LETTER TO MR. THOMAS K. LATIMER FROM (SANITIZED)
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-1 W
The Director of Central Intelligence
Washington, D.C. 20505
Resource Management Staff
Mr. Thomas K. Latimer, Staff Director
Permanent Select Committee on Intelligence
House of Representatives
Washington, D.C. 20515
DCI/RM-78-4898
2 9 DEC -i'4 "r0 _
The attached report is provided in response to the Committee's
request to the DCI, in its FY 1979 classified annex, for a report
on the Intelligence Community's experience under the Freedom of
Information Act.
It deals principally with the CIA where serious FOIA problems
exist. The CIA report reinforces the concerns expressed in
Admiral Turner's 13 March letter to Mr. Burlison, following his
appearance before the Subcommittee on Program and Budget Authoriza-
tion at the budget hearing of 7 March, and in other correspondence
with the Congress on this subject from the DCI and senior officials
of the CIA.
The current situation with respect to FOIA administration is of
concern because of the constraints on resources and manpower which
increasingly limit the Community's and the DCI's ability to respond
adequately to priority foreign intelligence tasks.
The DCI's FY 1980 National Foreign Intelligence Program submitted
to the President contained legislative and other recommendations for
alleviating the FOIA problem, and the subject is expected to be
addressed in the final budget provided to the Congress in January.
Sincerely,
Attachment:
a/s
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REPORT ON
INTELLIGENCE COMMUNITY EXPERIENCE IN
ADMINISTERING THE FREEDOM OF INFORMATION ACT
Table of Contents
Page
Introduction and Summary of Findings
1
Report of the Central Intelligence Agency
3
Federal Bureau of Investigation Experience
12
National Security Agency/Communications Security
Service Experience
20
Other Intelligence Community Experience
21
A. CIA Annual Report to the Congress on FOIA
for CY 1977
B. NSA Annual Report on FOIA for CY 1977
C. DIA Annual Report on FOIA for CY 1977
D. Department of State Annual FOIA Report
to the Congress for CY 1977
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INTELLIGENCE COMMUNITY EXPERIENCE IN
ADMINISTERING THE FREEDOM OF INFORMATION ACT
INTRODUCTION
In its FY 1979 classified annex, the House Permanent Select
Committee on Intelligence expressed its intent to explore the
problems inherent in the Intelligence Community's FOIA burden.
The Committee requested the Director of Central Intelligence to
provide a report on the Community's experience under the Freedom
of Information Act, with particular reference to any legislative
initiatives which he considered necessary.
The information in this report is intended to respond to the
Committee's request and was assembled by the DCI's Resource
Management Staff from material provided by Intelligence Community
entities.
SUMMARY OF FINDINGS
The Intelligence Community's FOIA burden falls chiefly on the
Central Intelligence Agency which has experienced serious problems
in administering the Act since enactment of the 1974 amendments.
The FBI is the only other organization within the Community which
has had a similar experience; however, the FBI's FOIA problems are
largely outside the scope of this report. Recent increases in the
volume of requests received by the NSA/CSS are noted although it is
too early to tell what the longer term impact will be.
In spite of efforts to improve efficiency and productivity,
the CIA continues to experience a heavier volume of FOIA requests
than it can handle with existing manpower. The backlog of requests
currently stands at about 2,800, up from the 2,370 recorded at the
close of 1977. And the decision in the Ray/Schapp case is expected
to add to this backlog by increasing the time required to process
each request.
The CIA believes it has just about reached the limits of the
resources that can be diverted to responding to FOIA request with-
out detracting seriously from its ability to carry out its foreign
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intelligence mission, and points out that the public is not
getting much for its tax dollar in this area. Many requests
are for records concerning sensitive covert operations, the
existence of which the Agency is not even free to acknowledge.
Other requests require the search for and review of hundreds
or thousands of pages of material, diverting manpower from
other essential tasks, and resulting more often than not in the
release of little more than fragmentary and sometimes inaccurate
raw intelligence data. Under the current FOIA the Agency is
even required to respond to the request from Philip Agee, a
former CIA employee whose avowed goal is to expose CIA operations.
It is estimated that as much as nine man-years may be expended
on this case prior to its completion.
So long as the CIA's operational records are subject to the
FOIA, there is the risk of unintentional exposure of sensitive
intelligence sources and methods, which weighs heavily on the
minds of those persons and foreign services upon whom the Agency
must rely as sources of intelligence.
