DRAFT OPINION FOR COMMENTS: ANALYSIS OF THE PAPERWORK REDUCTION ACT OF 1980

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP84B00890R000300010026-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 13
• Document Creation Date: December 15, 2016
• Document Release Date: September 4, 2003
• Sequence Number: 26
• Publication Date: April 14, 1981
• Content Type: MF

OGC Has Reviewed
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OGC 81-0__02
14 April 1981
STAT
MEMORANDUM FOR: Legislative Counsel
Special Support Assistant, DDA
Director, Office of Information Services, DDA
1-Information Handling Systems Architect, DDA
Chief, Information Management Staff, DDO
Records Management Office, NFAC
Chief of Support, DDS&T
Director, Office of Data Processing
FROM:
Office of, General Counsel
STA
Draft Opinion for Comments:
Analysis of the Paperwork Reduction
Act of 1980
Attached please find a copy of a draft opinion prepared
by this Office in the captioned matter. I would appreciate
receiving your written comments on the draft, if any, no
later than 28 April 1981. If you have any questions, please
STA
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MEMORANDUM FOR: Legislative Counsel
Special Support Assistant, DDA
Director, Office of Information Services, DDA
Information Handling Systems Architect, DDA
Chief, Information Management Staff, DDO
Records Management Officer, NFAC
Chief of Support, DDS&T
Director, Office of Data Processing
FROM? Daniel B. Silver
General Counsel
SUBJECT Analysis of the Paperwork Reduction Act of 1980
:L This memorandum is to advise you concerning the effects
of the Paperwork Reduction,Act of 1980, Pub.L. No. 96-511, upon
the cy and those portions of its operations which fall within
the :jurisdiction of your Office. In order that the specific
effects might be more easily., determined, I ask that you direct
your attention to the request for information made in Part V
below.
The Paperwork Reduction Act amends Title 44 of the
United States Code by adding a new Chapter, Chapter 35. Section
3504 of the Act (Authority and functions of the Director) vests
the Director, Office of Management and Budget (OMB), with certain
powers vis a vis the various federal agencies in the areas of:
information policy, subsection (b); information collection,
subsection (c); statistical policy, subsection (d); records
management, subsection (e); privacy, subsection (f); automatic
data processing and telecommunications, subsection (g); and other
miscellaneous related duties. Section 3506 of the Act (Federal
agency responsibilities) imposes reciprocal duties upon the
various federal agencies: compliance with policies, principles,
standards and guidelines prescribed by the Director, OMB,
subsection (a); designation of senior agency official responsible
for compliance, subsection (h); inventory of information systems
and review of information management activities, subsection
(c)(1); avoidance of system overlap, subsection (c)(2);
assessment of paperwork burden of proposed legislation,
subsection (c)(3); and assignment of Brooks Act delegation to
agency official designated in subsection (b).
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The Agency fits within the definition of "agency" as
contained in Section 3502(1). Hence, as a general rule, it falls
within the provisions of the Act. Accordingly, it is required to
assume the duties placed upon federal agencies by Section 3506
and to comply with exercises of authority by the Director, OMB,
under Section 3504.
The main purpose of the Act, however, is to insert the
Director, OMB, into the process whereby federal agencies issue
regulations requiring the provision of information to them by the
general public. Since the Agency is not involved in the issuance
of s c- regulations, it will not be greatly affected by the
Act. Further, the Act contains a number of provions, discussed
bete; which will limit its effect on the Agency.
FOIAB5
OGC
The actual extent of the powers and duties of the
Director, OMB, and their affect upon the Agency will depend upon
the rules, regulations, policies and standards promulgated under
Section 3504. Hence, detailed analysis of the powers and duties
must await the actual promulgation of rules, etc. At the time of
their promulgation, this Office, in conjunction with the Agency
official appointed under Section 3506 of the Act, will review
them in detail to determine their effect-upon the Agency. Should
you have any questions concerning a specific rule, etc., please
contact this Office.
II. COLLECTION OF INFORMATION
There are two extremely important exceptions to the
above-noted general rule of Agency coverage under the Act. The
first is in the area of collection of information and the second
is in the area of automatic data processing.
