PRM-29 ISSUES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP82M00591R000500030014-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 84
• Document Creation Date: December 16, 2016
• Document Release Date: May 31, 2005
• Sequence Number: 14
• Publication Date: July 8, 1977
• Content Type: MF

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8 July 1977
MEMORANDUM FOR: John N. McMahon
Acting Deputy to the DCI for the Intelligence Community
Chief, Security Committee
SUBJECT: PRM-29 Issues
1. Issues and options identified by the PRM-29 working groups have
been combined into a consolidated report (attachment) which was sent to
the co-chairmen of the PRM ad hoc committee on 6 July. The issues are
to be decided as definitively as may be during a three-day ad hoc com-
mittee meeting (13-15 July), with the resultant product being circulated
for formal department and agency comment.
Associate General Counsel, will represent the DCI at that meeting
will provide him back-up).
2. This memorandum is to summarize areas of apparent agreement,
and state known issues with recommendations for your consideration, as
they have evolved to date in the PRM-29 exercise.
a. The main thrust of PRM-29 opinion to this point would
continue all of the major elements of Executive Order 11652, but
impose criteria and standards where none are now provided and
make existing ones more stringent. This would permit depart-
ments and agencies concerned with national security matters to
continue to protect sensitive information, but will require
those who are directly concerned with classification matters
to give more time and attention to their actions than they now
have to. The desired effect of this is to make classifications
measurably more credible than they now are, and concurrently to
relieve some public pressure for more openness in Government
by setting up barriers to the classification of items of little
or no true sensitivity.
b. Working level agreement has been reached on these specifics:
(1) Oversight for the new security classification
system should be provided by an office within an existing
EOP component (e.g., OMB) and headed by a Presidentially
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appointed Director and Deputy. The Director is to chair
an interdepartmental advisory committee similar to the
present Interagency Classification Review Committee
(DCI represented thereon).
(2) A range of meaningful administrative sanctions
should be provided for use against those who willfully
abuse the classification system (wrongful declassifica-
tion as well as wrongful classification).
(3) Uniform secrecy agreements should be required
from all Government employees as a condition of access
to classified information.
(4) The term "national security" should continue
to be defined as the sum of national defense and foreign
relations matters.
(5) Specific classification criteria (i.e., des-
criptions of functional or subject areas requiring
protection) should be provided to determine classifiability.
At least one such criterion would have to be present for
information to merit classification. (The level would be
a separate function of the degree of damage expected from
disclosure.)
(6) Paragraph classification should be mandatory,
with exceptions for specific items permitted only with
approval of the new oversight body.
(7) Retain that section of E.O. 11652 which requires
effective protection of foreign classified information
provided the U.S.
(8) Prohibitions against improper classification
more specific than those in E.O. 11652 should be written
into the new Order.
(9) Heads of departments and agencies should be
directed to develop and use guidelines for declassifying
archival material. Such use must provide for effective
consultation with cooperating foreign governments on
their classified information held by us (there are some
differences on how this should be done).
(10) The new declassification system should:
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(a) divorce period of classification
from level (one effect would be to eliminate
the General Declassification Schedule);
(b) limit Secret and Confidential
classifiers to six-year maximum period of
classification;
(c) permit Top Secret classifiers to
extend classifications past six years for
specific, stated causes (comparable to present
exemptions);
(d) permit classification beyond 20 years
only on authority of a department head.
(11) Heads of departments and agencies should be
directed to budget for and provide adequate resources to
carry out provisions of the Order effectively.
(12) General declassification criteria should be
specified in the Order.
(13) The mandatory review provisions of the Order
should parallel those of the Freedom of Information Act
(FOIA) with respect to age of material to be reviewed
and to need to provide reasonably segregable portions
(but much more time than the FOIA stipulates would be
allowed for reviews).
c. The significant unresolved issues are:
(1) How extensive should be the appeals role of the new
oversight body? The majority view is that is should be
limited--i.e., to hearing appeals only on denials of declas-
sification from requested reviews of Presidential papers 10
or more years old. This view also holds that a decision
by the new body to override a departmental judgment will be
suspended for 10 days to allow the department or agency head
to appeal to the President's Assistant for National Security
Affairs. A substantial minority wants the new body to hear
and decide appeals on declassification denials under the FOIA
as well. This seems adverse to the interests of the Intel-
ligence Community--e.g., it would effectually undercut the
authority of department and agency heads for final classifi-
cation decisions; it would likely occupy most of the time of
the new oversight body, undercutting its intended role as a
useful forum for reviewing and developing classification
policy.
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RECOMMENDATION: That the DCI concur in the above
stated majority view of the appeals role for the oversight
body, and oppose any broadening of that role.
(2) What should the new Order state concerning
standards and procedures for determining trustworthi-
ness for access to classified data? This has been the
most controversial issue. Defense has argued vehem-
ently, supported by others, that the new Order should
require uniform standards for investigation and adjudi-
cation of persons for access to differing levels of
classified information. Their preferred option would
task a component of the Executive Office of the
President to develop and promulgate mandatory uniform
standards (two or three) for Government-wide use in
determining eligibility for access. Defense's intent
is to force an end to investigative procedures, such
as those prescribed in DCID 1/14, that they consider
to be unnecessary and burdensome when applied to
Defense personnel. The Intelligence Community has
consistently opposed the Defense push in this area,
not because of opposition to uniformity of standards
(which is a logical goal), but because the standards
Defense seeks seem quite inadequate to give minimum
assurances of trustworthiness and loyalty. Community
representatives in the PRM-29 forum have therefore
felt compelled to argue for the status quo, under
which each department and agency may amplify E.O.
10450 standards as deemed necessary. A status quo
position is probably not tenable. The broad exchange
of intelligence and other national security informa-
tion argues for uniform standards for access to the
same levels. The Community should be able to accept
such, provided they were commensurate with the level
of access and developed enough data to give a reason-
ably sound basis for confirming personal identity,
and for identifying character traits indicative of
trustworthiness and loyalty.
RECOMMENDATION: That if the status quo in this
area becomes untenable, the DCI approve a fallback
position under which the new Order would direct the
attainment of uniformity in standards for determining
trustworthiness for access to each of the levels of
Confidential, Secret and Top Secret, through the
development by the new oversight office, in consul-
tation with the departments and agencies, of standards
acceptable to all departments and agencies affected
thereby.
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(3) What provision should the new Order make for
compartmentation? At early PRM-29 meetings, members
were advised that a topic of very strong concern was
the perceived need to reform practices and procedures
on compartmentation. The Community is somewhat vul-
nerable here because it has no agreed, uniform criteria
governing the establishment and review of all its
compartments. We proposed criteria reflecting no more
than that which we regularly expect would be done--i.e.,
normal safeguarding procedures must be found inadequate
to protect the information; numbers of persons to be
permitted access to the compartment must be kept low;
and compartmentation controls must balance the need
to protect against needs to use the information. These
criteria found general acceptance, and were added to
at the suggestion of others to require department or
agency head personal approval for compartments, and to
impose a three-year "sunset law" concept on existing
and new compartments. The issue here is somewhat
artificial, with the distinction bearing on the DCI's
Community role. One option--which would require de-
partment head approval for compartments--would pre-
sumably limit the DCI's approval authority to the CIA.
The other--which strikes us as unworkable--recognizes
the DCI's Community role under his statutory responsi-
bility, but would require the National Security Council
to approve any other compartments (e.g., for Defense
operational plans).
RECOMMENDATION: That the DCI approve criteria for
compartments as stated above, and press for approving
authorities to be heads of departments and agencies, or,
for intelligence matters, the DCI.
(4) What provision should the new Order make with
regard to classification guidelines? PRM-29 lists this as
a specific topic for consideration. Two options are at
issue. One, favored by departments such as State which
have never developed or used classification guidance,
would have the new Order make the use of classification
guidelines optional. That approach is clearly contrary
to the thrust of other PRM-29 evolutions, which point
toward uniformity and specificity. The other would re-
quire the development and use of "general classification
guidelines by departments and agencies, and encourage
them to amplify such with specific guides." This would
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appear to satisfy the widely shared belief that the
availability and mandatory use of at least general
guidance should result in better and more credible
classifications. Agreement with that approach might
forestall attempts to require detailed classification
guides, which would be very difficult to develop for
the Intelligence Community.
RECOMMENDATION: That the DCI approve support of
the second option listed above.
(5) Should the new Order give special recognition
to intelligence information? A proposal, offered late
in the PRM-29 evolution, would have the new Order
authorize "special departmental arrangements," reference
statutory provisions which have some bearing on intel-
ligence (e.g., 50 USC 403(d)(3) with regard to sources
and methods, and 18 USC 798 with regard to COMINT), and
proscribe automatic declassification of such intelligence.
The object seems to be to focus attention on the special
sensitivity of such information. The object is laudable,
but the means seem likely to create problems. "Special
departmental arrangements" means compartments, which are
to be dealt with specifically by the new Order [see issue
(3) above]. Reference to them by another name in another
context would cloud the policy. Specific reference to
the statutes cannot give the information involved any
more status than it has now. It might invite unwelcome
attention to the fact that the statutes do not provide
for any specific protection for sources and methods
information or COMINT. (This is unlike the case for
Restricted Data, where the Atomic Energy Act provides for
statutory protection wholly apart from the national
security classification system.) Total exemption of such
intelligence information from automatic declassification
is unmanageable. We have been unsuccessful in defining
where intelligence leaves off and where, for example,
military operational or foreign relations plans pick up.
With the above in mind, it would be helpful as an aid in
bureaucratic infighting on classification to have the
President give some recognition of concern for the pro-
tection of sensitive intelligence.
RECOMMENDATION: That the DCI, one, oppose having the
new Order try to give intelligence a special status apart
from other national security information; and, two, approve
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having the new Order state the President's view that
intelligence sources and methods information is par-
ticularly sensitive, and his desire that it be
classified and declassified with particular care,
consistent with the overall provisions of the Order.
3. A matter of concern to the Community under PRM-29 is the
proposal to advance the date for automatic declassification from the
present 30 years to 20 years after origin. Most involved in the
PRM-29 effort apparently concluded that because the PRM asked for
consideration, inter alia, of "which categories of classified material
more than 20 years old could be declassified in bulk under appropriate
guidelines," the issue was settled. We don't agree. While we do
believe it likely that openness in Government constituencies will force
serious consideration of this proposal, we believe strongly that the
DCI should insure that the President and his immediate staff are aware
of the resources which would be needed to deal with this change, and the
consequences to national security should those resources not become
available. The proposal would instantly require all classified material
for the 1947-57 period to be declassified unless specifically authorized
for extended protection based on individual review. That review would
have to be stretched out over a number of years, and would be very ex-
pensive in terms of manpower. (The appendix to Tab F of the attachment
is an assessment of the problem by Archives--it gives a rough estimate
of $200 million for the review cost over a 10-year period.) That level
of resources would be competing with ongoing requirements in the devel-
oping budget. If it survived, it is by no means certain that the Congress
would appropriate it. (Witness what happened on resources used to handle
FOIA requests.) If the resources needed for the review fell measurably
short, some records within the 10-year period could not be screened,
but there would be no proper authority under the Order to continue to
withhold them from the public. The potential impact on sources and
methods, and on foreign cooperation, could well be disastrous. We urge
this be brought to the DCI's personal attention.
Attachment
As stated
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TABLE OF CONTENTS
ISSUE TAB
THE EXAMINATION OF THE ROLE AND EFFECTIVENESS OF
THE INTERAGENCY CLASSIFICATION REVIEW COMMITTEE. . . . . . . . . . A
WHAT KINDS OF DISCIPLINARY ACTIONS CAN BE TAKEN TO PREVENT
THE MISUSE OF THE SECURITY CLASSIFICATION SYSTEM BY
GOVERNMENT OFFICIALS . . . . . . . . . . . . . . . . . . . . . . . . B
HOW UNNECESSARY AND DUPLICATIVE PRACTICES AND PROCEDURES
CAN BE ELIMINATED, REDUCING EXPENSES . . . . . . . . . . . . . . C
WHICH INFORMATION REQUIRES PROTECTION AND FOR HOW LONG AND
WHAT CRITERIA SHOULD BE USED IN MAKING THIS JUDGMENT . . . . . ... . D
WHICH CATEGORIES OF CLASSIFIED MATERIAL MORE THAN 20 YEARS
OLD COULD BE DECLASSIFIED IN BULK UNDER APPROPRIATE
GUIDELINES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E
HOW TO PROMOTE INCREASED PUBLIC ACCESS TO INFORMATION NO
LONGER NEEDING CLASSIFICATION THROUGH A MORE RAPID AND
SYSTEMATIC DECLASSIFICATION PROGRAM. . . . . . . . . . . . . . . F
OVERLAPS BETWEEN THE NEW EXECUTIVE ORDER AND THE FREEDOM
OF INFORMATION ACT AS AMENDED AND THE PRIVACY ACT. . . . . . . . . . G
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ISSUE: ZHE EXAMINATION OF THE ROLE AND EFFECTIVENESS OF
THE INTERAGENCY CLASSIFICATION REVIEW COMMITTEE
The Interagency Classification Review Committee (ICRC) was established pur-
suant to Executive Order 11652 and its implementing National Security Council
directive. The Committee was established to assist the NSC in monitoring the
implementation of the Order and was specifically charged with: (a) over-
seeing Departmental actions to ensure compliance with the order and imple-
menting directives, (b) receiving and acting on complaints or suggestions
from within or without the government regarding the administration of the
Order, including appeals from denials of declassification requests, and (c)
developing means to prevent overclassification, ensure prompt declassifica-
tion and access to declassified material, and eliminate unauthorized dis-
closures.
Committee membership includes representatives of the Departments of State
Defense and Justice, the Archivist of the United States, the Central
Intelligence Agency, the Energy Research and Development Administration and
the National Security Council staff. Dr. James B. Rhoads, Archivist of
the United States, was appointed by the President as Acting Chairman in
April 1973. The ICRC is authorized a permanent staff of eight personnel
including the Executive Director. The staff draws its support, including
budgetary funding ($173,600 for FY 77), from the General Services Administra-
tion through the National Archives and Records Service.
In meeting its monitorship responsibilities, the ICRC has relied primarily
on a system of quarterly oversight reports from all Departments granted
original classification authority and on a system of detailed on-site pro-
gram reviews of Departmental implementation. ICRC program reviews entail
in-depth analysis of all facets of classification, declassification and
safeguarding procedures within Departments.
Significant progress has been achieved in restoring a balance between public
access to information regarding the affairs of government and protection of
official information in the interest of national security. While much of the
credit for this success must be given to-the progressive actions taken by
Departments, recognition must also be given to the fact that many. of the
actions were in response to ICRC oversight and reporting requirements. Exam-
ples of progress include: (a) classification authority reduction of over
76%, (b) a 65 percent reduction in unauthorized disclosures in CY 1976;
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(c) the granting in full or in part of 86 percent of all requests for
declassification review: (d) a 22 percent greater use of the Confidential
category as compared with the use of the more restrictive Secret and Top
Secret categories; (e) limiting exemptions from the automatic declassifi-
cation provisions to less then 25 percent of the information classified
in most Departments; (f) the declassification of nearly 200 million pages
of official records under the NARS declassification program since 1972,
and the declassification of millions of pages under separate Departmental
programs; and (g) demonstrated public confidence in the executive declas-
s?ification and appeal program by a 1+00 percent increase in the number
of requests for declassification review -- further substantiated by the fact
that only 3 percent of the requests have been appealed to Departmental
Review Committees and less than 0.6 percent have reached the ICRC appeal
level.
Still, much remains to be done to ensure more effective implementation.
The efforts of the oversight body can be enhanced by certain actions.
The appointment of a Chairman of national stature would publicly demon-
strate a commitment at the highest levels to the laudable goal of openness.
Similarly, the effectiveness of the oversight body would be enhanced by
the re-affirmation of the status of the body as an arm of the President.