The CIA considers that legislative changes to remove sensitive
operational data from the purview of the Freedom of Information
Act are of highest priority. Such changes, while relieving the
CIA from the most significant burdens of the FOIA, would not result
in the withholding of much material which would otherwise be made
available to the public.
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REPORT ON THE CENTRAL INTELLIGENCE AGENCY'S EXPERIENCES
IN ADMINISTERING THE FREEDOM OF INFORMATION ACT
AND RELATED PROGRAMS - BURDENS AND OTHER PROBLEMS
RESULTING THEREFROM
1. Organization
The CIA's program for administering the Freedom of
Information Act (FOIA), the Privacy Act (PA), and the mandatory
classification review provisions of Executive Order 12065
(which superseded Executive Order 11652 on 1 December 1978)
is decentralized, reflecting the decentralized nature of
the Agency's records systems. Overall policy is determined
by the Information Review Committee (IRC). This Committee
is comprised of the Deputy Director for Administration
(Chairman), the Deputy Director for Operations, the Deputy
Director for Science and Technology, and the Deputy Director
of the National Foreign Assessment Center. It is supported
by the Information Review Committee Working Group (IRC/WG),
established in May 1978, which includes, in addition to
representatives of the above officials, members from the
Office of Public Affairs, the Office of Legislative Counsel,
and the Office of General Counsel.
The Information and Privacy Staff (IPS), located organiza-
tionally within the Office of the Deputy Director for Adminis-
tration, is the focal point within the Agency for the receipt
of requests from the public and is responsible for the
coordination of their processing, the preparation of replies
and other correspondence, and the maintenance of records
of all transactions. The Office of the DCI, the National
Foreign Assessment Center, and each of the Directorates has
a person who serves as Freedom of Information officer,
and, within these organizations, each major subcomponent
has its own Freedom of Information officer (full-time or
part-time, depending upon the workload). The program
within the Directorate of operations, however, is somewhat
more centralized than is the case elsewhere in the Agency.
That Directorate, which bears a significant share of
the Agency's FOI/PA burden, has a rather sizeable central
staff. All of the Directorate's contacts with IPS are
through that staff, whereas the IPS usually deals directly
with offices below the Directorate level in other parts of
the Agency. Requests involving Intelligence Community Staff
records or equities are processed through the CIA mechanism,
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as well, and the Intelligence Community Staff has appointed
a Freedom of Information officer to serve as its contact
point with IPS.
2. Processing Procedures
Requests fall into two general categories--those received
directly from members of the public and those referred to
the CIA by other agencies. In the latter instances, searches
are not usually required. We need only to review the records
found by the referring agency in the course of searching its
files. If the referred records are of CIA origin, we respond
directly to the requester; if they are the records of another
agency containing material falling under CIA's cognizance,
they are examined and returned to the referring agency with
our review findings for final disposition.
The paper flow in processing requests is depicted on
the attached chart (Tab A). Requests are recorded in an
automated request log by IPS and, once all questions have been
resolved (fees, description of records, etc.), copies of the
letters of request are sent to those components which might
hold relevant information in their files. (In the case of
referrals, copies of the referred records are sent to appro-
priate components for review.) All processing transactions
are entered into the automated log. As soon as the components
have completed their searches and reviewed any records found
for releasability, the results are reported back to IPS. IPS
takes care of whatever inter- and intra-agency referrals are
deemed necessary and, when all processing has been completed,
prepares responses to the requesters, transmitting copies of
all documents being released in whole or in part, explaining the
legal basis for withholding any information being denied, and
informing the requesters of their right to administrative
appeal. If denials are appealed, the information withheld is
reviewed again, but by personnel not involved in the initial
decisions. Working closely with a member of the Office of
General Counsel, the reviewers prepare recommendations for the
Deputy Director whose records are involved, and the Deputy
Director, acting on behalf of the IRC, makes the final deter-
minations. The results are transmitted to the appellant in a
letter prepared in the Office of General Counsel, and he is
apprised at that time of his right to judicial review.
3. Request Levels, Manpower Costs, and Fees Collected
Since the beginning of CY 1975, through 15 November 1978,
the CIA has logged 19,504 requests, of which 10,030 were
processed under the provisions of the FOIA. (See Tab B for
a further breakdown on these requests.) We anticipate
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receiving between 4,000 and 5,000 requests per year through
FY 1983 barring some change in the law or in public attitudes
vis-a-vis the Agency. Approximately 35-40 percent of these
requests, judging from past experience, will be FOIA
requests.
There are about 65-70 persons in the Agency who are
employed on a full-time basis in complying with the demands of
the FOIA, the PA, and mandatory classification review requests.
