CENTRAL INTELLIGENCE AGENCY INFORMATION ACT
Document Type:
CREST [1]
Collection:
Document Number (FOIA) /ESDN (CREST):
CIA-RDP89B00236R000200240009-7
Release Decision:
RIFPUB
Original Classification:
K
Document Page Count:
42
Document Creation Date:
December 21, 2016
Document Release Date:
November 6, 2008
Sequence Number:
9
Case Number:
Publication Date:
May 1, 1984
Content Type:
REPORT
File:
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Body:
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98TH CONGRESS 1 HOUSE OF REPRESENTATIVES RErr. 98-726
2d Session j Part 1
Mr. BOLAND, from the Permanent Select Committee on Intelligence,
submitted the following
REPORT
[To accompany H.R. 5164 which on March 15, 1984, was referred jointly to the
Permanent Select Committee on Intelligence and the Committee on Government
Operations]
The Permanent Select Committee on Intelligence, to whom was re-
ferred the bill (H.R. 5164) to amend the National Security Act of 1947
to regulate public disclosure of information held by the Central Intelli-
gence Agency, and for other purposes, having considered the same,
report favorably thereon with an amendment and recommend that the
bill as amended do pass.
Page
Purposes ------------------------------------------------------------
4
Background ---------------------------------------------------------
4
History of the Bill---------------------------------------------------
6
Need for the Legislation______________________________________________
8
Delays in Responding to FOIA Requests---------------------------
10
Lack of Useful Information Released from Certain Sensitive Opera-
tional Files----------------------------------------------------
13
Diversion of Skilled CIA Personnel Away From Intelligence Duties__
14
Maintenance of Sound Security Principles ---------------------------
14
Risk of Disclosure of Sensitive Information -------------------------
15
Concern by Sources ------------------------------------------------
16
Preservation of Existing Access to Potentially Releaseable CIA Informa-
tion ---------------------------------------------------------------
17
Section-by-Section Analysis ---------------------------------------------
19
Section 1 of H.R.5164: Short Title ---------------------------------
20
Section 2 of H.R. 5164: Amendments to National Security Act -------
20
Subsection 701(a) : Exemption of Certain CIA Operational Files-
20
Subsection 701 (b) : Definition of "Operational Files -------------
20
Subsection 701(c) : First Personal Requests, Special Activities
and Investigations for Impropriety or Illegality--------------
23
Subsection 701(d) : Transfer of Records and Information Between
Exempted Operational Files and Other Files_________________
31
Subsection 701(e) : Construction Against Implied Repealer or-
Modification -----------------------------------------------
32
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Subsection 701(f) : Judicial Review -------- -------------------- 32
Section '102: De-e.inial Review of Exempted Operational Files--_ 36
Section 3 of H.R. 5164: Report to Congress------------------------- 37
Section 4 of H.R. 5164: Limited Retroactive Effect----------------- 38
Committee Position--------------------------------------------------- 38
Oversight Findings---------------------------------------------------- 38
Congressional Budget Act ---------------------------------------------- 39
Congressional Budget Office Estimate -------------------- ------------- 39
Recommendation of the Committee on Government Operations ----------- 39
Inflation Impact Statement--------------------------------------------- 39
Five-year Cost Projection--------------------------------------------- 39
Executive Branch Estimates------------------------------------------- 39
Changes in Existing Law Made by the Bill, as Reported----------------- 39
The amendment is as follows :
Strike out all after the enacting clause and insert in lieu thereof the
following :
That this Act may be cited as the "Central Intelligence Agency Information Act".
SEC. 2. (a) The National Security Act of 1947 is amended by adding at the end
thereof the following new title :
"TITLE VII-PROTECTION OF OPERATIONAL FILES OF THE CENTRAL
INTELLIGENCE AGENCY
"EXEMPTION OF CERTAIN OPERATIONAL FILES FROM SEARCH, REVIEW, PUBLICATION, OR
DISCLOSURE
"SEC. 701. (a) Operational files of the Central Intelligence Agency may be
exempted by the Director of Central Intelligence from the provisions of section
552 of title 5, United States Code (Freedom of Information Act) which re-
quire publication or disclosure, or search or review in connection therewith.
"(b) For the purposes of this title, the term `operational files' means-
"(1) files of the Directorate of Operations which document the conduct
of foreign intelligence or counterintelligence operations or intelligence or
security liaison arrangements or information exchanges with foreign gov-
ernments or their intelligence or security services ;
"(2) files of the Directorate for Science and Technology which document
the means by which foreign intelligence or counterintelligence is collected
through scientific and technical systems ; and
"(3) files of the Office of Security which document investigations con-
ducted to determine the suitability of potential foreign intelligence or
counterintelligence sources;
except that files which are the sole repository of disseminated intelligence are
not operational files.
"(c) Notwithstanding subsection (a) of this section, exempted operational
files shall continue to be subject to search and review for information con-
cerning-
"(1) United States citizens or aliens lawfully admitted for permanent
residence who have requested information on themselves pursuant to the
provisions of section 552 of title 5, United States Code (Freedom of In-
formation Act) or section 552a of title 5, United States Code (Privacy Act
of 1974) ;
"(2) any special activity the existence of which is not exempt from dis-
closure under the provisions of section 552 of title 5, United States Code
(Freedom of Information Act) ; or
"(3) the specific subject matter of an investigation by the intelligence
committees of the Congress, the Intelligence Oversight Board, the Depart-
ment of Justice, the Office of General Counsel of the Central Intelligence
Agency, the Office of Inspector General of the Central Intelligence Agency,
or the Office of the Director of Central Intelligence for any impropriety, or
violation of law, Executive order, or Presidential directive, in the conduct
of'an intelligence activity.
"(d) (1) Files that are not exempted under subsection (a) of this section
which contain information derived or disseminated from exempted operational
files shall be subject to search and review.
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"(2) The inclusion of information from exempted operational files in files
that are not exempted under subsection (a) of this section shall not affect the
exemption under subsection (a) of this section of the originating operational
files from search, review, publication, or disclosure.
"(3) Records from exempted operational files which have been disseminated
to and referenced in files that are not exempted under subsection (a) of this
section and which have been returned to exempted operational files for sole
retention shall be subject to search and review.
"(e) The provisions of subsection (a) of this section shall not be superseded
except by a provision of law which is enacted after the date of enactment of
subsection (a), and which specifically cites and repeals or modifies its provisions.
"(f) Whenever any person who has requested agency records under section
552 of title 5, United States Code (Freedom of Information Act) alleges that
the Central Intelligence Agency has improperly withheld records because of
failure to comply with any provision of this section, judicial review shall be
available under the terms set forth in section 552(a) (4) (B) of title 5, United
States Code, except that-
"(1) in any case in which information specifically authorized under cri-
teria established by an Executive order to be kept secret in the interest of
national defense or foreign relations is filed with, or produced for, the court
by the Central Intelligence Agency, such information shall be examined ex
parte, in camera by the court ;
"(2) the court shall, to_the fullest extent practicable, determine issues of
fact based on sworn written submissions of the parties ;
"(3) when a complainant alleges that requested records were improperly
withheld because of improper placement solely in exempted operational files,
the complainant shall support such allegation with a sworn written submis-
sion, based upon personal knowledge or otherwise admissible evidence ;
"(4) (A) when a complainant alleges that requested records were improp-
erly withheld because of improper exemption of operational files, the Central
Intelligence Agency shall meet its burden under section 552 (a) (4) (B) of
title 5, United States Code, by demonstrating to the court by sworn written
submission that exempted operational file likely to contain responsive rec-
ords currently perform the functions set forth in subsection (b) of this sec-
tion ; and
"(B) the court may not order the Central Intelligence Agency to review
the content of any exempted operational file or files in order to make the
demonstration required under subparagraph (A) of this paragraph, unless
the complainant disputes the Central Intelligence Agency's showing with a
sworn written submission based on personal knowledge or otherwise admis-
sible evidence ;
"(5) in proceedings under paragraphs (3) and (4) of this subsection.
the parties shall not obtain discovery pursuant to rules 26 through 36 of
the Federal Rules of Civil Procedure, except that requests for admission may
be made pursuant to rules 26 and 36;
"(6) if the court finds under this subsection that the Central Intelligence
Agency has improperly withheld requested records because of failure to com-
ply with any provision of this.section, the court shall order the Central Intel-
ligence Agency to search and review the appropriate exempted operational
file or files for the requested records and make such records, or portions
thereof, available in accordance with the provisions of section 552 of title 5,
United States Code (Freedom of Information Act), and such order shall be
the exclusive remedy for failure to comply with this section ; and
"(7) if at any time following the filing of a complaint pursuant to this
subsection the Central Intelligence Agency agrees to search the appropriate
exempted operational file or files for the requested records, the court shall
dismiss the claim based upon such complaint.
"DECENNIAL REVIEW OF EXEMPTED OPERATIONAL FILES
"SEC. 702. (a) Not less than once every ten years, the Director of Central
Intelligence shall review the exemptions in force under subsection (a) of
section 701 of this Act to determine whether such exemptions may be removed
from any category of exempted operational files or any portion thereof.
"(b) The review required by subsection (a) of this section shall include con-
sideration of the historical value or other public interest in the subject matter
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"Sec. 701. Exemption of certain operational files from search, review, publication, or
disclosure.
"Sec. 702. Decennial review of exempted operational files.".
"TITLE VII-PROTECTION OF OPERATIONAL FILES OF THE CENTRAL
TNTF.T.TTf!F.N('li. Afiww,nv
of the particular category of files or portions thereof and the potential for de-
classifying a significant part of the information contained therein.
"(c) A complainant who alleges that the Central Intelligence Agency has
improperly withheld records because of failure to comply with this section may
seek judicial review in the district court of the United States of the district in
in which any of the parties reside, or in the District of Columbia. In such a
proceeding, the courts review shall be limited to determining (1) whether the
Central Intelligence Agency has conducted the review required by subsection (a)
of this section within ten years of enactment of this title or within ten years
after the last review, and (2) whether the Central Intelligence Agency, in fact,
considered the criteria set forth in subsection (b) of this section in conducting
the required review.".
(b) The table of contents at the beginning of such Act is amended by adding
at the end thereof the following :
SEC. 3. The Director of Central Intelligence, in consultation with the Archivist
of the United States, the Librarian of Congress, and appropriate representatives
of the historical discipline selected by the Archivist, shall prepare and submit
by June 1, 1985, to the Permanent Select Committee on Intelligence of the House
of Representatives and the Select Committee on Intelligence of the Senate a
report on the feasibility of conducting systematic review for declassification and
release of Central Intelligence Agency information of historical value.
SEC. 4. The amendments made by section 2 shall be effective upon enactment
of this Act and shall apply with respect to any requests for records, whether
or not such request was made prior to such enactment, and shall apply to all
civil actions not commenced prior to February 7, 1984.
The bill has three purposes :
(1) to relieve the Central Intelligence Agency from an unpro-
ductive Freedom of Information Act (FOIA) requirement to
search and review certain CIA operational files consisting of rec-
ords which, after line-by-line security review, almost invariably
prove not to be releasable under the FOIA;
(2) to improve the ability of the Central Intelligence Agency
to respond to Freedom of Information Act requests from the pub-
lic in a timely and efficient manner, while preserving undiminished
the amount of meaningful information releasable to the public
under the Freedom of Information Act; and
(3) to provide additional assurance of confidentality to sources
who assist the United States by cooperating with the Central In-
telligence Agency.
The bill accomplishes these purposes by excluding certain spe-
cifically defined sensitive CIA operational files from the Free-
dom of Information Act process.
BACKGROUND
The Freedom of Information Act (5 U.S.C. 552) currently applies
to the Central Intelligence Agency (CIA) in precisely the same man-
ner that it applies to other federal agencies. Thus, in response to a
request from anyone for reasonably described records, the CIA must
(1) search its records systems for records responsive to the FOIA re-
quests, (2) review the responsive records retrieved from CIA files to
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determine which portions of the records fall within FOIA disclosure
exemptions, and (3) disclose all reasonably segregable portions of the
responsive records which do not fall within one or more of the nine
FUTA exemptions from disclosure, such as Exemption 1 for properly
classified information or Exemption 3 for information specifically ex-
empted from disclosure by statute, such as section 102(d) (3) of the
National Security Act of 1947 which protects information relating to
intelligence sources and methods.
A decade of experience has shown that certain specifically identifi-
able CIA operational records systems, containing the most sensitive
information directly concerning intelligence sources and methods, in-
evitably contain few, if any, items which can be disclosed to FOIA
requesters. The records contained in these operational records systems
almost invariably fall within the FOIA exemptions protecting classi-
fied information and information relating to intelligence sources and
methods. With respect to these sensitive operational records, FOIA
requesters are often informed that the entire contents of the records are
being withheld; at best the requester receives photocopies of the
records with a vast expanse of blackened-out deletions leaving only a
few meaningless words. Nevertheless, despite the fact that records re-
trieved from these operational records systems will, after line-by-line
security review, be found to be exempt from FOIA disclosure, the CIA
must search and review records from these systems in response to
FOIA requests. As Mr. Mark Lynch, representing the American Civil
Liberties Union, testified before the Subcommittee on Legislation of
the Permanent Select Committee on Intelligence on February 8, 1984:
[A] great deal of useful information is released to the
public as a result of the Freedom of Information Act, but
at the same time, there is a great deal of information which
the CIA invariably and properly withholds under the exemp-
tions which exist in the Act because that information is either
classified or involves intelligence sources and methods. And it
has also become clear to me that, as the testimony from the
Agency has indicated, a great deal of time is spent processing
and justifying the withholding of information which in the
end is exempt and which the courts are going to accept as
exempt.