Prior to September 1973, the Committee staff was phy^i..cally located in
the Old Executive Office Building and the Executive Director was a member
of the Domestic Council. In 1973, the staff was transferred both physically
and administratively to the National Archives. This downgrading of the
chain of authority from the White House or NSC has had a detrimental effect
on the Committee and its work as well as on the effectiveness of the
Executive Director in his relationship with Departments. The effectiveness
of the Committee has also been impeded by a lack of sufficient staff per-
sonnel to carry out the Committee's extensive responsibilities. Until late
1975, the entire staff consisted of only three personnel, including the
Executive Director. In August 1975, a senior program analyst was added and
in 1976, four additional members joined the staff. It was only after the
latter expansion of the staff that the detailed program reviews, which have
become the core of the Committee's monitorship program, were undertaken.
In considering the role and effectiveness of the 3CRC, the work group
examined the following significant factors:
(a) The degree of independence of the body, or at least the appearance
of independence from the perspective of the public.
(b) The location of the oversight body within the executive branch
hierarchy and its apparent degree of authority.
(c) The composition of the oversight body and the ability of Committee
members to make independent decisions.
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(d) Whether the oversight body should continue to accept and act on
appeals.
(e) Where overall monitorship responsibility should be placed.
(f) The degree to which the oversight body should be involved in
suggestions or complaints regarding executive branch administra-
tion of the order.
(g) Whether the functions currently performed by the ICRC could be
handled as effectively by an advisory board or a separate office.
(h) What additional functions should be assigned to the oversight body.
1. Abolish the ICRC. Establish a "Security Information Oversight Office"
within an existing office s of the Executive Office of the President
ii ving current general oversight over internal operations of the govern-
ment and a close relationship with the President, e.g., in the Office of
Management and Budget. Overall responsibility for monitoring, policy
direction and implementation of the Executive order shall rest with
the head of the selected E.O.P. Office. The Oversight Office shall
be headed by a Director and a Deputy Director appointed by the President.
Administrative support for the Oversight office shall be provided by the
selected E.O.P. Office. In addition, establish an "Interagency Security
Information Advisory Committee" comprised of current membership on the
ICRC which shall be chaired by the Director of the Oversight Office. The
functions assigned to the new Oversight Office shall be the same as those
currently assigned to the ICRC except that the new Oversight Office shall
act only on those appeals involving the declassification of 10 or more
year old material which is not subject to the provisions of the Freedom
of Information Act, as amended. In each such instance, representatives
of the Interagency Advisory Committee shall be requested to provide an
advisory opinion on the declassification or continued classification of
the material to the Director of the Oversight Office. In those instances
where the Director of the Oversight Office decides, based on the advisory
opinions to declassify the information, such action shall not take effect
for a period of 10 days, during which time the head of the affected
Department may appeal the decision to the President through the Assistant
to the President for National Security Affairs.
a. From the public perception would be a more independent and authori-
tative body than the current ICRC.
b. The course of action is more compatible with current plans for re-
organization of the Executive Office of the President.
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C.
This option provides a means for the public to appeal declassification
denials of that information which is not subject to the provisions of
the FOIA, as amended; e.g., Presidential materials.
d.
Eliminates the delays associated with action by Committee and will
permit more rapid monitorship actions.
e.
This option continues to permit the oversight body to draw upon
Departmental resources and expertise.
f.
Except for that information not subject to the FOIA, leaves the final
executive branch decision on appeals with the Departments. Further,
even in the case of the fb rmer, provides for advisory opinions by the
Departments.
This option retains an interagency forum for the exchange of views and
ideas on security information.
a. The elimination of the appeals functions on all but information
not subject to the FOIA may have a slight negative public impact.
b. This option does not provide as independent an appearance as would
be obtained by a separate office in the Executive Office of the
President.
2. Identical with Option 1 except that under this Option the-Security-
information Oversight office would be charged with all functions currently
assigned to the ICRC under E.O. 11652 plus responsibility for acting
on those FOIA appeals of Departmental denials involving the b(i) exemption submitted to the Oversight Office voluntarily by requesters.
a. Presents the appearance of a more independent and authoritative body
than the ICRC.
b. This course is more compatible with current plans for reorganization
of the Executive Office of the President.
c. Since this Option provides for the hearing of both Mandatory Review
and FOIA appeals it may be less, susceptible to public criticism than
Option 1.
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d. This Option also eliminates delays associated with Committee action.
e. Retains an interagency forum for the exchange of views and ideas
on security information.
f. Allows the Oversight body to continue to draw on Departmental re-
sources and expertise.
I
DISADVANTAGES:
a. Adoption of this course will require a significant increase in the
size of the Oversight staff, and consequently, in the selected
Executive Office of the President, in order to handle and
process the anticipated major increase in the number of F()IA appeals.
b. The course of action places the final decision on appeals with an
oversight body rather than with the heads of Departments.
c. In all probability, the majority of the effort of the Oversight
Office will be involved in the processing of appeals rather than
on substantive policy and monitorship matters.
3. Retain overall responsibility for oversight of the Information Security
Program in the National Security Council. Abolish the ICRC and hold the
head of each Department responsible for monitoring the implementation
of the program within his/her Department. Require Departmental reviews
and inspections and annual reports on program progress to a designated
NSC office.
a. The adoption of this option would place final authority in the head
of the Department where responsibility for classification actions
rests, rather than in an oversight body.
b. Implementation could be effected more rapidly since Departments would
not be required to submit implementing regulations to an oversight
body for approval.
c. Departmental reporting requirements would reduced to an annual basis
rather than semi-annual as now required.
d. A slight cost savings would accrue due to the elimination of the
current ICRC staff.
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a. There would probably be a negative public perception of this course
of action -- it would be viewed as retrogressive.
b. This course of action would contribute to a lack of standardization
in the application of information security procedures.
c. Experience shows that Departments will not allocate sufficient
resources to effectively implement the Order -- rather, resources
will be diverted to other programs or projects of greater immediate
interest to the particular Department.
d. The appeal function now handled by the ICRC would have to be elimi-
nated in the absence of an oversight body. Some other mechanism
would be required to hear appeals regarding information contained
in Presidential materials since such information is not subject to
the Freedom of Information Act, as amended.
e. No independent external group will be available by Executive action
to review, inspect or objectively analyze Departmental implementing
actions.
f. In all likelihood, a slight increase in the NSC staff will be re-
quired.
This course of action eliminates the Interagency forum for dealing
with mutual problems related to classified information.
h. This course of action is unlikely to contribute to greater openness
or better protection of national security information.
During the course of its deliberations the Sub-Group developed and considered
a number of possible options. There was consensus among the members that the
new oversight body should be placed in a major office within the Executive
Office of the President in order to provide the body sufficient authority to
carry out its monitorship functions. Similarly, there was agreement that the
Oversight Office should be needed by a Director and a Deputy Director appointed
by the President and that an interagency advisory committee should be esta-
blished. Members agreed that the Oversight Office should be charged with those
functions currently assigned to the ICRC with one major exception. This ex-
ception was a divergence of views on whether the Oversight should action
all appeals above the Departmental level, including MIA appeals involving the
b(l) exemption, or whether the Oversight Office appeal authority should be
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limited to only those appeals involving 10 or more year old material which
is not subject to the provisions of the 1TOIA, as amended; e.g., Presidential
materials. The Sub-Group recommends that the ad-hoc Committee consider
both Options 1 and 2 in arriving at its decision on the oversight body.
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ISSUE: What Kinds of Disciplinary Actions Can be Taken to Prevent the
Misuse of the Security Classification System by Government
Officials
DISCUSSION:
Executive Order 11652 expressly prohibits classification in order to
conceal inefficiency or administrative error, to prevent embarrassment
to a person or a Department or to restrain competition or independent
initiative. The Order also includes a general prohibition against
classification "... to prevent for any other reason the release of infor-
mation which does not require protection in the interest of national
security."The sole administrative sanction prescribed by Section 13 of
Executive Order 11652 is "administrative reprimand" and, it becomes
operative only for "repeated abuse." There are no specific sanctions
or range of sanctions for unauthorized release or disclosure of classi-
fied information. Classification and continuation of classification in
violation of the Order are not explicitly subject to administrative
sanction.
During the course of its deliberations, the Sub-Group examined the follow-
ing significant factors related to the main issue:
(a) The sufficiency of sanctions currently provided in Executive Order
11652.
(b) The need for criminal sanctions for extreme misuses, such as use of
classification to cover up criminal activities or gross mismanage-
ment.
(c) The question of whether the new Executive order should require that
each person who has access to classified information execute a
secrecy agreement as a condition of being granted access.
(d) Preventative methods such as disciplinary measures, civil fines,
criminal sanctions and increased use of polygraph tests.
The Sub-Group members were of the opinion that some sanctions are
desirable for unauthorized disclosures, and that the problem of prosecuting
those responsible for unauthorized disclosures may not necessarily result
only from an unwillingness to pay the price of enforcing existing statutes.
Rather, Sub-Group members agreed that existing statutes are generally not
applicable to all unauthorized disclosures, such as anonymous leaks to the
press.
Intelligence agencies have often refused, prior to any investigation-of
a leak, to declassify information determined to be essential for purposes
of prosecution. It was the:.opini6n of the Sub-Group members that t}iis
difficulty seems to be capable of resolution. They were persuaded that a
refusal to undertake any criminal investigation without an advance commit-
ment from the concerned agency to declassify this information not only may
preclude the taking of adequate measures to prevent further disclosures,
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but such policy very often may preclude fully informed and rational
determination of whether or not it is actually appropriate to declassify
such information or reveal intelligence sources and methods. The Sub-
Group members were of the opinion that investigations may often be neces-
sary for purposes unrelated to prosecution, such as to provide valuable
insight into the vulnerabilities of security procedures or into methods
for corrective management actions. Existing policy may often preclude
consideration of factors necessary to an informed decision of whether or
not to declassify.
During consideration of whether or not the new Executive order should
require each person who has access to classified information to execute
a secrecy agreement, the Sub-Group took cognizance of the following:
(a) The desirability and effectiveness of using secrecy agreements as a
means of preventing disclosure of classified information was dis-
cussed in detail in the PRM/NSC-11 subcommittee report.
(b) In Executive Order 11905, the President required all employees of
the executive branch and its contractors to execute a secrecy agree-
ment as a condition of obtaining access to information containing
sources and methods of intelligence.
(c) At present, most Departments and Agencies have executed agreements
to comply with Executive Order 11905 but there is some question as
to whether they are in full compliance. Exceptions are CIA and NSA
which already have secrecy agreement programs applicable to all
employees.
(d) Under the CIA and NSA programs an employee is required to execute a
secrecy agreement as a condition of employment, and other persons
execute such agreement as a condition of gaining access to classified
information.
Agencies which now use secrecy agreements would not like to see the new
Executive order contain any provision which would require their present
employees to reexecute a secrecy agreement. Some members preferred a
Government-wide uniform secrecy agreement as a condition of obtaining
access to classified information. No member was opposed to secrecy agree-
ments in principle.. However, one raised questions about their utility
as a preventative tool and felt that the beneficial returns from the use
of secrecy agreements are probably far less than the administrative burdens
and costs. He agreed that secrecy agreements may, in some instances, pro-
vide the Government with the legal vehicle of a civil injunction, but was
not of the opinion that it will deter those who are predisposed to dis-
closure and will probably be demeaning and, insulting to those who are not.
The usefulness of the secrecy agreement in seeking an injunction, according,
to one member, is perhaps even more limited since the Government will only
be able to seek this writ where it has prior knowledge of the planned dis-
closure, which will be the exception.
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The Sub-Group as a whole agreed that requiring the military, career Civil
Service entrants or present government employees to sign a secrecy agree-
ment as a condition to employment may not be legally possible. However,
the Sub-Group believes that requiring such persons to sign a secrecy
agreement as a condition of obtaining access to classified information
will not present any legal problems. The opinion was expressed that the
President has the power to impose such a requirement upon the military
as Commander-in-Chief of the Armed Forces, and upon career Civil Service
entrants and present government employees under 5 U.S.C. 3301 and 3302.
The question was raised: Since a secrecy agreement is a contract, where
is.the necessary consideration when the secrecy agreement is based upon
obtaining access to classified information? Members were of the opinion
that the Government's consideration is the employee's promise to safeguard
classified information and to refrain from disclosing the same, and that
the employee's consideration is the ascertaining of a job that requires
access to classified information, which he otherwise could not hold.
Also considered by the Sub-Group for inclusion in the Order was a provision
calling for liquidated damages or a civil fine. One member objected to
such a provision on the grounds that a civil fine could not be imposed
through an Executive order, rather it would require legislation. And,
while a liquidated damage clause probably could be included, it would be
awkward to enforce because of the difficulty of placing a value on the
classified information disclosed.
The Sub-Group considered the efficacy of the sanctions in Executive Order
11652 with respect to repeated abuse. The Sub-Group concluded that the
current prohibitions against classification and those relating to the con-
tinuation of classification of information not requiring protection in
the interest of national security are sound policy and should be included
in any superseding Order. Further, that the present sanction in Executive
Order 11652 is too narrow in terms of available sanctions, and is not
adequate to deal with the problems of misuse of the classification system
and unauthorized disclosure. Finally, the Sub-Group concluded that there
does not appear to be a need for specific criminal sanctions for viola-
tions of the prohibitions. In the extreme case that an obstruction of
justice is caused by a classification made for a prohibited purpose, the
criminal sanction which attaches to that offense could be invoked.
1. Retain the provisions of Section 13 of Executive Order 11652
and of Section X.D. of the NSC Directive of May 17, 1972.
Under this option Departments could continue present practices and systems
for enforcement of compliance with the operable provisions of the classi-
fication system.
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DISADVANTAGES:
a. This option allows for only a single relatively weak sanction which
becomes operative only for "repeated abuse."
b. This option does not provide for specific sanctions or a range of
sanctions for unauthorized release or disclosure of classified
information.
c. Classification and continuation of classification in violation of
the Order are not explicitly subject to administrative sanction under
this option.
2. Include in the Order provisions for administrative sanctions for
*willful origination or continuation of classification of information
in violation of the Order or an implementing Directive; willfully
releasing or disclosing or causing the release or disclosure of-
Classi-fied information in a manner not authorized by the Order or an imple-
menting Directive; or other violations of the Order as determined by
the head of a Department. Heads of Departments will specify the
provisions of the Order and implementing Directives for which violation
is subiect to administrative sanctions, and will specify the applicable
.schedule of sanctions in accordance with the major purposes of the
Order and the particular requirements of the Departments.
ADVANTAGES :
a. This option places proper emphasis on the importance of strict compli-
ance with Executive order standards and criteria for classification,
declassification and disclosure.
b. The strict compliance with classification standards and criteria which
would result from this option would probably result in the generation
of less classified material, earlier declassification of that infor-
mation, and more and earlier public availability of information
concerning the affairs of Government.
c. Administrative sanctions can be imposed more promptly and more surely
than criminal sanctions and at lower cost to the Government.
d. Responsibility for enforcement by use of administrative sanctions will
be in the heads of Departments, the officials to whom the Order
delegates authority for classification and responsibility for pro-
tection of classified information.
DISADVANTAGES :
a. Departments will be required to revise regulations pertaining to
enforcement of compliance with the Order and implementing Directives
and to revise security education and training activity and materials.'
* The Sub-Group contemplates that the term "willful" would be defined,
or that the Order would be drafted in such a manner that specific
intent could be inferred by a requisite. degree of negligent type conduct.
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3?
b. This option would probably result in a lack of uniformity among
Departments in the application of sanctions.
Include in the Order provisions for a r e of sanctions, e. g.,
rimand sus ension without pay, removal, which may be imposed
for Option 2 abuses or violations in accordance with applicable
law and Departmental regulations.