Most of these full-time employees work in the Operations
Directorate, IPS, the Office of General Counsel, or the Office
of Security. In addition, hundreds of other Agency employees
get involved in the programs on a part-time, ad hoc basis--con-
ducting searches, reviewing records, etc. The total manpower
expended each year is the equivalent of 110 or more full-time
employees. This figure has tended to increase each year,
caused in part by the increasing demands of appeals and
litigation. Yet we believe that we have just about reached
the limit of the resources that can be employed without
detracting from our ability to carry out our foreign intelli-
gence mission.
A great deal of manpower can be expended on individual
requests, particularly if they go into the appeal and/or
litigation stages. For example, we devoted 11.5 man-years to
processing a single request for records pertaining to ~'MKULTRA
and other drug-behavior modification programs. Another request,
for records dealing with John F. Kennedy's assassination, still
in process, has already cost us some 8.75 man-years of labor.
One officer has spent most of the last 17 months working on a
request for records on individuals connected with the disappear-
ance of Jesus de Galindez--and the processing of this request
continues. We have expended nearly four man-years thus far on
a request from Philip Agee, a former CIA employee whose avowed
goal is to expose CIA operations, for records pertaining to
him. We estimate that as much as nine man-years of labor
may be required by the time processing of this request, which
recently went into administrative appeal channels because of
our inability to respond with the statutory deadline, is completed.
A recent opinion by the U.S. Court of Appeals for the
District of Columbia Circuit (Ellen L. Ray and William H. Schaap
v. Stansfield Turner) will have the effect of increasing the
manpower needed to process FOIA requests, appeals, and liti-
gation. The Court, in this case, required that agencies
describe in considerable detail, on a deletion-by-deletion
basis, the nature of the material being withheld under FOIA
exemptions and the justification for its denial. Early
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experience in complying with this new requirement indicates
that it may take as much as one man-hour per document to
satisfy it fully. Ironically, the new ruling will result in
the disclosure of less information by the Agency than heretofore.
Greater description will make more evident that which the
CIA is statutorily bound to protect. The release of segregable
portions of records, therefore, will not be feasible in
those instances where the required descriptions and justifi-
cations of withheld material would destroy the very purpose
of the withholding. Moreover, the possibility that any
FOIA request may result in litigation, at which point detailed
statements would be required, will often force upon the Agency
a more conservative disclosure policy in responding to initial
requests, despite the fact that only a few of these requests
will ever reach the litigation stage.
Our personnel costs for administering these programs
grow each year. We estimate the costs for 1975 at $1,400,000;
for 1976, $2,000,000; and for 1977, $2,377,000. Almost
one-half of these sums can be attributed to the FOIA; FOIA
requests tend to be more complex and are more likely to lead
to expensive litigation. By contrast, very little has been
collected in fees to offset these expenses. We do not charge
for processing PA requests, and we are required by law to
waive or reduce :fees for FOIA requests whenever it is in the
public interest to do so. Moreover, the most expensive
part of the process--the review of records--must be totally
absorbed by the Agency; we can charge only for searches and
for the duplication of records. Only $1,867 was collected
in 1975; $10,035 in 1976; and $16,439 in 1977. All of these
fees were for FOIA requests.
4. Efforts to Improve Efficiency and Productivity
Despite the considerable manpower diverted to these
programs, we have been unable to keep up with the requests and
large processing backlogs exist. Currently, there are approxi-
mately 2,800 unanswered requests and over 300 unanswered
appeals. With rare exceptions, requests and appeals are
handled on a first-in, first-out basis and, because of the
backlogs, the statutory deadlines usually expire long before
we can act.
The Agency has developed an active training program
designed to further employees' knowledge of the Acts and to
enhance their ability to deal with requests. Two-day workshops
are conducted periodically to familiarize employees with the
programs and to afford them an opportunity to review documents
under controlled conditions. In addition, two Agency-wide
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symposia have been held to discuss mutual concerns and to
exchange ideas for the solution of problems. A weekly report
on FOI/PA activities is also distributed throughout the
Agency and a newsletter is published on an irregular basis.
A systems study has been underway which, utilizing data
from the automated request log to create a computer model
of the overall process, seeks to identify bottlenecks and
other problem areas and to devise possible solutions. A
greater degree of centralization will be among the alternatives
considered in evaluating the collected data. There are, however,
certain factors present which make greater efficiency difficult,
or perhaps even impossible to achieve. Our files are
decentralized and searches are therefore complex and often
involve numerous systems of records. More important, however,
is the sensitivity of most of the records contained in our
files. Each document must be carefully and painstakingly
reviewed by at least two levels of authority to ensure that
intelligence sources and methods are not disclosed. The
review cannot be done in haste and must be performed by
fully qualified officers.
