DRAFT GENERAL SERVICES ADMINISTRATION (GSA) BILL RE ACCESS BY NATIONAL ARCHIVES AND RECORDS SERVICES TO RESTRICTED RECORDS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP93B01194R000900070003-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 16, 2016
• Document Release Date: August 8, 2005
• Sequence Number: 3
• Publication Date: March 30, 1983
• Content Type: MF

Approved For lease 2005/08/16 : CIA-RDP93B01194600900070003-3
3 0 MAR i9c 3
OGC 83-02639
MEMORANDUM FOR: See Distribution
STAT FROM:
ffff
STAT
Acting Chief, Legislation Division, OGC
SUBJECT: Draft General Services Administration (GSA)
Bill re Access by National Archives and
Records Services to Restricted Records
Attached for your information, review, and comment is a
draft bill by the GSA which seeks to amend title 44 of the
United States Code to allow employees of the National Archives
and Records Service to have access to records of federal
agencies which are under statutory restrictions or which are
security classified.
Last year the Office of Management and Budget (OMB)
requested our views on a similar GSA bill, as well as two other
draft bills concerning records management. A copy of the
letter which we sent to OMB expressing our views on this bill
is attached for your use. Also attached is a copy of the bill
as it was proposed in the 97th Congress. You will note that in
response to our concerns that NAPS employees have the necessary
security clearances, the draft'bill this year requires security
clearances for those employees who would have access to any
restricted or classified records.
Please review the amended version of the draft bill to see
whether we should oppose this legislation on the grounds that
it would still serve to undermine the DCI's statutory res-
ponsibility to protect intelligence sources and methods. OMB
has requested our views on this bill no later than 14 April.
Therefore, please relay your comments on this bill, in writing
or by telephone, to Legislation Division,
Office of General Counsel , ril.
Distribution:
Approved For Release 2005/08/16 : CIA-RDP93B01194R000900070003-3
 Approved For Reuse 2005/08/16 : CIA-RDP93B01194ROW0900070003-3
CENTRAL INTELLIGENCE AGENCY
WASHINGTON, D.C. 20505
General Counsel OGC 82 -04256
29 April 1982
Mr. James M. Frey
Assistant Director for
Legislative Reference
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Frey:
This is in response/to a request by the Office of
Management and Budget for the views of the Central Intelligence
Agency on three draft General Services Administration (GSA)
bills which would amend title 44, United States Code, to
clarify certain responsibilities of the Administrator of GSA
concerning records management. For the reasons outlined below,
the Central Intelligence Agency objects to each of these draft
bills.
The first draft bill would amend section 2904 of title 44,
United States Code, to give the Administrator of GSA the sole
authority to determine whether a particular document, recording,
or other item is a "record" as defined in section 3301 of
title 44. Such a grant of authority is objectionable as it
would allow the Administrator to declare as "records" many items.
that in the past have not generally been deemed to have such
status. Our experience with GSA and the National Archives and
Records Service (NARS) to date has been generally cooperative.
We. currently use NARS guidelines in determining whether or not
Agency items are "records." When questions have arisen con-
cerning sensitive operational records, agreements have usually
been ,reached through negotiation, and we have acceded to NARS
staff determinations when there has been no direct conflict
with Agency authorities or the responsibility of the Director
of Central Intelligence for the protection of intelligence
sources and methods. We cannot, however, support any legisla-
tion which would jeopardize the ability of the Director of
Central Intelligence to carry out his statutory responsibility
for the protection of intelligence sources and methods pursuant
to section 102(d)(3) of the National Security Act of 1947 and
section 403g of the Central Intelligence Agency Act of 1949.
In addition, current GSA regulations allow "nonrecords"
to be disposed of by agency authority alone, whereas disposal
of "records" requires prior approval of the Archivist of the
Approved For Release 2005/08/16 : CIA-RDP93B01194R000900070003-3
 Approved For Retease 2005/08/16 : CIA-RDP93B01194R000900070003-3
United States. If the Administrator of GSA were the sole
authority as to what items were "records," destruction of
material could be unduly delayed because an agency would have
to seek affirmation that specific items were clearly not
records so that they could be destroyed.
The second draft bill would amend section 3303a of
title 44, United States Code, to eliminate the current require-
ment that the Administrator of General Services obtain the
prior written consent of the head of an agency before disposing
of records that had been in the custody of that agency prior to
their transfer to GSA custody. Instead, the Administrator would
be required only to seek the agency head's advice regarding
disposal. The amendment would, therefore, effectively place
any CIA records in the custody of GSA under. total control of
the Administrator of General Services. Such a result would run
directly counter to the statutory responsibility of the Director
of Central Intelligence for the protection of intelligence
sources and methods. The proposed amendment would preclude the
DCI from invoking the so-called "third agency rule" [The rule
is recognized in section 3.1 of Executive Order 12356, and a
.regulation of the Information Security Oversight OiceCpub-
lished at 32 C.F.R. ? 2001.33(a)(3)(1981).] to protect
information which might be contained in the records of other
agencies in GSA custody. This would directly impair the DCI's
ability to protect intelligence sources and methods.