ADVANTAGES:
a. This option would tend to ensure the uniform application of sanctions
among the Departments.
b. This option would provide a range of sanctions.
Departments will be required to revise regulations pertaining to enforce-
ment of compliance with the Order and implementing Directives and to
revise security education and training activity and materials.
4. Include in the new Executive order a section which will require all
government employees to execute a secrecy agreement as a condition
of obtaining or continuing access to classified information.
ADVANTAGES:
a. Has educational value
b. Will serve as a deterrent.
c. Will allow the Government to seek a civil injunction
to prevent the disclosure of classified information.
DISADVANTAGES:
a. The administering of the program may outweigh its benefits.
b. The Government's ability to seek an injunction would probably
prove useless in most instances because it would not have prior
knowledge of the planned disclosure.
c. Most employees would probably find the requirement of signing such
an agreement insulting and demeaning.
5. Include in the new Executive order a section which will require the
use of a uniform secrecy agreement whereby they agree not to publish,
disclose or otherwise make available classified information to any
unauthorized person and that all government employees execute such
AA agreement e.s a condition of obtaining access to classified infor-
mation.
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a. Same as Option 4
b. Added advantage of reducing legal problems in attempting to enforce
the agreement because of its uniformity.
DISADVANTAGES: Same as Option It.
6. Include in the new Executive Order Q section which will require all
&avernment employees to execute a secrecy agreement as a condition
to obtain e to nt or continuing in their resent employment.
ADVANTAGES: Same as Option It.
DISADVANTAGES: Same as Option 4 but has added disadvantage that it could
present legal problems in attempting to apply it to the
military, career civil service entrants and present govern-
ment employees.
7. Include in the new Executive order a section which will require all
government employees to execute a secrecy agreement as a condition of
obtaining access to classified information, with a provision calling
for liquidated damages or -a civil fine.
ADVANTAGES: Same as Option 4 but also adds two additional deterrents
through the liquidated damage clause or a civil fine require-
ment.
DISADVANTAGES: Same as Option It. Also has the disadvantage that any
provision calling for a civil fine could not be mandated
by an Executive order, and would require legislation.
While legislation would not be. necessary in the case of a
liquidation damage clause, such a clause would prove awk-
ward to enforce because of the difficulty of placing a
value on the classified information disclosed.
RE7COANDATIONS: It is the consensus of the Sub-Group that there be included
in the new Executive order sections which would incorporate provisions as
set forth in Option 2 and in Option 3. Further, that a section be included
requiring all government employees to execute a uniform secrecy agreement
as a condition of obtaining access to classified information, as set forth
in Option 5. Additionally, that the new Executive order should continue
to direct that violation of relevant criminal statutes, e.g., 18 USC 793,
794 and 798, be referred promptly to the Department of Justice for investi-
gation and for prosecution as appropriate. ,
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ISSUE: How unnecessary and duplicative practices and procedures
can be eliminated reducing expenses.
DISCUSSION: In addressing this issue, it was agreed at the outset that
any options and recommendations which might evolve from
the Sub-Group's deliberations would not be based on cost
reduction exclusively. Rather, care would be exercised to
assure no significant lessening of security or, alternative-
ly, to assure in any event an acceptable level of risk.
Primary emphasis was placed on an examination of the
need for standardizing existing investigative requirements
for determining trustworthiness as well as the positive and
negative aspects of "compartmentalization." More specifi-
cally, the Sub-Group considered: (1) Executive Branch
guidelines for determining trustworthiness; (2) Executive
Branch guidelines for establishing compartments or special
access programs; (3) standard procedures for access to
compartmented classified information; and (4) the numbers
of people requiring access to various levels of classifi-
cation and the feasibility of reducing such numbers to the
minimum consistent with operational requirements and needs.
Although there may be differences among the Sub-Group
participants there are a number of concepts or premises
upon which there is a general consensus. Among them are
the following:
-- The levels of classification represent levels in
degree of sensitivity. Those may be related to
degrees of acceptability of risk, which in turn may
warrant differences in various aspects of a security
program, including scope of investigation, adjudica-
tion standards and criteria, and resolution of doubt.
Degree of risk, and the acceptability thereof, may
vary not only according to the level of classified
information but also according to the frequency of
access and the attendant control procedures.
The differences between suitability for employment in
general and trustworthiness for security clearance are
usually manifold and "so profound as to constitute a
generic distinction rather than mere differences in
degree. Unless access to classified information is so
inextricably involved in the very nature of a position,
the decision concerning security clearance must be con-
sidered separately from the decision concerning employ-
ment.
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A position may be sensitive in terms of the national
security for reasons other than requiring access to
classified information.
Although costs theoretically should not constrain
security procedures deemed necessary, in actual practice
they do. These and other factors dictate that the num-
bers of persons cleared for access to classified infor-
mation be held to the minimum necessary and that the
process of clearance be made as cost-effective as prac-
ticable.
There is value in uniformity among agencies, in both investi-
gative and adjudicative standards for like sensitivity levels.
Agencies may have different personnel information needs,
some of which may not be directly related to clearance
for access to classified material.
The efficacy of sources of personal background information
may vary over time, e.g., as public attitudes evolve, as
privacy concepts gain acceptance, or even as memories fade.
-- Analytical studies of the effectiveness of sources and
scope of investigation have been conducted by individual
agencies and, while some have resulted in tentative con-
clusions, few, if any, have yet gained unqualified
acceptance among the community of security specialists.
-- Some types of information of high sensitivity, such as
certain kinds of intelligence material e.g. Sensitive
Compartmented Information (SCI), certain aspects of
operational plans and.certain information concerning
operational systems, may require special restrictive
physical and procedural safeguards.
The current Order requires: "No person shall be given
access to classified information unless such person has been
determined to be trustworthy ..."(Sec.6(A))." The accom-
panying NSC Directive--explains: "No person shall be given
access to classified information or material unless a favor-
able determination has been made as to his trustworthiness.
The determination of eligibility, referred to as a security
clearance, shall be based on such investigations.as the
Department may require in accordance with the standards and
criteria of E.O. 10450 and E.O. 10865 as appropriate."
E.O. 10450, which prescribes standards and criteria for
all Federal civilian employment, including the sub-set of
persons having access to classified information requires
that the scope of investigation shall be determined in the
first instance by the relationship of the position to the
national security. Access to classified information of any
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sort makes the position sensitive. That Order does not
recognize degrees of sensitivity other than sensitive
(requiring a complete background investigation conducted
in person by trained investigators) and non-sensitive (re-
quiring at least a National Agency Check and written
inquiries (NACI).
The President directed in 1965 that the Civil Service
Commission make certain changes in the program. Among these
changes was one that distinguished two types of sensitive
position, (1) critical-sensitive which includes access to
Top Secret information (as well as certain other policy-making
criteria not directly related to classified information) and
(2) noncritical-sensitive, which includes access to Secret or
Confidential information. The full field investigation was
retained as the required coverage for critical-sensitive
positions but the coverage for noncritical-sensitive was
reduced, as a minimum, to the NACI, the scope previously
required for non-sensitive. Agency heads are permitted to
expand this minimum coverage on any employee, however, when
such action is considered "appropriate."
None of the various laws authorizing agency action in
matters of personnel security, such as P.L. 81-733 (5 USC 7311),
or the National Security Act (50 USC 403), provides any more
specific guidance concerning the scope of investigations or
the method of conducting them. The lack of specificity has
allowed the development of a wide variety of investigative
coverage among the various agencies, in terms of both years
covered and types of source contacted.
In order to highlight the variance in investigative
coverage among the Departments, it is well to compare the
investigative practices and procedures of the Department of
Defense Aich Department meets the minimum requirements of
E.O. 10450 for determining trustworthiness and the practices
and procedures of the Central Intelligence Agency (CIA)
which conducts more comprehensive investigations for the
same purpose.
The investigative scope used by the CIA in conducting
investigations on their employees includes, as a minimum:
(1) verification of date and place of birth and citizenship;
(2) check of the subversive, and criminal files of the FBI
(includes National Agency Check as appropriate); (3) check
of appropriate police records back 15 years; (4) verifica-
tion of financial status and credit habits back 5 years;
(5) neighborhood check back 5 years; (6) confirmation of
employment back 15 years; (7) verification of attendance at
educational institutions back 15 years; (8) review of
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appropriate military records; (9) interviews with knowledge-
able acquaintances back 15 years; (10) National Agency Check
of the spouse; and (11) a personal interview with the indi-
vidual. The requirement for this scope of investigation
plus a polygraph examination is based on CIA's considered
judgment that only such procedures will provide a significant-
ly high degree of assurance that career personnel, who are
exposed to large volumes of highly sensitive material over
extended periods, are indeed trustworthy.
The Department of Defense, on the other hand, has
adopted investigative practices and procedures which are
generally tailored to the level of sensitivity to which an
individual may require access in the performance of his
official duties. For example, the investigation used by the
Department for determining trustworthiness for access to the
highest level of sensitivity (Top Secret), is similar to the
CIA investigation, above described, except that the scope is
normally 5 years, as contrasted to 15, and there is no invest-
igation of the spouse. For military personnel, the Department
has accepted as a measure of trustworthiness for access to
Top Secret ten years continuous honorable active duty plus a
National Agency Check (NAC). With respect to those individuals
requiring access to Secret and Confidential information, a
NACI is generally the acceptable investigative standard for
civilians and a NAC for military. Notwithstanding, there are
some practical waiver considerations. For example, a company
under contract to any Department or Agency involved in the
Industrial Security Program may grant access to Confidential
information related to the performance of that contract with-
out a NAC * (There are 16 Departments and Agencies of the
Executive Branch participating in the Industrial Security
Program). It is the Department of Defense view that its
investigative practices and procedures for determining trust-
worthiness are practical, cost-effective and productive.
Notwithstanding, there were differences of opinion among the
Sub-Group members on whether the exclusive use of a NAC
constitutes an effective investigative technique for deter-
mining trustworthiness.
In addition to the standard DoD investigative practices
and procedures, above described, there are more restrictive
investigative requirements imposed on the DoD by the Director
of Central Intelligence for determining trustworthiness of
DoD personnel requiring access to Sensitive Compartmented
Information (SCI). These involve the conduct of a Special
Background Investigation similar in scope to that conducted
for employment in CIA. In the DoD, this investigative re-
quirement is applicable to approximately 114,000 Defense
personnel and necessitates the allocation of over 50% of
the Department's investigative resources to clear only 10%
of the total DoD personnel requiring clearance for access to.
classified information. The problems of the DoD in meeting
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these added investigative requirements are compounded by
the fact that Congress directed a FY 76 cut in the Defense
Investigative Service personnel spaces of 664 out of a
total of 2,470. Moreover, the Congress is continuing close
scrutiny of the entire Executive Branch personnel investi-
gative effort.
Other Departments and Agencies of the Executive Branch
which conduct investigations to gain data on which to base
a determination of trustworthiness utilize different scopes
of investigation for different levels of access which vary
between the minimum requirements adopted for Defense use and
the maximum for CIA use. The costs expended by each Depart-
ment for the single purpose of determining trustworthiness
for access to classified information are commensurate with
the techniques employed. For example, cost to the government
for a NAC conducted by the Department of Defense for deter-
mining access to Confidential and Secret material is approxi-
mately $10. Cost for a DoD background investigation (5-year
scope) for determining access to Top Secret is $325 and that
for access to SCI (15-year scope) is $395. This compares
with a cost of approximately $1,000 for a background invest-
igation conducted by the Federal Bureau of Investigation or
approximately $700 by the Civil Service Commission. It is
apparent that any determination to standardize investigative
and adjudicative procedures must consider the cost impact
of such a move. A decision to broaden the scope to require
a full field investigation on just those DoD personnel
currently cleared on the basis of a NAC would result in a
32 fold cost increase. The question remains as to whether
the expenditure representing the difference between the
less restrictive treatment and the extreme is justified
and whether that difference buys the U.S. any better security.
There is general consensus that investigative practices
and procedures in use across the Executive Branch should not
be standardized for standardization sake. Rather, any
attempt to bring about standardization should have the
objective of:
carrying out more effectively and equitably the opera-
tions of the Government's personnel investigative and
security programs;
promoting greater uniformity in providing safeguards
for the rights of individuals with due regard for the
interests of the Government;
facilitating the reciprocal use of security clearances
among agencies of the Executive Branch;
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assuring that the adoption of such standards would
involve a mutually acceptable level of risk and pro-
tection; and
-- promoting cost effectiveness
It is considered that each Department in the Executive
Branch which currently employs a particular investigative
security practice and procedure to accommodate its needs
will have the tendency to support and fully Justify its use.
Under these conditions, a review of existing investigative
security practices and procedures for purposes of standardi-
zation is thought to be best undertaken by an office above
the Departmental level with authority to resolve any conflicts
which may arise between Departments.
The scope of investigation for determining trustworthi-
ness is, of course, only one aspect of assuring personnel
reliability. An equally important aspect is that supervisors
at all levels of supervision be continually cognizant of
their employees' behavior in order to assure the detection
of changes in habits and character which may adversely affect
their status with respect to the safeguarding of classified
information. In this connection, there is evidence that
hostile espionage has successfully recruited personnel in-
vestigated and cleared for SCI access as well as those with
collateral clearance.
The next principal area of discussion focuses on the
matter of "compartmentalization."
As near as can be determined, the first use of compart-
mentalization occurred in the Manhattan Project. The use
of compartments, in all likelihood, then spread to the area
of cryptologic matters and since, the concept has been
widely used in the areas of intelligence, operational planning
and in the scientific and technical arena.
Compartmentation appears to come about because of the
view that the total body of information involved is more
sensitive, regardless of the classification level to which
it is assigned, than that which is classified at the same
level outside the compartment. In this connection, the
view was expressed that information classified, for example,
at the Secret level will cause, by unauthorized disclosure,
the same degree of damage to the national security regard-
less of the substance. Some members took the position that
within the ambit of the classification "Secret," there are
gradations of sensitivity. The resolution of this matter
has a bearing on the establishment of compartments.
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Special access procedures are supplements to the normal
administration of the classification system and are designed to
provide additional means of limiting and enforcing access to and
use of the information involved. They include but are not limited
to such things as access lists, restricted areas, and "special
clearances." Executive Order 11652 sanctions the use of such
special procedures but does not establish any specific tests for
such use or require periodic review and revalidation of procedures
in effect.
The number of compartments currently established in the
Executive Branch is not fully known. What is known is that
compartments do exist and they vary widely in size and scope.
The best estimate is that in the SCI area, approximately
200,000 people are required to have an "access authorization"
based on information gathered by utilization of the investigation
prescribed in DCID l/14. The Department of Defense, alone, has
114+,000 people cleared for access to SCI.
Some members expressed the view that many current compartments
appear to have an unreasonable number of personnel involved. Thus,
the question remains whether those compartments wherein access is
permissive to such large numbers of personnel serve the intended
purpose of limiting dissemination to the minimum number of persons
having an absolute need-to-know. Also to be resolved is the
question of whether those people who have an immediate need for
SCI or other compartmented information and who have been found
trustworthy through a Background Investigation, are unduly in-
hibited in performance of their official duties because they are
not certified for access to those compartments.
Some believe that the widespread use of compartments and
the stringent access controls associated with them has inadvertently
denied high level officials in the Executive Branch information
which may be needed by them to develop viable options in their
wide areas of functional responsibility. They also encounter
problems in initially identifying the compartmented areas and the
substance of them due to the fact that there are few, if any,
central offices in which the compartments are recorded and described.
For example, if the President needed immediate information concern-
ing a particular subject matter which information may be compart-
mented, his staff would be hard pressed to identify the compartment
in which the information is contained.
Time constraints did not permit the Sub-Group to fully explore
all aspects of the physical safeguarding procedures and practices
which are designed to protect information against unauthorized dis-
closure. The members did consider the feasibility of reducing the
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numbers of people which have been determined to require
access to various levels of classification to the minimum
consistent with operational requirements and needs. In
this connection, there was consideration of need for a
provision for requiring that heads of departments assure
that a demonstrable need for access is established prior
to the issuance of clearances.
