LETTER TO MR. THOMAS K. LATIMER FROM (SANITIZED)

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Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 -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 Approved For Release 2006/08/02 : CIA-RDP81 M00980R000200.020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 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 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 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 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 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. Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 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, Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 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 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 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 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 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 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 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 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 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 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 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. Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2Q66!O8iG2-- C- Ilk-RDP 1 M00980R000200020001-7 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 Approved For Release 2006/08/02 : CIA-R?P81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81 M00980R0002000~9~R1- 7 }.;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. Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 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. Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 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. Approved For Release 2006/08/02 : CIA-RDP81M00980R000200020001-7 NC ~.U V r I I O W 4 U u U w C a a a O. 4. a p p ~~ O a O U 8 T U u 11 u '7 w 0 0 ++ O CL 'n > a O O O a s cd w O 0 u Vi c4 . O ti .c ri y u m 7 0 0 1-1 4 4 -1 7 Ci a u D H c4 - u u a1 4 m O. 4 4 u .y Jl u d . 0 o C. .^..-. G 1. EI O m w q u m m r r..-..-, r. r. u al u u 8 U . a ri N M L O O Q Q O g a O q m O O> r N 1 7 V 1 D O> O Ow3UAv..v " . FOF O a 0 0 UCExUF ar- 'O 0.uF F +4++i 44 -i ~ ra pS0 ti? a < as U A trt Ss. 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