ACCESS REPORTS FREEDOM OF INFORMATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87-00058R000400070001-4
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 41
• Document Creation Date: December 27, 2016
• Document Release Date: July 23, 2012
• Sequence Number: 1
• Publication Date: July 16, 1986
• Content Type: REPORT

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ROUTING AND RECORD SHEET
SUBJECT: (Optional)
FROM:
EXTENSION
NO.
OIS*378*86 S
Director of Information Services
DATE
1206 Ames
31 July 1986 S
TO
Offi
i
i
d
: (
cer
es
gnat
on, room number, and
DATE
building)
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
t.
Bill:
DDA
7D24 HDQS
2.
This is what I was calling
about yesterday.
3.
We received a call from the
Information Security Oversight
Office (ISOO) concerning a para-
4?
graph in a publication called
Access that dealt with the Ku Klux
_
Klan incident in the Agency. That
5?
article is attached. Steve
Garfinkel, the Director of ISOO was
hi V
anticipating questions as to why
such a report would be classified.
In looking into it
I find that
*
T
,
the so-called report was a letter S
1
from Dave Gries to Senator
Durenberger
see attached
It was
8.
,
.
classified Confidential. Note that
there is no additional information
in that letter of 22 Ma
1986 than
y
9.
what was put out as a Headquarters
Notice, also attached. The
Headquarters Notice has since been
10.
released with minimum sanitization
to FOIA requesters.
11.
The letter from Gries to
Senator Durenberger is, in our
1z
judgment, improperly classified.
We have requested OCA to downgrade
the letter and will so report to
13.
Steve Garfinkel.
14.
15.
Attachments:
As Stated
FORM 610 USEEDPITIREVIOUSN
1.79 S
O
TAT
TAT
TAT
STAT
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DA: D/OIS STAT
Distribution:
Original & 1 - Addressee w/att.
OIS SUBJECT w/att.
1 - OIS Chrono wo/att.
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L-Z
ACCESS
REPORTS
19 1 IN
Volume 12 Number 15 July 16, 1986
Washington Focus: The House Government Operations Committee is expected
to consider X.R. 4862, a business procedures amendment to the FOIA sponsored
by Rep. Glenn English (D-Okla), chairman of the House Subcommittee on
Government Information, Justice and Agriculture, and Rep. Tom Kindness
(R-Ohio), ranking minority member of the subcommittee, when it meets in
early August. English will apparently introduce an amendment to the bill at
that time allowing agencies to promulgate regulations providing for the
routine disclosure of certain categories of business information which would
not require a notice to the company before release. The change, which was
suggested by Public Citizen and other public interest and press groups, has
met some resistance from business, which fears it may give agencies too much
leeway in defining what types of business information can be routinely
disclosed. If the issue can not be settled by negotiation, and business
support for the amended bill begins to wane, it is almost certain to spell
the end of the business procedures amendments, at least for this session.
STORIES IN THIS ISSUE:
Bill Aimed at Spies
FBI Won't Confirm or Deny
May Hit the Press. . . . . . .
1
Presser's Role as Informant. . .
5
D.C. Circuit Puts Ball
Exemption 5 Protects
In FEC's Court. . . . . . . .
. 3
Negotiations with Expert. . . .
. 6
Committee Considers Raising
News From Canada. . . . . . . . .
. 7
Costs of Technical Data. . . .
4
BILL AIMED AT SPIES
MAY HIT THE PRESS
An amendment to the Diplomatic Security and Antiterrorism Act, meant to
deprive convicted spies of any money they might have gained, or stand to
gain, from their illegal activities, has sparked concern among public
interest and press groups who fear the amendment's provisions could be used
against the press.
Besides providing for forfeiture of any profits from espionage
activities, the amendment requires government seizure of "any of the
person's proerty used, or intended to be used, in any manner or part, to
commit, or to faciliate the commission of, such violation."
Editor. Harry A. Hammitt
Access Reports/F01 newsletter is published biweekly, 24 times a year. Subscription price is $250 per year
Copyright 1985. Published by The Washington Monitor, Inc., 1301 Pennsylvania Avenue, N.W., Suite 1000.
Washington, D.C. 20004 [phone]. Available electronically through NewsNet. No portion of this publica
Lion may be reproduced without permission. ISSN 0364.7625.
