork here.
Most of the initial request letters I have seen have a
lot of information, such as a university letterhead or a
listing of publications which would help people make waiver
determinations.
Are you able to categorize how much time is s it-on fee
determination as compared to actual search and retrieval and
review of documents?
Mr. Faulk. If you don't mind, Senator, I will turn to
my expert on that and ask the question.
Senator Leahy. We will get the fee determination expert
here. Sir, you understand what I am--.
miLLEAREpoirp4m.m.c.
25 Mr. Faulk. I would like to introduce--.
svc stic, NI
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