LETTER TO GEORGE BUSH FROM ROBERT ELLSWORTH

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83B00823R000100080010-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 9, 2016
• Document Release Date: March 1, 2001
• Sequence Number: 10
• Publication Date: May 25, 1976
• Content Type: LETTER

THE DEPUTY SECRETARY OF DEFENSE
WASHINGTON, D. C. 20301
Honorable George Bush
Director of Central Intelligence
Washington, D. C. 20505
Dear George:
required by Executive order to be kept secret in the interest of the
closure by statute, would aid the Government in defending against Freedom
of Information Act suits to compel disclosure,
The Freedom of Information Act, 5 U.S.C. 552(b) permits an Agency to
exempt from public disclosure matters that are - "(1)(A) specifically
oG c- -76 - $?
OGC SUBJ: SECURITY
MAY 2 5 '1976
OSD Declassification/Release
Instructions on File
In response to your request, I have had the DoD.General Counsel
review the proposal that the National Security Council Intelligence
Decisions (NSCIDs) contain, in addition to security classification mark
ings, notations that they are protected from disclosure by a specified
statute,.. See the suggested notations in Attachment A which refer to
50 U.S.C. 403(d)(3), 50 U.S.C. 403g., 18 U.S.C. 798(a)(3), and Public
La,t 86-36-
It is our judgment the inclusion of appropriate'notations on the
NSCIDs, indicating that the material is specifically exempted from dis-
for its personal review in camera. Klaus and Halperin v. National Secur
Council and Kissinger, U.S. Dist. Ct. of D.C., Civil Action 75-1093,
which is now being litigated, involves a challenge to the Government's
refusal to declassify and release NSCIDs published February 17, 1972.
The NSCIDs contain the security classification markings required by
Executive order, but no statement that the Directive is protected from
national defense or foreign policy; and (B) are in fact properly classi-
fied pursuant to such Executive order." Previous to the 1974 Amendruents
to that Act, the Government was only required to establish (A). As the
1974 Conference Report (Senate Report No. 93-1200) notes, the Government
is not only required to establish that the record wasymarked classified
pursuant to an Executive order requirement, but also that a determination_
has been made that the record is "properly classified. pursuant to both
procedural. and substantive criteria contained in such Executive order_:"
The net affect is that the Government has the burden of showing that
.national security is involved, and that its release could reasonably be
expected to cause damage to the national`' security. In support of the
latter, the Government must establish a reasonable basis to support its
classification determination. (120 Cong. Rec. H 10865 (November 20,
1974))? In some instances this may be done through testimony and
affidavits, and in others, the Court may order the records turned over
disclosure under a designated statute.
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The Freedom of Information Act also permits an agency to exempt
ublic disclosure matters that are "specifically exempted from
from
p
disclosure by statute." H. Rept. 1497, 89th Cong., 2d Sess., p. 10
states that there are "nearly 100 statutes or parts of statutes which
restrict public access to specific Government records. These would
not be modified by the public records provisions of S. 1160 (which
became the Freedom of Information Act)."
The Attorney General's memorandum on the Public Information Section
of the Administrative Procedure Act, June 1967, commented that there
were a wide variety of statutes which restrict disclosure, and cited
specific examples, including 50 U.S.C. 403g which exempts publication
or disclosure of the CIA organization, its functions, or its personnel.
In a Committee Print, "Federal Statutes on the Availability of
Information", by the House Committee on Government Operations, 86th
Congress, Second Session, March 1960, there appears a number of statutes
which prohibit public disclosure on the grounds of national security.
50 U.S.C. 403g. is again cited, as is 18 U.S.C. 798 which prohibits
disclosure o b communications intelligence information. Although not
cited in either compilation it is apparent that Public Law 86.36 (which
exempts disclosure of National Security Agency organization, functions
and personnel) deserves the same recognition as its CIA counterpart
statute, 50 U.S.C. 403g.
-Turning to the case law on the subject, there are a number of
decisions supporting the statutory exemption provision. -Administrator,
Federal Aviation Administration v. Robertson, 95 S. Ct. 2140 (1975)
noted (p. 2148) that "when Congress amended the Freedom of Information
Act in 1974, it reaffirmed the continued validity of this particular
Exemption, covering statutes vesting in agencies wide authority."
50 U.S.C. 403(d)(3), 50 U.S.C. 403(g) and Public Law $6--36 are such
statutes,.
In Richardson v. Spahr, et al., U.S. Dist. Ct. W. Dist. Pa. (January
30, 1976), Civil Action 75-297, the Court granted the Government's motion
for summary judgment on the grounds that the Freedom of Information Act
-specifically exempts from disclosure financial records which reflect CIA
transactions from the inception of the agency. Specifically cited were
the statutes, 50 U.S.C. 403g; 50 U.S.C. 403j(b); 50 U.S.C. 403j(a) which,
in the words of the Court "clearly and unequivocally reflects the approval
of Congress for the secrecy involved in funding and operating intelligence
operations..'y Also cited in support of denying the request was the
responsibility of the Director of Central Intelligence to protect intelli-
gence sources and methods from unauthorized disclosure, 50 U.S.C. 403(d)(3).
A similar holding was made in Phillip v. CIA, U.S. Dist. Ct. for
D.C. (1975), Civil Action 75;1265. When Plaintiff sought.permission to
take part in an in'camera examination of certain CIA documents, the
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 1 ' fidavits, the Court
Apr`'t~i~~a~9tr~:~Zeg~lt~~n~OaA~u-B
Defendant ob3ec any materials which fit the descrip exemption,`, citing
e
rubyled the pl that aintiff are exempt under the "statutory
555
1
Federal Aviation AdministrCextn deri cede g ?tct. 1
Administrator, 5 2d 13 o2, achrack
1975)5). Sao oth her District holdinanda`yeist so manc v. effect. B-~s
and Two Court et al, tack Givil_
v. CIA and Colby, Civil Action 75-3727, ------uses have been
Action 75-1583. Both the Richardson and Phillipi
appealed.
the le islative history of the Freedom of Information
In summary, ,..cal that if NsCID documents coutan
materi al ptooteczeu U1 - roving that aocuWZ