BALANCING TEST

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86-00674R000300070004-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 17
• Document Creation Date: December 19, 2016
• Document Release Date: March 30, 2006
• Sequence Number: 4
• Publication Date: July 20, 1977
• Content Type: MF

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July 20, 1977
THE WHITE HOUSE
MEMBERS
PRM/NSC-29 AD HOC COMMITTEE
P;ICH %RD NEUS'1 %A*
SUBJECT: )lalanc ing Test
lnte:rest was expressed at the Ad Hoc Comxnittee meeting
last week in obtaining the v3'.ws of Mr. Jeffrey Axelrad,
Chief of Justice's Information and Privacy Section,,
Civil Division, concerning Jhe adoption of ;~ "bala,rcing
test" in the new Executive Order. Mr. Axcelrad? g, personal
views are presented in the attached memorandum, which
is forwarded for your infor,p1 ation.
Mr. Axelradt s comments h;~ve been offere~~ with the under-
standing that they are not to be regarded ors the official
Justice Department position pn this issue.
A ttachrnent
on file GSA.release
instructions apply
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W ASiiiNCTO}N, D.C. 20530
July 2C , 1977
Ad4rfto H-07 to the
Mvi44w Iodiasted
iad ftet.v to Iahl-s rod N%=24r
Dr. Robert Gates
National Security Counsel Staff
Mr. Richard Ncustadt
Domestic Policy Staff
The White House
Dear Dr. Gates and Mr. Neustadt:
This confirms my July 19? 1977 conversation with Gary
Barron of your office. Mr. Barron advises ;ghat a proposal
is -tinder consideration to include in a revised Executive Order
on the classification of documents a provision to the cffecj~
that the classifying official shall balance the Public's
need to know against the national security concerns under.
consideration. Mr. Barron inquired as to my opinion of the
effect of adoption of this proposal. In my opinion, the
proposal would be hopelessly impracticable io administer. More
specifically, I doubt whether the Courts wroiAld conclude that
an Executive Order including such a provision. would specifically
authorize any material to be kept secret wi1 hin the meaning
.of 5 U.S.C. ?552(b)(1)(A). Additionally, the scope of litigation
under the FOIA, in particular 5 U. S . C. ?5520)(1)(B), would be
broadened. I believe that the inclusion of such 41 provision
wcpuld enable plaintiffs to generally test the des;Lrability of
arty particular course chosen in the interest of n;qtional se(,-urity.
At best, the proceedings, including discovery proceedings,
would be complex and difficult: to keep with:Ln confined channels.
At worst, and it is a real possibility, the provi,ions would
enable ou:c Nation's foreign policy and defense policy to be
set by FOIA plaintiffs and by r1strict Court; judgjrs, rather than
by the Executive Branch.
It is my understanding that you are continuing to consider
th4s matter. and will discuss this with other perspns within the
Department of Justice.
Sincerely,
Jdf f{rdy'Ax44lrad
Chief, Information & Privacy Section
Civil Divi;lion
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ISSUE: THE EL\MINATION OF THE ROLE AND EFFECTIVENESS OF
THE INTERAGENCY CLASSIFICATION REVIEW COMMITTEE
DISCUSSION:
The Interagency Classification Review Committee (ICRC) was established
pursuant to Executive Order 11652 and its implementing National Secu-
rity CounciL Directive. The Committee was established to assist the
NSC in monitoring the implementation of the Order and was specifically
charged with: (a) overseeing Departmental actions to ensure compliance
with the Order and implementing 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 over-
classification, ensure prompt declassification and access to declassified
material, and eliminate unauthorized disclosures.
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 Admin-
istration 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 Administration through the National Archives and
Records Service.
In meeting its monitorship responsibilities, the ICRC has relied pri-
marily on a system of quarterly oversight reports from all Departments
granted original classification authority and on a system of detailed
on-site program reviews of Departmental implementation. ICRC program
reviews entail in-depth analysis of all facets of classification, declas-
sification and safeguarding procedures within Departments. During 1976
reviews were conducted in over 50 Departments. It is projected that
over 200 reviews will be conducted in 1977. After-action reports are
prepared for each formal review and a copy is provided to the senior
official responsible for the program in each reviewed Department along
with specific ICRC recommendations for program improvement.
