DRAFT LETTER TO JUSTICE ON CLASSIFICATION/DECLASSIFICATION OF FOREIGN INFORMATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75-00793R000200170009-1
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 18
• Document Creation Date: December 15, 2016
• Document Release Date: August 28, 2003
• Sequence Number: 9
• Publication Date: June 27, 1973
• Content Type: MF

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ER&L / EDITH, 9 OCT 02
OSD REVIEW COMPLETED
MEMORANDUM FOR:
FROM:
SUBJECT:
NSC REVIEW
COMPLETED,
6/26/2003
June 27, 1973
RICHARD TUFARO 3
25X1 STATINTL
NSC
DRAFT LETTER TO JUSTICE ON
CLASSIFICATION/DECLASSIFICATION
OF FOREIGN INFORMATION
Enclosed please find a draft letter to Mr. Dixon posing the four questions
related to classification and declassification of foreign classified informa-
tion and material which we sketched out at our meeting on June 22, 1973.
I understand from our last meeting that Mr. Spiegel and you will be
responsible for finalizing this letter. When the original is sent to Mr.
Dixon, copies should also be sent to all other members of the ICRC.
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DRAFT
6/27/73
As you know, the Interagency Classification Review Committee
established a subcommittee to make recommendations on procedures
for the classification and declassification of foreign classified
information received by the United States Government. I have been
advised by this subcommittee that in order to.proceed further with its
study in this area, several issues of legal interpretation must be resolved.
The purpose of this letter is to pose those questions for your
consideration. It would be very much appreciated if you could arrange
to have them reviewed and furnish me with the opinion of the Justice
Department on these matters.
The questions posed for your consideration are as follows:
1. Does Section 552 (a) (3) of Title 5 of the United States
Code (the Freedom of Information Act) which provides that
"Each agency, on request for identifiable records . .
shall make the records promptly available to any person"
apply to (A) records received from a foreign government
by thr? United States Government, or (B) records originated
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by the United States Government but containing informa-
tion derived from a foreign official or foreign document?
Although "records" is not defined in the Freedom of
Information Act, we refer to the definition of records in
44 U. S. C. , Section 3301.
2. Under Section 552 (b) of Title 5 of the United States
Code which sets forth certain exceptions to sub-section
(a) (3), does an agency have authority to withhold from
public release foreign classified information received
by the United States Government? Particular reference
is made to the first exemption of the Freedom of
Information Act and Section 4 (C) of Executive Order 11652.
3. In the absence of an executive agreement or treaty
by the United States with a foreign government, does the
head of an agency or department of the United States
Government have authority pursuant to Executive Order 11652
to declassify, without the prior consent of the originating
foreign government, classified information or records
received from that government and in the custody of the
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4. Does the head of an agency or department of the
United States Government have authority pursuant to
Executive Order 11652 to declassify, without the prior
consent of the originating foreign government, classi-
fied information received from that government by
the United States if there is in existence (A) an
executive agreement between that government and the
United States in the form attached at Tab A; or
(B) a treaty between that government or an international
organization and the United States in the form attached
at Tab B? Further, what is the force and effect of
such agreement or treaty if it was adopted prior to the
effective date of Executive Order 11652?
Your assistance in preparing the legal opinion of the Justice Department
on these matters is greatly appreciated. For further details relating
to the background and negotiation of the executive agreement attached,
you should contact Mark Spiegel in the Office of the Legal Adviser
the Department of State or Frank Bartimo in the Office of the General
Counsel of the Department of Defense.
Very truly yours,
James B. Rhoads
Acting Chairman
Interagency Classification
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Honorable Robert G. Dixon
Assistant Attorney General
Office of Legal Counsel
Department of Justice
Washington, D. C. 20530
cc: Members of the Interagency Classification
Review Committee
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June 4, 1973
CLASSIFICATION AND DECLASSIFICATION OF FOREIGN
CLASSIFIED INFORMATION AND MATERIAL UNDER
E. 0. 11652
Statement of Problem:
The United States Government receives and retains large volumes of
foreign originated classified information and material. Although there are
a few bilateral agreements for the protection of foreign classified material,
in most cases continued classification and protection is based upon principles
of international comity recognized in E.O. 11652. Unless the concept of
automatic declassification established by E.O. 11652 is applied to foreign
classified information and material, an impossible declassification problem
will be created resulting in the indefinite classification of such material.