"Collection of information" is defined by Section
3502(4) as follows:
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(4) the term 'collection of information'
means the obtaining or soliciting of facts
or opinions by an agency through the use of
written report forms, application forms,
schedules, questionnaires, reporting or
recordkeeping requirements, or other
similar methods of calling for either--
(A) answers to identical questions posed
to, or identical reporting or recordkeeping
requirements imposed on, ten or more
persons, other than agencies, instrumen-
talities, or employees of the United
States; or
(B) answers to questions posed to agencies,
instrumentalities or employees of the
United States which are to be used for
general statistical purposes;
As noted above, Section 3504(c) vests the Director with
certai.fa powers regarding "collection of information" by federal
agencies. A reciprocal duty is imposed upon federal agencies by
Section 3506. Sections 3507,3508, 3509, 3510, 3511 and 3504(h)
establish a system whereby the Director is inserted into and
controls, to a certain extent,'the process of a federal agency's
collection of information.
Section 3518 of the Act, however, provides a number of
exceptions to these provisions. Subsection (c)(1)(D) of Section
3518 provides:
(c)(1).-..(T)his chapter (Chapter 35) does
not apply to the collection of information
(D) during the conduct of intelligence
activities as defined in section 4-206 of
Executive Order 12036, issued January 24,
1978 or successor orders or during the
conduct of cryptologic activities that are
communications security activities.
(emphasis added)
In contrast to the language of Section 3518 (c)(1)(D),
however, Section 4-206 of Executive Order 12036, in fact, does
not define the term "intelligence activities." Instead, it
defines the term "intelligence" and it defines that term as
"foreign intelligence and counterintelligence." Given this
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ambiguity, resort may be had to the legislative history of the
Act to determine what the Congress intended to be the scope of
the exceptioP created by the use of the phrase "intelligence
activities."
When it was originally introduced as H.R. 6410, the Act
:.did not contain this exception for "intelligence activities."
The Phrase was added subsequently by the Committee on
Governmental Affairs of the Senate. The language of the
exception was suggested by the Secretary of Defense and the
..Acting Director of Central Intelligence in letters to Senators
Ja'cksc)n and Chiles. In their letters, the Acting Director and
the Secretary', expressed concern that without these amendments,
H.R. 6410 could have an adverse effect upon the intelligence
mission and suggested that in order to avoid this, the Committee
adopt amendatory language, inter alia, creating an exception for
"intelligence activities.".
In its report, the Committee stated as follows in regard
to these concerns.
The Committee unanimously adopted every
amendment recommended by the Secretary and
Director. The recommended report language
accurately depicts the Committee's intent
behind the amendments.
1/ At first glance, the phrase "intelligence activities"
might be thought of as encompassing those activities
described by subsection (D) as "cryptologic activities
that are communications security activities." Hence,
the additional exclusion created for such activities by
subsection (D) would appear to he surplusage. As noted
in the text, however, Section 4-206 of the Executive
Order does not actually define "intelligence
activities;" instead, it defines "intelligence." Hence,
just as in the instance of "intelligence activities,"
resort may be had to the Act's legislative history to
determine the meaning of the phrase "cryptologic
activities that are communications security
activities." Resort to that history indicates that
Congress, by use of that phrase, intended to create an
exclusion, in,addition to any other exclusion, for those
activities engaged in by the National Security Agency.
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The Committee wants to make clear it
intends that the Paperwork Reduction Act
not affect adversely intelligence or
national security missions. The recom-
mendations of the Secretary of Defense and
Director of the Central Intelligence Agency
were incorporated into S. 1411 and its
accompanying Committee report. to ensure
that the scope of the Brooks Act is not
expanded and national security and intel-
ligence missions are not adversely affected
by provisions of the Paperwork Reduction
Act. S. Rep. No. 96-930 19.
The Committee's actions in this regard are reflected in
its amendments to the bill and in that portion of Part VII of the
Repo t which analyzes Section 3518. S. Rep. supra, 56.
After reviewing all of the above, it is my opinion that
the Congress, in using the phrase "intelligence activities" in
Section 3518(c)(1)(D), intended to exclude from the requirements
placed by the Act upon the "collection of information" those
"collection of information" activities by agencies in the
intelligence community which are related to the collection of
information concerning activities such as foreign intelligence,
counterintelligence, covert action and security activities".