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
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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. Examples of progress achieved as presented
in the Committee's annual progress report to the President include: (a)
classification authority reduction from over 59,000 personnel to under
14,000; (b) a 65 percent reduction in unauthorized disclosures in CY
1976; (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 Conf i-
dential category as compared with the use of the more restrictive Secret
and Top Secret categories; (e) limiting exemptions from the automatic
declassification provisions to less than 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; (g) demonstrated public confidence in the execu-
tive branch declassification and appeal programs by a 1400 percent increase
in the number of requests for declassification review -- further sub-
stantiated 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; (h) impressive gains made by Depart-
ments in the reduction of classified inventories; and (i) vast improve-
ments made by Departments in their monitorship and inspection systems
and in the development and use of security education courses and materials.
Still, much remains to be done to ensure more effective implementation.
The efforts of the oversight body can be enhanced by certain actions.
For example, the ICRC has had an Acting Chairman for over 4 years despite
repeated recommendations by the Committee to the NSC that a permanent
Chairman be appointed. The appointment of a Chairman of national
stature would publicly demonstrate a co:: i tnent 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 physically 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 relationships with Departments. The effectiveness of the Committee
has also been impeded by a lack of sufficient staff personnel 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, could be
undertaken.
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In considering the role and effectiveness of the ICRC, 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 hierarchy
and its apparent degree of authority.
(c) The composition of the oversight body and the ability of Committee
members to make independent decisions.
(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 monitor or be involved
in suggestions or complaints regarding executive branch administra-
tion of the Freedom of Information Act, as amended.
(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 in its place a new oversight office in the
Executive Office of the President with overall monitorship responsibility
for the Information Security rogram._ The office shall be headed a T
full-time Director and a Deputy Director or a three member board appointed
-by the President. The Director shall report to the President. He shall
also chair an interdepartmental committee com rised of current ICRC
membership which committee shall act in an advisory capacity to the
Director. The office shall be charged with responsibility for all func-
tions now assigned to the ICRC plus responsibility for actin on those
FOIA appeals above ':the Departmental level involving the b(l) exe ption
submitted to the oversight office voluntarily by requesters. All
interested Departments will have the opportunity to be heard on an
matter before this office.
la. Identical to Option 1 exc pt that overall monitorship responsibility is
placed in the Office of the Vice President.
ADVANTAGES:
a. This course of action presents the appearance of an independent body.
b. This option raises the oversight function to the Presidential level.
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c. This course of action eliminates many of the delays associated with
committee action and will permit more rapid monitorship actions..
d. This option does not do violence to current reorganization plans
for the Executive Office of the President.
e. This course of action creates an oversight body which is independent
of classification authorities.
f. This option retains an interagency forum for the exchange of views
and ideas on security information.
This option allows the oversight body to continue to draw on
Departmental expertise.
h. This course of action continues to provide an executive branch appeal
level above the Departmental level and actually increases the
responsibility of the oversight body by providing that FOIA appeals
involving the b(l) exemption shall also be heard.
a. Adoption of this course of action will require a significant increase
in the size of the oversight staff, and consequently, in the White
House staff, in order to handle and process the anticipated signifi-
cant increase in the number of FOIA appeals.
b. This course of action places the final decision on appeals with an
oversight body rather than with the head of the Department.
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.
d. Adoption of this course of action will slightly increase the size
of the Executive Office of the President.
e. This course of action would remove a national security related
function from the responsibility of the Assistant to the President
for National Security Affairs.
Abolish the ICRC. In its place, establish an independent oversight
office in the Executive Office of the President which shall have overall
policy, iuap and monito responsibili'LL For the Information
Security Progra The oversight office shall be headed by a full-time
b-1-rector and Deputy Director appointed by the President. The Director
of the office shall report to the President. He shall also chair an
interdepartmental committee comprised of current ICRC membership which
conunittee shall act. in an advisory capacity to the Director. Functions
of the new office shall be identical to those currently assigned to the
ICRC except, that those pert,to the hearing of appeals shalt be
eliminated.