Objective:
To promote a system for the protection and subsequent automatic and
early declassification of foreign classified information and material which
will find acceptance in the international community and not damage U. S.
foreign relations.
Discussion-
The laws of another country have no validity by themselves within the
U. S. Rather legal protection of foreign originated classified documents
within the U. S. must be derived from laws, treaties, or executive orders
promulgated by the U. S. government.
In the past, a few recognized arrangements with such international
organizations such as NATO, CENTO, and SEATO existed to cover.
security protection of their classified documents. In addition, certain
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reciprocal arrangements exist between the U. S. Joint Chiefs of Staff
and the British Chiefs of Staff concerning records of combined interest.
For the most part, however, the international principle of comity
seems to have been the basis for the various departments policy of
protecting such foreign classified material. As Mr. Brower indicated
in his presentation to the ICRC, 50 years is generally accepted in the
international community as the period for the protection of classified
information.
While recognizing the value of this reciprocal protection system in the
absence of official U. S. regulations, in most cases the result has been
indefinite protection of foreign classified documents regardless of the
diminishing need for protection with the passage of time. The procedures
and authority for the protection of these foreign documents is now contained
in E.O. 11652, which _ , establishes new guidelines for dealing with
declassification of U. S. and foreign classified information. It is incumbent
upon us to work to apply the progressive standards of E. O. 11652 to the
declassification of foreign classified information and to seek acceptance
of them in the international community rather than taking a conservative
approach which will result in blanket exemption of these materials from de-
classification.
1. Receipt and protection of foreign classified information.
In either case, the classification shall assure a degree of protection
equivalent to that required by the government which furnished
the information or material. "
U. S. departments deal with foreign classified material after
it has been created and after the classification level has been established
by the originating country. Section 4 (C) of the Executive Order states:
"Classified information or material furnished to the U. S. by
a foreign government or international organization shall either
retain its original classification or be assigned a U. S. classification.
This section deals only with the problem of the level of classification
and the degree of protection to be afforded foreign classified information
or material furnished the U. S. government. In practice, a foreign
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classified' document is given protection comparable to the equivalently
classified document of U. S. origin. Section 4 (C) does not, however,
deal with the problem of declassification of foreign classified documents.
Guidance on this problem is contained in Section 5 of the Order.
2, Exemptions from theG eneral Declassification Schedule.
Section 5 (B) (1), which is the only other specific reference to
foreign classified material in the Executive Order, indicates that foreign
classified information may be exempted from the General I1--classification
Schedule:
"Classified information furnished by foreign governments
or international organizations and held by the U. S. on the
understanding that it be kept in confidence (may be protected
beyond 10 years).','
This section implies that departments receiving foreign and international
organization classified information and material after June 1, 1972,
will determine whether the material should be marked "exempt"
from the General E classification Schedule by an official authorized
to originally classify material as Top Secret. Application of Section 5 (B)
to foreign originated material requires the department receiving the
information to make a determination based on the following questions:
(a) Does the information require protection beyond 10 years?
(b) If the information requires extended protection, at what future
date can the information be declassified?
In short, Executive Order 11652 does not authorize departments to
apply blanket exemptions to foreign classified material. Individual
determinations must be made for foreign classified documents in the
same manner as those made for U. S. originated documents. The
decision to exempt or not to exempt a foreign classified document
from the GDS is based upon guidance from the originating country
or on an internal departmental determination'.Foreign classified documents
which are subject to the GJS will become declassified in six, eight or ten
years. Those exempt from the GDS will be protected for the time period
indicated, subject to the application of the thirty year rule.
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3. Declassification of foreign classified information or material
after thirty years.
While foreign classified material has some unusual characteristics,
the approach detailed in the following sections would bring the handling of
foreign classified information into line with the provisions of E. 0. 11652
and would probably find ready acceptance in the international community.
(a) The same reasoning and categorization already applied to 30-year-old
U. S. originated, classified information would be applied to 30-year-old
foreign classified information. U. S. departments and agencies have issued
guidelines to the Archivist for declassification review of 30 year old material
to exclude from declassification documents of continuing security sensitivity.
It is suggested that these guidelines be consolidated and codified to form the
basic guidelines for a review of similar foreign classified information. [For
example, foreign intelligence sources and methods and communications
intelligence would be types of foreign information that would be subject to
protection beyond 30 years Particular security sensitivities of the countries
originating the information could be added to the guidelines to provide the .
basis for review of thirty year old foreign classified material. In other
words, only certain limited categories of foreign classified information
would be exempt from automatic declassification after the material becomes
30 years old.