The unproductive process of searching and reviewing CIA opera-
tional records systems which contain little, if any, information re-
leasable under FOIA absorbs a substantial amount of the time of
experienced CIA operational personnel and scarce tax dollars. This
expenditure of time and money on fruitless search and review of sen-
sitive operational records contributes nothing to the FOIA goal of
releasing non-exempt information to the public, since it produces
almost no records releasable to the public. In fact, it actively hinders
achievement of that goal, because the time-consuming process of re-
viewing sensitive CIA operational records which prove unreleasable
creates a bottleneck in the Agency's FOIA review process, causing a
two-to-three year delay in CIA responses to many FOIA requests.
The "Central Intelligence Agency Information Act" (H.R. 5164)
will remove certain specifically defined sensitive CIA operational files
from FOIA search and review requirements, eliminating the waste of
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CIA human and fiscal resources. The legislation will have the addi-
tional benefits of reducing the possibility of accidental administrative
disclosure of sensitive CIA operational secrets and of providing addi-
tional assurance to CIA intelligence sources that public access to gov-
ernment files under America's Freedom of Information Act poses no
risk to the confidentiality of their relationship with the United States
Government.
With the relief afforded the CIA from undue administrative bur-
dens by the legislation, CIA will be abe to respond more quickly and
more efficiently to FOIA requests in the future than it has in the past.
The resources currently spent on the fruitless search for and review of
records in sensitive operational files will be redirected to productive
processing of FOIA requests for records in other files, which contain
releasable information. Removing the operational files from the FOIA
process will contribute greatly to elimination of the bottlenecks in
FOIA processing at CIA, reducing delays in providing final reponses
to FOIA requesters.
HISTORY OF THE BILL
Concern over the burdens imposed on intelligence agencies under the
Freedom of Information Act (FOIA) is not new. Congress considered
the FOIA's impact on the Central Intelligence Agency as early as
1977, three years after the Act was amended to provide for de novo
judicial review of the propriety of the classification of information
withheld by agencies as classified.
In September, 1977, the Subcommittee on Administrative Practice
and Procedure of the Senate Judiciary Committee heard CIA officials
testify about the effects of the 1974 amendments on the Agency. Acting
CIA Director John F. Blake, who was chairman of the CIA's Infor-
mation Review Committee, stated that the 1974 amendments had "con-
stituted a somewhat traumatic experience" and had "required a con-
siderable adjustment in attitude and practice." He added, "[w]e have
been able to make the necessary adjustments. I am pleased to report
that, in fact, I think the Agency is better off for it." 1
By 1979, however, CIA's position had changed. Testifying before
the House Permanent Select Committee on Intelligence, Deputy Direc-
tor of Central Intelligence Frank Carlucci declared that "the total
application of public disclosure statutes like FOIA to the CIA is seri-
ously damaging our ability to do our job." Mr. Carlucci did not seek
total exemption from the FOIA for the CIA. Instead, he proposed an
exemption for certain designated operational files within the Intel-
ligence Community, with a provision allowing U.S. citizens and per-
manent resident aliens to continue to use the FOIA to obtain informa-
tion about themselves. Mr. Carlucci described this approach as "fully
consistent with the spirit and letter of national security exemptions
already in the Freedom of Information Act." 2
A provision similar to that proposed by Mr. Carlucci was included
as subsection 421(d) of H.R. 6588, The National Intelligence Act of
1 Freedom of Information Act, Hearings before the Subcommittee on Administrative
Practice and Procedure of the Committee on the Judiciary, United States Senate, 95th
Congress, 1st session (1977), p. 69.
9 Impact of the Freedom of Information Act and the Privacy Act on Intelligence Activi-
ties. Hearings before the Subcommittee on Legislation of the Permanent Select Committee
on Intelligence, House of Representatives, 96th Congress, list session (1979), pp. 3, 7, 162.
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1980, introduced by Representative Boland in the 96th Congress. The
latter differed from the Carlucci proposal in that it would have ex-
empted designated files of the CIA rather than designated files of all
intelligence agencies. Another bill, H.R. 5129, introduced by Repre-
sentative McClory and others, contained a provision that would have
exempted designated files of the CIA and the National Security
Agency.
During the hearings on H.R. 6588 (and on its Senate counterpart,
S. 2284),3 Director of Central Intelligence Stansfield Turner expressed
the Carter Administration's* support for the Carlucci proposal. How-
ever, the Carter Administration subsequently supported a different
proposal, put forth by the Department of Justice, which would have
permitted the CIA to exempt certain types of information from dis-
closure by Agency certification and would have precluded judicial
review. This proposal was contained in H.R. 7056 which Representa-
tive Richardson Preyer introduced, by request, in April, 1980.
Representative Preyer also introduced his own bill, H.R. 7055,
which would have added to the nine existing FOIA exemptions a new
exemption for information provided to the CIA in confidence by a
secret intelligence source or a foreign intelligence service, and which
would have retained judicial review.
A similar proposal was contained in section 202 of H.R. 6860, the
Intelligence Activities Act of 1980, introduced by Representative Les
Aspin in March, 1980.
The Subcommittee on Government Information and Individual
Rights of the House Committee on Government Operations conducted
hearings on H.R. 5129, H.R. 7055, and H.R. 7056 in the spring of
1980
No further action was taken on any of these measures.
On June 29, 1983, Representative Mazzoli, Chairman of the Sub-
commitee on Legislation of the Permanent Select Committee on Intel-
ligence, introduced H.R. 3460. Representative Whitehurst introduced
a similar bill, H.R. 4431, on November 16, 1983.
The Subcommittee on Legislation of the Permanent Select Commit-
tee on Intelligence held a public hearing on these bills on February 8,
1984. Testifying at the hearing were :
John N. McMahon, Deputy Director of Central Intelligence.
Mary C. Lawton, Counsel for Intelligence Policy., Department of
Justice.
Mark H. Lynch, Council for the ACLU Project on National Secu-
rity, representing the American Civil Liberties Union.
John H. Shenefield, partner, Milbank, Tweed, Hadley & McCloy,
former Associate Attorney General, representing the American Bar
Association.
Charles S. Rowe, Editor and Publisher, The Free Lance Star,
Fredericksburg, Virginia, representing the American Newspaper Pub-
lishers Association.
a National Intelligence Act of 1980, Hearings before the Select Committee on Intelligence,
United States Senate, 96th Congress, 2d session (1980) ; H.R. 6588, The National Intel-
ligence Act of 1980, Hearings before the Subcommittee on Legislation of the Permanent
Select Committee on Intelligence, House of Representatives, 96th Congress, 2d session
(1980).
* The Freedom of Information Act: Central Intelligence Agency Exemptions, Hearings
before a Subcommittee on the Committee on Government Operations, House of Representa-
tives, 96th Congress, 2d Session (1980).
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Samuel Gammon, Executive Director, National Coordinating Com-
mittee for the Promotion of History, representing the Organization of
American Historians and the American Historical Association.
After the hearing, the Committee worked closely with the CIA and
representatives of groups which use the FOIA in an attempt to resolve
the major issues raised at the hearing and reached agreement on a bill.
Modifications were made to previously introduced legislation in the
areas of judicial review, retroactive effect, decennial review of exemp-
tions of operational files, and other areas.
Representatives Mazzoli, Whitehurst, Boland and Robinson intro-
duced a new. bill (H.R. 5164) reflecting these modifications on
March 15,1984.
The full Committee met on April 11, 1984, to consider H.R. 5164,
and, by unanimous voice vote, adopted an amendment in the nature
of a substitute thereto and ordered the bill reported favorably.5
NEED FOR THE LEGISLATION
In considering this bill, the Committee balanced the benefits of an
informed public with the national security need for an effective in-
telligence service. Since the 1974 FOIA amendments, the CIA has
released to the public a substantial amount of information as a direct
or indirect result of the Act. The following examples of material de-
classified and released by the CIA as a result of the FOIA illustrate
the scope of this information and its importance for public under-
standing of the workings and decisionmaking processes of govern-
ment:
Complete or partial copies of Director of Central Intelligence
Directives issued from 1946 to 1976 covering a wide range of issues
relating to the management, coordination, and general conduct of
intelligence activities ;
Substantially complete texts of significant National Intelligence
Estimates, including estimates relating to the October, 1962 Cuban
missile crisis;
Memoranda from the CIA General Counsel to the Director of
Central Intelligence on the legality of covert action operations ;
Records concerning efforts by former CIA Director William
Colby to forestall publication of news stories on the Glomar Ex-
plorer; and
Internal CIA studies of particular intelligence operations, such
as the Berlin Tunnel operation in the 1950's.
CIA officials have recognized that, within the spirit of what Con-
gress intended the FOIA to do for the American people, the Agency
does possess information about which the public may legitimately in-
quire. Deputy Director McMahon's testimony reaffirmed categories of
records which would remain subject to search and review :
(1) All intelligence disseminations, including raw intelligence
reports direct from the field ;
s Senator Goldwater, Chairman of the Senate Select Committee on Intelligence, intro-
duced a similar bill, S. 1324, on May 18, 1983. The Senate Select Committee on Intelligence
held hearings on S. 1324 on June 21 and 28, 1983, and ordered it reported, with amend-
ments, on October 4, 1983. (See S. Rept. 98-305). The bill, as reported, passed the Senate
by voice vote on November 17, 1983. This Committee notes that on pp. 24 and 25 of the
Senate Intelligence Committee's hearing record (S. Hrg. 98-464) Deputy Director of
Central Intelligence McMahon expressed the Administration's position that no further
relief from the FOIA for the Intelligence Community will be sought.
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(2) All matters of policy formulated at Agency executive levels,
even operational policy ;
(3) Information concerning those covert actions the existence
of which is no longer classified ;
(4) Information concerning U.S. citizens and permanent resi-
dent aliens requested by such individuals. about themselves ; and
(5) Information concerning any Agency intelligence activity
that was improper or illegal or that was the subject of an investi-
gation for alleged illegality or impropriety.
The Agency's acceptance of the obligation under the FOIA to pro-
vide information to the public not exempted under the FOIA is one
-of the linchpins of this legislation. The Act has played a vital part
in maintaining the American people's faith in their government, and
particularly in agencies like the CIA that must necessarily operate in
secrecy. In a free society, a national security agency's ability to serve
the national interest depends as much on public confidence that its
powers will not be misused as it does on the confidence of intelligence
sources that their relationships with the CIA will be protected. The
Committee nevertheless believes that current FOIA requirements
create greater burdens and risks for the CIA than is necessary to
achieve the essential goal of preserving full public access to significant
information.
The Central Intelligence Agency exists to provide to policymakers
timely, accurate and insightful information on the capabilities, inten-
tions and activities of foreign powers, organizations, and persons; to
conduct activities in support of U.S. foreign policy objectives which
are carried out so that the role of the U.S. Government in the activities
remains hidden; and to counter the activities of the intelligence and
security services of foreign powers, and others such as international
terrorist organizations, who engage in activities hostile to U.S. in-
terests. In intelligence parlance, these matters are known as the foreign
intelligence and counterintelligence functions of the Central Intelli-
gence Agency. To carry out these functions, the CIA employs a wide
variety of intelligence methods and secures information and opera-
tional assistance from a wide variety of sources.
The Committee. has found that the applicability of the FOIA proc-
ess to the operational files of the Central Intelligence Agency has pro-
duced a number of effects not contemplated at the time of enactment of
the FOIA in 1966 or at the time of its amendment in 1974 and 1976.
While the Committee has determined that continued public access
through the FOIA process to CIA files consisting of records of raw
or finished intelligence or policy matters does not unduly burden CIA
in carrying out its mission, the Committee has concluded that public
access through the FOIA to certain CIA operational files, i.e., files
documenting sources and methods used in CIA operational activities,
has resulted in :
Two-to-three year delays in satisfying many FOIA requests;
The release, after line-by-line security review of records from
CIA operational files, of little or no meaningful information;
Diversion of skilled, CIA operational personnel from impor-
tant operational duties to FOIA processing; and
Inability to observe security principles of need-to-know and
compartmentation.
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The Committee notes also that a risk exists of accidental or unin-
tended disclosure of sensitive material from operational files in the
FOIA process.
Finally, the CIA has testified that present and potential sources of
information and operational assistance, including both individual
agents and intelligence services of friendly nations, perceive that the
United States cannot protect the fact of their cooperation, and the
information or assistance they provide, from disclosure through the
FOIA process. The Committee remains skeptical of the validity of
the perception problem and does not consider it to be a major factor
in its conclusion that H.R. 5164 should be adopted. In any event, it is
assumed that enactment of H.R. 5164 will change whatever percep-
tions need changing.
Each of these issues is examined below.
DELAYS IN RESPONDING TO FOIA REQUESTS
When FOIA requests involve records maintained by the CIA Direc-
torate of Operations, the CIA final administrative response to the re-
quests takes years, a period far in excess of that contemplated by the
promptness requirements in the Freedom of Information Act. The
primary difficulty preventing the CIA from responding in a more
timely fashion to FOIA requests is the bottleneck in Directorate of
Operations review of documents responsive to FOIA requests.