.This broad reading is strongly supported by the above-quoted
language of the Senate Committee report. Further, nothing can be
found in the legisl5tive history which suggests Congress intended
a narrower reading. Accordingly, insofar as the Agency engages
in "collection of information" activities as defined in Section
3502(4), these activities are all exempt from the restrictions
otherwise imposed by the Act since they are "related to the
collection of information concerning activities such as foreign
intelligence, counterintelligence, covert action and security
activities." Further, in view of this exemption, the Agency is
also exempt from those other sections of the Act which establish
the information collection system and prescribe how it shall -
function. These sections include: Section 3504(h) (rulemaking
system for rules involving collection of information); Section
3507 (Public information collection activities--submission to
Director; approval and delegation); Section 3508 (Determination
2/ Had the Congress intended to create a narrower excep-
tion, perhaps it would have used the word "intelligence"
in place of the phrase "intelligence activities."
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of necessity for information; hearing); Section 3509 (Designation
of central collection agency); Section 3510 (Cooperation of
agencies in making information available); and, Section 3511
(Establishment and operation of Federal Information Locator
System).
It would seem, in fact, that to the extent the Agency
engages in any activities involving the "collection of
information," they are all "related to the collection of
information concerning activities such as foreign intelligence,
counterintelligence, covert action and security activities" and,
hence, would be exempt from the provisions of the Act. If,
a~re~r~r, there. exists a specific collection activity which you
believe is not related to the collection of information
concerning activities such as foreign intelligence,
counterintelligence, covert actin and security activities,
please bring it to my attention.
III. AUTOMATIC DATA PROCESSING EQUIPMENT
As noted above, Section 3504(g) vests the Director with
various powers regarding the use of automatic data processing and
telecommunications equipment by federal agencies. Section 3506
imposes reciprocal duties upon federal agencies.
Section 3502(2) of the Act, however, creates an excep-
tion to these provisions as follows:
"(2) the terms 'automatic data processing,'
'automatic data processing equipment' and
'telecommunications' do not include any
data processing or telecommunications
system or equipment, the function,.
operation or use of which --
Section 3512 of the Act provides that no person shall be
subject to any penalty for failing to maintain or
provide information to any agency if the information
collection request involved was made after December 31,
1981 and does not display a current control number
assigned by the Director or fails to state that such
request is not subject to the Act. As noted above, due
to the exception created by Section 3518(c)(1)(D),
virtually no collection of information by the Agency
would be subject to the Act. Further, to the best of my
knowledge, there are no Agency forms for which a person
is subject to a penalty under law for failure to
complete. Hence, this provision has a negligible effect
on the Agency.
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"(A) involves intelligence activities; (or)
"(E) is critical to the direct fulfillment
of military or intelligence missions,
provided that this exclusion shall not
include automatic data processing or tele-
communications equipment used for routine
administrative and business applications
such as payroll, finance, logistics and
personnel management (emphasis added);
As regards subsection (2)(A), the term "intelligence
act.iv' :..ties" is not defined by the Act, and, as noted above,
Execut i.?tve Order 12036 defines "intelligence," not "intelligence
act.i,o- ties." Hence, it is again appropriate to resort to the
Act':-.; legislative history in order to determine meaning of the
Phrase "intelligence activities" and the scope of the exclusion
created thereby.
This provision was not contained in H.R. 6410 as origin-
ally introduced nor was it in the version of S. 1411. as reported
to the full Senate by the Committee on Governmental Affairs. It
was inserted in the bill by way of amendment on the Senate
floor. At the time of the amendment's introduction, the
principal sponsors, Senators Jackson and Chiles, discussed, on
the Senate floor, the purpose behind the amendment. 126
Congressional Record, S. 14688 (1980).
A review of that discussion indicates that the purpose
of the amendment was to create an exception to the Act's
procedures for agencies in the intelligence community. This
exception was created, inter alia, to safeguard information
concerning this equipment from unauthorized disclosure.
Given the above, it is my opinion that in using the
phrase "intelligence activities" in Section 3502(2)(A), the
Congress intended to create an exception to the Act's procedures
for ADP equipment, the function,, operation or use of which
involves activities related to the collection of information
concerning activities such as foreign intelligence,
counterintelligence, covert action and security activities. This
interpretation is consistent with the meaning assigned to the
phrase as used in Section 3518(c)(1)(D) (discussed above in Part
II) as well as with the announced Congressional intention of
protecting intelligence community ADP equipment information from
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unauthorized disclosure. Accordingly, insofar as the Agency has
"automatic data processing equipment, the function, operation or
use of which involves activities related to the collection of
information concerning activities such as foreign intelligence,
counterintelligence, covert action and security activities", that
equipment and information concerning it is excluded from coverage
by the Act.