OPTIONS: FOR DETERMINING TRUSTWORTHINESS
OPTION 1:
Continue to permit heads of Departments of the Executive Branch to determine
scope of investigation., in conformance with Executive Order 10450, for pur-
poses of determining trustworthiness of individuals for access to classified
information.
ADVANTAGES:
a. No additional Presidential action required.
b. No need to issue new Executive Branch regulations.
c. Each department/agency retains flexibility.
d. Not necessary to reeducate/retrain implementing personnel.
DISADVANTAGES:
a. E.O. 11652 does not establish procedures for determining trust-
worthiness.
b. Some investigative scopes contain redundancy and duplication.
c. Some investigative scopes are very expensive.
d: Reciprocal acceptance of clearances will be jeopardized.
e. Acknowledges inability of Executive Branch agencies to agree on
investigative standards.
f. Individuals having access to the same degree of sensitivity of
classified information will continue to be investigated to different
degrees in the various agencies of the Executive Branch.
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g. With respect to military personnel, investigative agencies lack a clear
Presidential mandate, required by the Privacy Act of 1974, to collect criminal
history record, education, credit and other similar record information required
to make a personnel security determination with respect to access to classi-
fied information.
OPTION 2:
Designate an office in the Executive Office of the President to develop
and promulgate standards for uniform application across the Executive Branch
for scope of investigation and for adjudication of results, including due
process safeguards,to determine trustworthiness of individuals for access
to TOP SECRET, SECRET and CONFIDENTIAL information regardless of its substance.
ADVANTAGES:
a. Decision establishing the standard will be made above Department/Agency
level thus eliminating parochialism.
b. Uniformity will be achieved in all Departments/Agencies.
c. Simplify administration.,
d. More effective utilization of investigative resources.
e. Enhances public understanding and acceptance of Federal Personnel
Security Program.
f. Avoids criticism of current procedures under which trustworthiness for
Top Secret is not accepted for access to compartmented information.
Reciprocity of clearance will be assured.
h. Investigative standards will be limited to three (one each for
Confidential, Secret and Top Secret).
i. Relates investigative procedures to the three levels of sensitivity
(i.e., Confidential - minimum level investigation, Secret - intermediate
level investigation and Top Secret - maximum level investigation.)
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DISADVANTAGES:
a. Does not recognize the long-standing policy assigning compart-
mented information a higher level of sensitivity than Top Secret.
b. Denies individual Department/Agency flexibility.
OPTION 3:
Designate an office in the Executive Office of the President to develop
and promulgate standards for uniform application across the Executive
Branch for scope of investigation and adjudication of results, including
due process safeguards, to determine trustworthiness of individuals for
access to SECRET and CONFIDENTIAL (one standard) and TOP SECRET (another
standard).
ADVANTAGES:
Option 3 has substantially the same advantages as Option 2 except that
there will be only two standards for determining trustworthiness.
DISADVANTAGES:
Option 3 has substantially the same disadvantages as Option 2;
additionally, it requires the same level of trustworthiness for SECRET and
CONFIDENTIAL although they are two distinct classifications.
OPTION 4:
Designate an office in the Executive Office of the President to develop
and promulgate standards for uniform application across the Executive Branch
for scope of investigation and adjudication of results, including
due process safeguards,.to determine trustworthiness of individuals for
access to SECRET and CONFIDENTIAL information (one standard), TOP SECRET
(another standard), and especially sensitive information within the ambit
of TOP SECRET (a third standard).
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ADVANTAGES:
a. Decision establishing the standard will be made above department/
agency level thus eliminating parochialism.
b. Uniformity will be achieved in all departments/agencies.
c. More effective utilization of investigative resources.
d. Reciprocity of clearance will be assured.
e. Will assure that the most sensitive information (intelligence
sources and methods and other currently compartmented information) will
be afforded the highest security standard without establishing a new
level of classification.
f. Compartmented information currently classified CONFIDENTIAL and
SECRET will no longer require the highest level investigation thus signi-
ficantly reducing investigative costs.
g. Cost savings will be further achieved by not requiring the highest
level of investigation for that TOP SECRET information which is not
currently compartmented.
DISADVANTAGES:
a. Ignores the three level classification system.
b. Tends to downgrade the sensitivity of regular TOP SECRET infor-
mation.
c. A new two level TOP SECRET trustworthiness standard (including
a "super" TOP SECRET) would confuse both the public as well as government
personnel and could invite criticism from both the Congress and the press.
d. Complicates the investigative process for TOP SECRET by requiring
two separate investigative scopes for TOP SECRET.
e. Complicates the adjudicative process for TOP SECRET by requiring
two separate clearance standards for TOP SECRET.
f. Requires the same level of trustworthiness for SECRET and CONFI-
DENTIAL although they are two distinct classifications.
NOTE: If Option 2, 3 or It is adopted, it would be understood across the
Executive Branch that once an individual is cleared for access to
a particular level of classification, that clearance would be
reciprocal among agencies.
11
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OPTION 5:
Same as Option 2 through 4 except that all Confidential clearances under the
DoD Industrial Security Program would be granted by the government.
ADVANTAGES:
a. Uniformity would be achieved in that all individuals, contractor and
government, would be cleared at the Confidential level on the same investiga-
tive basis.
DISADVANTAGES:
a. Would create a significant disruption in defense contractor facilities,
resulting in costly delays in contract performance, because new employees could
not be utilized on Confidential work for over two months after they are employed
and brought on board. The Government would incur additional liability to its
contractors in that contract overhead costs would increase in a range of $120
million to $180 million annually.
b. The change would invoke the ire of industry and be criticized as increased
bureaucratic involvement in the private sector. It would significantly impinge
upon industry's ability to perform contracts in an effective, efficient and
timely manner.
c. Increase the security clearance workload of the DoD Industrial
Security Program approximately 50%.
d. Would place an additional investigative burden on the Defense Investi-
gative Service.
OPTION 6:
Same as Option 2 through 4 except that Confidential clearances would continue
to be granted by the Contractor.,
ADVANTAGES:
Converse of Disadvantages under Option 5.
DISADVANTAGES:
Converse of Advantages under Option 5.
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OPTION 7:
Same as Option 2 through 4 except that the standards would be established
in the new Executive Order.
ADVANTAGES:
a. Places the full authority of the Presidency in support of
standardization.
b. With Presidential authorization, investigative and adjudicative
procedures would be less vulnerable to legal challenge.
c. With Presidential authorization, investigative agencies would have
a strong legal basis for collecting criminal history records, eduction,
credit and other similar information required to make personnel security
determinations.
DISADVANTAGES:
a. Difficulty of change once the new Order is issued.
b. Would add to the length of the Order.
c. If the Order were to detail investigative and adjudicative standards,
the difficulty in obtaining interagency agreement would delay issuance of
the Order significantly.
d. Existing problems in the conduct of traditional personnel security
investigation requires thorough research and analysis, developed in
coordination with all major departments, before specific details are locked
in an Executive Order.
OPTIONS: FOR COMPARTMENTATION
OPTION 8:
Continue to permit heads of Departments to make special departmental
arrangements for compartmentation as provided for in Section 9 of Executive
Order 11652.
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ADVANTAGES:
a. Maintains continuity with current practice.
b. Permits sensitive information to be protected by means supple-
mental to those provided by the classification system alone.
DISADVANTAGES:
a. Provides no uniform criteria against which system compliance with
national security objectives can be monitored.
b. Continues the high costs, both in terms of resources and of limits
on availability and use of information, inherent in the present large
number of wide-ranging special access procedures.
c. Perpetuates present variations between procedures on extent of
access and use restrictions for information of comparable sensitivity.
d. Gives no positive assurance that special access procedures will
be kept up-to-date.
OPTION 9 :
Eliminate all compartments in'the Executive Branch of government and in
their place provide in the Executive Order for strict enforcement of the
need-to-know principle by placing responsibility on the custodian to deter-
mine that the intended recipient has a need-to-know and has been determined
to have been found trustworthy.
ADVANT?GES
a. Simplifies the administration of the system to protect national
security information, by making clearance and need-to-know the sole
criteria for access to any protected information.
b. May broaden working level access to information heretofore
denied it.
DISADVANTAGES'
a. Fails to recognize that there is some information which is of
such sensitivity that access to it must be strictly limited, beyond the
extent achievable through normal safeguarding procedures.
b. Denies senior national security officials a means to enforce very
limited access for sensitive information of high-level concern..
c. Would likely prompt the use of informal arrangements to restrict
access, thus undermining faith in the system.
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d. Would, in some cases, be in violation of agreements with allies
calling for the protection of specified information by special access
controls.
e. Risks foreign sources of intelligence refusing to cooperate with
the U.S. for fear that our system would be unable to protect their
identity and working relationship.
QPTION 10:
Establish standards for the creation or continuation of compartments
or.special access programs. Such standards would require that all special
access programs be created or continued only by the authority of a head of
a Department, personally and in writing. Moreover, such special access
programs shall be created or continued only on the specific showing that:
(1) Normal safeguarding procedures are inadequate to protect the
information.
(2) The size of the compartment (numbers of people requiring access)
is reasonable and is limited to the absolute minimum.
(3) The special access controls balance the need to protect the infor-
mation against the full spectrum of needs to use the information.
(1k) Further, all such special access programs shall automatically
terminate after three years unless renewed in accordance with the above
procedures.
ADVANTAGES:
a. Permits supplemental protection of very sensitive information
within the bounds of the classification system.
b. Should reduce the number and extent of current special access
programs, thereby better protecting that which remains within such pro-
grams and generating cost savings.
C. Insures, through very senior-level review and approval, that
the respective needs for protection and utility are fully balanced. In
the process, helps national security planners to be more aware of what
information is available through what channels.
d. Insure that special access programs are regularly reviewed, and
kept up-to-date or cancelled as circumstances dictate.
e. Provides uniform criteria against which departmental compliance
can be monitored.
DISADVANTAGES :
a. Will involve effort in re-examining and possibly changing existing
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b. Will require some additional effort in periodic reviews.
OPTION 11:
Require that special access programs be created only by authority of
the National Security Council and/or the DCI (as appropriate) under the
same criteria as in Option 8 above.
ADVANTAGES:
a. Permits supplemental protection of very sensit ive information
within the bounds of the classification system.
b. May reduce the number and extent of current special access programs.
c. May help the highest level of national security planners be more
aware of what information is available through what channels.
d. Should insure that special access programs are reviewed and kept
up-to-date.
DISADVANTAGES:
a. Will require the most senior U.S. national security forum to involve
itself in administrative matters that can be better adjudicated at the
departmental level.
b. May result in uneven protection for very sensitive information,
because the extremely senior review and approval level may not have time
to consider all pertinent aspects of proposed programs.
c. Undercuts the responsibility of department heads for determining
what information requires protection.
d. Divides responsibilities of whatever oversight office for the
information security program is created by the new Executive Order
between the NSC/DCI and that office.
OPTION 12:
Include in the new Order provisions which require that heads of Departments:
a. Take action necessary to insure that number of people granted access
by his Department to each level of classification be reduced to and main-
tained at the minimum consistent with operational requirements and needs.
b. Assure that a demonstrable need for access is established prior to
initiation of action required for any clearance for access to classified
information after the effective date of the new Order.
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ADVANTAGES:
a. Will insure that access to classified information is limited to
the minimum numbers of persons necessary thus reducing the risk of com-
promise.
b. Strict enforcement will bring about cost avoidance.
c. Strengthens the "need-to-know" principle.
DISADVANTAGES: None.
OPTION 11:
Include in the new order a requirement that heads of Departments cause a
continuing review of safeguarding practices and procedures with a view to
eliminating those which are found to be duplicative and unnecessary.
ADVANTAGES:
a. Consistent with mandate of PRM/NSC-29.
b. Effective implementation should result in cost reduction without
loss of security.
c. Effective implementation should result in simplification.
DISADVANTAGES: None.
OPTION 14:
Include a specific provision in the Order which would authorize the obtaining
,of criminal justice information from Federal, State, and local law enforce-
ment agencies as an integral part of the scope of investigations required
for determining trustworthiness pursuant to the Order.
,ADVANTAGES:
a. Establishes Executive Order authority for the collection of such
information.
b. Diminishes possibility of legal challenge to the collection and
use of such information.
c. Should have a favorable effect on the shaping of state and local
statutes and policies with respect to release of such data.
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d. Would serve to rectify the misunderstanding currently existing
at state, local and institutional level as to the authority for, need and
use of such data.
e. Would serve as a basis for revision of LEAA regulations relating to
.criminal history records which would further enhance state and local agency
cooperation.
DISADVANTAGES: Same as Option 7.
NOTE: This option was introduced by one department and not considered in
group deliberations. Supporting rationale is presented at the
asterisk below.
RECOMMENDATION:
Concerning the trustworthiness options, there appears to be consensus that
if standardization of scope of investigation and adjudication practices is
brought about, it would be through the adoption of Options 2 thru 4 rather
than by prescribing standards in the new Order as outlined in Option 7.
Notwithstanding, there appears to be a clear consensus in the intelligence
community to adopt Option 1 (status quo).
Concerning the compartmentation options, the consensus of the group is to
favor Option 10. There appears to be consensus in favor of Options 12 and 13.
*The Privacy Act of 197+ prohibits the release of certain
personal information unless the requirement for such infor-
mation is grounded on statutory or Executive Order authority.
Exceptions in the statute have been made, however, with re-
spect to law enforcement agencies. Unfortunately, the term
"law enforcement agencies" does not reach to Executive Branch
organizations which are engaged primarily in the collection of
personal data required to make personnel security determina-
tions. The Law Enforcement Assistance Agency has issued regu-
lations which were intended to facilitate the collection of
such required personal data by non-law enforcement agencies
requiring the data for personnel security determinations.
However, in the absence of specific enabling language set
forth either in public law or Executive Orders, there has
been considerable misunderstanding at state, local and insti-
tutional levels with respect to the-authority to collect, and
the need for, and use of such information by non-law enforce-
ment agencies conducting essentially personnel security
investigations. Clearly establishing the requirements of the
Executive Branch for such information in an Executive Order
would facilitate the collection of this personal data which
is vital to the adjudicator in making personnel security deter-
minations.
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Company Granted Confidential Clearances
Background and Cost Impact Data
In the early 1950s, the concept was introduced which permits
the contractor to issue Confidential clearances to other than
Top Management personnel. The procedure was needed so as to
permit industry to immediately utilize the services of new
employees on Confidential work, avoiding the delays encountered
in connection with a normal Government investigation for issuance
of clearance. Additionally, this procedure provided significant
relief to the already overtaxed investigative resources of the
Department of Defense.
The theory which supports the concept is that the contractor, in
conjunction with the normal preemployment screening, will develop
pertinent information concerning the individual. The contractor
is precluded from issuing a Confidential clearance if he becomes
aware of any information which would indicate that clearance is
not "clearly consistent with the national interest." Additionally,
the employee must execute a form, answering certain questions
pertinent to clearance. Where these questions raise an issue with
regard to credibility, again the contractor may not issue the
clearance, and the case must be referred to the Department of Defense.
The current national trend of providing better protection to
individual privacy is making it increasingly more difficult for
employers to conduct preemployment inquiries and this, in turn,
reduces the effectiveness of preemployment screening.
In the mid-1950s, a pilot test was conducted. Fifty thousand
company-Confidential clearance cases were selected at random and
National Agency Checks were conducted. As a result of an analysis
of these 50,000 cases, it was determined that reliance on the
contractor's normal employer-employee relationship as the basis for
the issuance of a Confidential clearance was sound from a security
standpoint. Hence, the program has been continued.