The third draft bill would -add a new section 2115 at.the
end of chapter 21 of title 44, United States Code, which would
have the effect of giving the Archivist and NARS personnel
unlimited access to classified CIA records regardless of whether
these persons have, or even qualify for, security approvals or
clearances. This amendment would seriously undermine the DCI's
ability to limit access to sensitive intelligence information
on a strict need-to-know basis, and it therefore directly
contravenes the DCI's statutory responsibility for the protec-
tion of intelligence sources and methods. Furthermore, this
amendment would render nugatory section 4.1 of Executive Order
12356 which specifies restrictions on access to classified
information. v'
For the foregoing reasons, and because we do-not believe
that normal security requirements have heretofore been a serious
impediment to the exercise of NARS' responsibilities insofar
as the Central Intelligence Agency is concerned, we vigorously
oppose these draft bills. Given the objections we have expressed
above, we would appreciate being kept closely informed as to the
formulation of an Administration position on this legislation.
.-, Sincerely
Stanley orkin
Approved For Release 2005/08/16 : CIA-RDP B01 194R000900070003-3
2
 Approved ForQMease 2005/08/16 CIA-RDP93B01194 O009000700(J3-3
To amend title 44, United States-Code, to.cl.arify archival authorities for
restricted records.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,.
Sec. 1. Chapter 21 of title 44, United States Code, is amended by adding a new
section 2115 at the end thereof as follows:
H?2115 . Archivial access to restricted records
"Notwithstanding any restrictions on access imposed by statute or
Executive Order, the Archivist and persons employed by the National
Archives and Records Service of the General Services Administration
with appropriate national security clearances who are engaged in
archival work shall be permitted access to restricted records for
purposes of-
(1) accessioning those records into the National Archives of the
United States and preserving them under chapter 21 of this title;
(2) inspection of an agency's records program under chapter 29 of
this title; and
(3) determining, under chapter 33 of this title, whether the records
G
have or will have sufficient value to warrant their continued
preservation by the Goverment.
Sec. 2. The table of contents for chapter 21 of title 44, United States Code,
is - amended by adding the following entry at the end thereof:
"2115. Archival access to restricted records."
Approved For Release 2005/08/16 : CIA-RDP93B01194R000900070003-3
 ICA
Approved For Rase 2005/08/16 : CIA-RDP93B0l194Rpe 000070
To amend title 44, United States Code, to clarify archival authorities for
restricted records.
,Be it Pnactea by the and House of. Renresentat~veG of the United
~ es of Ameri c'a n Congress asserrbl ed,
Sec. 1. Chapter 21 of title 44, United States Code, is amended by adding a new
section 2115 at the end thereof as follows:
"?2115. Archival access to restricted records
"Notwithstanding any restrictions on access imtxrsed statute or
Executive Order, the Archivist and. persons mployed by the National
Archives and Records Service of the General Services Ad inistration
who are engaged in archival work shall be permitted access to
restricted records when carrying out their duties except-for the
provision of reference service to the general public under chapters
21, 29, and 33 ofe this title."
Sec. 2. The table of contents for chapter 21 of title 44, United States Code,
is amended by adding the following entry at the end thereof:
"2115. Archival access to restricted records."
Approved For Release 2005/08/16rt: CIA-RDP93B0l194R000900070003-3
 Approved For RNease 2005/08/16 : CIA-RDP93B01194ROO0900070003-3
ROUTING AND RECORD SHEET
SUBJECT: (Optional)
FROM:
EXTENSION
NO.
DATE
TO: (Officer designation, room number, and
building)
DATE
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
z.
J!~(u\ t
3.
;
I
ck
a~~
r
5.
S` l~out~ 5~~-h~~r rn~ trS[r~ctl
Cj VV 1cC ey 5 . Tc
6. ,
/c)
8. n ,rt \
All
p
' i
4
c~~
/+-EK
~
G ?
" ~
-
10.
#44A- a act a~ ~,K~C -
12.
13.
'eL~
'~
W
1UZ
14.
E
A4n
15.
N
tl
! QU U
15 AAA
FORM 610 USEDIr EVI u i4 pp,-
79 roved For Release 2005/08/16 : CIA-RD