(b) As potentially exempt documents are encountered during review,
they would be referred for necessary action to the U. S. department having
primary subject matter interest. That department would review the
documents referred to it and determine from its expert knowledge and
familiarity with current sensitivities whether the information required
further protection, and if so, how long this protection should be extended.
If the department felt that i'rt/ could not make a determination in a specific
instance, referrals could be made to the country of origin. The State
Department and all of the military services have direct channels of
communication with most foreign countries and should be able to obtain
a response from those governments within a reasonable time, Civil
agencies without such contacts abroad have to coordinate such requests
through a designated office in the Department of State. The need for
referrals to the country of origin would probably be minimal.
(c) Section 5 (E) (2) would continue to apply. The heads of departments
having primary subject matter interest would certify to the Archivist of
the U. S. itemized lists of 30 year old exempted foreign classified documents
requiring continued protection, state the reasons for the decision, and
the length of continued protection required. The process would be identical
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(d) Foreign originated documents which have been certified by the
heads of departments having primary subject matter interest as requiring
protection beyond 30 years are subject to the mandatory review provisions
of the Executive Order.
time to receive a response from the country involved. Further a requester
would be allowed to appeal a denial of his request unless the document was
forwarded to the country of origin for determination.
4. Manadatory Review of Exempted Foreign Originated Material
Foreign classified material which has been exempted from the GDS
and which is ten or more years old would be subject to the manadatory
review provisions of Sections 5 (C) and (D) of E. O. 11652. U. S.
departments having primary subject matter interest must accept and
process mandatory review requests for exempted foreign classified
documents in essentially the same manner as requests for U. S. originated
material. Departments receiving the mandatory review requests can make
declassification determinatiori'themselves or refer the requests to the
countries of origin for determination. There are, of course, certain
practical problems involved in making determinations on more current
material which do not arise with material over 30 years old. If the
departments must refer documents to the country of origin, the requester
should be informed of this procedure and advised that it may take some
Conclusion:-
Foreign classified documents are subject to E. O. 11652, including
mandatory review and automatic declassification after 30 years. The
U. S. agency of primary subject matter interest must assume responsibility
for acting on mandatory review requests, including denying them and must
assume responsibility for certification of documents to be kept classified
beyond 30 years.
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to that used for U. S. originated documents which require protection
beyong 30 years.
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DEPARTMENT OF DEFENSE
OFFICE OF GENERAL COUNSEL
WASHINGTON, D. C. 20301
April 26, 1973
MEMORANDUM FOR Mr. Richard Tufaro
SUBJECT: Foreign Classified Information
My attention has been directed to the ICRC Minutes of March 7, 1973,
in which State and AEC are reported to have said that "all foreign
classified material" is not considered to be exempt from the General
Declassification Schedule (GDS). I am informed that this is in violation
of the security agreements the United States has signed with various
countries. Under these agreements, the United States cannot take
unilateral action to downgrade and declassify foreign origin classified
information which has been entrusted to the U. S. See attached Change
No. 2 to USSAN Instruction 1-69, "Implementation of NATO Security
Procedure (U), " December 20, 1969, p. 24. It provides 'in part,
"NATO classified documents may be downgraded or declassified only
by or with the consent of the originating office TTT*. "
The U.S. is obligated to respect the security classification that foreign
originators have assigned to their information and material for so long
as they, not we, say it is classified. They must do the same for our
information and material. There is no leeway to "give separate con-
sideration to that sensitive portion of foreign material which warrants
classification beyond the 30-year limit, 11 as you suggest. We can request
the foreign government to review the continued validity of the classifica-
tion, but that is as far as we can go.
The following rules have been proposed to me. I believe they deserve
consideration.
a. Whenever the U.S. Government receives documents or
other material which have been originated and classified
by a foreign government, those documents shall remain
classified until downgraded or declassified by the foreign
government. Such documents or materials are not subject
to the U.S. General Declassification Schedule, and are not
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to be marked with any U.S. downgrading/declassification
marking. Such documents are not subject to the 10-year
and 30-year declassification reviews specified in E.O.