It has been variously estimated that if a new employee is hired to
perform on classified work, it will cost the contractor between $50
and $70 a day for each day a security clearance request is pending,
since the employee cannot be fully utilized without having access .
to classified informationiclearancesaare issuedapproxi-
mately 60,000 new company-Confidential
year, indirect cost to the Government in the form of contract over-
head would result in an annual expenditure of between $120 million
and $180 million per year, if the company-Confidential clearance
concept were to be discontinued.
Appendix
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In addition, there would be an increased work load of approximately
50 percent in the number of cases now handled by the DoD Industrial
Security Program. First year costs would be significantly higher
for Government processing and investigations, because there are
approximately 300,000 contractor personnel currently cleared with
company-Confidential clearances.
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ISSUE: Which information requires protection and for how long and
what criteria should be used in making this Judgment.
DISCUSSION: So much of the assigned issue which concerns how long
information should be protected was not addressed by this
Sub Group. That matter is being considered by the
Sub Group reviewing the issue of how to promote increased
public access to information no longer needing classification
through a more rapid and systematic declassification program,
Sub Group C/D-3.
In its deliberations, the Sub Group considered a wide
range of factors related to the issue involved. These
included but were not limited to: need for expression of
specific criteria for classification; need for expression.
of absolute prohibitions against classification of certain
information or for certain purposes; re-examination of
the scope of the. term "national security"; need for
revision of the classification categories; usefulness of
paragraph classification marking; and usefulness of
classification guidelines as a means for achieving uniformity
in classification.
In considering whether the three categories of classifi-
cation, i.e., Top Secret, Secret, and Confidential, as
established by E.O. 11652 are adequate, the view was
expressed that these categories are now well recognized
throughout the United States Government, defense industry,
and in the international community. It was also concluded
that it was inadvisable to consolidate the three categories
into two because that would result not in appreciably less
classification, but rather in information previously classified
as Confidential merely being classified as Secret. Also
rejected was the idea that the Executive Order permit
Department and Agency heads to adopt a fourth category
of information which could be protected on grounds other
than national security, such as, for example, that unclassified
information now categorized under Departmental regulations as
"FOR OFFICIAL USE ONLY" and "LIMITED OFFICIAL USE." It was
felt that this body of material does not belong in an Order
dealing with national security information and could create
the impression that the government was seeking to protect more
information in a new Order than under E.O. 11652.
Also considered was the language of the test for assigning
information to a classification category. That test is that
the unauthorized disclosure of the information involved could
reasonably be expected to cause a degree of damage to the
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national security. It was the consensus of the Group that this
test has withstood examination in the courts and there appears
to be no need for changing it. However, some members felt it
might be appropriate to include language in the new Executive
Order which would make clear that, in order to classify
information, the classifying authority must satisfy himself
that more than a modicum of damage could reasonably be expected
from unauthorized disclosure. A suggested way to accomplish
this would be to modify the definition of the standard for
Confidential by including words such as "appreciable," "signifi-
cant," or "demonstrable."
With respect to the collective term, "national security,"
as used in E.O. 11652, i.e., "the national defense or foreign
relations of the United States," the Group considered whether
the scope of that term should be expanded. Some consideration
was given to the need for including in the term "national
security." in addition to information concerning foreign
relations and national defense, information concerning other
subject matters which might be considered as deserving
protection against unauthorized disclosure such as, for
example, information concerning terrorist activities, narcotics,
trade secrets, etc. The view was expressed that to the extent
that any subject matter information is information concerning
national defense or foreign relations, it is within the ambit
of the term "national security" and, to the extent that
unauthorized disclosure of such information would cause
damage to the national security, may be classified and afforded
protection in accordance with the present Order. It was
further viewed that any information concerning such things
as narcotics or terrorist activities which does not also
concern national defense or foreign relations would not
qualify for security classification protection in the interest
of national security. The observation was made that some
narcotics or terrorist information, not protectable pursuant
to the Executive Order, might qualify under the terms of the
Freedom of Information Act or other statutes for protection
or withholding from public release. In connection with this
matter, the question was also raised as to whether the
President's constitutional authority to protect information
in the interest of national defense and foreign relations could
be extended to protect information not related to those
governmental functions. Resolution of this question was not
undertaken by the Sub Group.
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low"
Considered at great length was the matter of whether a
new Order should require that classification of decisions by the
Executive Branch weigh the relative merits of public disclosure
of the information against the interests of national security.
Some members had reservations concerning inclusion of a
"balancing test" in a new Executive Order. The basis for this
concern appeared to be that original classifiers who are well
qualified to arrive at determinations based upon damage to the
national security alone, may not be equally qualified to consider
the advantages of public disclosure. Moreover, the view was
expressed by some members that the courts, in adjudicating
whether a classification complies with the Order, would demand
that the government give a clear showing that the "balancing
test" was made in each and every case where original classifi-
cation is involved. This could adversely affect the presump-
tion in favor of classification protection that the government
generally enjoys in Freedom of Information Act litigation.
Others expressed the view that the inclusion of the "balancing
test" in an Executive Order should lead to more careful
classification decisions and might, in fact, result in reducing
unnecessary classification, thereby making more information
available to the public.
The Croup examined the need for the Executive Order to
express specific criteria for classification. Executive Order
11652 does not include such criteria but does provide examples
of the kinds of information which qualify for protection
against unauthorized disclosure in each of the two highest
classification categories; Secret and Top Secret. In a new
Executive Order, the expression of specific classification
criteria would be in lieu of the examples and would apply to
all information concerning national defense and foreign rela-
tions. For example, information would be classified if its
disclosure would "weaken the position of the United States in
the discussion, avoidance or peaceful resolution of potential
or existing international difficulties" and thereby cause some
degree of damage. The criteria would be broad enough to cover
information legitimately protectable but would be more explicit
than the existing examples. It was the opinion of some that
the criteria could be treated as merely illustrative in which
case examples could be incorporated in the categories of
classification. Others felt that the criteria could be exclusive.
In the later case, before information could be classified, an
original classifier would have to establish that the information
fell within one or more of the criteria and that its disclosure
would meet the test of one of the levels for classification.
I
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The Sub Group also considered the matter of whether the
new Executive order should go beyond Executive order 11652
in prohibiting classification of information for certain reasons,
e.g., to cover up the commission of a crime. The Sub Group
concluded that such additional prohibitions are desirable.
A member believes that the Order should go further and mandate
public disclosure of certain types of information which, by
statute, e.g., War Powers Act, are now required to be disclosed.
Others were opposed to this view on the basis that this
Executive order is not the appropriate vehicle for such
provisions and, further, that the statutes do not prohibit
the classification of certain elements of these categories of
information. An expression was made that the promulgation of
public disclosure policy is not the major purpose of this Order.
Although not directly related to the main issue, some
discussion centered upon the utility of requiring that portions
of classified documents, e.g., paragraphs, be identified as
to the classification level of each such portion. Executive
Order 11652 recommends, but does not require, that portions
of classified documents be marked to show the classification
of the information contained in each or that such information
is not classified. Such marking is left to the discretion of
the head of the Department. Some Agencies, notably, DOD,
require paragraph by paragraph classification marking and
believe that the practice has served to reduce the prolifera-
tion of classified information, reduce overclassification,
simplify declassification, and is not unduly expensive or
burdensome when compared to those benefits. Others, who have
not employed the practice, believe that identifying classified
portions of a document is inappropriate, misleading, or
unnecessary in certain areas. It was noted however that the
lack of uniformity with respect to paragraph marking through-
out the Executive Branch does cause difficulty in Departments
and Agencies which do require paragraph marking because the
latter cannot incorporate into their system with precision and
confidence information contained in documents not so marked.
The existing Executive Order is silent as to whether
Departments should prepare and publish general guidance for
the classification of particular subject matters. Discussion
brought out that the publication of guidelines by some agencies,
notably DOD and ERDA, has been found to be effective to avoid
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overciassification and to achieve uniformity in classifica-
tion decisions. The observation was made that in such
general areas as foreign relations, intelligence and military
operations, the formulation of security classification guide-
lines for general application is difficult and hence,
relatively expensive. Participants who are particularly
concerned with these functional are-as questioned whether the
effort to produce such guidelines is worthwhile. The consensus
of the group is that the new Executive order should mandate
the preparation and use of general classification guidelines,
and encourage departments to amplify such with more specific
guides.
The existing Executive order makes provision (Section 9)
for "special departmental arrangements" with respect to access,
distribution and protection of classified cryptologic material.
The arrangements are in fact promulgated by national authority
(National Security Council and DCI Directives) and include
specific guidelines for special access, distribution and pro-
tection of such material. The present Order does not specifi-
cally make reference to the provisions of certain statutes,
e.g., 18 U.S.C. 798, which single out classified cryptologic
material from other classified material as particularly sensi-
tive. Concern is expressed that such material may be disclosed
inadvertantly due to a misunderstanding of the purpose and
effect of the automatic declassification provisions of the
Order. This concern is based on evidence that, in several
instances, there have been disclosures of still classified
cryptologic material by former government officials because of
such misunderstanding. The opinion was expressed that a new
Order should focus attention on the sensitivity of this body
of material by including a reference to statutes which
expressly recognize the sensitivity of such classified material.
The Sub Group felt that it was important to protect foreign
government classified documents and information as well as any
information and material provided to the United States in con-
fidence by foreign governments or any other foreign sources.
The present Order provides, in section 4(C), that foreign
government classified information shall either retain that
classification or be afforded equal protection under our clas-
sification system. Under section 5(B)(1) of the present Order,
information provided in confidence by a foreign government may
be exempt from automatic declassification. This latter provi-
sion implies that because information is provided in confidence
it may be classified. Some felt that this implication should
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be made specific in the new Executive order and further, that some
unique "identifier" should be prescribed for application to this
type of material. Others felt that the provisions of the present
Order provide desirable flexibility which will permit classifi-
cation and protection in any instance that unauthorized dis-
closure of information provided the United States or of the
circumstances of its acquisition, would cause damage to the
national defense or foreign relations.
OPTION 1:
Expand the term, "national security" as now used in E.O. 11652 to include
specifically information concerning terrorist activities, narcotics,- an
perhaps, threats to the orderly process of government (favored by FBI).
ADVANTAGE:
Would explicitly recognize that such information is classified under the
Order.
DISADVANTAGES:
a. Creates impression of expanding the scope of the Order.
b. May result in classification of information as "national security
information" that should not be protected under this system raising political,
and.perhaps constitutional questions.
OPTION 2:
Retain the scope of the term "national security," i.e., national defense
and foreign relations, as used in E.O. 11652.
ADVANTAGES:
a. Would not require reeducation process as the scope of the term is
generally understood.
b. Would avoid the appearance of any attempt to encompass more
information to be protected under the President's authority.
c. Would avoid the potential constitutional question concerning the
limit of the President's authority.
d. The term, as expressed in the present Order, has been upheld in
litigation.
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DISADVANTAGE:
Would not permit information unrelated to national defense and foreign
relations to be classified.
OPTION 3:
Adopt specific classification criteria which would call for the elimination
of examples now included under the classification categories of Top Secret
and Secret. The criteria would apply equally to all classification categories.
It would be mandatory that before information could be classified, it would
have to be established that the information falls within one or more of the
criterion.
ADVANTAGES:
a. Would reduce the discretion of classifiers in determining whether
information is classifiable.
b. Would serve as a guide to classifying authorities.
c. May contribute to minimizing unnecessary classification and ultimately
to more openness.
DISADVANTAGE:
Unless the criteria are drafted with adequate foresight, subject matter
which should be protected may be found to be omitted,thus precluding
classification. This would require updating from time to time.
OPTION 4:
Adopt specific criteria which, in addition to examples now given under
Top Secret and Secret classification categories, would be illustrative
only The criteria would apply equally to all classification categories
and would constitute a basis for determining whether information is
classifiable but failure of the information to meet one or more of the
criterion would not preclude classification.
ADVANTAGES:
a. Same as OPTION 3.
b. An added advantage is that since the criteria are not all inclusive,
information not meeting one or more of the criterion may be classified.
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DISADVANTAGES:
a. Eliminates a part of the basis for classification determination.
b. May permit classification of information not requiring protection.
OPTION 5:
Retain the examples now included under the classification categories of
Top Secret and Secret and possibly develop examples for Confidential
without additional criteria.
ADVANTAGES:
a. Would not require reeducation process.
b. Leaves the classifier with broader discretion for determining
whether particular information is classifiable.
DISADVANTAGES:
a. Does not provide adequate substantive guidance for classifiers.
b. Will permit the classification of information which does not warrant
protection.
c. Does not contribute to openness.
d. Does not provide a basis for the imposition of administrative
sanctions incidental to enforcement of compliance with the Order.
OPT TON 6:
Require the development, use and promulgation of general classification
guidelines by Departments and Agencies, and encourage them to amplify
such with specific guides.
ADVANTAGES:
a. Would tend to reduce unnecessary and overclassification.
b. Would provide for consistent classification decisions.
8
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c. Would provide standards against which to measure compliance.
d. Would assist in responding to Freedom of Information Act.
DISADVANTAGES:
a. May prove difficult to develop general guidelines for certain
functional areas.
b. May be cost ineffective and non-productive in specific applications.
OPTION 7:
Make the adoption of classification guidelines in Departments and Agencies
optional but encourage promulgation where practicable.
ADVANTAGES:
a. Gives the Departments and Agencies flexibility.
b. Will.avoid unnecessary expenditure in those cases where the
development and promulgation of guidelines are found to be cost ineffective
and non-productive.
DISADVANTAGES:
a. If guidelines are not developed and promulgated, inconsistency will
continue where such now exists.
b. Will not lead to standardization throughout the Executive Branch.
c. Will not provide sufficient guidance against which to measure
complicance.
OPTION 8:
Do not include, in the new Order, any provisions relative to the development
and promulgation of classification guidelines.
ADVANTAGE:
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DISADVANTAGE:
Fails to give an expression of Presidential endorsement of an administra-
tive procedure for avoiding unnecessary classification and overclassification.
OPTION 9:
Require mandatory paragraph classification marking.
ADVANTAGES:
a. Reduces the proliferation of classified information.
b. Avoids unnecessary classification.
c. Simplifies the declassification review process.
d. Facilitates review for declassification and response to requests
under FO IA and the Order.
e. Contributes to consistency and permits precision in derivative
classification.
DISADVANTAGES:
a. May be viewed as administratively burdensome.
b. Will require significant education and training effort.
c. May not be generally applied to all documentary media.
OPTION 10:
Require mandatory paragraph classification marking with provision for the
head of a Department to seek a waiver from an oversight body for specific
classes of information.
ADVANTAGES:
b. Has the added advantage of providing some flexibility to heads of
Departments who find the practice cost ineffective or non-productive.
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DISADVANTAGE:
Will not achieve complete uniformity throughout the Executive Branch.
OPTION 11:
Require mandatory paragraph classification marking with provision for the
head of a Department to grant an exception for good cause for certain
classes of information; require that the Department head advise in writing
an oversight body of the existence and rationale for such an exception.
ADVANTAGES:
a. Same as OPTION 10.
b. Has the added advantage o,f providing some flexibility to heads of
Departments who find the practice cost ineffective or non-productive.
c. Paragraph marking is a matter of program management and may not be
appropriate for approval by an oversight body.
DISADVANTAGE:
Will not achieve complete uniformity throughout the Executive Branch.
OPTION 12:
Paragraph classification marking would be required. to the extent practicable
as provided in E.O. 11652.
ADVANTAGES:
a. Would not impose any additional administrative burden.
b. Maintains status quo.
DISADVANTAGES:
a. Contributes to continued proliferation of classified information.
b. Increases the scope of the overclassification problem.
c. Will not eliminate difficulties experienced by Departments which do
require paragraph marking in incorporating into their system information
from.documents not paragraph marked.
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NOW
d. Increases the problems and complexities associated with derivative
classification.
e. Makes the enforcement of administrative sanctions for unnecessary
and overclassification more difficult.
f. Will tend to impede the declassification process.