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2a. Identical with Option 2 except that the oversight office along with
overall monitorship responsibility is placed in the Office of the Vice
President.
a. Consistent with the Freedom of Information act, as amended, this
course leaves the final executive branch decision on appeals with
the Departments.
b. This course of action gives the appearance of increased authority
for the oversight body and more independence.
c. This option eliminates many of the delays associated with Committee
action and will permit more rapid monitorship actions.
d. This option will allow the oversight body more time to make substan-
tive policy decisions and to initiate progressive actions.
e. This course of action does not interfere with current planning for
reorganization of the Executive Office of the President.
f. This course of action creates an oversight body which is independent
of classification authorities.
g. This course retains an interagency forum for the exchange of views
and ideas on security information.
h. This course will allow the oversight body to continue to draw on
Departmental expertise.
a. Since zhis course of action eliminates the oversight appeal level,
there will be no avenue available for requesters seeking declassi-
fication of those executive branch classified records which are not
subject to the provisions of the FOIA, as amended; e.g. Classified
documents in the Presidential libraries.
b. The elimination of the appeals function could have a negative impact
on the public.
c. Adoption of this option will require a slight increase in the size
of the Executive Office of the President.
d. This option removes a national security related function from the
responsibilities of the Assistant to the President for National
Security Affairs.
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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 implemen_ta.tion
of the pro~ram within his/her Department. Require Departmental reviews
and inspections and annual reports on program progress to a desi,guated
NSC office,,
ADVANTAGES::
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 be 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.
a. There would probably be a negative public perception of this course
of act-Lon -- 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 now 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 '_n 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 rev=yew, inspect or objectively analyze Departmental implementing
action.,.
f. In all likelihood, a slight increase in the NSC staff will be required.
g. 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
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4. Retain overall responsibility for oversight of the program in the NSC.
Either retain the ICRC as currently organized or add three additional
Presidential appointees from outside the executive branch to give it
a more independent appearance. Retain functions as currently assi ned
to the ICR1..
a. This course of action would contribute to continuity of operations
since procedures would not be significantly modified.
b. This option would continue to permit the Committee to draw on
agency..resources and expertise.
c. Minimal re-education of the public will be required to ensure aware-
ness o:E available routes for suggestions, complaints and appeals.
d. The addition of three members.from outside the executive branch
will p:covide the appearance of some degree of independence.
a. Even the addition of three Presidential appointees does not give
the oversight body a sufficiently independent appearance.
b. Decision by Committee is not always efficient, particularly when
members of the Committee have very definite vested interests.
c. The lack of a finite organizational tie between the Executive Office
of the President and the Committee will be perceived by both the
public and the Departments as a lack of authority on the part of the
Committee.
d. Action by Committee causes considerable delay in day-to-day opera-
tions, appeals, and review functions.
e. From the perspective of the Departments, appeals to an oversight
body undermine the authority of the head of the Department.
f. This course of action offers no overriding advantages over the
existing monitorship system under E.O. 11652.
5. Abolish the ICRC. Establish in its place in the Executive Office of the
President an independent advisory board composed of Presidential appointees
from outside the executive branch. Charge the board with overall review,
po and appeals responsibility.
a. Public perception of the board would be one of greater independence.
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b. This course of action would provide a diversified oversight of the
implementation of the program drawing on the board members experience
in various disciplines.
c. This option would provide a clear indication of the President's
commitment to openness.
a. Current Administration planning is to reduce the number of advisory
boards.
b. The gathering of the board members from various parts of the country
would make the holding of periodic meetings difficult.
c. Administrative costs would be significantly higher because of travel,
per diem and other logistical support costs for board members.
d. Members appointed from outside the executive branch would lack
knowledge of current executive branch organization, functions, and
operations.
e. The appeals function would be difficult to carry out because of the
decentralized location of members.
f. This course of action has the potential for undermining final
Presidential authority over classification matters.
6. Retain current Departmental representation on the ICRC. Place overall
monitorship responsibility for the program in a new office in the
Executive office of the President. Appoint a prominent U.S. citizen
from outside the executive branch as Chap man of the ICRC. Retain
functions currently assigned to the ICRC.
a. Since operating procedures will not change significantly, this course
of action will contribute to continuity of operations.
b. This course would continue to permit the Committee to draw on
Departmental resources and expertise.
c. Minimal re-education of the public will be required to ensure
awareness of available routes for suggestions, complaints and appeals.
d. The appointment of a permanent Chairman from outside the executive
branch lends some degree of independence to the body.
e. Establishment of the office in the Executive Office of the President
gives the appearance of greater authority for the oversight body.