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Page 2 ACCESS Reports/July 16, 1986
Critics contend that, if the government were to make good on CIA
Director William Casey's threats to prosecute the press for violations of
communications intelligence statutes, and a media Organization were found
guilty, the amendment could be used to seize all assets of the
organization. The Reporters Committee for Freedom of the Press points out
that the forfeiture provisions are so broad that "in the case of a news
organization convicted under the espionage statutes, [forfeiture) logically
could include virtually any assets used in news gathering and dissemination,
such as video equipment, computers, word processors, and printing equipment."
The amendment, introduced by Sen. Ted Stevens (R-Alaska), and
cosponsored by 40 other Senators, would adopt forfeiture provisions
currently included in federal drug laws, allowing the government to freeze
all assets of those indicted under espionage laws pending the outcome of the
trial.
During floor debate, Stevens emphasized that his bill, patterned
generally after a federal "Son of Sam" statute, was aimed solely at
confiscation of ill-gotten gains of spies themselves. He stated that "it
[is not] an attempt to in any way prevent a third party from engaging in the
business of writing either for the print media or for the air or television
media the stories of those who have been involved in these kinds of
activities."
Stevens made those remarks in response to a question posed by Sen.
Charlies Mathias (R-Md) concerning the Samuel Morison espionage case.
Noting that the case was currently on appeal and that it had "wide-ranging
First Amendment implications," Mathias asked Stevens if his amendment would
have any substantive impact on the espionage law under which Morison was
convicted.
Stevens responded by saying it was not his intention to in any way
change the definition of the underlying offenses contained in the espionage
statutes.
Although the implications of the bill, which was passed by the Senate
June 25, may have been unintended, they have nevertheless caused an uproar.
Rep. Don Edwards (D-Callf), chairman of the House Subcommittee on
Constitutional Rights said that "coupled with Casey's threats to prosecute
the press, this provision is frightening. . .If this provision is enacted,
the media can publish stories on intelligence matters only at the risk of
their businesses. Obviously it will have a chilling effect."
Allan Adler, legislative counsel for the ACLU, added that if the
government could prosecute The Washington Post for publishing classified
information, "then the property of The Post, if it were a named defendant,
would be forfeited to the government." Commenting on the forfeiture
provisions, Adler noted that the purpose of forfeiture in the case of the
press would be "to end the ability to engage in the enterprise that
constitutes the offense. In Casey's view, the act of publishing the story
is the offense."
Since the House has already passed a different version of the bill, the
whole issue will now go to conference where there is a good chance that the
problematic language of the Stevens amendment will either be modified or
taken out completely.
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ACCESS Reports/July 16, 1986 Page 3
D.C CIRCUIT PUTS BALL
IN FEC'S COURT
A D.C. Circuit panel has put off a decision on whether Legi-Tech, a
company which provides its subscribers with computerized information about
campaign contributions on file at the Federal Election Commission, may be
violating the Federal Election Campaign Act by disseminating the donor lists
of organizations such as the National Republican Congressional Committee.
Writing for the majority, Circuit Court Judge Kenneth Starr stated that
"[c]onsiderations of uniformity in the application of law, efficient use of
judicial resources, and appropriate deference to Congress' mandate to the
FEC combine to lead us here to. . . stay our hand until the FEC has had an
opportunity to speak to this question."
Saying he was unconvinced that the Congressional Committee's claims that
copyrighting its donor list was consistent with the FECA, Starr also said he
was troubled by the Committee's interpretation of the FECA's prohibition
against use of contributor information for "commerical purposes." He
indicated that if the phrase really applied to any organization that sold
such information, it "would bar newspapers and other commerical purveyors of
news from publishing the information contained in those reports [to the FEC)
under any circumstances. Such a result would obviously impede, if not
entirely frustrate, the underlying purpose of the disclosure provisions of
the FECA."
Although an FEC regulation allowed the media to print contributor
information as long as the principal purpose of such communications "is not
to communicate any contributor information listed on such reports for the
purposes of soliciting contributions or for other commercial purposes,"
Starr noted that it was unclear as to whether the FEC would group Legi-Tech
with the media for purposes of the regulation. In withholding judgment
until the FEC could act on a pending complaint filed by the National
Republican Congressional Committee, Starr pointed out that for the court
panel to resolve the controversy "would require judicial speculation as to
the Commission's views."