There is a two-to-three year delay at CIA in providing final re-
sponses to FOIA requests which involve review of responsive records
retrieved from Directorate of Operations files. Directorate of Opera-
tions officers must conduct a security review of these records on a time-
consuming line-by=line basis. This time-consuming process affects re-
sponses to FOIA requests for information located in other CIA com-
ponents because such information must often be sent to the Directorate
of Operations for coordination or declassification review. The FOIA
review by Directorate of Operations officers of records from sensitive
operational files does not produce releasable information; it only ab-
sorbs time they could use for FOIA review of records from non-oper-
ational files which are likely to contain releasable information. The
Directorate of Operations review of records from operational files
which do not contain releasable information slows down CIA review
and release of information from non-operational files, producing a
backlog in CIA FOIA processing. The public will be better served by a
system which allows the public to get directly to the releasable CIA
information more quickly.
The review necessary for documents found in the Directorate of
Operations is the primary cause of the overall CIA backlog in respond-
ing to FOIA requests. Because most requests are handled on a first in,
first out basis, requests involving hundreds of pages of responsive doc-
uments can delay the processing of far smaller cases in the processing
queue. Records packages responsive to FOIA requests back up in the
queue to await line-by-line review by experienced officers of the Di-
rectorate of Operations to determine which portions of the records can
be released without jeopardizing national security.
The backlog in Directorate of Operations review of records respon-
sive to FOIA requests developed rapidly in the years succeeding the
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1974 amendments to the Freedom of Information Act. The peak year
for FOIA requests to the CIA was 1978, in which the CIA received
1,608 requests. That number declined to 1,010 in 1982. In 1983, how-
ever, the number began to rise; CIA received 1,266 new FOIA requests
in 1983. The backlog has also increased. The year-end 1983 backlog
figure of 1,711 backlogged FOIA requests reflects an increase of 351
from the same FOIA backlog figure at the end of 1982, a 25 percent in-
crease. In considering the numbers of requests, it must be borne in mind
that some requests involve the line-by-line review of many linear feet
of documents, while other requests require review of a relatively small
number of documents.
The Committee considered the possibility of assignment of greater
human and fiscal resources to FOIA processing at CIA to deal with
the processing bottlenecks and determined that dedication of such ad-
ditional resources would not eliminate the Directorate of Operations
backlog. Because of the extreme sensitivity of CIA operational records,
relatively senior experienced intelligence. officers who have current re-
sponsibility for directing intelligence operations must make the secu-
rity judgments required in determining which portions of operational
records can safely be released. No amount of additional administrative
support can speed up the review by these senior operational personnel
to reduce the Directorate of Operations backlog.
Enactment of H.R. 5164 should minimize the Directorate of Opera-
tions FOIA processing backlog by withdrawing from the FOIA proc-
ess the most sensitive files of that Directorate. Although Directorate
of Operations personnel still will be required to review records re-
trieved in response to FOIA requests from Directorate of Operations
non-exempted files or from the files of other CIA components, the
elimination of the Directorate of Operations' most sensitive files from
the FOIA process should effect a great reduction in the Directorate
of Operations backlog. This reduction in the backlog will speed up
substantially final CIA administrative responses to FOIA requesters.
The Committee firmly expects that CIA final responses to FOIA re-
questers after enactment of H.R. 5164 will be measured in months
at the outside, and not in years, and that the CIA will redouble its
efforts to meet the deadlines established in the Freedom of Informa-
tion Act. The Committee views this substantial reduction in CIA
response time as a primary benefit of this bill.
To achieve this objective, the Committee expects the CIA to estab-
lish a specific program of measures to improve processing of FOIA
requests after enactment of H.R. 5164. The Committee believes that
this program should provide for elimination of the existing FOIA
backlog and for prompt processing of FOIA requests which do not
require extensive search, review, and coordination of large numbers
of records. The Committee's expectations are based, on an assumption
that the volume of FOIA requests received by the CIA will not in-
cresse significantly after enactment of this legislation.
With respect to the allocation of resources and personnel freed by
the imnact of H.R. 5164 on CIA processinn of FOIA requests, the
Committee expects the Agency to apply such resources and personnel
appropriately to the task of eliminatinn the existinn hacklon. Further-
more. the Committee expects the A nency not to reduce its budgetary
and personnel allocation for FOTA activities during the two-year
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period following enactment of this legislation. At the end of that two-
year period, the Committee will consider the appropriate level of ex-
penditures required in the out-years to ensure prompt CIA responses
to FOIA requests. Finally, the Committee expects the Agency to ap-
ply the resources freed by elimination of the backlog to augment re-
sourcs for search and review of non-exempt files. The Committee will
closely examine CIA compliance with these expectations in the course
of considering the annual CIA budget authorizations and through
oversight of CIA FOIA activities.
The Director of Central Intelligence committed the CIA to ful-
filling the Committee's expectations in the following exchange of
correspondence:
U.S. HOUSE OF REPRESENTATIVES,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
Hon. WILLIAM J. CASEY,
Director of Central Intelligence,
Washington, D.C.
Washington, D.C., April 13,1984.
DEAR MR. CASEY : On April 11 the Permanent Select Committee on
Intelligence, by unanimous voice vote, ordered reported favorably
H.R. 5164, The Central Intelligence Agency Information Act.
In anticipation of consideration of this important measure by the
Committee on Government Operations and the full House of Repre-
sentatives, it is an appropriate time to confirm this Committee's under-
standing that upon enactment of H.R. 5164 the Agency will establish
a specific program designed to produce compliance with the current
FOIA processing deadlines for new requests and to effect a substan-
tial reduction, if not the entire elimination, of the current backlog of
FOIA requests. Furthermore, it is expected that the Agency will not
reduce its budgetary and personnel allocation for FOIA activities dur-
ing the two year period following enactment.
As you know, the prospect of achieving these goals has been a major
factor in securing the overwhelming congressional support, thus far
evidenced, for this legislation.
It has been a pleasure working with Mr. Mayerfeld and his staff on
H.R. 5164. I look forward to its prompt enactment.
With every good wish, I am
Sincerely yours,
EDWARD P. BOLAND,
Chairman.
CENTRAL INTELLIGENCE AGENCY,
Washington, D.C., April 27,1984.
Hon. EDWARD P. BOLAND,
Chairman, Permanent Select Committee on Intelligence,
House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN : I am writing to respond to your letter of 13
April 1984 wherein you seek to confirm the Committee's understand-
ing of the course of action the Agency will pursue upon enactment
of H.R. 5164.
Please consider this letter as confirmation of the understanding that,
upon enactment of H.R. 5164, the Agency will establish a specific pro-
gram designed to substantially reduce, if not entirely eliminate, the
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current two-to-three year backlog of Freedom of Information Act
(FOIA) requests. You will recall that in answering a specific question
by Representative Mazzoli during the hearing, we committed ourselves
to the goal of responding to new FOIA requests in a matter of weeks,
or at the most months, depending on the complexity of the request. As
we have previously made clear, given our compartmented system of
records, we will rarely be able to give a FOIA requester a final response
within the statutory 10-day time limit. However, the Agency will make
continuing efforts to reduce our response time to the minimum amount
necessary consistent with the needs of national securtiy.
Additionally, this is to confirm your understanding that the Agency
will maintain the current budgetary and personnel allocation for
FOIA processing activities for a period of two years following enact-
ment of this legislation.
On behalf of the entire Agency, I would like to express our appre-
ciation for the Committee's time and effort in giving careful consid-
eration to this legislation. I would also like to thank the Committee
staff for all their assistance in this important legislative effort. I look
-forward to working with you to secure expeditious consideration of
H.R. 5164 in the Committee on Government Operations and timely
passage by the full House of Representatives.
Sincerely,
WILLIAM J. CASEY,
Director of Central Intelligence.
LACK OF USEFUL INFORMATION RELEASED FROM CERTAIN SENSITIVE
OPERATIONAL FILES
The FOIA requires that the CIA devote substantial time and money
to conducting line-by-line security reviews of records in response to
FAIA requests to determine which portions of records can safely be
released. By enacting the FOIA in 1966 and amending it in 1974 and
1976, the Congress expressed its judgment that providing the public
with an opportunity'to inform itself of the workings of its govern-
ment through access to government records was worth the accompany-
ing expenditures of tax dollars and administrative effort. This premise
does not apply, however, when the expenditure of tax dollars and
effort does not contribute significantly to the release of information to
the public.
The FOIA currently contains exemptions from disclosure for
agency records which are properly classified or which would com-
promise intelligence sources or methods, and the CIA has never been
forced in litigation, by a final judgment not subject to appeal, to dis-
close information which the Agency believed to be within these exemp-
tions. The operational files which would be exempted by H.R. 5164
consist almost exclusively of these kinds of exempt information.
Currently, the CIA must search for and review records from these
sensitive operational files, even though the records will, after line-by-
line security review, be found .exempt from FOIA disclosure. With
respect to the files which would be exempted by H.R. 5164, the review
of records results at.best in the release,to FOIA requesters of pages
covered with blackened-out deletions, with little or no meaningful
information remaining. Requiring CIA to go through this review
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process, which absorbs scarce resources without producing meaning
ful information for release to FOIA requesters, serves no usefu:
purpose.
Enactment of H.R. 5164, by removing the most sensitive CIA opera
tional files from the FOIA process, will eliminate the expenditure
of time and money on the unproductive review of these records.. Thc.
bill is designed carefully to ensure that it will result in exemptioi.
only of those sensitive operational files which experience under the'.
FOIA has shown do not contain significant releasable information,
DIVERSION OF SKILLED CIA PERSONNEL AWAY FROM INTELLIGENCE
DUTIES
Because of the specialized and sensitive nature of its nationa?
security work, the Central Intelligence Agency cannot rely upon a
special clerical staff which does nothing but review documents for
FOIA processing. Experienced intelligence officers must perform the
line-by-line security review of records responsive to FOIA requests.
Only intelligence officers with operational training and experience
and knowledge of CIA operations, both past and present, can make
the delicate judgments required in determining whether the records
can be released without jeopardizing intelligence sources, methods and
activities. Accordingly, the CIA must divert its experienced opera-
tions officers from their intelligence duties to review records for FOIA
processing, especially records retrieved from sensitive operational files.
Because skilled CIA operations officers are in limited supply, their
diversion into FOIA processing has hindered the Agency's ability to
carry out its intelligence functions.
H.R. 5164 will reduce the diversion of scarce, experienced opera-
tions officers away from their operational duties to review records for
release under the FOIA. Because the great bulk of CIA records still
will remain subject to the FOIA, even after enactment of the bill
there still will be a need for skilled operations officers to set aside their
operational duties to review records for release under the FOIA.
However, by removing the most sensitive CIA operational files from
the FOIA process, the diversion of operations officers for review of
records from these files will be reduced substantially.
Central Intelligence Agency records systems are designed to serve
the functional needs of particular CIA components or to support par-
ticular intelligence functions. CIA records systems are numerous,
self-contained and compartmented. This decentralization of records
systems contributes to the security of CIA intelligence activities by
limiting the potential damage which would ensue if an individual with
interests hostile to the United States were to gain access to a particular
CIA records system or if a hostile foreign power were otherwise able
to penetrate a CIA records system. The security principle of decentral-
ization of records systems is important to effective security in any
intelligence agency.
In addition to the principle of decentralization of records systems,
the Central Intelligence Agency observes the "need-to-know" security
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principle. A CIA employee is granted access only to such information
as the employee needs to perform his intelligence duties. If a CIA
employee lacks a demonstrable need to know the information he seeks
to perform his official duties, the employee will not have access to the
information. The Agency observes the "need-to-know" principle with
particular care with respect to its operational files. These files directly
concern and document intelligence sources and methods and are thus
the repository of many sensitive CIA secrets.
Upon receiving a request for information under the Freedom of In-
formation Act the Agency must search its file systems for records
responsive to the request. The search for responsive records cuts across
the compartmentation of records systems, as the CIA must search all
records systems which might reasonably be expected to contain respon-
sive records and must compile the retrieved records for review. In
some cases, responding to an FOIA request may require searches of the
bulk of records systems maintained by the Agency, eliminating com-
partmentation of information on the subject of the FOIA request.
After the Agency completes the search of its records systems and
compiles the retrieved responsive records, the Ageency must review the
records in light of the exemptions contained in the Freedom of Infor-
mation Act. In the course of this processing of records to determine for
each portion of them whether it may safely be released, a number of
CIA personnel have access to the information in the compiled records
who would have no need to know the information to perform intelli-
gence duties. Thus, the FOIA process is not fully consistent with the
need-to-know security principle.
Enactment of H.R. 5164 would better conform FOIA processing at
the CIA to the security principles of compartmentation and need-to-
know with respect to the operational files of the CIA, which are the
CIA files that most directly concern intelligence sources and methods.
The legislation will thus add an additional measure of security for this
category of sensitive CIA operational information.
After the Central Intelligence Agency has located records respon-
sive to an FOIA request in the various Agency records systems, the
records must be reviewed and processed for release. The review process
requires a determination on a page-by-page, line-by-line-basis whether
each reasonably segregable portion falls within one or more of the
nine exemptions from disclosure contained in the Freedom of Informa-
tion Act.
Errors can occur, and have occurred, in the processing of FOIA re-
quests at the CIA. The risk of accidental disclosure of information
which would, alone or in combination with other disclosed informa-
:.tion, compromise an intelligence source or reveal other sensitive clas-
sified information always exists. Equally of concern is the potential
that the CIA will disclose a piece of information in the FOIA process
intentionally, believing the information to be innocuous, when in fact
that piece of information provides the final clue which enables a hostile
intelligence service to identify a CIA source or to deduce other im-
portant sensitive classified information. Although the existing Free-
dom of Information Act contains exemptions which would enable the
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CIA to withhold such information, the existence of exemptions cannot
cure the problem of accidental disclosure of source-revealing informa-
tion or of intentional disclosure of information believed to be innocu-
ous, which in fact could reveal sources to especially knowledgeable
recipients.