11652.
b. Classified information from a foreign originated document
which is incorporated into a U. S. document is not subject to
unilateral downgrading or declassification by the U.S. Any
U. S. prepared document which contains foreign origin
classified information must be marked with the XGDS stamp
citing the foreign classifier (or document) and exemption
category (1). (Only a U.S. RD or FRD requirement would be
preemptive.) The foreign originated classified information
should be identified specifically so that it is not inadvertently
released to third country nationals. The U.S. prepared
document is subject to the 10-year and 30-year declassification
review requirements of E. O. 11652, but the foreign origin
classified information contained therein can be downgraded or
declassified only with the approval of the foreign originator.
c. Information supplied to the U.S. by a foreign source and
identified as classified by a foreign source must be treated in
the manner stated in b. above for classified information taken
from a foreign classified document. -
d. Information received from a foreign source and not specifically
identified as classified by the foreign source would be considered
for classification and marked according to U. S. standards. Such
information, if classified, would be subject to downgrading and
declassification according to U. S. requirements.
There is no need to amend E.O. 11652 to cover the foregoing. Foreign
originated classified documents are not under U.S. classification jurisdic-
tion. The President has not made them subject to the GDS of E.O. 11652,
nor would it be proper under our foreign security agreements to do so. In
turn, we expect reciprocal treatment from governments to which we release
U.S. classified information and material. Continued classification of
foreign origin information or material beyond 30 years requires no action
by any U. S. official. However, when warranted, we should request the
foreign originator to downgrade or declassify.
f
Robert T. Andrews
Office, Assistant General Counsel
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June 12, 1973
Washington, D.C. 20408
STATES OF AMERICA
VICES ADMINISTRAT ON
National Archives and Records Service
ATTN TN OF OF:
REPLY Deputy Archivist of the United States
Guidelines for Declassification of 30 Year Old
Foreign Classified Information and Material
Richard C. Tufaro
agencies in their guidelines.
Enclosed is a set of suggested guidelines to be used for declassification
review of 30 year old foreign originated classified information. The
guidelines are based on the guidelines of U. S. agencies and those
issued by the British Government for review of British originated
documents. Definitions of the terms used in the restriction categories
would be the same as those currently used by U. S. departments and
JAMES E. O'NEILL
Enclosure
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GUIDELINES FOR THE EXTENDED SECURITY PROTECTION OF
FOREIGN AN INTERNATIONAL ORGANIZATION ORIGINATED
INFORMATION AND MATERIAL
(b) Information concerning communications intelligence
or cryptography, or their related activities.
(c) Information concerning chemical, biological, and
radiological warfare.
(d) Information which specifically shows the precise
longitude and latitude coordinates of strategic and/or
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All foreign and international organization security-classified information will
be automatically declassified at the end of the 30th full claendar year following
the year in which it originated unless it falls within one of the following two
general categories:
(1) Classified information or material affecting the
security of the nations concerned.
(2) Classified information or material the disclosure
of which would place a person in immediate danger.
Under the first category, the following types of classified information would
be recognized as affecting the national security of the nations concerned:
(a) Information originated by the foreign or international
organization's intelligence agencies and revealing
covert methods, covert organization and special
financing.
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(e) Information concerning or revealing escape, evasion,
cover, or deception plans, procedures, and techniques;
or operations relating thereto.
(f) Technical information concerning weapon systems and
equipment in current use or design which reveals the
capabilities, limitations, or vulnerabilities of such
systems or equipments and thus could be exploited to
counter, render ineffective, neutralize or destroy them.
(g) Information which if released would adversely affect the
conduct of the concerned country's current foreign policy.
(h) Information concerning plans for an operation of war
affecting the territory of another nation.
Under the second category, the following information would be recognized
as the type which could place a person in immediate jeopardy:
(a) Identifiable individuals and organizations as covert
sources of intelligence.
- (b) Identification of intelligence agents.
.\ All foreign and international organization originated classified information
or material in the above categories may from automatic
declassification after 30 years, but it is automatically downgraded from
Top Secret (or equivalent level of protection) to Secret at the end of the
thirtieth calendar year'following the year in which it was originated.
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All foreign and international organization originated information which is
categorized above as being exempted from automatic declassification after
30 years, shall be declassified if, upon review by the U. S. Government
Department of primary subject-matter interest, a determination is made
that such information no longer requires extended protection. If necessary,
the responsible U. S. Department will refer questionable cases to the
originating foreign government or international organization for a declassi-
fication determination. Foreign and international organization originated
information and material which has been exempted from declassification at
30 years will be handled in the same manner as U. S. originated exempted
materials (E, O. 11652, Sec. 5(E).
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