It would seem that, in fact, the function, operation or
use -f all or substantially all of the Agency's ADP equipment
involves activities related to the collection of information
con,:, :..rning activities such as foreign intelligence,
courite;r_intelligence, covert action and security activities.
Hencee, all or substantially all of this equipment would fit
within the exemption created by Section 3505(2). If, however,
you l?iaye' qu stions concerning a particular ADP system, please
con nti wx4 me.
As regards subsection (2)(E), the exemption created
there):-)y appears to refer to those systems and equipment which are
not usually used for military or intelligence missions but which
may be called upon, from time to time, to perform such
missions. It provides that in such instances if the function,
operation or use of the system or equipment is critical to the
direct fulfillment of such a, mission, then that system is exempt
from the ADP provisions of the Act. While it is not clear from
the language of the Act or the legislative history, it appears
that this exemption was directed at "intelligence- related
activities," i.e., those specialized intelligence activities
conducted by offices within the Department of Defense for the
collection of specialized intelligence through reconnaissance
programs. Cf. Executive Order 12036, Section 1-1203. In any
Despite the above conclusion, the Agency remains subject
to the Federal Information Processing Standards Publica-
tions (FIPS PUBS) for ADP equipment which are
promulgated by the Department of Commerce pursuant to
the Section 111 of the Federal Property and Administra-
tive Services Act, 40 U S.C. 9, referred to as e
Brooks Act, and to Executive Order 11717. The Paperwork
Re ud__ction Act contains a number of provisions which make
it clear that the passage of that Act in no way affected
the provisions of the Brooks Act. This conclusion is
also supported by extensive portions of the legislative
history of the Paperwork Reduction Act. I also note
that the Act does not increase or decrease the authority
of the Director, OMB in this area.;.)
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event, however, as noted above, all Agency ADP is, in fact, used
for "intelligence activities" and thus would fall within the
exception created by subsection (2)(A). Hence, no resort to
subsection (2)(E) would be required.
IV. DESIGNATION OF SENIOR AGENCY OFFICIAL FOR COMPLIANCE
Subsection (b) of Section 3506 provides that the head of
each agency shall designate, no later than July 1, 1981 (three
months after the Act's effective date of April 1, 1981), a senior
offi?::i.al to carry out the agency's responsibilities under the
Act. This official must report directly to the agency head and,
if the agency has received a delegation of authority under
Section 111 of the Federal Property and Administrative Services
Act of 1949, 40 U.S.C. ?759, known as the Brooks Act, the
0ff:1.ci.al must be responsible.for acquisitions made under that
del.e' att-ibn.
Accordingly, no later than July 1, 1981, the Director of
Centsad:d. Intelligence must appoint an Agency employee to assume
the duties established by Section 3506(b). Further, as you know,
the Agency currently is oper+ating.under a Brooks Act delegation
from the General Services Administration. This delegation was
made to the Director and he, in turn, delegated it to Director,
Office of Logistics. Accordingly, in making his appointment, the
Director of Central Intelligence either must appoint Director,
Office of Logistics, to the position or, if he chooses to appoint
another individual, he must simultaneously reassign
responsibility for the Brooks Act delegation to that
individual. The Director of Central Intelligence is being
advised of this by separate memorandum.
V. PARTICULAR AGENCY DUTIES
As noted above, the actual scope of Agency duties under
the Act will depend upon the substance of the rules promulgated
by the Director, OMB. Section 3506, however, imposes several
duties upon the Agency independent of any promulgations by the
Director, OMB. Those are: to systematically inventory its major
information systems; to periodically review its information
management activities, including planning, budgeting, organizing,
directing, training, promoting, controlling and oth9r activities
involving the use and dissemination of information; to ensure
5/ These duties are also imposed in regard to the
collection of information. The Agency is not subject to this
aspect of these duties, however, due to the exception created by
Section 3518(c)(1)(D). See Part II, above.
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information systems do not overlap; and, to develop procedures
for assessing the paperwork and reporting burden of proposed
legislation affecting the Agency.
These requirements seem to be consistent with sound
management practices and would appear to impose little in the way
of additional administrative burden. Further it would seem that
the Agency already may have procedures which could be viewed as
meeting these obligations. In order to determine what, if
anytli-.Lng, additionally needs to be done under this Section,
however, I would ask that each addressee rgvide this Office with
info_r?r