H.R. 5164 will reduce substantially the potential for damage to the
national security through accidental disclosure, or intentional disclo-
sure of information not known to be damaging, in the course of FOIA
processing, by removing CIA's most sensitive operational files from the
FOIA process. Since operational files exempted in accordance with the
bill will no longer be subject to search and review in response to FOIA
requests, the risk of error in FOIA processing of records from these
sensitive operational files will be reduced.
To carry out its intelligence activities, the Central Intelligence
Agency depends upon sources, including both individual agents and
intelligence services of friendly nations, for information and opera-
tional assistance. To secure the cooperation of a well-placed individual.
who can provide information or operational assistance, the Central
Intelligence Agency officer (called a "case officer") who will work with
that individual must establish with him a secret relationship of great
trust. If the fact of the source's cooperation with the CIA becomes
known, the United States loses a source of information or operational
assistance of great value in ensuring the security of the United States.
The source loses his freedom, and in many parts of the world, his life.
A potential source is willing to cooperate with the CIA only if he
believes the secrecy of his relationship with the CIA will be protected.
If he believes that the CIA cannot provide an ironclad guarantee of
secrecy and deliver on that guarantee, he will not cooperate. The criti-
cal element in establishing and maintaining the cooperation of a source
is the source's perception that he can safely cooperate with the CIA
because the CIA can protect the secrecy of the relationship.
The Central Intelligence Agency establishes similar relationships
based on trust with the intelligence and security services of certain
foreign governments which share policy interests with the United
States. These services share intelligence with the CIA and assist the
CIA in its conduct of intelligence activities abroad. These services will
cooperate only if the United States protects the secrecy of the liaison
relationship. These services will not share information with the CIA
if they believe that such sharing places their sources at risk. Moreover,
it is in the nature of relations among nations that they do not publicly
acknowledge cooperation with other nations in the conduct of intel-
ligence activities. Thus, even those nations whose intelligence services
are widely presumed to engage in some form of cooperation with the
CIA abroad would remain quite sensitive to any United States
acknowledgement, whether through a record released under the FOIA
or otherwise, of the existence of such a relationship.
The CIA has testified repeatedly that potential sources of great
value have declined to cooperate with the CIA from fear that the CIA
cannot protect the secrecy of their relationship to the CIA from dis-
closure. The CIA has also testified that existing sources terminated
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cooperation from the ? same fear and that intelligence services of
friendly nations have expressed concern about cooperating with the
CIA due to concern that the CIA cannot keep secrets. The CIA ascribes
these, perceptions of sources and liaison services in part to the appli-
cability of the Freedom of Information Act to the CIA.
The Committee believes that these perceptions, which CIA?has testi-
fied:that its. sources hold, are not warranted, since FOIA exemptions
exist for source-revealing information.. It is, however, the source's per-
ception, and not the actual state of affairs, which governs the willing-
ness of the source to cooperate with the CIA. Enactment of H.R. 5164
should correct any misperception by some CIA sources that the CIA
cannot protect the secrecy of their relationship. to the CIA from FOIA
disclosure. The bill -withdraws .CIA files which directly concern intel-
ligence sources and methods from the FOIA process; except ?in-certain
specifically defined, limited circumstances. As a by-product of enact-
ment of H.R. 5164, those who cooperate with the Central Intelligence
Agency. in. the conduct of, intelligence activities will have an additional
measure 'of assurance that the CIA can maintain inviolate the confi-
dentiality of their relationship to the CIA.
PRESERVATION OF EXISTING ACCESS To POTENTIALLY RELEASABLE
CIA INFORMATION
,The Committee considered it to be of primary importance in provid-
ing CIA relief from undue FOIA processing burdens to' preserve un-
diminished the amount of meaningful information releasable to the
public under the FOIA. The bill accomplishes this goal by providing
for exemption from the FOIA only of CIA's most sensitive operational
files, which contain no currently releasable information other than that
which is duplicated in files which will remain.subject to the FOIA
process. This is so because of the characteristics of CIA file systems.
These characteristics must'be understood in some detail to comprehend
the. reasons for which it can be said with assurance that withdrawing
operational files' from the FOIA process will not diminish the avail-
ability to the public under the FOIA of currently releasable informa-
tion.
Certain CIA operational files are the repository for documents gen-
erated in the course of the conduct and management of intelligence-
gathering activities. With respect to collection from human sources,
these documents concern development of potential sources, assessment
of their value and the. likelihood of their cooperation, arrangements
to appoach and- contact the individual, and a wide variety of decisions
and problems that may be involved in working with the source, such as
determining compensation, testing bona fides, and resettlement-after
completion of service. Other administrative documents discuss main-
tenance of cover, development and use -of -clandestine communications
methods, selection of personnel for hazardous assignments, evaluation
of.success and failure. and assessment of the vulnerabilities of individ-
uals and techniques. Virtually all of.this information is highly sensi-
tive and properly classified; most Is strictly compartmented. It is the
type of information that has always been withheld from FOIA release
under exemption (b) (1) for. classified information and exemption
(b) (3) for information specifically exempted from disclosure by a
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statute, such as section 102(d) (3) of the National Security Act of
1947, which protects information pertaining to intelligence sources and
methods.
Nevertheless, these operational files also contain other information
that may currently be releasable under FOIA. One typical example is
"raw" intelligence reports. Intelligence 'information can be divided
roughly into two categories : "finished" intelligence and "raw" intelli-
gence. Finished intelligence is written by professional intelligence
analysts to be read by policymakers. It ranges from National Intelli-
gence Estimates coordinated among several agencies, to research
papers, studies and regular publications, all designed to convey assess-
ments of intelligence to the President, the Congress, the National Se-
curity Council, the State and Defense Departments, and other agencies.
Finished intelligence is primarily the responsibility of the CIA Di-
rectorate of Intelligence, which stores all CIA finished reports in its
files.
Raw intelligence is the information provided by a CIA source and
written to protect the source's identity in order to permit dissemination
to analysts and policyymakers. Raw intelligence and information from
other agencies form the basis for the finished intelligence reports an-
alysts write. Unlike finished intelligence, which is stored mainly in the
files of the Directorate of Intelligence, raw intelligence reports are
stored in files of both the Directorate of Intelligence and the Directo-
rate of Operations. Frequently, copies of raw intelligence reports will
be included in the same Directorate of Operations file as operational
materials on the handling of the source, and information contained in
the raw report may also be mentioned in documents that directly con-
cern the handling of the source. Therefore, an FOIA request for in-
formation on a subject contained in raw intelligence reports currently
triggers a search of the files of both the Directorate of Intelligence and
the Directorate of Operations.
Suppose information in a raw report can be declassified and released
in response to an FOIA request without jeopardizing the source.
Under current FOIA requirements, CIA must search both the files on
intelligence reports in the Directorate of Intelligence and the files on
the handling of the source in the Directorate of Operations. In addi-
tion, the CIA must review not only the intelligence report, but also
any documents concerning the handling of the source that may include
the same information. The result could be release of three substan-
tially similar documents : the declassified report filed in the Directorate
of Intelligence, a copy of the same report filed in the Directorate of
Operations, and a third operational document heavily edited to delete
any sensitive information that might endanger the source while still
releasing the information duplicating the declassified intelligence
report.
This example illustrates how raw intelligence could still be located
and reviewed for declassification, with less risk to the source and less
delay in processing the request, notwithstanding the exemption of
operational files under H.R. 5164. In this case the crucial feature of
the CIA filing system is the practice of disseminating copies of raw
intelligence reports for storage in the files of the Directorate of Intel-
ligence; the Committee expects the CIA to continue this practice. This
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practice is, of course, essential to, the very mission of the CIA; it would
be useless to collect information and then fail to share it with analysts
and policymakers. CIA dissemination practices thus ensure continued
availability of raw intelligence.
The same is true for information on policy issues, including opera-
tional policy matters, considered at CIA executive levels by the Di-
rector and Deputy Director of Central Intelligence, the Executive
Director, the Comptroller, the General Counsel, the. Deputy Director
for Administration, and other senior CIA officials outside the Direc-
torate of Operations.For- example, documents handcarried to. the
Director or Deputy Director and returned to operational files for safe-
keeping are referenced in the CIA's Executive Registry, which logs
all documents that go into or out of the Office of the Director and
Deputy Director. All documents referenced in the Executive Registry
will be subject to search and review. These documents often concern
significant policy questions requiring the attention of the Director or
Deputy Director, which may range from general policy directives to
specific decisions approving particular operational activities.
The fact, that, raw intelligence reports and policy documents are
accessible through index and, retrieval systems located in the Direc-
torate of Intelligence and. the Office of the Director and Deputy
Director has made it possible to refine the standards for exemption of
CIA operational files in the bill to ensure that enactment of the bill
will preserve the availability to the public of CIA information cur-
rently releasable to the public. Of course, files not exempted by the
bill remain subject to search and review, including any information
in those files that was derived or disseminated from exempted opera-
tional files.
SECTION-BY-SECTION ANALYSIS
The bill consists of four sections, summarized briefly- as follows :
Section 1 provides that the short tite of the bill is the "Central In-
telligence Agency Information Act."
Section 2 amends the National Security Act of 1947 to permit the
Director of Central Intelligence to exempt certain specifically defined
CIA operational files from the search, review, and disclosure require-
ments of the Freedom of Information Act (FOIA). The section also
makes necessary technical additions to the table of contents of the Na-
tional Security Act of 1947.
Section 3 requires the Director of Central Intelligence, in consulta-
tion with the Archivist of the..United States, the Librarian of Con-
gress, and historians, to, report.by June 1, ?1985 to, the 'intelligence
committees of the Congress .on the feasibility of conducting systematic
review for declassification and release of Central Intelligence Agency
information of historical value.
Section .4 makes clear that exemptions of CIA operational files from
FOIA search and review apply with respect to all FOIA requests,
whether made before or after enactment of the bill, and to all FOIA
lawsuits filed after February 7, 1984 (the day before the House Intel-
ligence Subcommittee on Legislation FOIA hearing).
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Section 1 of the bill provides that it may be cited as the "Central
Intelligence Agency Information Act."
SECTION 2 OF H.R. 5164: AMENDMENTS TO NATIONAL SECURITY ACT
Section 2 of the bill contains the core provisions of the legislation.
Section 2 enacts a new Title VII of the National Security Act of 1947,
to provide for exemption of certain. CIA operational files from the
FOIA process. The new. title consists of sections 701 and 702 of the
National Security Act.
Subsection 701 (a) : Exemption of certain CIA operational files
Subsection 701 (a) provides that the Director of Central Intelligence
may exempt CIA "operational files" (defined in subsection 701(b) )
from the search, review, and publication or disclosure requirements of
the Freedom of Information Act. Subsection 701(a), in conjunction
with the judicial review provision in subsection 701(f), ensures that
the process by which the Director identifies and exempts operational
files will involve a well-documented, detailed justification for the ex-
emption of files selected for exemption. The requirement for detailed
justification may be satisfied by describing the function of a group of
files that fit within a well-defined category.
Although the Director of Central Intelligence will, of course, rely
upon information received from his subordinates in the course of exer-
cising his authority under subsection 701(a), the authority granted
to the Director in that subsection is nondelegable. The nondelegable
nature of the Director's authority does not preclude him from exempt-
ing in advance all newly created files that fit within a category of files
that have been exempted.
Subsection 701(b) : Definition of "operational flea"
Subsection 701(b) defines the "operational files" of the Central In-
telligence Agency which the Director of Central Intelligence may ex-
empt from search and review under the-Freedom of Information Act.
The Central Intelligence Agency consists of four Directorates (Intel-
ligence, Administration, Operations, and Science and Technology)
composed of subordinate offices, divisions and staffs, and several rela-
tively small offices which are independent of the Directorates and re-
port directly to the Director of Central Intelligence, the Deputy Direc-
tor of Central Intelligence, or the CIA Executive Director. The
definition of "operational files" which are subject to exemption in-
cludes only certain files within the Directorate of Operations, the Di-
rectorate for Science and Technology, and the Office of Security, which
is one office within the Directorate of Administration.
Within the Directorate of Operations, the Directorate for Science
and Technology, and the Office of Security, only those files concerning
intelligence sources and methods are comprehended by the definition of
"operational files." These files concern the intelligence process as dis-
tinmiichec_ from the intelligence product. They include information on
the identities of and contact with human intelligence sources, the vari-
ous methods used to collect intelligence from human and technical
sources, and day-to-day administration and management of sensitive
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human and technical intelligence activities. These files are distin-
guished from what may be called intelligence product files the function
of which is to store the intelligence gathered from human and technical
sources.
Within the Directorate of Operations, operational files are those
"which document the conduct of foreign intelligence or counterintelli-
gence operations or intelligence or security liaison arrangements or in-
formation exchanges with foreign governments or their intelligence
or security services." Thus, Directorate of Operations files will be eligi-
ble for exemption by the Director of Central Intelligence if they docu-
ment-the conduct of: (1) foreign intelligence operations; (2) counter-
intelligence operations; or (3). intelligence or security liaison arrange-
.ments or information exchanges.
Foreign intelligence operations consist both of collection of informa-
tion relating to the capabilities, intentions and activities of foreign
powers, organizations, or persons, including international terrorists
and traffickers in narcotics, and of special activities (also called covert
actions) conducted in support of United, States foreign' policy objec-
tives in which the.role of the U.S. Government is not. apparent or ac-
knowledged publicly. Counterintelligence operations consist of gather-
ing information. and conducting activities to protect against espionage
and other intelligence activities, sabotage, or assassinations conducted
for or on behalf of foreign powers, organizations or persons, and in-
cludes international terrorist activities. Intelligence or security liaison
arrangements or information. exchanges involve quiet cooperation be-
tween the United States and foreign countries on' matters of mutual
intelligence and security interest.