5. Problems
The two principal problems for the CIA in administering
the FOIA and related public disclosure programs have been the
drain on its manpower resources (with relatively little
information being released of significant value to the
general public) and the chilling effect that the fear of
exposure has had on our agents and other sources and on various
cooperating foreign intelligence and security liaison services.
The manpower we must devote to processing FOIA requests,
which includes a not inconsiderable amount of time expended by
senior Agency officials, obviously detracts from our ability
to perform our critically important foreign intelligence mission.
Moreover, a 2 percent personnel reduction projected for FY 1980
will make this diversion of manpower even more serious. We
take no issue with the basic concept that the American public
has a right to know what its Government is doing and to benefit
therefrom whenever possible. Indeed, the Agency has, to the
degree consistent with its obligation to protect intelligence
sources and methods, voluntarily made its analytical products
available to the public whenever feasible. Numerous unclassi-
fied monographs, reference aids, maps, and translations of
the foreign media are released each year through the distri-
bution facilities of the Library of Congress, the Government
Printing Office, and the Department of Commerce. With respect
to FOIA requests, however, it is clear to us that the public
is not getting much for its tax dollar. Some of the requests
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we receive are for records concerning sensitive covert opera-
tions, the existence of which we are not even free to acknowledge.
No information is released, but manpower is nonetheless diverted
from other essential tasks, particularly so if the denials are
appealed or litigated. In other requests, the search for
and review of hundreds or thousands of pages of material
has more often than not led to the release of little more than
fragmentary and sometimes inaccurate raw intelligence data,
which, rather than enlightening the public, has sometimes
resulted in highly publicized misinterpretations of what
actually occurred. (More accurate reports responsive to the
requests often had to be withheld to protect sensitive sources
or collection systems.) On the other hand, we have been
able to release a large number of finished intelligence studies,
in whole or in part, without posing undue risk to intelligence
sources and methods and to the benefit of American scholars
and other researchers.
In an effort to counteract the erosion of confidence in
the CIA's ability to protect secrets, we have repeatedly
assured our intelligence sources that the exemptions afforded
by the FOIA provide adequate protection--and, indeed,
the inadvertent release of sensitive information has been
exceedingly rare. However, as long as CIA operational
records are subject to the FOIA there is always the risk of
unintentional exposure (which has in fact occurred), and this
weighs heavily on the minds of those persons and foreign
services upon whom we must rely as sources of intelligence.
It would be difficult to prove that information has in fact
been withheld from the Agency as a consequence of those mis-
givings, but the apprehensions have been manifested on
several occasions and a reluctance to entrust secrets to
the CIA would logically follow.
6. Legislative Relief
We submit that the CIA, as a foreign intelligence service,
is somewhat unique among U.S. Government agencies and that
legislative relief from the risks and burdens posed by the
FOIA is urgently needed. This relief could be achieved
through a number of legislative vehicles. Formal proposals
to this end will be forthcoming and Agency officials would
welcome an opportunity to consult with members of the Committee
as appropriate.
It is felt that total exemption from the FOIA is probably
neither desirable nor feasible. However, we believe that
the most sensitive information held by the Agency--including
that concerned with or resulting from technical collection
systems, espionage, covert operations, counterintelligence
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activities, security investigations, intelligence and security
liaison arrangements, and internal organizational and budgetary
matters--should be made unreachable under the FOIA. If
possible, we would also like to have raw, unevaluated intelli-
gence reports and cables--as contrasted with finished intelli-
gence studies and estimates--exempted from the access provisions
of the FOIA. Most of the information described above is
already covered by the existing exemptions of the FOIA. The
public would thus not be denied any significant amount of
information which would not now be withheld in any event
under the current FOIA exemptions, but the CIA would be
spared the necessity of using its scarce manpower going
through the legally mandated motions of searching its many
files, carefully reviewing relevant documents, and defending
its denials through administrative appeal and litigation
stages. Even more important perhaps, we would be in a
position to assure our sources that records revealing their
collaboration with the Agency would not be subject to
FOIA requests, thereby eliminating the risk of inadvertent
disclosure.