The case was before the panel on appeal from a lower court decision that
the donor lists were not copyrightable. But Starr observed that even the
Copyright Office expressed uncertainty about the issue, and declined to rule
on that point since the resolution of the FEC complaint could well obviate
any need to resolve the copyright issue.
In a separate concurring opinion, Senior Circuit Court Judge J. Skelley
Wright pointed out that the FEC should keep in mind the "important and
troubling First Amendment implications raised by any construction of the
statute that bars the use of the information at issue in this case by
organizations such as Legi-Tech." He also indicated he was troubled by the
possibility that the Congressional Committee, if it were to lose its
administrative appeal to the FEC, might still be able to pursue a copyright
claim. He said it was doubtful that Congress "had intended to permit such
private enforcement." (National Republican Congressional Committee v.
Legi-Tech Corporation, No. 85-6037 and No. 85-6041, U.S. Court of Appeals
for the District of Columbia, July 15)
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Page 4 ACCESS Reports/July 16, 1986
COMMITTEE CONSIDERS RAISING
COSTS OF TECHNICAL DATA
The House Armed Services Committee is working on an amendment to the
Defense Authorization Bill which would allow the Defense Department to
charge requesters the full cost of providing technical data under the
Freedom of Information Act.
The amendment is apparently a response to complaints from the Defense
Department that the cost of processing such requests has become burdensome.
Because of the FOIA, the Department has never been able to recoup the true
costs of requests, such as the cost of new equipment, duplication costs,
and, particularly, the costs of high-level review of technical data to
determine its releasability.
Most of these concerns would be addressed in the amendment. It would
allow the Department to charge "all costs reasonably and directly
attributable to responding to such request, including reasonable charges for
the cost of services of agency personnel." This would include staff time
spent locating the requested data, reviewing the data, and duplicating and
other processing charges.
In an attempt to make sure defense contractors are not stymied by these
provisions, the amendment would provide for waivers to U.S. citizens or
corporations where they certified they were requesting the technical data to
use in bidding on a contract, where the data was needed to comply with the
terms of an international agreement, or where the Secretary of Defense
determines that "such a waiver is in the interests of the United States."
However, small contractors are opposed to the legislation on several
grounds. In a paper circulated to members of the Armed Services Committee,
the National Tooling & Machining Association points out that "there is no
reason to charge FOIA requesters more for technical data than other types of
Government records. In fact there is reason to charge less or nothing since
the dissemination of such data saves the Government money by permitting
competition."
The Association also argues that charging to review the releasibility of
the data would discourage small contractors from using the FOIA as a way of
challenging proprietary markings that are frequently put on technical data
by the submitting contractor.
Because it takes the Department so long to respond to requests,
certifying that the information is requested for use in bidding on a
contract is useless, according to the Association. It contends that
technical data must be requested far in advance to be useful in responding
to a contract solicitation.
Noting that the Committee claims the waiver provision is intended to cut
down the volume of requests from data brokers, the Association argues that
because of the poor performance of Defense Department data repositories,
data brokers are often the only means of getting the information in a timely
manner. The paper points out that "data brokers exist only because of DoD
inefficiency and could not remain in business if DoD became efficient at
data dissemination."
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ACCESS Reports/July 16, 1986 Page 5
Although the amendment does not provide for withholding information and
would not be considered an Exemption 3 statute, it does make several
important procedural changes. In the very limited sphere of defense
technical data, it would become permissible to charge for time spent
reviewing documents for release, a concession which was included in the
recent comprehensive draft FOIA legislation, but one which has been opposed
by most public interest groups. It would also allow the Defense Department
to keep the funds collected for processing technical data requests rather
than mandating that the money be sent to the general Treasury fund as is the
case with fees collected under the FOIA.
FBI NEITHER CONFIRMS OR DENIES
PRESSER'S ROLE AS GOVT INFORMER
The Justice Department has won a victory in its effort to expand the use
of the neither confirm or deny response in the area of invasion of privacy
under Exemption 6 and Exemption 7(C).