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a. It may prove difficult to find a prominent U.S. citizen willing to
chair the oversight body.
b. Even the changes suggested by this option do not give the oversight
body a sufficiently independent appearance.
c. This course of action retains the difficulties involved in committee
operation. Committee members may have definite vested interests.
d. Action by Committee causes considerable delays in day-to-day opera-
tions, appeals and review functions. In addition, it creates an
extensive administrative workload in the processing of appeals,
reviews and policy matters.
e. This course does not provide for the hearing of FOIA appeals above
the Departmental level involving the b(l) exemption.
7. Retain cur::ent Departmental representation on ICRC. Overall monitorship
responsibility for the program shall be placed in a separate office in
the Executive Office of the President. A Chairman shall be appointed
by the President and shall be a member of the White House Staff. He
shall also serve as full-time Director of the oversight Office. Charge,
the office with all functions currently assigned to the ICRC plus
responsibility for acting on those FOLA anneals above Departmental.
level involving the (b)(1) exemption submitted to the oversight office
voluntarily by requesters.
a. This course of action meets Departmental needs and desires to
participate in appeals and policy functions.
b. The course of action provides for a dispersal of authority.
c. This course !of action will allow monitorship activities to be
undertaken and completed more rapidly.
d. This course of action will continue to permit the oversight body
to draw on Departmental resourses and expertise.
e. This course of action provides the Committee with a closer tie with
the President and, concomitantly, the appearance of greater authority.
a. Retention of current Departmental representation may be looked upon
by some members of the public as a perpetuation of the status quo.
b. This course of action will require significant expension of the
White House staff.
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c. This course of action proposes an oversight body which is not
independent of classification authorities.
RECOMMENDATIONS: During the course of its deliberations the Sub-Group
developed and fully considered a number of options. Basic agreement was
reached among the members regarding overall monitorship responsibility,
location of the oversight office, composition of the oversight body and
with one major exception, functions to be assigned to the oversight body.
This exception was a divergence of views on whether or not the selected
oversight office should hear appeals from Departmental denials of declas-
sification requests, and if so, to what extent. A poll of the Sub-Group
members disclosed a preference for the following three possibilities:
Option 1 --- This course of action provides for the oversight
body to hear and act on all appeals including FOIA
appeals involving the (b)(l) exemption. To handle
this function the option provides as an alternative
the designation of a three member board. This
option was favored by the representatives from the
Office of Management and Budget, the Domestic Staff
and the National Archives and Records Service.
Support for this position was based on the opinion
.that the hearing of appeals serves a useful and
cost-savings purpose and that any action to eliminate
this function would be viewed by the public as a
retrogressive step.
Option 2 --- This option provides for the complete elimination of
all appeals functions of the oversight body. This
option was supported by the representatives of the
Energy Research and Development Administration, the
Department of Defense, the Central Intelligence Agency/
IC Staff, and the National. Security Council Staff.- '^
Support for this position was based on the opinion that
the hearing of appeals has consumed the entire time of
the ICRC thereby precluding that body from making
substantive policy and procedural changes in the pro-
gram. Further, that the proposed Executive order
should be consistent with the FOIA regarding appeals,
and that final executive branch decisions on classi-
fication and has cognizance over the information.
Option 2 (Modified) -- The ICRC representative supported the
adoption of Option 2 with a modification which would
require the oversight body to hear appeals regarding
that classified information created by the executive
branch which is not subject to the provisions of the
FOIA, as amended; e.g., Presidential materials. It
was the opinion of the ICRC representative that
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elimination of the oversight body appeals function
would remove the only available avenue for persons
to appeal this type information. Further, most
appeals which have been heard by the ICRC have been
this type material, and that the Government has a
responsibility to ensure that such avenues are
available to the public.
The Department cf State representative abstained from selecting a preferred
option from all available options based on the opinion that the Sub-Group
should develop and consider all possible options along with their advantages
and disadvantages. However, it was his opinion that the selection of a
preferred option should be left to the decision of the ad-hoc Committee.
Notwithstanding, it is the recommendation of this Sub-Group that the ad-hoc
Committee consider both Option 1 and Option 2 (original and modified as above)
in arriving at decision on the oversight body.