. With respect to the Directorate' for Science and Technology, opera-
tional files are those "which document the. means by which foreign
intelligence .or counterintelligence is .collected,, through scientific or
technical systems." .The Directorate for Science and Technology de-
velops and operates scientific and technical systems which collect for-
eign intelligence and counterintelligence. These systems acquire com-
munication intelligence,, electronic. intelligence, photographic intel-
ligence and other types of intelligence susceptible for scientific and
technical acquisition, and supplement human intelligence operations.
These scientific and, technical intelligence systems form a vital part
,of the National Foreign Intelligence Program. Files documenting
these systems and their operation are among the most sensitive the
CIA maintains.
With respect to the Office of Security, operational files are those
"which document investigations conducted to determine the suitability
of potential foreign intelligence or counterintelligence sources." These
files are included among the operational files subject to exemption
under the bill to ensure full protection for the operational files of the
Directorate of Operations and the Directorate for Science and Tech-
nology. The need to extend the exemption authority to encompass these
files in the Office of Security stems from the security support functions
that Office performs for the Directorate of. Operations and the Direc-
torate for Science and Technology.
In most cases, when the Directorate of Operations proposes to en-
gage an individual to provide information or onerat.ional assistance
in Central Intelligence Agency operations, the Directorate of Opera-
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tions must obtain approval to do so from the Office of Security. Prior
to granting such approval, that Office examines and evaluates the
suitability of that person from a security standpoint. Similar secu-
rity approval is required when the Directorate for Science and Tech-
nology proposes to engage an individual in work on sensitive scientific
and technical systems, as in the case of employees of contractors de-
veloping, producing, or operating such systems. The investigations
conducted to determine the suitability of these potential sources of
information or operational assistance for the Directorate of Opera-
tions and the Directorate for Science and Technology create files
which directly concern intelligence sources and methods in the same
manner as the operational files relating to the operations in which
the potential sources will be involved. Thus, protection of the Direc-
torate of Operations operational files and the Directorate for Science
and Technology operational files requires that the Office of Security
suitability investigation files supporting the operations of those Di-
rectorates also receive protection. The Committee notes that, while
Office of Security suitability investigation files concerning employees
of contractors involved with CIA scientific and technical systems are
included within the definition of operational files in order to protect
the security of those systems and avoid unproductive FOIA review of
non-releasable material, Office of Security files documenting suitability
investigations of CIA,employees, both staff and contract, and em-
ployees of other federal agencies or the armed forces assigned or de-
tailed to the CIA, are not within that definition and therefore cannot
be exempted under subsection 701(a). The Committee also notes that
the Attorney General-approved Guidance for CIA Activities Within
the United States and Guidance for CIA Activities Outside the
United States implementing Executive Order 12333 require that, if
the CIA collects information on a U.S. person because he is a potential
source, and does not contact him for operational use within three
years, the CIA can no longer retain the collected information, other
than a summary indicating that the CIA considered the person as a
potential source, why he was considered, and why he did not become
a source.
The definition of "operational files" specifically excludes files "which
are the sole repository of disseminated intelligence." In very rare
cases, the intelligence product of extremely sensitive sources may be
disseminated by the CIA Directorate of Operations in a manner which
does not allow storage of the product outside the Directorate of Op-
erations. The Directorate-of Operations intelligence dissemination is
taken to selected senior officials, is read by, them, and is returned to
the Directorate of Operations for safekeeping. In such cases, the
repository of the intelligence dissemination in the Directorate of Op-
erations is the sale repository of the information, in contrast to the
normal CIA practice in which intelligence is disseminated to, and
maintained in the files of, the analytical components of the. CIA, all of
the files of which remain subiect to search and review. To carry out
the Committee's intent that the contents of 1sseminated intelligence
remain accessible to FOTA recmesters. the hill specifically provides at
the end of subsection 701 (b) that files which are the sale. repository
of these extremely sensitive intelligence disseminations are not opera-
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tional files and, therefore, remain subject to FOIA search and review
requirements.
The Committee notes that it will be incumbent upon the courts to
interpret the term "files" in light of rapidly changing technology in
the field of information storage media. Thus, for example, CIA con-
version of paper files into computer files will not result in any change
of the status of the files under section 701 by virtue of the nature of
the information storage medium.
Subsection 701(c) : First person requests, special activities, and In-
vestigations for impropriety or illegality
Subsection 701 (c) deals with three types of requests for information
under the Freedom of Information Act which the Committee be-
lieves deserve special treatment because of the important interests they
involve. Requests under the FOIA for information of these three types
will continue to be processed in accordance with the Freedom of In-
formation Act in the same manner as if section 701 (a), which provides
for exemption of operational files, were never enacted. Thus, exempted
operational files will be searched along with other files for records
responsive to these three types of FOIA requests.
First person requests.-Paragraph 701 (c) (1) ensures that opera-
tional files will remain subject to FOIA search and review require-
ments in response to requests for information from a United States
citizen or permanent resident alien who requests information con-
cerning himself. Operational files will continue to be subject to search
and review for these first-person requests for information whether
the requests are made under the Freedom of Information Act, the
Privacy Act, or both. Although the exemption authority under sub-
section 701 (a) applies only with respect to the Freedom of Informa-
tion Act, and in no way applies with respect to the Privacy Act, para-
graph 701 (c) (1) includes a reference specifically preserving the cur-
rent state of first person requests under the Privacy Act to avoid even
the remotest possibility of misconstruing the Committee's intent.
While the Privacy Act (5 TT.S.C.. 552a (j) (1)) authorizes the Direc-
tor of Central Intelligence to promulgate rules to exempt from por-
tions of the Act any system of records maintained by the CIA, this
authority has been used only sparingly to the extent necessary to pro-
tect CIA security methods, intelligence sources and methods, and rela-
tionships with other nublic agencies or foreign services (see 32 C.F.R.
1901.61). The Committee relies upon CIA representations that it has
no intention of expanding its use of this broad exemption authority.
The Committee thoroughly considered the possibility of providing
for search and review of exempted operational files in response to
FOIA requests by representatives of domestic organizations for in-
formation concerning those organizations. The Committee considered
three possible approaches: (1) requiring FOIA search and review of
operational files with respect to all domestic organizations, (2) requir-
ing such search and review with respect to domestic political, religious,
educational and media organizations, and (3) requiring such continued
search and review with respect to domestic political. religious. ednea-
tional and media organizations which are targeted or used in CIA
operations. The Committee determined that none of these approaches
is practicable.
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The first approach, search and review of exempted operational files
for requests concerning any domestic organization, would so limit the
degree of relief the legislation provides to the CIA as to jeopardize
achievement of the goals of eliminating the search for and line-by-line
review of information which cannot be released and of speeding up
CIA responses to FOIA requests. Because CIA operational records
and indices contain a large number of references to domestic organiza-
tions, requiring continued FOIA search and review for information
concerning such organizations would reimpose upon CIA a substantial
search and review burden eliminated by subsection 701 (a). According-
ly, the Committee considered this general approach to be impracticable.
The Committee notes that the somewhat common assumption that
entries in CIA records indices referring to domestic organizations
portend illegalities or improprieties in intelligence: activities is incor-
rect. CIA operational records index references to domestic organiza-
tions have legitimate- purposes. For example, a large number of such
references consist of domestic organizations, such as commercial cor-
porations, which have agreements with the CIA to furnish goods or
services in support of CIA operational activities. To the extent that
references in operational files to domestic organizations might reflect
illegality or impropriety in the conduct of intelligence'activities, para-
graph 701(c) (3) of the bill providing for continued access to informa-
tion concerning the specific subject matter of investigations for intel-
ligence illegality or impropriety constitutes a fully adequate safe-
guard in light of existing intelligence oversight reporting and inves-
tigations mechanisms.
The second approach to continued search and review of operational
files for requests concverning domestic organizations would have re-
quired continued search and review of exempted operational files only
with respect to domestic political, religious, educational and media
organizations. This approach is impracticable due both to definitional
problems and, more importantly, to the contents of CIA operational
records indices. A& a threshold matter, an. acceptable definition or
catalog of political, religious, educational and media organizations
would have to be - found. It is not self-evident which organizations
fall within these categories; for example, although the formulation
presumably would be intended to exclude organizations such as com-
mercial corporations, many such corporations engage in political,
educational and media activities. Labor unions are another example of
organizations which, because of the multifaceted activities in which
they engage in addition to their economically-oriented activities,
present definitional problems. Definitional problems could perhaps be
surmounted by-an extremely detailed definition of political, religious,
educational and media domestic organizations, by a catalog of such
organizations, or by leaving the terms. to the courts to define. Never-
theless, the characteristics of CIA file indices make impracticable the
approach of requiring search and review of exempted operational files
for records concerning domestic political, religious, educational and
media organizations.
Entries.in CIA "impersonal subject" operational file indices, i.e.,
indices which index other than the names of individuals, reflect an
impersonal subject and the identifying numbers of files or documents
in which information concerning the indexed subject may be found.
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The index reference contains nothing concerning the nature of the
information contained in the files and documents about.the subject.
Thus, the index reference on an organization does not reflect whether
the organization is (1) a domestic organization or (2) more partic-
ularly, a political, religious, educational or media organization, al-
though in the occasional case of an extremely well known organization
this may be obvious. In most cases, such information could be gleaned,
if at all, only by searching for and reviewing the referenced files and
documents. In effect, if the bill incorporated the approach of search
and review of exempted operational files for information concerning
domestic political, religious, educational and media organizations,
CIA would be forced to search and review exempted operational
files in response to any request on an organization in order to deter-
mine whether the bill requires search and review of such files in
response to the request, for only by searching and reviewing (if at all)
could CIA determine whether an organization inquired about is a
domestic political, religious, educational or media organization with
respect to which CIA would be required to search and review exempted
operational files. This would impose upon CIA a substantial burden
of search and review in conflict with the goals of the bill of redi.mcing
fruitless CIA searches and review and of speeding up -CIA FOIA
processing.
The Committee notes that the dearth of information in CIA im-
personal file index entries occurs by-design and has a valid purpose.
As explained above, effective security in an intelligence agency re-
quires decentralization of records systems and observance of the "need-
to-know" principle. Observance of these principles with respect to file
indices mandates that the indices indicate with respect to a subject
only the location in files or documents of information relevant to the
subject, and not the nature of the relevant information. This minimizes
the damage to national security which would ensue if a hostile intel-
ligence service were to gain access to a CIA file index by, for example,
recruiting a CIA employee with access to such an index. Such access
to index references would tell a hostile intelligence service only that
CIA had some kind of interest in an indexed subject, but not the nature
of CIA interest in the subject or the extent of CIA knowledge on the
subject. The Committee notes that, to service efficiently FOIA requests
under a statutory requirement to search and review exempted opera-
tional files for information concerning domestic political, religious,
educational and media organizations, CIA file indexing practices
would need to be modified to include in index entries information con-
cerning the political, religious, educational or media activities of in-
dexed impersonal subjects. The Committee emphasizes that it does not
intend for CIA to adopt such a practice. The creation and maintenance
of such indices would present a civil liberties concern far outweighing
any gains from continued FOIA access to exempted operational files
for information concerning domestic political, religious, educational or
media organizations.
The Committee also notes that the problem of the dearth of in-
formation in CIA file indices, which would force the CIA to conduct
a search and review of operational files in order to determine whether
an organization inquired about is a domestic organization with respect
to which search and review of operational files is required, could be
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alleviated by placing the burden on an FOIA requester to provide suf-
ficient information in an FOIA request to enable the CIA to conclude
reliably that. an organization inquired about is a domestic political,
,religious, educational or media organization. Although this might be
a minor matter with respect to the relatively small number of extreme-
ly well known domestic political, religious, educational and media
organizations, it would as a general matter result in producing a col-
lection of files in the CIA on the political religious, educational and
media activities of domestic organizations. The Committee discourages
the creation of such files, even if. it is the result of voluntary submis-
sions by FOIA requesters who wish to trigger a search and review of
exempted operational files for information concerning a. domestic po-
litical, religious, educational or media organization.
The third approach to providing~for search and review of exempted
operational files in response to FOIA requests concerning domestic
organizations would require continued search and review for only that
information concerning domestic political, religious, educational and
media organizations which reflects CIA operational targeting of that
organization or operational- use of that organization. The American
Civil Liberties Union proposed this approach- for consideration in the
course of testimony by its representative before this Commitee's Sub-
committee on Legislation. To the extent that the approach involves
domestic. political, religious, educational or media organizations, it is
impracticable for the reasons outlined above. Moreover, just as entries
on an organization in CIA impersonal records indices do not reflect
whether an organization is a domestic political, religious, educational,
or media organization, they also do not reflect whether the organization
'has been targeted or used in an operation.
This third approach suffers from the additional problem that its.
very design ensures that it will produce no releasable information
for. FOIA requesters. The specific subjects of CIA operations and
operational use of individuals are generally properly classified be-
cause they reveal intelligence - sources and methods. Thus, an
FOIA request for records reflecting CIA operational use of an
individual in an organization or of CIA collection of information on
an organization is likely to engender either of two CIA responses in
order to protect intelligence sources and' methods: (1) the CIA can
neither confirm nor deny the existence of responsive records, or (2) the
CIA has responsive records which cannot be released. For example,
the United States Court of Appeals for the District of Columbia
Circuit held that the CIA did not have to confirm 'or deny whether it
had conducted covert operations at any of the campuses of the Univer-
sity of California. In the case of either of the likely CIA, responses,
the FOIA request will not produce for FOIA requesters releasable
records from operational files, and thus no . productive purpose is
served by requiring continued search and review of operational files
for information on targeting or operational use of domestic
organizations.