A federal judge in Alexandria has sided with the Department, saying it
need not disclose whether or not it has an informant file on Teamster
President Jackie Presser. District Court Judge Claude Hitton noted that,
absent a notarized release, Presser's "interest in non-disclosure of
personal privacy information outweighs the public interest in scrutinizing
the integrity of the FBI. An individual's willingness to serve as an
informant is based, in large part, on FBI assurances that their relationship
will remain confidential." He pointed out that "the public has an interest
in such non-disclosure: impairment of ongoing and future law enforcement
investigations."
The FOIA suit was brought by Mary Jane Freeman after the FBI told her it
could locate no records documenting a connection between the Teamsters union
and Lyndon LaRouche or any of his organizations. She specifically asked for
Presser's informant's file in so much as it related to contacts with
LaRouche.
After telling Freeman that no documents had been found, she produced an
internal FBI document which mentioned Presser, LaRouche, and several of his
organizations. In light of the memo, the FBI told the court it would
conduct a further search, but later reported that it was still unable to
find any responsive documents.
Hitton accepted the FBI's explanation that its search did not turn up
the internal memo because it did not specifically reference the Teamsters
and was thus not included in the file on the Teamsters or in LaRouche's file
as a cross-reference to the Teamsters. In ruling on the search, Hitton
noted that the issue to be resolved is not whether there might exist any
other documents possibly responsive to the request, but rather whether the
search for the documents was adequate."
Although Freeman argued that press accounts had established the fact
that Presser was an FBI informant, Hitton ruled that "the FBI has not made
an official public disclosure concerning Mr. Presser's alleged relationship
with it and media speculation as to the thrust of an investigation does not
constitute a disclosure. . .sufficient to justify the release of
confidential informant information." (Mary Jane Freeman v. U.S. Department
of Justice, Civil Action No. 85-0958-A, U.S. District Court for the Eastern
District of Virginia, Mar. 12)
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Page 6 ACCESS Reports/July 16, 1986
EXEMPTION 5 PROTECTS
NEGOTIATIONS WITH EXPERT WITNESS
A government expert witness has lost his bid to obtain records of Labor
Department negotiations with another expert witness who was hired to take
his place during a second administrative proceeding concerning a job
discrimination suit against Harris Trust.
The Labor Department claimed the General Information Form and two
paragraphs of a letter sent by the president of Statistics, Inc. were
protected under Exemption 5 (attorney work product). Stephan Michelson, the
original expert witness, argued the material contained factual information
which could be separated from the opinion portion of the records.
After closely examining the case law in the D.C. Circuit, District Court
Judge John Pratt agreed with the government that all the claimed materials
had been properly withheld. Noting that "where work product is involved,
drawing a line between facts and protected opinion work product" is less
than helpful, Pratt found that the affidavit submitted by the Department was
"sufficiently detailed and credible to uphold defendant's claim of
exemption. . ."
However, Pratt did not agree with the government's argument, based on
the Supreme Court's decisions in FTC v. Grolier and Weber Aircraft, that
factual material did not have to be segregated from privileged documents
because the records would not be "routinely available" in litigation. Pratt
pointed out that a 1978 D.C. Circuit decision noted that "the government
cannot exempt pure statements of fact from disclosure by calling them
attorney work-product. . ."
He went on to observe that there would be times when an attorney's
mental Impressions were so inextricably intertwined with the facts that
factual material could not be released without divulging protected
opinions. He noted that the D.C. Circuit had said those facts "which might
disclose an attorney's appraisal of factual evidence" could be protected.
Pratt also found that the letter from Statistica to the Labor Department
met the threshold test contained in (b)(5) that the records be "inter-agency
or intra-agency" in nature. He pointed out that the phrase had been
previously used to include reports prepared by outside experts at the
agency's request.
Pratt rejected Michelson's contention that the Labor Department
affidavit was inherently unreliable because it had been submitted by the
attorney involved in the case and was "self-serving." Quoting from an
earlier D.C. Circuit opinion, Pratt pointed out that "in every FOIA case,
there exists the possibility that Government affidavits claiming exemptions
will be untruthful." But, quoting from an opinion by District Court Judge
Gerherd Gesell, Pratt also noted that "if the agency cannot be trusted, the
Act will never work. It is a profound mistake to transfer administrative
responsibility to judges on the theory that persons employed by the
Executive branch are not honest or lack judgment." (Dr. Stephan Michelson
v. United States Department of Labor, Civil Action No. 85-2518, U.S.