The above results could be achieved through legislation
describing or listing certain systems of records held by the
CIA which are exempt from the publication or disclosure pro-
visions of any other law. Another approach might be to
exempt the CIA from the requirement of searching its files
when the subject of an FOIA request pertained to specified cate-
gories of sensitive information or types of sensitive records.
The potential manpower savings to the Agency would be diffi-
cult to estimate at this time. Fewer searches would be
required, but CIA-originated records of an operational nature
and third agency records affecting CIA's equities would
still be surfaced by other agencies in responding to FOIA
requests and would therefore have to be dealt with by the
CIA. It is certain, however, that the resources required
of us to process FOIA requests received directly from members
of the public would be appreciably reduced.
In previous communications to the Committee, CIA
officials have questioned whether other provisions of the
FOIA were not in need of change. These provisions included
the right of foreigners to submit FOIA requests, the short
deadlines for responding to requests and appeals, the pro-
hibition against charging fees for reviewing documents,
and the lack of any restrictions over the scope of requests.
We continue to believe that these provisions warrant re-
consideration by the Congress. Legislative changes to remove
sensitive operational data from the purview of the Act, however
are of far greater importance to the Agency and should be
given priority.
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lOc.~i,)t in (TAB A)
etictcno!Jl?^'_'?
Trl s k I ri
OCR OTS Others
Jsj llDO
L
2t11' nci,'
Direct }.eply
Con-CIA Records
Co: :onent
to IPS I
IPS
preparation o~ }.ep1y
T_-
int~.1 Ccordin,'_tion j
;iailin~ I
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}.;P>UEST STATISTICS
1975
1976
1977
1978 (thru 15 Nov)
Requests
received
6609
761
1252.
1406
Granted
in full
300
148
167
161
Granted
in part
428
562
241
251
Denied
in full
174
122
95
114
,Iisc.*
4577
523
269
5137
Requests
received
552
2356
3023
1978
Granted
in full
4
154
195
159
Granted
in -art
3
404
520
469
Denied
in full
0
56
124
115
t lisc.*
189
1500
1559.
1116
Requests
received
232
374
568
398
Granted
in full
63
81
156
61
Granted
in part
o6
220
268
.93
Denied
in full
28
37
101
22
Hisc.*
5
6
11
12
Total requests recd
7393
3491
4843
3782
*ilise. category includes "no record available" and ,"no CIA record
available" responses; canceled and r:;ithdrac,m requests; requests referred
to other agencies; early appeals; etc.
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THE FEDERAL BUREAU OF INVESTIGATIONS'S EXPERIENCE
IN ADMINISTERING THE FREEDOM OF INFORMATION ACT
In the first three years under the amended FOIA the FBI was
inundated with more than 48,000 requests. Its small staff was unable
to cope and a sizeable backlog quickly developed which had reached
8,599 unanswered requests by July 1976, with processing delays of
up to twelve months. Beginning in late 1976, the FBI made a special
effort to reduce this backlog and improve the time required to
process requests.
A large number of special agents were reassigned from field
offices to FBI headquarters to work on FOIA. For a time there were
more people assigned to FOIA activities at FBI headquarters than were
on the staffs of 51 of the Bureau's 59 field offices. The backlog
was substantially reduced but at a high cost -- $9.2 million and 365
full time people in FY 1977 alone plus 282 special agents temporarily
assigned to eliminate the backlog. Unfortunately, with the return of
the special agents to their regular assignments, and in spite of
improved processing methods, the backlog is beginning to build up
once more.
The FBI is centrally organized to respond to FOIA requests. Only
a small percentage of the FOIA requests relate directly to the Bureau's
Foreign Counterintelligence (FCI) responsibilities other than the
Communist Party, USA, and no FOIA costs are included in the FBI's FCI
budget within the NFIP. Nevertheless the potential adverse impact on
the FBI's overall FCI program is significant, particularly with regard
to possible detection of sources.
The FBI foresees no reduction in its heavy FOIA workload, and
indeed believes it will continue to increase as it has in each of the
last three years. In addition to its concern with the cost of
processing these requests, the FBI has become increasingly alarmed
over the effect the Freedom of Information and Privacy Acts have had
on the Bureau's ability to carry out its basic mission -- specifically
the possibility that hostile foreign and criminal elements may be able
to pinpoint FBI sources through a careful examination of seemingly
innocuous but related documents. The FBI is considering several
proposals designed to achieve a better balance between public disclosure
and effective law enforcement, including preservation of national
security interests.
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Additional information on the FBI's overall experience with
FOIA is contained in the attached extract from the Comptroller
General's Report to the Congress of April 10, 1978.
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