'The Committee thus reached a determination not to include in
?H.R. 5164 a provision requiring the CIA to search and review ex-
empted operational files -for information' concerning domestic
organizations requested by appropriate re resentatives of those orga-
nizations. The Committee notes that a member of a given organization,
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like any other individual, may request information on himself under
the FOIA, the Privacy Act, or both, and that exempted operational
files will continue to be 'subject to search and review in response to
such requests. The Committee reemphasizes that, to the extent CIA
information concerning a domestic organization relates to the specific
subject matter of an investigation for any illegality or impropriety
in the conduct of an intelligence activity, which can be triggered in
appropriate circumstances by individuals, including representatives
of organizations, it will become subject to search and review by virtue
of subsection 701 (c) (3) of H.R. 5164.
Special activities.-Paragraph 701 (c) (2) ensures that operational
files will remain subject to FOIA search and review requirements in
response to requests for information concerning any special activity
(also known as covert action) the existence of which is not exempt
from disclosure under the provisions of the Freedom of Information
Act. Current case law concerning FOIA requests for information
about special activities holds that in certain circumstances the CIA
response can neither confirm nor. deny the existence or nonexistence
of records responsive to an FOIA request relating to an alleged special
activity. In such circumstances, CIA does not conduct a search for
responsive records. The issue in these cases is whether the fact of the
existence or nonexistence of the special activity is currently properly
classified.
When the fact of the existence or nonexistence of the special activity
is properly classified, the CIA can only protect that fact by declining
to admit or deny whether it possesses responsive documents. If the
CIA were instead to establish a pattern of denying the existence of an
alleged special activity inquired about when there is in fact no such
activity, then a subsequent CIA response to a similar'inquiry on a dif-
ferent alleged special activity which does not deny (and also, of
course, does not confirm) the existence of such special activity would,
in light of the previous pattern of denial, be the practical equivalent
of confirmation of the existence of the activity. Thus, the CIA can
effectively protect the properly classified fact of the existence of
special activities from disclosure under the FOIA only by declining,
to confirm or deny the existence of such activities. The CIA does not,
of course, have the option under the Freedom of Information Act to
falsely deny that it has records responsive to an FOIA request for
records relating to an alleged special activity when it does, in fact,
have such records.
The CIA response declining to confirm or deny the existence of
records responsive to an FOIA request for records concerning a special
activity is required by Section 3.4(f) (1) of Executive Order 12356.
Nothing in H.R.. 5164 is intended in any way to limit the ability of
the CIA to utilize this so-called "Glomar" response, so named as a
result of Freedom of Information Act requests to the CIA concerning
the Glomar Explorer ship.
In certain circumstances, the existence of a CIA special activity may
cease to be exempt from disclosure under the Freedom of Information'
Act. In such a case, files containing. information concerning an
acknowledged?special activity will, by virtue of paragraph 701 (c) (2),
continue to be subject to search and review.
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In any case in which the fact of the existence of a particular special
activity is not properly classified, exempted operational files contain-
ing information concerning that activity will become accessible to an
FOIA request for. information concerning that activtiy. The Com-
mittee emphasizes that nothing in paragraph 701 (c) (2) in any way
changes the statutory and case law concerning whether the existence
of a special activity is exempt from disclosure under the FOIA.
The term "special activity" as used in paragraph 701 (c) (2) means
any activity of the United States Government, other than an activity
intended solely for obtaining necessary intelligence, which is planned
and executed so that the role of the United States is not apparent or
acknowledged publicly, and functions in support of any such activity,
but not including diplomatic activities.
Investigations=Paragraph 701 (c):(3) ensures that operational files
will remain subject to FOIA search and review requirements for in-
formation concerning the specific subject matter of an investigation
for any impropriety or illegality in the conduct of an intelligence ac-
tivity. Thus, such information will remain fully subject to FOIA
search, review, and disclosure requirements in the same manner as if
subsection 701 (a) were never enacted.
When CIA conducts an internal investigation of allegations of im-
propriety or illegality in the conduct of an intelligence activity,
whether through the Office of the Director, the Inspector General, or
the General Counsel, all CIA files, including exempted operational
files, will remain subject to FOIA search and review requirements in
response to requests for information concerning the specific subject
matter of the investigation, Similarly, when the House Permanent
Select Committee on Intelligence, the Senate Select Committee on In-
telligence, the President's Intelligence Oversight Board or the De-
partment of Justice carries out an investigation for impropriety or
illegality in the conduct of an intelligence activity, all CIA files, in-
cluding exempted operational files, will remain subject to FOIA search
and review for information concerning the specific subject matter of
the investigation.
Allegations of impropriety or illegality in the conduct of an intel-
ligence activity may originate either inside or outside the' Central
Intelligence Agency. Allegations raised by CIA personnel are directed
to the Office of the Inspector General or to the Office of General Coun-
sel. CIA regulations (HR 7-1a (6), rev. Nov. 21, 1979) require that
Agency employees report any "past, current, or proposed CIA activi-
ties that might be construed to be illegal, improper, questionable, or not
authorized by applicable law, Presidential directive, Executive order,
or regulation, or . . . instructions received in any way [which] ap-
pear to be illegal; improper, or questionable." CIA regulations (HR
7-la(7), rev. Nov. 21; 1979) also specifically require employees to re-
port possible violations of federal criminal law to the General Counsel.
In addition to these reporting mechanisms, the Office of the Inspector
General. periodically inspects individual Agency components. These
inspections involve multi-disciplinary teams which thoroughly exam-
ine every aspect of a CIA component's activities.
The Inspector General's staff investigates the substance of employee
allegations of abuse or impropriety. When the allegation raises any.
question of illegality, the Inspector General's staff either fully coordi-
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nates its investigation with the Office of General Counsel or refers the
matter to the Orrice of General Council for reporting to the Attorney
General in accordance with Executive Order 12333. Allegations which
arise internally at the CIA are never dismissed without some recorded
inquiry. Hence, they are never determined not to warrant a docu-
mented investigation.
When allegations received by the CIA from outside the Agency re-
sult in investigations of intelligence activities for illegality or impro-
priety, exempted operational files will remain subject to search and
review for information concerning the specific subject matters of those
investigations. Allegations made by persons outside the Agency almost
exclusively arrive in the form of a letter received by the Agency Mail
Room, although on occasion, complaints are received by telephone,
sometimes anonymously. If a letter contains allegations of abuse, im-
propriety, or illegality, but appear frivolous (e.g., "CIA is manipulat-
ing my brain waves," or an actual example, "CIA is making me fat"),
there may not be an investigation or response. If the letter does not
appear frivolous, it is forwarded to the Office of the Inspector General
or the Office of General Counsel, as appropriate, for action. The ap-
parently frivolous letters are individually reviewed by a supervisory
CIA official. An allegation will be deemed frivolous and closed without
any investigation only where the writer has sent previous letters and
the allegation is preposterous on its face; if CIA's records reflect that
the Agency has had contact with the individual making the allegation
and the individual is not a prior correspondent of known frivolity, the
allegation is never determined to be frivolous, but is instead forwarded
to the Inspector General or General Counsel, as appropriate. In cases
of repeated frivolous correspondence, the letter may be destroyed and
no record made of it. In all other cases, a record is made and retained
in files that will not be exempted under section 701 (a). The Committee
has been assured that these practices will remain in effect at CIA.
Entities outside the Central Intelligence Agency also have respon-
sibilities with respect to impropriety or illegality in the conduct of
intelligence activities. Under Section 501 of the National Security Act
of 1947, the Director of Central Intelligence must report to the in-
telligence committees of the House and Senate any illegal intelligence
activity, and such a report might trigger a congressional inquiry. In
addition, the intelligence committees of Congress may initiate and
conduct investigations with respect to impropriety or illegality in the
conduct of an intelligence activity pursuant to the constitutional pre-
rogatives of the Congress, their oversight responsibilities under the
Rules of the House and the Senate, and their statutory right under
Section 501 to all information concernin_% intelligence activities. The
Committee notes that the House Select Committee on Intelligence of
the 94th Congress (the "Pike Committee") and the Senate Select
Committee to Study Governmental Operations with Respect to In-
telligence Activities (the "Church Committee") were intelligence com-
mittees of the Congress within the meaning of paragraph 701(c) (3).
All CIA files, including exempted operational files, will remain
subieet to FOIA search and review for information concerning the
specific Subject matter of investigations by the intelligence commit-
tees of Congress. The Committee emphasizes that, not%ing in para-
graph 701(c) (3) is intended to affect the definition-of agency records
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subject to request under the FOIA, as distinguished from congres-
sional documents not subject to request under the EOIA, or to waive
in any way the prerogatives of the House of Representatives and the
Senate to maintain control over, and confidentiality of, documents
generated in the course of congressional activities.
'1'hek'resident's Intelligence Oversight Board also exercises respon-
sibilities with respect to unlawful intelligence activities. Executive
Order 12334 requires the Board to inform the President of Intel-
ligence activities that any member of the Board believes violate the
Constitution or other applicable law and to forward to the Attorney
General reports received concerning intelligence activities that the
Board believes may be unlawful. The Order requires Inspectors Gen-
eral and General Counsel of Intelligence Community agencies to re-
port to the Board concerning intelligence activities that they have
reason to believe may be unlawful or contrary to Executive Order or
Presidential directive. The President has, by section 2(e) of Executive
Order 12334, authorized and directed the Intelligence Oversight
Board to carry out such investigations as the Board deems necessary
to carry out its functions. All files of the Central Intelligence Agency,
including exempted operational files, will remain subject to FOIA
search and review for information concerning the specific subject mat-
ter of such investigations for impropriety or illegality in the conduct
of intelligence activities.
The Department of Justice, by virtue of its law enforcement and
intelligence oversight functions, also has responsibilities with respect
to unlawful or improper intelligence activities. Section 535 of title 28,
United States Code, and section 1.7 of Executive Order 12333 require,
among other things, the reporting of possible crimes by federal em-
ployees. As a result of these provisions, Intelligence Community agen-
cies must report possible violations of law by their employees in the
conduct of intelligence activities. Such reports may trigger a Depart-
ment of Justice investigation into illegalities in the conduct of intelli-
gence activities. Independent of any reporting requirements, in appro-
priate circumstances, the Department of Justice may initiate investiga-
tions of intelligence activities to carry out the Department's law en-
forcement and intelligence oversight functions. All files of the Central
Intelligence Agency, including exempted operational files, will remain
subject to FOIA search and review for information concerning the
specific subject matter of such investigations for impropriety or illegal-
ity in the conduct of intelligence activities.
Paragraph 701 (c) (3) provides that exempted operational files shall
continue to be subject to FOIA search and review for information con-
cerning "the specific subject matter of an investigation" by intelligence
oversight entities of impropriety or illegality in the conduct of an in-
telligence activity. The scope of information with respect to which the
exempted operational files will remain subject to FOTA search or re-
view will be coextensive with the specific subject matter of the inves-
tigation. Information concerning the specific matter of the investiga-
tion will remain subject to search and review regardless of whether
those conducting the investigation reviewed records containing that
information in the course of the investigation. The key requirement is
that information concern the specific subject matter of the investiga-
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tion, not that the information surfaced in the course of the
investigation.
The specificity requirement in the phrase "specific subject matter
of the investigation" tailors the scope of information remaining sub-
ject to.the FOIA process to the scope of the specific subject matter
of the investigation. This tailoring was intended to avoid the possibility
of an unreasonably expansive interpretation of paragraph 701(c).(3)
to include as subject to search and review information wholly unrelated
to any question of illegality or impropriety. The purpose of this tailor-
ing can best be illustrated by example.
Suppose a CIA case officer abroad, acting at the direction of his CIA
superior, conducts an unlawful electronic surveillance of a United
States citizen while trying to collect foreign intelligence on a foreign
scientific installation abroad. The CIA reports the unlawful surveil-
lance to the various intelligence oversight entities. The Intelligence
Oversight Board chooses to conduct an investigation. If an FOIA
request subsequently sought all agency records containing information
concerning the specific subject matter of the Board's investigation, the
Agency would be required to search its files, including exempted opera-
tional files, for records containing information concerning the unlaw-
ful surveillance, not for all records concerning any operations targeted
at the foreign scientific installation, because, in this case, the unlawful
surveillance constitutes the specific subject matter of the investigation.
The phrase "in the conduct of an intelligence activity" used in para-
graph 701 (c) (3) makes clear that the continued obligation to search
and review exempted operational files for information concerning an
investigation for impropriety or illegality extends only with respect
to an impropriety or illegality which has a nexus to an intelligence
activity. Thus, for example, an FOIA request for information con-
cerning the specific subject matter of a Department of Justice inves-
tigation of a CIA employee for stealing typewriters from the CIA for
resale for personal profit would not require the Agency to search ex-
empted operational files for responsive records, because the illegality
bears no relationship to an intelligence activity.
Subsection 701(d.) : Transfer of records and information between
exempted operational files and other files
Central Intelligence Agency records systems, like those of other
agencies, are dynamic. Records are added to files and deleted from files,
in accordance with the Federal Records Act (chapters 31 and 33 of title
44) and other applicable law, on a regular basis, and information flows
between- files. Legislation which exempts some files, but not others,
must therefore specify the consequences to the status of the files of
transfers of records and information between files.