-- That Section 6, Executive Order 11652, be changed to reflect the
language of Section 22, page 25, of the Van Cook/Wells proposed
order with the following additional changes:
a. In the lead paragraph, change the reference to the "Office for
Openness in Government" to the title selected for the new over-
sight Office.
b. Change the language of Section 22 (A) to reflect the recommenda-
tion arrived at by Sub-Group I/R 3 regarding trustworthiness.
c. If Sub-Group I/R 2 determines that security agreements should
be required, and this recommendation is adopted, a policy ~
statement regarding security agreements should be included in
this Section.
That Section 7, Executive Order 11652, be changed to reflect the
language of Section 24, Page 27 of the Van Cook/Wells proposed
Order with the following additional changes:
a. Change reference to the "Office for Openness in Government"
throughout Section 24 to the title selected for the new over-
sight body.
b. If the final decision determines that an interdepartmental
advisory board is to be established, include this fact and
composition of the board.
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c. Retain or change the language of Section 24 (A)(2) to reflect
the decision arrived at regarding the hearing of appeals.
d. Retain or change the language of Section 24(B)(4) to reflect
the decision arrived at regarding Departmental preparation of
classification guidelines.
-- Add a new section regarding the responsibility of the Attorney
General of interpreting the Order using language such as that
contained in Section 26, page 30, of the Van Cook/Wells proposed\
order, with the exception that reference to the "Office for Openness
in Government" should be changed to the title decided for the new
oversight body.
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Recommended Option
Abolish the ICRC. In its place, establish a Classification
Oversig:at Board (COB) 4in the Executive Office of the President
which s::.all have overall monitoring responsibility for the United
States Government information security program. The Board
shall co:zsist of three prominent private citizens appointed by
the President, and reporting to him, This Board shall be
supported by a staff headed by an Executive Secretary. The
functions of the Board and its staff shall be identical to those
currently assigned to the ICRCx:cept that t ose pertaining
to the hearing of appeals shall be eliminated.* The Executive
Secretary shall be advised by an interc'apartmental committee
comprised of the current ICRC membership.
In view of current reorganization efforts underway
affecting the Executive Office of the President, it
may or may not be possible to have the. COB physically
located in the Executive Office. Although this is the
strongly preferred option of the subcommittee, the
alternative would be for the Board and staff to be
placed administratively and for budgetary purposes
under another Executive Branch Department; e.g.,
under GSA funded through NARS -- the present arrange-
ment for the ICRC.
T1 ere is dispute among the agencies whether the Board
shcauld hear appeals of final Agency determinations on
declassification requests. We are agreed on the form.
and function of the body replacing the ICRC except in.
this respect.
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Advantages:
a. Public perception of the board would be one of greater independence.
b. This course of action would provide a diversified oversight of the
Program drawing on the experiences of the board members and
the interdepartmental advisory committee.
c. This course of action would provide an indication of the President's
commitment to openness consistent with national security.
d. This course of action would provide monitorship independent of
classifying Departments/Agencies.
e. Placement of the board in the Executive Office of the President would
provide the appearance of greater authority.
f. Deletion of the appeals provides consistency with the Freedom of
Information Act, as amended, leaving the final decision on appeals
with Department Agency Heads who have responsibility for the
information.
Disadvantages:
a. Current Administration planning is to reduce the number of boards.
b. The gathering of board members from various parts of the country
would make the holding of periodic meetings difficult.
c. Board members appointed from the private sector would lack
knowledge of current Executive Branch organization, functions,
operations, and, moreover, lack contemporary experience with
Approved 'Po tl uesV&&/ , / i~tlAr UjW 486 6 IGction
Approved r Release
 Approved For Release 2006/04/19 : CIA-RDP86-00674R000300070004-6
in the interest of national security.
d. If the appeal function were included, it would be most difficult
to carry out due to the dispersal of the board members around
the country.
e. This course of action, if the appeal function were to be included,
would place the board in a position of being able to override a
Department Head's decision with respect to the continuation of the
classification of information for which he is responsible. MoreovF -,
this course of action has the potential for undermining final
Presidential authority over classification matters.
f. If the appeal function is deleted, this course of action would have
the possible appearance of diminished public access to classified
information.
g. There would be a significant amount of authority placed in a small
number of people.
h. This course of action would remove a national. security related
function from the purview of the Assistant to the President for
National Security Affairs.
i. If the board is placed in the Executive Office of the President,
this course of action would require an increase in the size of the
Execut ve Office. If the board were to be placed in GSA, it may
give the appearance of cosmetic change alone.
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