OPTION 13:
The new order should mandate the public disclosure of certain specific
types of information as are now required to be made public by certain
statutes (War Powers Act and others).
ADVANTAGES:
a. May help assure compliance with statues.
b. May contribute to public perception of the Executive Order as
consistent with public policy expressed in statutes.
DISADVANTAGES:
a. Might preclude a justified and necessary classification of information
which requires protection from disclosure in the interest of national
security.
b. Public information policy is not the major purpose of the proposed
Executive Order.
c. May contribute to unnecessary classification of information which
does ipt meet the damage criteria of the Order.
OPTION 14:
Continue the provision of the present Executive Order relative to "special
departmental arrangements".
ADVANTAGE:
a. Continues present scheme, recognizing special requirements for
protection of stated categories of information.
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DISADVANTAGES:
a. The minority view is that the present scheme does not adequately
recognize the "sensitivity" of the information to be protected.
b. Suggests that individual Departments are authorized to impose
special requirements different from those established by other Departments
or by national authority.
OPTION 15:
Continue the "special Departmental arrangements" provisions and add a
reference to statutes, e.g., 18 USC 798, to serve the purpose of focusing
attention on the statutorily recognized sensitivity of information covered
by that statute. In addition, add provisions to proscribe automatic
declassification of any such information.
ADVANTAGES:
a. Same as Option 14-
b. Provides explicit recognition of the sensitivity of a statutorily
specified body of material. .
c. Provides for continued protection of sensitive data including that
which is already in the public domain.
DISADVANTAGES:
a. May contribute to unnecessary classification of information which
does not meet the damage criteria of the order.
b. By Presidential order, would exclude a total body of material froir
the automatic declassification provisions generally applicable throughout=
the Executive Branch and to all other information which is classified.
c. Will require the safeguarding and protection of information already
in the public domain.
d. May create Congressional and public impression that the total of
material covered by 18 USC 798 is never subject to declassification.
OPTION 16:
Retain Section 4(C) of current Executive Order.
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ADVANTAGES:
a. Retains present system which is generally well understood by
foreign governments and U.S. classifiers.
b. Provides administrative flexibility to Departments.
DISADVANTAGE;
a. May leave ambiguities and uncertainties with respect to-the classi-
fication of information received in confidence from foreign sources when
such information is not classified by those sources and the conditions of
receipt are not a matter of record.
OPTION 17:
Provide specific recognition in the new order that information provided
to the United States in confidence by foreign governments or foreign
sources is classifiable.
ADVANTAGES:
a. Would permit classification of information solely because of the
condition of its acquisition even though unauthorized disclosure of it
would not damage United States national security.
b. In the view of some, would reduce ambiguities or uncertainties of
the treatment of information provided to the United States in confidence from
foreign sources.
DISADVANTAGES:
a. Would undermine the thus far recognized basis for classification in
the interest of national security.
b. In litigation, would raise the question of the constitutional
authority of the President to protect information for reasons other than
national defense or foreign relations.
c. Contributes to unnecessary classification.
OPTION 18:
Require use of a unique identifier for foreign government documents and
information classified by a foreign government or provided to the U.S.
government in confidence by a foreign government or other foreign sources.
This would be supplemental to the foreign government classification marking
or to the U.S. classification marking assigned, if any.
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ADVANTAGES
a. Identification would enhance foreign government or foreign source
confidence in our system for protecting information provided in confidence.
b. In the case of foreign government documents, would provide evidence
to a court that material so marked was furnished in confidence.
DISADVANTAGES:
a. May complicate the marking system.
b.. May be unnecessary in most cases because a foreign government
document would be readily identifiable and should be protected in liti-
gation.
c. Will result in significant cost increases for administering the
system.
d. Would prevent use of such information without the disclosure of the
source which disclosure, in some cases, would not be desirable and thus,
counterproductive from a security standpoint.
OPTION 19:
Modify the definition of the standard for Confidential by including a
word such as "appreciable," "significant," or "demonstrable" to modify the
word "damage."
ADVANTAGE:
Will tend to reduce the amount of information classified at the Confidential
level by effectively clarifying the minimum threshold for classification.
DISADVANTAGE:
Will necessitate the reeducation of original classifiers.
OPTION 20:
Retain the prohibitions against classification now prescribed in Executive
Order 11652 and add others.
ADVANTAGES:
a. Demonstrates the interest of the President in assuring that classi-
fication authority is not abused.
15
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1W -
b. Will give a clear and explicit showing that certain types of
information nnzst not be classified and that classification is prohibited
for certain purposes.
c. Will engender public confidence in the system.
DISADVANTAGE:
May be found to preclude a necessary classification.
OPTION 21:
Inclusion of a "balancing test" so as to cause the weighing of the relative
merits of public disclosure of the information against classification.
ADVANTAGE:
May cause more careful classification decisions and would tend to
reduce the amount of information which is classified thereby promoting
public accessibility.
DISADVANTAGES:
a. Original classifiers are not necessarily as well qualified to make
judgements with respect to possible benefit to the public as they are to
the probable damage to national security.
b. In Freedom of Information Act litigations, the courts may demand a
showing that the "balancing test" was applied.
RECOMMENDATION:
Consensus was reached in favor of Options 2, 3, 7, 10, 16, 19 and 20. With
respect to the remaining Options, there was a divergence of views with
no consensus.
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ISSUE: Which categories of classified material more than 20 yea_ rs oid
could be declassified in bulk under appropriate guidelines.
DISCUSSION: Discussion of this Issue will touch on the following points:
declassification guidelines. - are they needed - who should prepare - what
form should they take - how should material classified by or jointly with
foreign governments be handled in the guidelines.
E.O. 11652 does not presently prescribe the preparation of the declassification
guidelines. At the request of MARS all agencies (which had not previously
done so) developed guidelines for the screening of all 30-year-old materials.
Over 200 million pages of classified material have been reviewed during the
past five years and 99% have been declassified. These guidelines have
generally been written In exclusive terms, listing the types of information
which could not be declassified. From this experience, it is concluded that:
(1) It is impractical to include in the executive order a listing of
categories, either inclusive or exclusive, In sufficient detail to guide the
actual screening of highly diverse Government records that span time, place
and function. Such specification must be left to Departments which have
knowledge of the sensitivity of information in their records, the classifi-
cation authority to act on that information, and an awareness of the security
factors affecting the application of that authority; (2) listings of
categories excluded from declassification are shorter than such lists of
categories to be included in declassification. They are also easier to
compile because they include only the most sensitive elements of systems,
plans, or operations, and are less likely to maintain classification by
oversight.
Over 80% of the permanently valuable 20-year-old classified records created
by Federal agencies are still in their custody. The new Executive Order
should, therefore, clearly direct the heads of Departments as well as the
Archivist of the United States to conduct the systematic review of the
permanently valuable records in their custody as they become 20 full years
old. Declassification guidelines prepared by Heads of Departments would be
shared to facilitate declassification and to ensure prompt opening of all
non-sensitive records to the public.
The subgroup also discussed positive steps the government might take to
better make available to the public the information being declassified as
it becomes available. While more emphasis might be placed on the preparation'
and publication of agency histories, the government's premier publicatlon
of important papers, most of them formerly classified, is in the series
Foreign Relations of the United States. Historically the Foreign Relations
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Despite the known reluctance of U.S. Departments to assume this responsibility,
it is clear that only the subject-matter responsible Departments have the
competence to determine whether there is a real need for continued security
protection and that the responsible officials of those Departments should
be required to exercise their discretionary powers to determine whether the
foreign classified record Item containing the Information or material must
be protected for an extended time.
The' National Archives feels strongly that this "foreign information" should
be treated as our own and declassified on the same basis as our own because
of its growing volume, the costs associated with its separation and maintenance
in a classified state and the fact that 98% of it does not warrant protection.
On the other hand the majority of the subgroup felt that "foreign information"
should be excluded from the declassification provisions of the new Executive
Order except where an international agreement on declassification could be
reached.
OPTION 1: To direct heads of departments and agencies to develop and make
available to their employees and others declassification guidelines for
information originated within their jurisdiction; and to also direct the
Archivist of the United States together with the heads of Departments
to develop guidelines for the systematic declassification of information
and material classified by or jointly with foreign governments and inter-.
national organizations (program to be conducted in consultation with repre-
sentatives of foreign governments and international organizations with which
the U.S. has cooperative security arrangements).
ADVANTAGES:
a. With agency declassification guidelines, Departments would make
better and more consistent declassification decisions, thereby reducing
classified holdings.
.b. Guidelines could be shared with other Departments and lead to more
consistent treatment for the same information held by different
Departments.
c. Recognizes the dominion of the U.S. Government over its own
records and the information in them.
d. Explicitly Indicates the U.S. Government's commitment to maximize
the release of information to the public.
e. Permits consultation with foreign international organization.
representatives when the U.S. declassification official determines that
it is desirable to attain better understanding without surrendering
ultimate authority.
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DISADVANTAGES:
a. Preparation of good declassification guidance is expensive and
requires the services of highly trained and knowledgeable personnel.
b. May arouse concerns in some countries about information which
they provided to the U.S. being released before it Is made available
to their own citizens.
c. May have some adverse effect on the provision of sensitive Infor-
mation significant to U.S. national interests.
d. If declassification guidance is not carefully drawn, sensitive
information will be released.
OPTION 2: To direct heads of Departments and Agencies to develo and
make available to their employees and others declassification guidelines
for information originated within their Jurisdiction; but to exclude from
declassification provisions information and material given in confidence
which was classified by, or Jointly with, foreign governments and international
organizations except for such information and material as may be declassified
by mutually agreed guidelines developed by the Archivist of the United
States, the Heads of the subject-matter interested Departments, and repre-
sentatives of the cooperating foreign governments of international organiza-
tions concerned.
ADVANTAGES:
a. With Agency declassification guidelines, Departments would make
better and more consistent declassification decisions, thereby
reducing classified holdings.
b. Guidelines could be shared with other Departments and lead to
core consistent treatment for the same Information held by different
Departments.
c. Involves certain allied foreign countries in the process of
developing guidelines, thereby avoiding a possible adverse effect
on the provision of information important to U.S. national interests.
d. Mutually agreed guidelines will permit U.S. officials to readily
declassify the bulk of the older classified materials.
e. Establishes reciprocity in the handling of U.S. Information by
those countries.
f. Would not "dry up" such free exchange as we now have with foreign
governments.
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series has led the way in promoting public access. The stated (though
unattained) goal for some time has been publication 20 years after the
event. To better assure the attainment of that worthwhile goal, the subgroup
felt that consideration should be given to including the new Executive
Order language which would recognize the merit of the Foreign Relations
series.
The treatment of information classified by or jointly with foreign govern-
ments is also considered as an appropriate subject for inclusion in the
consideration of declassification guidelines. Section 4(C) of E.O. 11652
directs departments to provide appropriate equal protection to information
furnished in confidence by a foreign government or international organization.
Section 5(B)(1) permits Top Secret classifying authorities to exempt from the
General Declassification Schedule "Classified information or material furnished
by foreign governments or international organizations and held by the United
States on the understanding that it is kept in confidence." But the present
Order is not explicit on the matter of handling such non-U.S. originated infor-
ration when It Is 30 years old.
A 1973 Justice Department paper examined the ambiguities of this situation
and concluded that present U.S. policy was to exclude non-U.S. originated
information from consideration under the systematic review provisions of
Section 5(E) of E.O. 11652. That policy was re-examined, however, when the
U.S. authorities learned that-the British Government was treating foreign
documents in their files in the same manner as they were treating British
originated Information. This policy review was further stimulated by demon-
strations that foreign classified information is no more or less sensitive
than U.S. originated information concerning the same subjects and that
declassification or protection of one could be parallelled by declassification
or protection of the other. Finally, it was agreed that the U.S. Government
does have dominion over Its records and that foreign and international
organizations originated information placed into official files become part
of the official records of this Government.
In 1976 the State Department's Council on Classification Policy advised the
Archivist of the United States to declassify non-U.S. originated information
when it is fully 30 years old on the same basis as our own classified infor-
mation. During the past nine months several million pages of pre-1947 classified
foreign documents (exclusive of those held by the Organization of the Joint
Chiefs of Staff) have been reviewed against the guidelines developed by the
Archivist In consultation with subject-matter interested agencies and pave
been released. At the present time all foreegn classified information. which
cannot be declassified under these prescriptive guidelines is being denied to
the public by the Archivist of the United States without the benefit of review
by more knowledgeable agency specialists.
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DISADVANTAGES:
a. Surrenders to some degree the principle of sovereignty of this
government over its records.
b. Will require extensive negotiations further delaying declassifice-
t1op of U.S. records.
c. Foreign governments and international organizations may request
continued and indefinite protection of some classes of information
beyond 30 years which this Government would not find acceptable.
OPTION 3: The new Executive Order should direct heads of Departments and
Agencies to develop, use and maintain current declassification ulde Ines
for information originated by their Departments or within their subject
matter jurisdiction. Such _guidelines shall specify In reasonable detail
what information requires continued protection, and for how long. If the
period of continued protection cannot then be determined, the guidelines
shall specify a date not more than ten years later for a second review, at
which time a date certain for declassification shall be specified. Those
Departments and Agencies which hold or expect to receive foreign classified
Information, shall, with the assistance of the Archivist of the United
States as appropriate, advise the foreign governments or international
organizations which provided or will provide classified information that
such information will be subject to departmental guidelines for declassi-
tcation or extended protection unless those governments or international
organizations consult with the U.S. Department or Agency concerned to
develop mutually agreed declassification guidelines for different treatment.
ADVANTAGES:
a. Mandatory declassification guidelines, required to be kept current,
would bring about better and more consistent declassification decisions,
thereby reducing classified holdings and providing better and more
Justified protection to those items of continuing sensitivity.
b. The requirement for specificity In guidelines would help eliminate
continued classification based-on subjective considerations.
c. The option recognizes the government's commitment to maximize
the release of Information to the pbulic, and should result in matching
performance to promise.
d. The provision for specifying either definite dates for declassi-
fication or for one further review for the same purpose provides
flexibility for dealing with unusual circumstances.
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e. Provides for consistency in the treatment of classified information
whether of U.S. or foreign origin, absent foreign requests subject to
our concurrence for different treatment.
f. Informs cooperating foreign governments of our Intent with
regard to classified information they share with us, and offers them
the opportunity to. work out with us different declassification regimes.
g. Maintains foreign confidence that the U.S. will respect their
substantive concerns on protection of their classified Information.
DISADVANTAGES:
a. Requires reallocation of resources to the preparation and maintenance
of declassification guidelines.
b. May complicate declassification reviews and actions if foreign
governments insist on treatment different to that which we accord to
our own records.
OPTION 4: To avoid any waste of resources by agencies reviewing their
records, the new Executive Order should clearly state that only those
records constituting the permanently valuable records of the Government
in accordance with 44 U.S.C. 2103) should be reviewed for declassification.
Records scheduled for destruction should not be reviewed under this program.
ADVANTAGE:
Will conserve the resources available for application to the
declassification review program.
DISADVANTAGE:
OPTION 5: To give appropriate recognition to the merit'of the Foreign
ela~ tions series in connection with making more information concerning the
affairs of the United States Government available to the public, the new
Order should Include substantially the following language:
All Departments and A encies will assist the Department of State
In is goal to attain a twenty-year publication schedule or the
ocumentar series entitled"Forei n Relations of the United States."
The schedule for compiling, editing, reviewing and publishing the
Foreign Relations series should not unduly delay declassification-of
any Agency's foreign relations-related classified information and
rial.
material.
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ADVANTAGE:
Will help assure the attainment of the State Department's goal of
publishing at twenty years, thereby increasing the amount of
Information declassified and published in the public domain.
DISADVANTAGE:
May be inappropriate to single out a particular publication of one
particular Department in an Executive Order applicable to the entire
Executive Branch.