Paragraphs 701(d) (1) and (2) state the consequences of the flow
of records and information from an exempted operational file to a file
which is not exempted. By virtue of paragraph 701(d) (1), the status
of a file which is not exempted does not change by the addition to it of
information from an exempted operational file; the receiving non-
exempted file remains subject to search and review. By virtue of para-
graph 701(d) (2), the status of the exempted operational file from
which information is transferred to a file which is not exempt does not
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change; the sending exempted file remains exempted from search and
review. Therefore, under paragraphs 701(d) (1) and (2), the flow of
records and information from a file which is exempted to a file which
is not exempted has no effect on the exempted/nonexempted status of
the two files.
Paragraph 701(d) (3) concerns the CIA practice of using marker
references, referred to as "dummy copies," in the dissemination of par-
ticularly sensitive records from operational files. In this process, the
sensitive record is taken from the operational file to the intended tem-
porary recipient, who reads it and returns it to the operational file for
exclusive storage. A marker reference (usually a single piece of paper
containing a brief description of the subject of the record and indi-
cating where the record is stored) is placed in the file of the temporary
recipient. If not for security constraints, a copy of the record would
have been retained in the recipient's files, but because the record is so
sensitive, only the marker reference from which one could locate the
record is maintained in the recipient's file. Paragraph 701(d) (3) is
designed to ensure that marker references are treated as if they were
in fact the records they represent, in the sense that the record would
have been subject to search and review if it were located in the non-
exempted file where the marker reference is located. As a result of this
provision, when CIA is searching a non-exempted file for records re- .
sponsive to an FOIA request and locates a marker reference which
substitutes for a record in an exempted operational file which may be
responsive, the CIA must retrieve the record from the exempted oper-
ational file and process it in response to the FOIA request.
The market reference practice is of particular importance given its
use in some circumstances in the Executive Registry of the CIA, which
serves the Director of Central Intelligence, the Deputy Director of Cen-
tral Intelligence and the CIA Executive Director. Under H.R. 5164
all records contained in the Executive Registry, and all records refer-
enced in the Executive Registry by marker references, will remain
subject to FOIA search and review requirements.
Subsection 701(e) : Construction against implied repealer or modi-
fication
Subsection 701 (e) provides that subsection 701(a), which grants
authority to exempt operational files (as defined in the bill) from the
FOIA process, can be superseded only by a subsequent statute which
specifically cites and repeals or modifies it. Although no Congress
and President can enact a statute which a subsequent Congress and
President cannot repeal or modify by another statute, subsection 701
(e) makes clear that, absent a clear, express statutory statement, repeal
or modification of subsection 701 (a) shall not be inferred from a subse-
quent statute:
Subsection 701 (f) : Judicial review
Subsection 701 (f) provides for a de novo substantive standard of
judicial review of CIA compliance with section 701 within a precisely
defined procedural framework, ensuring both protection for sensitive
CIA information and effective judicial review. The Committee con-
cludes with respect to CIA action under H.R. 5164, as did the Congress
in enacting the FOIA in 1966 and amending it in 1974 with respect to
all executive agencies, that de novo judicial review is essential to en-
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sure effective CIA implementation of the Freedom of Information Act
and to maintain public confidence in the implementation of the Act.
Subsection 701 (f) ensures effective judicial review by providing that
allegations that CIA has improperly withheld records because of
failure to comply with section 701 shall be reviewed in accordance with
subparagraph 552 (a) (4) (B) of title 5, which is the judicial review
provisions of the FOIA providing for de novo review, subject to seven
procedural exceptions set forth in subsection 701(f) . Thus, by virtue of
subsection 701(f) , CIA action to implement section 701 will be subject
to judicial review in the same manner as CIA action to judicial re-
view currently, except to the extent that paragraphs 701(f) (1)
through (7) provide specific procedural rules. Matters not addressed
by paragraphs 701(f) (1) through (7) will continue to be decided in
accordance with subparagraph 552(a) (4) (B) of title 5 and case law
thereunder which the courts have developed and may in the future
develop in light of reason and experience. Nothing in H.R. 5164 in
any way affects the law of evidence.
Paragraph 701 (f) (1) provides that classified information filed
with, or produced for, the courts by the Central Intelligence Agency
shall be examined ex parte, in camera by the court. The requirement
that only the judge, and not the complainant, the complainant's coun-
sel, or court personnel, may see the classified information is generally
consistent with current practice under the FOIA. However, because
issues arising under H.R. 5164 will be considered in the context of
CIA's most sensitive operational files, the Committee believed it ap-
propriate to provide expressly in statute that classified information
involved in judicial review of CIA action under H.R. 5164 is for the
judge's eyes only. Of course, in some FOIA cases CIA submissions
may not be classified.
Paragraph 701 (f) (2) provides that the courts shall, to the fullest
extent practicable, determine issues of fact based on the sworn writ-
ten submissions of the parties, when dealing with issues arising from
CIA implementation of section 701. This provision also is generally
consistent with current practice under the Freedom of Information
Act in handling national security-related issues. However, because is-
sues arising under section 701 will be considered in the context of
CIA's most sensitive operational files, the Committee believed it im-
portant to make this rule explicit in statute.
While the Committee believes that a review of the sworn written
submissions of the parties will generally be sufficient to enable a court
to determine whether the CIA has improperly withheld records, cases
will arise in which a court will find it impracticable to decide such
issues based on sworn written submissions. Paragraph 701 (f) (2) does
not place obstacles in the path of the court in obtaining information
it needs to decide these issues. Thus, when necessary to decision, the
court may go beyond sworn written submission to require the Agency
to produce additional information, such as live testimony, or the court
may examine the contents of operational files. As an example, if the
propriety of the exemption of an operational file is properly drawn
into question under paragraph 701(f) (4), and the court concludes
after considering the various sworn written submissions of the parties
that it is necessary to decision that the court examine the contents of
the operational file, the court may do so. In such a case, the scope of
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the court's examination would be coextensive with what is necessary
to the decision of the issue; it would not necessarily be limited to
examination of the records requested by the FOIA requester, although
it may be if the court concludes that examination of those records is
all that is necessary to decision.
Paragraph 701(f) (3) provides that when alleging that requested
records were improperly withheld because of improper placement
solely in exempted operational files, the complainant shall support
such allegation with a sworn written submission based upon personal
knowledge or otherwise admissible evidence. The "personal knowledge
or otherwise admissible evidence" basis for the sworn written submis-
sion is similar to that required for submissions under Rule 56(e) of
the Federal Rules of Civil Procedure. A complainant making an
allegation of improper placement of a record argues that if the records
requested were properly filed where they should be filed, they would
be outside exempted operational files and would therefore be subject
to the search, review and disclosure requirements of the FOIA. Deter-
mining the truth of such an allegation for purposes of defending in
litigation may in practice require the CIA to search exempted opera-
tional files to see if responsive records are located there and to deter-
mine whether they are properly or improperly filed there. Since one
of the basic purposes of H.R. 5164 is to remove from the CIA precisely
this burden of searching exempted operational files, the Committee
believed that the CIA should not be forced by a mere allegation of
improper filing into a position of having to search exempted opera-
tional files to defend a lawsuit. Accordingly, a complainant alleging
that requested records were impropery withheld because of improper
placement of records' solely in exempted operational files must sup-
port such an allegation with a sworn written submission, based upon
personal knowledge or otherwise admissible evidence. When such an
allegation of improper placement of records is supported by such a
submission based upon personal knowledge or otherwise admissible
evidence, the CIA must answer and defend against the allegation. In
responding to the complainant's submission, the CIA may, of course,
challenge its factual basis.
Paragraph 701 (f) (4) provides for determination of an allegation
by a complainant that CIA improperly withheld requested records
because of improper exemption of operational files. Under subpara-
graph 701 (f) (4) (A), when such an allegation is made the CIA must
meet its burden to sustain its action by demonstrating to the court's
satisfaction by sworn written submission that the exempted opera-
tional files likely to contain responsive records currently perform the
functions set forth in subsection 701(b), which defines "operational
files" by function. Subparagraph 701(f) (4).(B) makes clear that if
the complainant thereafter files a sworn written submission genuinely
disputing the CIA's submission concerning the functions of the files,
the court may in its discretion order the CIA to review the contents of
operational files in connection with determination of the issue of im-
proper exemption of the operational files. Of course, if the CIA fails
to sustain its burden to demonstrate the propriety of the exemptions
of the files in issue due to the insufficiency of its sworn written sub-
missions and any other submitted information, the court will, under
paragraph 701(f) (6), order the CIA to search such files for respon-
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sive records, and the reference in subparagraph 701 (f) (4) (B) to a
complainant's submission would be inapplicable. By virtue of subsec-
tion 701 (f) (4), the CIA will not be forced into the position of search-
ing and reviewing the contents of operational files to defend the
lawsuit by a mere allegation of improper exemption of the files, which
would be inconsistent with one of the basic purposes of the bill, which
is to relieve the CIA of an undue burden of searching and reviewing
operational files. The Committee notes that subparagraph 701
(f) (4) (B) does not diminish the court's authority to review the con-
tents of operational files likely to contain responsive records, if the
written submissions are inadequate and such a review is necessary to
decide the issue presented, as described above in the explanation of
paragraph 701(f) (2).
Paragraph 701(f) (5) restricts discovery by the parties in connec-
tion with proceedings to determining allegations of improper place-
ment of records solely in operational files or of improper exemption
of operational files. The provision prohibits discovery, except for
requests for admission, related to these two issues. The Committee
believed it important to prohibit discovery by a complainant with
respect to these issues because they involve the most sensitive of CIA
operational files and because of the potential damage which could
ensue from CIA errors in responding to discovery requests concerning
these files. Since the Committee believed it necessary to prohibit dis-
covery by a complainant from the CIA, the Committee imposed a
reciprocal prohibition on discovery by the CIA from a complainant
as a matter of fundamental fairness. The provision permits requests
for admission, unlike other discovery devices such as depositions or
interrogatories, because use of requests for admission presents little
risk of compromise of secrets. The specific provision concerning the
issue of discovery in the context of the issues of improper placement
of records and improper exemption of files is not intended to carry a
negative implication that discovery on other issues is to be either
especially encouraged or discouraged in any manner by this subsec-
tion. The question of discovery with respect to other issues shall con-
tinue to be governed by the practices developed by the courts under
the judicial review provision of the Freedom of Information Act
(5 U.S.C. 552 (a) (4) (B) ). The Committee emphasizes that paragraph
701 (f) (5) addresses discovery by the parties in accordance with the
Federal Rules of Civil Procedure; this provision does not address
access by the court to information. Furthermore, the provision does
not prevent the complainant from proposing to the court matters on
which the complainant believes the court should itself seek informa-
tion from the CIA to decide issues in the lawsuit.
Paragraph 701(b) (6) provides the exclusive remedy for CIA fail-
ure to comply with section 701. If the court finds that the CIA has
improperly withheld requested records because of failure to comply
with any provision of section 701, the court shall order the CIA to
search and review the appropriated exempted operational file or files
for the requested records and to release the records, or portions thereof,
which do not fall within any of the FOIA exemptions contained in
subsection 552(b) of title 5, United States Code. Such an order is the
exclusive remedy for CIA failure to comply with section 701. This
provision, of course, does not affect the court's authority under the
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Freedom of Information Act to assess reasonable attorney fees, to
punish for contempt, or to handle other, similar ancillary matters.
Paragraph 701(0) (7) provides that, if the CIA agrees at any time
after the filing of a complaint alleging CIA failure to comply with
section 701 to search the appropriate exempted operational files for
the requested records and process the records under the FOIA, the
court shall dismiss claims based upon failure to comply with section
701. Thus, by agreeing to process an FOIA request for records with-
out regard to the exemption of operational files, the CIA can obtain
dismissal of claims challenging its compliance with section 701.
Section 702: Decennial Review of Exempted Operational Files
Section 702 provides for a periodic review of the exemptions of
operational files to determine whether the exemptions may be removed
with respect to such files or significant portions thereof.
Subsection 702 (a) requires the Director of Central Intelligence to
review the exemptions of operational files in force under subsection
701 (a) at least once every ten years to determine whether such exemp-
tions may be removed from exempted files or any portion thereof.
The phrase "or any portion thereof" provides for potential removal
of exemptions from an individual collection of records which forms
a portion of an exempted operational file. The phrase contemplates,
for example, potential removal of an exemption with respect to a col-
lection of records concerning a specific intelligence operation, even
though the collection is contained in a larger exempted operational file
which continues to merit exemption. The phrase does not require the
review and potential removal of exemption with respect to individual
records contained in exempted operational files. Those files, or por-
tions thereof, with respect to which exemptions are removed, become
subject once again to the search, review, and disclosure requirements
of the FOIA.
Subsection 702 (b) requires that, in conducting the review of exemp-
tions mandated by subsection 702(a), the Director of Central. Intelli-
gence shall consider the historical value or other public interest in the
subject matter of the particular files or portions thereof and the poten-
tial for declassifying a significant part of the information contained
therein. In applying the historical value criterion, the Director of Cen-
tral Intelligence should consult with, and take into account, the recom-
mendations of the historical staff of the Departments of State and
Defense, the Archivist of the United States, and appropriate histor-
ians from the private sector. In applying the public interest criterion,
the Director of Central Intelligence should consider the contribution
materials would make to an understanding of intelligence, foreign
policy, and international developments and should consider interest
in specific topics expressed by the journalistic and academic profes-
sions. In applying the potential-for-declassification criterion, the Di-
rector of Central Intelligence should consider factors such as the
sensitivity of operations, the possibility of damaging foreign relations
or jeopardizing intelligence sources and methods, and the passage of
time.