If Option 1 or 3 above is selected,.It is necessary to consider Options 6
and 7 below. If Option 2 above is selected, there Is no need to consider
Options 6 and 7 below.
OPTION 6: Systematically review for declassification foreign and international
organization-originated classified information at the same time as U.S.
Information is being systematically rev ewed.
ADVANTAGES:
a. The most efficient program, and one appreciably less expensive,
would be attained through the simultaneous review of all information
in the files.
b. Agency declassification specialists would be considering
categories of sensitive information for necessary extended protection
irrespective of the origins of the information. The less complicated
program should therefore be more error free.
c.. Only the information determined by the most competent officials
to be sensitive and require continued protection would be denied to
.the public.
DISADVANTAGES:
a. If the program for systematic review accelerates to 20 years we
will be opening much more foreign originated information In advance
of any allied country.
b. An accelerated opening may have a chilling effect on the provision,
of information significant to U.S. national interests.
c. Existing liaison arrangements may be further jeopardized If the
U.S. Government unilaterally opens Information given in confidence on
an accelerated basis.
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OPTION 7: Irrespective of the U.S. timetable for systematic review, a
rallel arrangement for declassification of foreign and international
organization originated classified Information should take place at t end
of 30 full calendar years after origination.
ADVANTAGES:
a. The.British and Commonwealth Governments are committed to a
30-year release of records program.
b. The British and Canadian Governments have examined the 30-year
declassification guidelines presently being applied in the National
Archives and have voiced no strong opposition to its application
to their information given In confidence.
DISADVANTAGES:
a. If the U.S. originated classified Information is reviewed on
an accelerated schedule and all non-U.S. classified information is
reviewed on another schedule, about 5% of the classified Information
in the U.S. records will fiave to be temporarily withdrawn and 5 to
10 years later 90 to 95% of that material will have to be reviewed
again and only then returned to its place in the files. This will
be especially costly.
b. Under these circumstances, U.S. reviewing officials would be
reviewing records in the same categories perhaps as much as a decade
apart In time of origin. Probability of errors and premature release
will increase.
RECOMMENDATION: The majority of the sub-group recommended that Option 2,
4 and 5 be adopted. If the new Executive Order directs that information
and material classified'by or jointly with foreign governments and Inter-
national organizations be systematically reviewed for declassification, it is
the consensus that Option 7 be adopted. A separate issue paper is attached
which discusses the authority of the Archivist to declassify certain infor-
mation; recommend that It be provided to the personnel assigned responsibility
for drafting the new Executive Order.
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Whether the Archivist of the United States should exercise authority over
Information and material which was classified by a former President, his
White House staff, special committees or commissions appointed by him, or
others acting in his behalf, and whether this authority should extend to
information and material not In an archival depository.
Close examination of the interaction of the mandatory review provisions of
the present Executive Order and the Freedom of Information Act shows that
there is one type of classified document that is not covered by either form
of public access request. Several other minor problems with Section 11 that
have become obvious since the implementation of?E.O. 11652 warrent the
attention of the drafters of the new Order. These matters are not addressed
here as options, but rather as highly desirable modifications to the language
of the new Executive Order.
E.O. 11652 gives authority to the Archivist of the United States to declassify
Presidential material, after consultation with agencies having primary
subject matter interest, as a solution to a problem that had plagued govern-
ment officials, historians and archivists for years. An Incumbent President
faces an. obvious political dilemma and risk if he or his staff become directly
involved In either opening or closing the papers of his predecessors. The
Archivist of the United States, already the custodian of much of this
Presidential material through the holding of the Presidential libraries, is
far enough removed from partisan politics and the pressures on an agency's
classifying officers to consider the needs of national security and at the
same time to take account of public and scholarly demands for historical
research. The requirement that the Archivist consult with departments having
a primary subject matter interest insures the full consideration of relevant
national defense and foreign relations questions before determinations are
made. The general provisions of Section 11 of E.O. 11652 have worked well
and should be retained in a ,new executive order.
A few minor changes in wording which would solve the minor problems that
have become obvious, since the implementation of E.O. 11652 benter on these.,
points:
a. The limitation of the Archivist's authority to just those materials "in
his custody at any archival depository" should be dropped so that someone
will have the authority to declassify information and material classified by
the White House found among agency records, private papers, and other
collections, etc. At present, no one has the authority to declassify such
material;
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b. The Archivist's authority should be limited to materials classified by
a former President, since an incumbent President will obviously declassify
his own records;
c. Reference to the "terms of the donor's deed of gift" should be deleted
because it is not pertinent to security classification and reflects a
statutory responsibility of the Archivist entirely apart from national security
requirements; and,
d. Add the word "downgrade" to the Archivist's authority so that he has the
authority not only to review and declassify, but also explicit authority to
downgrade classified documents and records.
RECOMMENDED LANGUAGE IN A NEW EXECUTIVE ORDER:
After the termination of a Presidential administration, the Archivist of
the United States shall have authority to review, downgrade and declassify
information and material which was classified by the President, his White
House staff, special committees or commissions appointed by him, or others
acting in his behalf when this information or material is not part of the
records of an agency subject to Federal records statutes. This authority
shall be exercised only after consultation with the Department having a
primary subject matter interest.
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ISSUE How to promote increased public access to information
no longer needing class cat on through a more rWT-
and systematic declassification program
The subject of achieving more rapid declassification of information is
one difficult to discuss as something apart from the subject matter of other
subgroups. This results from the fact that achieving more rapid declassifi-
cation is an issue central to the overall Executive order revision project,
the goals of which are to insure that only items requiring classification
are classified to begin with and to effect declassification of information
as soon as it is possible to do so, all in the interest of achieving greater
openness in government. Nonetheless, there are a number of proposed changes
from the current Executive order on classification that fall squarely upon
the point of achieving more rapid declassification.
The suggestion has been put forth that consideration of the time period
for which a document remains classified should be divorced from considera-
tion of the appropriate level of classification. What is proposed is that
a date be set for declassification of a document based on the best estimate
of the classifier as to when it may be declassified. The period of classi-
fication would not be tied to level of classification, as is now done under
the General Declassification Schedule with Confidential, Secret and Top
Secret classification actions resulting in classification being maintained
for periods of six, eight and ten years, respectively. Under the proposed
system, there would be a maximum period which could be embraced by the
classifier's estimated declassification date. The consensus was that such
period would be six years. Continuation of classification in excess of the
prescribed norm, say, for example, nine years or any other specified period
of years not In excess'of twenty could only be done by an official specifically
designated to exercise original Top Secret classification authority. The
official authorizing such continuation of classification should be required
to make a record of his action, including his identification and reason for
his decision. This last point would parallel to some degree the current
authorization of Top Secret classifiers to exempt from the General Declassi-
fication Schedule information within four stated categories.
Another approach to achieving more rapid declassification, which may
be considered additional to other more specific measures, Is that of building
in a presumption against classification in certain decision making processes.
The presumption would be rebuttable, of course, but might be operable
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whenever the classified status of a document was challenged or after a
set period as outlined in the previous paragraph. The presumption against
classification would eliminate instances of classification being continued
merely because a speculative argument could be made for maintaining classi-
fication. Under the presumption against classification, a set period of
classification would be extended only when the relevant factors and circum-
stances at the time of review were found to be those which warrant original
classification. As a companion of the presumption against classification,
measures would be taken to minimize the threat of adverse repercussions to
an individual employee should he in good faith make an erroneous deciassi-
cation in exercising his declassification authority. Declassification
authority would also be decentralized to the lowest possible level. There
may be a need for institutionalizing a system for intra-agency challenges to
classification. The vehicle for building in the presumption against classi-
fication would be the overall thrust of the Executive order coupled with a
firm and explicit statement of policy in the preamble. Specific criteria
for declassification would be included in the Executive order. However, with
the thrust in the direction of declassification and certain protections for
errors in judgment being accorded the declassifier, certain problems can be
perceived regarding differentiating between good faith and bad faith declassi-
fication actions by lower level employees.
It is believed that the effective promotion of public access to official
records through declassification must be given as much attention as the denial
of public access through classification. With few exceptions,lbere are
simply not enough agency resources devoted to declassification efforts. De-
classification reviews that are provided for under the existing Executive
order are rarely being accomplished as they should. It is proposed that
any new Executive order in this area direct heads of agencies to devote
sufficient resources to carry out the declassification program provided for
by the order.
A point stirring considerable debate was that of granting access to
classified Information to certain individuals not acting in an official
capacity and not holding the clearance normally required. Typical of Indivi-
duals granted such access under the current Executive order are former
Presidential appointees and historical researchers. (On a related point,
there apparently is a serious problem involving the interposition of inter-
agency barriers between official historical researchers, who themselves
act as a catalyst for declassification, and the materials they need. It
is recommended that this problem be handled in the form of government-wide
interagency agreement.) In considering the granting of access to nonofficial
researchers, the consensus was that it is difficult to discern a persuasive
basis on which to award privileged access-to certain individuals and not
to the general public. The danger Is not granting a special access is, that
for years only "official histories" will be available of important incidents
in our national experience. Whether granting access to selected individuals
under controlled circumstances solves the "official history" problem is
unclear. In any event, a majority seems to feel that Section 12 of the
current Executive order is of so little utility for promoting Increased
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general public access to official information that it would not be advisable
to include it, for that purpose, in a superseding order which would instead
make the fruits of an accelerated declassification program available to all
persons at the same time. However, the contrary view is also held. But
there is the view that the public benefits from the more rapid declassifica-
tion spurred by the special access provisions and that to delete section 12
as it relates to unofficial access would appear to the historical community
to be a retrogressive step.
Section 5(E) of the present Executive order requires the declassifica-
tion of classified information and material after thirty years except for
such specifically identified information and material which the head of the
originating department personally determines in writing at that time to
require continued protection in the interest of national security. Advanc-
ing the thirty-year time frame for automatic declassification to twenty-five
or twenty years would be perceived as a significant step in promoting increased
public access to information and material no longer requiring protection.
There was a consensus that the twenty-year frame Is realistic and ought to
be adopted even though a large proportion of the documents of certain
agencies would still have to remain classified after twenty years. However,
it was noted that such a change would have a severe Impact on available
resources allocated to the task of performing systematic reviews of classi-
fied information and material, both In the National archives and the several
departments. The recommended change from thirty to twenty years would create
an immediate ten-year backlog of material requiring review for declassification.
The national Archives is steadily falling behind in Its effort to maintain
the thirty-year line mandated by the 1972 order. Thus, MARS points to the
need to provide for a gradual phase-in over a ten-year period, for example,
of a policy requiring twenty-year systematic review of information and
material classified under E.O. 11652 and previous orders coupled with an
increase of resources. If such resources were not forthcoming through the
budgetary and appropriations process, sensitive information within the ten-year
backlog could not be identified for continued protection through screening,
and might be subject to forced disclosure under the Freedom of Information
Act. It is relevant to note that additional resources to handle the burden
of processing FOIA requests have not been provided, even though the
Congress In passing that Act acknowledged the possible adverse resource
impact and invited departments to request resources if they could prove
the need. Additional considerations in this general area are discussed
in an appendix hereto which reflects the views of the NARS representative
to the Sub-Group.
Under the present order there is a perceived retarding effect on the
declassification process deriving from the provision of four stated exemp-
tion categories which seem to induce classification of the information
encompassed therein and continuation of that classification beyond the period
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prescribed by the General Declassification Schedule. Elimination of the
broad exemption categories is the solution proposed to remedy this. Ex-
tension of classification would only take place in accordance with care-
fully defined criteria and as deemed necessary by those possessing Top
Secret classification authority. It was the consensus that heads of
departments should have authority to extend the classification lifespan of
their information and material beyond the proposed twenty-year limit at any
time during the classified lifespan of the information, rather than at the
time of automatic declassification as is presently required. Further, there
is agreement that heads of departments should be able to either specify a
fixed period of continued protection or specify a date for further review.
Their discretion in this area would be monitored by the oversight apparatus
to be established under a new order.
During the discussion it became evident that information generated by
certain agencies, notably NSA, CIA, and OJCS, in large measure do not lend
themselves to rapid declassification because their sensitivity Is geared to
technological or foreign relations considerations, or reveal Intelligence
sources and methods or currently sensitive operational planning formation.
However, this fact should not impede efforts to declassify information not
falling in these categories.
Options considered, some of which offer the potential for more rapid
declassification and hence for increased public access to official informa-
tion, Include the following:
OPTION 1: Maintain the provisions of the current Executive order regarding
de-classification.
ADVANTAGES:
Requires no increase in resources.
Preserves a policy that has domestic and foreign circulation and
acquiescence.
Review at 30 years has had a high release rate (over 98%).
There will be a minimum likelihood of error as guidelines already
promulgated have been tested In the review of millions of records
with no known release of sensitive national security information.
Release by foreign and international organizations of their classified
information frequently occurs simultaneously.
DISADVANTAGE:
- Does not meet the mandates implicit in PRM/NSC-29, i.e., simplifica-
tion of the system, public accessibility, earlier bulk declassifica-
tion, etc.
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OPTION 2: Establish a new declassification s (stem which, In substance,
ation rom the level of
i i
l
c
ass
would 1 divorce the time period o g
._.-_1 _t__..tfi
within the limits
er
thorit dele ated to him to fix the shortest period 0
h
d i
fi
e au
n t
e
s eci
classification which he determines to be warrented; 3 limit the authority
of original Confidential and secret classifiers to continue classification
..
n.. .,F ori
inal Top Secret
thor
g
after twenty years, require that authorities wForethetr AertttAn and
01 LWCI I L Ga I a .. .,. ? ..... - - _
classification beyond twenty years; 6 provide that, unless declassified
earlier or extended beyond twenty years by the head of a Department, infor-
mation classified ursuant to this Order shall be Ica-1I1l declassified
h t nd classification
-L V 0 a I I Vv V- -
classifiers to continue classification beyond six years but not in excess
n < t hamm may runtime
be fixed for automatic declassification or for review to determine the
need for continuation of classification.
ADVANTAGES:
A shorter norm for continuation of classification would be
established.
Higher level of classification would not be assigned in order to
achieve a longer period of classification protection.
Responsibility for continuation of classification beyond normal
time periods would be fixed.
A greater volume of classified information would become available
for release to the public after a shorter period of classification.
DISADVANTAGES:
The new approach would necessitate revision of departmental
implementing regulations and retraining of original classifiers.
With automatic declassification taking place after shorter periods,
there may be an increased problem in terms of notifying distributees
of changes in classification period, due to changed circumstances,
or perceptions, than is now the case under the General Declassification
Schedule.
OPTION 3: With respect to information and material classified under previous
Orders, the new Order would provide that: (1) if the material Is already
marked for declassification within twenty-years-of date of origin, it,shall
be declassified accordlngly_i and 2 if not so marked shall be declassified
in accordance with declassification guidelines promulgated by heads of
Departments as prescribed by the new Order.
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ADVANTAGES:
Accelerate public availability of information on prior government
activities and policies.
Meets the mandate implicit in PRM/NSC-29.
Will lead to better and more consistent declassification decisions,
thereby reducing classified holdings.
DISADVANTAGES:
Will create an immediate review backlog.
Will require considerably more resources to fully attain the
twenty-year objective.
May increase the risk of premature disclosure of classified
information.
Preparation of good declassification guidance is expensive and
requires the services of highly trained and knowledgeable personnel.
OPTION 4: Build a presumption against classification and for declassification
into the scheme of a new Executive order.
ADVANTAGE:
- The balance would be tipped in favor of more liberal declassification
decisions.
DISADVANTAGE:
- May prove difficult to fine tune declassification policies at lower
echelons.
OPTION 5: Have a mandatory declassification review system within an agency
providing a mechanism for internal challenges to classification. Under
such a system, whenever a classification action was challenged and declassi-
- .. . . . . .1.
-------!_._
I--
one
or
declassification authority, there would be an automatic referral to an agency
review committee which would decide the matter.
ADVANTAGES:
A more effective Interim review program would result.
Encouragement to initiate declassification actions would be given
to those best positioned to identify information that could be
declassified.
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DISADVANTAGE:
- This option holds the potential for placing an additional burden
on agency resources to an extent not easily estimated in advance.
OPTION 6: Eliminate present system of preferential access to classified
mater a by nono c a researc ers.
ADVANTAGES:
security checks
personneladministrative
- Would save cost of personnel
ofatheseother
costs associated with insuring the trustworthiness
servicing their needs.
- Would reduce the risks of unauthorized disclosures.
- Would eliminate an objectionable preference afforded to comparatively
few.
DISADVANTAGES:
- Could be interpreted as retrogressive by the historical community..
May Increase the number of requests for declassification under FOIA
and mandatory review provisions of the Order.
Would probably decrease the speed with which unofficial historians
publish accounts of certain aspects of national defense and foreign
relations.
OPTION 7: Authorize the granting of access to classified material to
persons outside the Executive Banch.who are engaged in research, provided
the head of the originating Department:
(1) Determines in writing that access is consistent with the
interests of national security;
(2) Takes reasonable actions to Insure that the information is not
subject to unauthorized disclosure; and,
(3) Takes reasonable actions to ensure that access is limited to
specific categories of information over which that Department
has classification jurisdiction.
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ADVANTAGES:
Would continue a policy which is indicative of openness in
government.
Would facilitate the early publication of historical material In a
form readily available to the public.
Eliminates preferential treatment for former officials.
DISADVANTAGES:
- May subject classified information to unauthorized disclosure.
- Incurs expense of personnel security checks and other administrative
costs involved in determining trustworthiness and review of notes
and manuscripts.
OPTION 8: Include in the new Order a re uirement that heads of Departments o c a s at the lowest practicable echelon of command and super-
vision to exercise declassification authority w th respect to c ass a material
in their functional areas of responsibility.
implementation of the Order.
ADVANTAGES:
- Facilitates resolution of classification conflicts.
- Facilitates declassification and release review.
- Demonstrates increased emphasis on declassification.
- Places declassification responsibility on those best qualified to
make those determinations.
DISADVANTAGES:
- Without full coordination, it may result in conflicting declassifica-
tion decisions.
- Declassification of information in a functional area may make
classification in a related functional area impractical.
OPTION 9: Include in the new order a requirement that heads of Departments
bud et for and rovide adequate resources to carry out ull an effective
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ADVANTAGES:
- Demonstrates Presidential concern.
- Will cause top management support.
- Will assure effective implementation.
DISADVANTAGE:
May reduce the options of heads of Departments in establishing
resource priorities.
OPTION 10: Include in the new Order a section providing declassification
criteria.
ADVANTAGES:
- Would fix common guidance for use throughout the Executive Branch.
- Would be viewed by the public as progressive and indicative of
Presidential intent to avoid the continuation of classification
beyond its useful life'.
- May result in earlier and more uniform declassification.
DISADVANTAGES:
- Might result in declassification of information and material which
under particular circumstances could be premature.
- May be difficult to develop criteria which are all-inclusive.
RECOMMENDATION: It was the consensus of the Sub-Group that Options 2, 3,
, 9 and 10 be adopted. With respect to the remaining options there was
a divergence of views.
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CONSIDERATIONS ON ADVANCING THE AU'FCMATIC DECLASSIFICATION
DATE TO 20 YEARS FRCM DATE OF ORIGIN
Section 5(E) of E.O. 11652 directs that all information and material classi-
fied before June 1972 shall be systematically reviewed for declassification by
the Archivist of the United States by the end of the thirtieth full calendar
year following the year in which it was originated. When the program for sys-
tematic review was inaugurated in the National Arcl+.ives in October 1972 (fol-
lowing approval of the FY 73 budget request and after denial by Congress of a
supplemental budget request for FY 72), there were about 60 million pages of
permanently valuable classified records in the National Archives of the United
States which were already 30 years old. In the 4/ years the program has been
operating the especially hired and trained declassification review staff of
the National Archives, together with declassification specialists from the
agencies, have reviewed and declassified approximately 200 million pages of
documents predating 1947. Less than one-half of one percent have been deter-
mined to require continued security protection. This low exclusion rate re-
flects the fact that the greater part of these records related to World War II,
which facilitated declassification. Experience in the systematic review of
documents from the 1946-50 early cold war period indicates that nearly 807. of
them must be carefully screened, page-by-page, to determine whether they contain
sensitive information. Thus, many more hours are required to review the same
amount of more-recent records. Further, approximately 27. of the records in this
time frame require extended protection. With the resources available to the
National Archives' systematic review program for thirty-year-old records ($1.4
million per year) it has taken nearly five years to complete the review of the
original WW II classified records backlog, and the program is now steadily
falling behind in its effort to maintain the thirty-year line mandated in the
1972 Order. While much of the review effort has been devoted to the permanent-
ly valuable records in the custody of the National Archives and the Franklin D.
Roosevelt Presidential Library; additional programs have been carried on by de-
classification specialists in the Department of Defense, CIA, and ERDA on 30-
year-old records in agency possession.
Before dismissing the present scheme out of hand it might be well to examine
the apparent advantages of retaining the review point at 30 full years:
a. To obtain and maintain the 30-year line will require little increase in
resources. An exception-to this is the FBI which has not yet inaugurated a
systemated review program for its older records;
b. It would preserve a policy that has domestic and foreign circulation and
acquiesence;
c. The review at 30 years has had a high release rate (over 987.);
d. There will be a minimum likelihood of error as guidelines already promul-
gated have been tested in the review of millions of records with no known re-
lease of sensitive national security information; and
APP`E,NDI}C
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e. Release by some major allied foreign Governments of their classified
information occurs simultaneously.
While these are undeniably attractive points, a 30-year systematic review
schedule does not meet the mandate implicit in PRM/NSC-29 to advance the
scheduled review to a 20-year line.
The clear advantages of advancing the systematic review to the line of 20
full years are:
a. That it would accelerate the public availability of information on prior
Government activities and policies; and
b. Probably about 90% of the permanently valuable records to be reviewed
can be released when the fullcycle of review is completed.
These advantages can only be obtained at a price--a monetary expense of
sizable proportion and a potential risk of premature release of still-
sensitive information (especially significant in the early release of
intelligence records) as the whole Government rushes to catch-up without
tested declassification guidelines nor personnel experienced in identify-
ing the increasingly sensitive more recent records.
The monetary price of advancing to a 20-year line can be expressed in terms
of anticipated level of effort over the present level of effort. The best
figures for agency allocations exclusively devoted to the systematic review
of 30-year-old records is about $1i million per year. In our judgment it
will require nearly five times the present amount of effort in manpower
alone to catch-up to the 20-year line if agencies are given 10 years to
attain that objective. The total cost over the 10 years needed to
accelerate the date of release would amount to about $200 million.
The factor of five is based on the following considerations:
a. Development of adequate 20-year declassification guidelines will require
the best efforts of numerous top professionals and highly skilled technicians.
b. Training of the hundreds of personnel hired or reassigned to declassifi-
cation screening and reviewing duties will also require the time and effort
of these same high-priced and busy staff members.
c. The costs associated with: (a) hiring new personnel and obtaining
their security clearances, (b) acquiring and preparing additional work
space to accommodate them, and (c) time expended in training and super-
vising the work-force will add several millions of dollars to the total
price of the program.
d. If 90% of the records over 20 years old and 98% of the records over
30 years old can be declassified, it follows that from 2% of the oldest
records to 10% of the more recently dated records will have to be identi-
fied, reviewed by an agency specialist knowledgeable in that category' of
potentially sensitive information, withdrawn from the files and provided
extended security protection pending automatic declassification or re-review.
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e. Until new agreements are reached, all foreign and international organiza-
tion-originated classified information less than 30 full years old may have to
be withdrawn.
The conclusion reached was that the 20-year option is highly desirable and
would b$ readily attainable if the categories of intelligence sources and
methods and foreign and international organization-originated classified in-
formation could be excluded from the requirement to attain and maintain the
20-year automatic review schedule. The National Archives representative did
not feel that any special exceptions to the Government's entire declassifica-
tion program should be made for these two general categories of information
which in his experience are pervasive in the Government's Aside
this intelligence community concern, the key question here will-
ingness and ability of executive and legislative budget authorities to pro-
vide the affected agencies with resources proportional to the objective. A
decision on the resource commitment will determine the attainable objective.
The 30-year goal, which is not now being met, must prevail if no additional
resources are provided. The 20-year goal, while highly desirable for reasons
of policy and philosophy, requires a significant and sustained commitment of
resources which other public priorities may not permit.
* For the purposes of the new Executive Order, intelligence sources and methods
may be defined as follows: A source is a person, organization, or technical
means which provides intelligence, subject to protection of identity and intel-
ligence relationship, and is vulnerable to counter action and thus could be
lost or diminished in effectiveness should identity become compromised. Methods
are the mead b~iFcor ort AVA rovided to or intelligence received from,
sources when5uc i means ~ ' VU ~ tx~ ~@@~~ OD8861dd) essential
privacy if they are compromised.
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ISSUE: Overlaps between the new Executive Order and the Freedom
of Information Act as amended and the Privacy Act.
DISCUSSION: The Sub Group concentrated on several matters within this
issue which require attention to ensure that achieving in-
creased compatibility between the new Executive Order and
the amended Freedom of Information Act (FOIA) does not
unduly expose current Presidential papers to intrusive
requests nor deny the present methods of access to the papers
of a former President.
Section 5(C) of E.O. U652 provides the public (and
Departments as well) with a means for demanding the review
of all classified information and material more than 10 years
old. The requester need only "describe the record with
sufficient particularity to enable the Department to identify it"
so that "The record can be obtained with only a reasonable
amount of effort. " The amended Freedom of Information Act
(FOIA) provides persons with the right to request classified
information and material which is part of an official record
of the Government as defined in 44 USC 3301 without regard
to the age of the records. To a large degree, the mandatory
review provision and FOIA overlap in their application.
There are, however, several important exceptions:
a. Only the mandatory review provision of the present Order
applies to non-Federal records or donated historical
materials (such as the papers of former Presidents and
other officials in. Presidential libraries and classified
documents in non-Federal repositories such as university
collections) ;
b. The mandatory review provision only applies to classified
documents which are at least 10 years old while the FOIA
applies to all Federal records regardless of their age
but does not apply to classified documents which are not
"Federal records. it
c. The mandatory review provisions of the Order require
that requesters identify a record with "sufficient
particularity, " imposing a test stricter than the one
required by the FOLA;
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d. The FOIA specifically includes language requiring
release of the segregable portions of a document
which under the Act cannot be exbmpt from release.
The mandatory review provisions of the Order do not;
e. The FOIA imposes a 10-day deadline for initial response
while the NSC directive which implements the present
Order makes mandatory review requests subject
to a 60-day deadline for initial response;
f. The appeal routes are separate, with FOIA requests
appealed to Department heads and then to the courts
while mandatory review requests are appealed to
Departmental committees and then to the ICRC.
Discarding the mandatory review provision would be
a retrogressive step because it would allow no route for
requesters to require classification review of non-Federal
records (such as those in a Presidential library). For
example, in calendar year 1977, approximately 100, 000
pages of historically important classified documents from
the Truman, Eisenhower, Kennedy, and Johnson Presidential
Libraries will be submitted to agencies for classification
review under the mandatory review provision of E.O. 11652.
Good and sufficient reason dictates that the mandatory
review provisions of E. 0. 11652 be carried forward into
the new Executive Order.
Most of the criticism directed at the mandatory review
provision has focused on the differences between the Executive
Order and the FOIA. The options on this issue center
around reducing the discrepancies between Executive Order
11652 and the Freedom of Information Act. These
differences are addressed in Options 1-4, below.
OPTION 1:
Drop the limitation imposed by the present Order under which only classified
information and material at least 10 years old may be requested for
mandatory review.
ADVANTAGES:
a. Because agency records less than 10 years old are already subject
to review for release under the FOIA, dropping this 10-year provision would
primarily provide a means for requesting access to an incumbent President's
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papers and those documents of a former President that are very recent
in origin, none, of which are subject to the FOIA.
b. Brings the requirements of the E. 0. and the FOIA more in line
with each other.
c. Results in more openness in Government and more access to high-
level contemporary papers which are not subject to the FOIA.
4. Reduces expensive storage requirements by reducing the number
of classified documents in Presidential papers.
DISADVANTAGES:
a. Creates an anomalous situation in which requesters have a method
for demanding classified but not unclassified documents from a President's
papers.
b. Would make more classified information and material subject to
an extremely expensive classification review system, yielding small
results at high cost. Generally, there is very little point in spending the
time and money to review very recent and very high-level classified
information because of the high rate of continued classification of any
substantive documents.
c. Creates an impracticable system in which a former President's
papers would be subject to public demand for review of specific items
while in transit from the White House to a permanent Presidential
Library or in temporary warehouse storage before elementary boxing and
processing by archivists could be completed.
d. Would require a large staff increase within the Executive Office of
the. President and the Presidential Library system of the National Archives
and Records Service.
OPTION 2:
Drop the 10-year prerequisite for mandatory review of Federal records
(as defined in 44 USC 3301) but not for Presidential materials,
donated historical materials as defined in 44 USC 2101, or other
non-Federal records.
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a. Brings E.O. requirements more in line with FOIA without in-
creasing cost, since Federal records less than 10 years old are already
subject to review under FOIA.
b. Would be compatible with the recommendation of the National
Study Commission on Records and Documents of Federal Officials that
access to a President's public papers should be subject to restrictions
imposed by the President for a period not to exceed fifteen years, after
which there would be general public access, subject only to such
restrictions as are necessary in the interest of national security or to
protect against a clearly unwarranted invasion of privacy. To drop the
10 -year provision in its application to a President's public papers in
the new Executive Order would seriously impact on the Commission's
recommendations to Congress.
c. Gives the appearance of more openness.
DISADVANTAGES:
a. May generate increased workload with respect to Federal
records less than 10 years old.
b. Would establish a necessity for Departments to provide redundant
review. systems with respect to Federal Records less than 10 years old.
OPTION 3:
Amend the present phrasing of the mandatory review provision as it is
expressed in E.O. 11652 so as to direct Departments to declassify any
reasonably segregable portion of a record or donated historical document
after deletion of information which must remain classified.
ADVANTAGES:
a. Brings E.O. more in line with FOIA requirements.
b. Would bring uniformity of procedure since sanitizing (release of
segregable portions). is already being done in several major agencies.
c. Would result in the release of more official information to the public.
DISADVANTAGES:
Sanitizing of documents requires staff time to identify and segregate
information. A considerable increase in costs would be sustained by
several agencies..
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OPTION 4:
Rsvise the mandatory review provision of the present Order so as to require
the same time deadlines as the FOIA.
ADVANTAGES:
a. Reduces confusion by bringing E.O. response-time requirements
in line with the FOIA requirements.
b. Would result in more rapid treatment of mandatory review requests.
DISADVANTAGES:
a. The 10-day deadline for FOIA requests is not practicable now for a
large number of requests and would be totally impracticable for documents
containing national security information that must be cleared with several
agencies or for documents that must be mailed from distant Presidential
Libraries for review in Washington, D. C.
b. Would increase the expense and the staff time devoted to the mandatory
reviaw process authorized by the Order.
c. Would require major overhaul of a program that is already
responsive to the public and not a source of widespread complaint.
RE COMMENDATION:
That a mandatory review provision be retained in the new Executive Order
and- that the provision include: a 10 -year exemption for documents that are,
not Federal records (Option 2); that segregable portions of a document be
declassified when the entire document cannot be declassified and the release
of the document is not prohibited by any other statutory or departmental
requirements (Option 3). In addition, the new Executive Order not change
the present response deadlines prescribed under the Order.
5
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