Subjection 702(c) provides for limited judicial review of CTA com-
pliance with section 702. Since this review does not arise under the
judicial review section of the FOIA, subsection 702(c) provides a sep-
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arate grant of subject matter jurisdiction to the U.S. district courts
and provides an independent venue'provision. A complainant may ob-
tain judicial review upon allegation that the CIA has improperly with-
held records because of failure to comply with section 702. However,
unlike allegations in a complaint of improper withholding for failure
to comply with section 701, which will be reviewed under the judicial
review provision of the FOIA (5 U.S.C. 552) and the procedures
provided in section 701(f), the allegation of improper withholding of
records for noncompliance with section 702 will be reviewed in accord-
ance with the more limited judicial review provision contained in sub-
section 702(c). The court's review of CIA compliance with section 702
is limited to determining whether the review of exemptions of opera-
tional files required by subsection 702(a) has been conducted within
the time period prescribed by that section and whether-the criteria set
forth in subsection 702(b) were in fact considered in the review of
exemptions.
Should the court find that the review required by subsection 702 (a)
has not been conducted or that the criteria set forth in subsection
702(b) were not considered in the review, the court may, as appropri-
ate, order the CIA : (1) to search and review the appropriate exempted
operational file or files for the requested records and to release the
records, or portions thereof, which do not fall within any of the
FOIA exem tions; (2) to conduct the review required by subsection
702 (a) ; or (3) to consider the criteria set forth in subsection 702(b)
when conducting the review of appropriate exempted operational files
for the requested records. These are the exclusive remedies for failure
to comply with section 702.
Section 3 of the bill requires the Director of Central Intelligence to
report by June 1, 1985 to the intelligence committees of the Congress
on the feasibility of conducting systematic review for declassification
and release of Central Intelligence Agency information of historical
value. In preparing this report, the Director shall consult with the
Archivist of the United States, the Librarian of Congress, and appro-
priate historians selected by the Archivist of the United States.
The Committee expects the Director's report to explore the full range
of ideas which can contribute to the objective of making available CIA
information of historical value on the diplomatic, military, and intel-
ligence activities of the United States without risking damage to the
security or foreign policy of the Nation. The Committee considers the
Foreign Relations of the United States series published by the De-
partment of State to be an excellent example of a project which con-
tributes to this objective. Because of the especially sensitive nature of
the work of the CIA, this type of large-scale chronological disclosure
of CIA information of historical value may not be possible. However,
the Committee expects the report of the Director of Central Intelli-
gence to explore this possibility on some appropriate scale, along with
exploring other ideas which can contribute to the objective set forth
above.
Section 3 is intended to require the Director of Central Intelligence
to study the feasibility of a declassification program which would sup-
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plement the vuluntary declassification review program agreed to in an
exchange of letters of October 3 and 4, 1983, between Director of Cen-
tral Intelligence William J. Casey and Senator Dave Durenberger.
Those letters refer to "selective" review of materials that the CIA
believes "would be of greatest historical interest and most likely to
result in declassification of useful information." The type of systematic
review Section 3 requires the Director to consider would take into ac-
count similar criteria, but would envisage a greater volume of de-
classification.
Section 4 of the bill provides that CIA operational file exemptions
from FOIA requirements under new subsection 701 (a) of the National
Security Act of 1947 apply with respect to all FOIA requests, whether
made before or after enactment of H.R. 5164, which had not proceeded
to the stage of litigation by February 7, 1984. Thus, the exemptions
apply retroactively to all FOIA requests which are pending before
the Central Intelligence Agency, whether in initial processing or in
administrative appeal, on the date of enactment of H.R. 5164. The CIA
could, however, as a matter of administrative discretion, decide to
complete the processing of any such requests which had been substan-
tially completed. The exemptions will also apply retroactively with
respect to all civil actions to enforce access to records under the Free-
dom of Information Act which were not commenced prior to February
7, 1984. The latter date was the day preceding the hearings on the sub-
ject of H.R. 5164 before the Subcommittee on Legislation of the Per-
manent Select Committee on Intelligence, at which it was first sug-
gested that a date certain be set by which FOIA lawsuits must be filed
to ensure that enactment of legislation modifying the application of
the FOIA to the CIA will not affect an FOIA request which has pro-
ceeded to litigation. The day preceding the hearing was selected to
avoid creating an incentive for a race to the courthouse by FOIA
complainants in anticipation of the enactment of legislation modify-
ing the application of the FOIA to the CIA.
COMMITTEE POSITION
On April 11, 1984, a quorum being present, the Permanent Select
Committee on Intelligence approved H.R. 5164 with an amendment
in the nature of a- substitute and, by unanimous voice vote, ordered
that it be reported favorably.
OVERSIGHT FINDINGS
With respect to clause 2(1) (3) (A) of rule XI of the Rules of the
House of Representatives, the Committee notes that it has conducted
an extensive investigation, including public hearings, on the applica-
tion of the Freedom of Information Act to the Central Intelligence
Agency. The Committee's findings in this area have resulted in its
recommendation that new legislation (H.R. 5164) be enacted. The
Committee's reasoning for its recommendation is set out in the body of
this report.
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CONGRESSIONAL BUDGET ACT
Pursuant to clause 2 (1) (3) (B) of rule XI of the Rules of the House
of liepresentatlves, the Committee noises that this legislation does not
provide for new budget authority or tax expenditures.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
Pursuant to clause 2(1) (3) (C) of rule XI of the Rules of the House
of Representatives, the Committee notes that it has not received an
estimate from the Congressional Budget Office under section 403 of
the Congressional. Budget Act of 1974.
RECOMMENDATION OF THE COMMITTEE ON GOVERNMENT OPERATIONS
Pursuant to clause 2(1) (3) (D) of rule XI of the Rules of the I-louse
of Representatives, the Committee notes that it has not received a re-
port from the Committee on Government Operations.
INFLATION IMPACT STATEMENT
Pursuant to clause 2(1) (4) of rule XI of the Rules of the House of
Representatives, the Committee finds that enactment of H.R. 5164 will
have no inflationary impact on prices or costs in the operation of the
National economy.
FIVE-YEAR COST PROJECTION
Pursuant to clause 7 (a) (1) of rule XIII of the Rules of the House
of Representatives, the Committee has determined that no measurable
additional costs will be incurred by the government in the administra-
tion of H.R. 5164.
EXECUTIVE BRANCH ESTIMATES
The Committee has received no cost estimates from the executive
branch and is therefore unable to compare the government's cost esti-
mates with its own estimates pursuant to clause 7(a) (2) of rule XIII
of the Rules of the House of Representatives.
CHANGES IN EXISTING LAW MADE BY THE BILL, As REPORTED
In compliance with clause 3 of rule XII of the Rules of the House
of Representatives, changes in existing law made by the bill, as re-
ported, are shown as follows (existing law proposed to be omitted is
enclosed in black brackets, new matter is printed in italic, existing law
in which no change is proposed is shown in roman) :
NATIONAL SECURITY ACT OF 1947
TABLE OF CONTENTS
Sec. 2. Declaration of policy.
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TITLE VII-PROTECTION OF OPERATIONAL FILES OF-THE CENTRAL
INTELLIGENCE AGENCY-
Sec. 701. Exemption of certain operational files from search, review, publication,
or disclosure.,
Sec. 702. Decennial review of exempted operational files.
TITLE VII-PROTL+'CTION OF OPERATIONAL FILES OF
THE CENTRAL INTELLIGENCE AGENCY
EXEMPTION OF CERTAIN OPERATIONAL FILES FROM SEARCH, REVIEW,
PUBLICATION, OR DISCLOSURE
SEC. 701. (a) Operational files of the Central Intelligence Agency
may be exempted by the Director of Central Intelligence from the pro-
visions of section 552 of title 5, United States Code (Freedom of In-
formation Act) which requires publication or disclosure, or search or
review in connection therewith.
(b) For the purposes of this title, the term "operational files"
means-
(1) files of the Directorate of Operations which document the
conduct of foreign intelligence or counterintelligence operations
or intelligence or security liaison arrangements or information
exchanges with foreign governments or their intelligence or secu-
rity services;
(2) files of the Directorate for Science and Technology which.
document the means by which foreign intelligence or counter-
intelligence is collected through scientific and technical systems;
and
(3) files of the Office of Security which document investiga-
tions conducted to determine the suitability. o f potential foreign
intelligence or counterintelligence sources,,
except that files which are the sole repository of disseminated intel-
ligence are not operational files.
(c) Notwithstanding subsection (a) of this section, exempted opera-
tional files shall continue to be subject to search and review for infor-
mation concerning-
(1) ?
United States citizens or aliens lawfully admitted for per-
manent residence who have requested information on themselves
pursuant to the provisions of section 552 of title 5, United States
Code (Freedom of Information Act) or section 552a of title 5,
United States Code (Privacy Act of 1974);
(2) any special activity the existence of which is not exempt
from disclosure under the provisions Of section 552 of title 5,
United States Code (Freedom of Information Act) ; or
(3) the specific subject matter of an investigation by the in-
telligence committees of the Congress, the Intelligence Oversight
Board, the Department of Justice, the ? O fce of General Counsel
of the Central Intelligence Agency, the Office of Inspector General
and the Central Intelligence Agency, or the O fce of the Director
of Central Intelligence for any impropriety, or violation of law,
Executive order, or Presidential directive, in the conduct of an
intelligence activity.
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(d) (1) Files that are not exempted under subsection (a) of this
section which contain information derived or disseminated from ex-
empted operational files shall be subject to search and review.
(2) The inclusion of information from exempted operational files
in files that are not exempted under subsection (a) of this section shall
not affect the exemption under subsection (a) of this section of the
originating operational files from search, review, publication, or dis-
closure.
(3) Records from exempted operational files which have been dis-
seminated to and referenced in files that are not exempted under sub-
section (a) of this section and which have been returned to exempted
operational files for sole retention shall be subject to search.and review.
(e) The provisions of subsection (a) of this section shall not be
superseded except by a provision of law which is enacted after the
date of enactment of subsection. (a), and which specifically cites and
repeals or modifies its provisions.
(f) Whenever any person who has requested agency records under
section 552 of title 5, United States Code (Freedom of Information
Act) alleges that the Central Intelligence Agency has improperly
withheld records because of failure to comply with any provision of
this section, judicial review shall be available under the terms set forth
in section 552(a) (4) (B) of title 5, United States Code, except that-
(1) in any case in which information specifically authorized
under criteria established by an Executive order to be kept secret
in the interest of national defense or foreign relations is filed with,
or produced for, the court by the Central Intelligence Agencyy,
such information shall be examined ex parte, in camera by the
court;
(2) the court shall, to the fullest extent practicable, determine
issues of fact based on sworn written submissions of the parties;
(3) when a complainant alleges that requested records were im-
properly withheld because of improper placement solely in ex-
empted operational files, the complainant shall support such
allegation with a sworn written submission, based upon personal
knowledge or otherwise admissible evidence;
(4) (A) when a complainant alleges that requested records were
improperly withheld because of improper exemption of opera-
tional files, the Central Intelligence Agency shall meet its burden
under section 552(a) (4) (B) of title 5, United States Code, by
demonstrating to the court by sworn written submission that ex-
empted operational files likely to contain responsive records cur-
rently perform the functions set forth in subsection (b) of this
section; and
(B) the court may not order the Central Intelligence Agency
to review the content of any exempted operational file or files in
order to make the demonstration required under subparagraph
(A) of this paragraph, unless the complainant disputes the Cen-
tral Intelligence Agency's showing with a sworn written submis-
sion based on personal knowledge or otherwise admissible
evidence;
(5) in proceedings under paragraphs (3) and (4) of this sub-
section the parties shall not obtain discovery pursuant to rules 26
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through 36 of the Federal Rules of Civil Procedure, except that
- requests for admission may be made, pursuant to rules 26 and 36;
(6) if the court finds under this subsection that the Central
Intelligence Agency has improperly withheld requested records
because of failure to comply with any provision of this section,
the court shall order the Central Intelligence Agency to search
and review the appropriate exempted operational file or f'es for
the requested records and make such records, or portions thereof,
available in accordance with the provisions of section 552 of title
5, United States Code (Freedom of Information Act), and such
order shall be the exclusive remedy for failure to comply with
this section; and
(7) if at any time following the filing of a complaint pursuant
to this subsection the Central Intelligence Agency agrees to search
the appropriate exempted operational file or files for the requested
records, the court shall dismiss the claim based upon such
complaint.
DECENNIAL REVIEW OF EXEMPTED OPERATIONAL FILES
SEC. 702. (a) Not less than once every 'ten years, the Director. o f
Central Intelligence shall review the exemptions in force under sub-
section (a) of section 701 of this Act to determine whether such exemp-
tions may be removed from any category of exempted operational files
or any portion thereof.
(b) The review required by subsection (a) of this section shall in-
clude consideration of the historical value or other public interest in
the subject matter of the particular category of files or portions thereof
and the potential for declassifying a sign ficant part of the informa-
tion contained therein.
(c) A complainant who alleges that the Central Intelligence Agency
has improperly withheld records because of failure to comply with this
section may seek judicial review in the district court of the United
States of the district in which any of the parties reside, or in the Dis
trict of Columbia. In such a proceeding, the court's review shall be
limited to determining (7) whether the Central Intelligence Agency
has conducted the review required by subsection (a) of this section
within ten years of enactment of this title or within ten years after the
last review, and (2) whether the Central Intelligence Agency, in fact,
considered the criteria set forth in subsection (b) of this section in
conducting the required review.
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