District Court for the District of Columbia, June 30)
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ACCESS Reports/July 16, 1986 Page 7
News From Canada ....
From Canadian Correspondent Tom Riley, an International information consultant who heads his own company,
Riley Information Services, P.O. Box 261, Station F., Toronto, Canada M4Y 2L5, Phone: [phone].
First Parliamentary Report on Access Act
The first report resulting from the mandatory three-year review of the
Access to Information Act by a parliamentary committee has recommended that
Parliament revise Section 24 to give the Act precedence over secrecy
provisions in other statutes. Statutes with secrecy provisions, which are
currently exempt from the Access Act, are listed in Schedule 11 of the Act.
Section 24(1), which exempts information laid out in Schedule 11, "unlike
other freedom of information statutes which [refer] to the categories of
statutes to be covered by such an exemption," is exhaustively defined, says
the committee in its report.
When the Act was first passed there were a considerable number of
records exempted from disclosure, with 33 other Acts listed in Schedule 11,
"embracing some 40 identified sections and subsections in other federal
statutes."
This gap created an anomalous situation contrary to the spirit of
openness reflected in Section 2 of the Access Act. As it now stands, the
report notes, if a head of a department exercises a discretion to withhold
information which is deemed secret by another statute, even the Information
Commissioner cannot review that decision. This, says the committee, is
inconsistent with Section 2 of the Act which gives a statutory right of
access to the citizen, with limited exceptions, with the burden of proof on
the government to show why the information should not be released.
The report says that "two of the three principles set out in [Section 21
are violated to some degree by the existence of Section 24(1). First, this
exception to the rule of open government cannot be termed 'limited and
specific.' To the extent that these other statutory provisions contain
broad discretion to disclose records, these exceptions to the rule of
openness will remain unclear until the discretion is actually exercised in
each case."
The report, written by the House of Commons' Standing Committee on
Justice and the Solicitor General, which has been reviewing the Act for the
last few months, goes on to say that "in the words of a leading American
court decision interpreting the analogous provisions in the United States
Freedom of Information Act, the thrust of the exemption is to 'assure that
the basic policy decisions on government secrecy be made by the legislative
branch rather than the executive branch,' a thrust consistent with one of
the major objectives of the Act which is to substitute 'legislative judgment
for administrative discretion.'"
The committee concluded it was not necessary to include Schedule 11 in
the Access Act. "We are of the view that in every instance, the type of
information safeguarded in an enumerated provision would be adequately
protected by one or more of the exemptions already contained in the Access
Act," the report says. "Most of the enumerated provisions in Schedule 11
protect either confidential business information or personal information.
The exemptions in Sections 20 and 19 respectively of the Access Act provide
ample protection for these interests."
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Page 8 ACCESS Reports/July 16, 1986
The report points out that in other acts with secrecy provisions the
information would be protected because there is a balancing test for certain
confidential business information, "meaning in theory that some of the
information described in (some of the Acts listed in Schedule 11) could
possibly be released should Schedule 11 be eliminated. However, even here
the information is protected because of the third-party provisions of the
Access Act and the fact that only information given in confidence is
protected."
The committee recognizes that "less frequently, information pertaining
to national security, law enforcement, federal-provincial relations, or
governmental economic interests is protected by certain Schedule 11
provisions. Once again, however, there are ample exemptions in the Access
Act to address these important state interests."
Despite these views, the committee stated they "were persuaded that
there should be three exceptions to the conclusions" -- the Income Tax Act,
the Statistics Act, and the Corporations and Labour Unions Returns Act.
"Even though the exemptions in the Access Act afford adequate protection for
these kinds of information, the Committee agrees that it is vital for
agencies such as Statistics Canada to be able to assure those persons
sypplying data that absolute confidentiality will be forthcoming. A similar
case has been made for income tax information."
As a result of these findings, the committee made three recommendations
for change:
o that the Access Act be amended to repeal Section 24/Schedule 11 and
replace it with new mandatory exemption which are drafted so as to
incorporate explicitly the interests reflected in the three provisions
found in the three cited statistical and tax return statutes;
o that the Department of Justice undertake an extensive review of these
other statutory restrictions and amend their parent Acts in a manner
consistent with the Access to Information Act; and
o that any legislation seeking to provide a confidentiality clause
which is not to be made subject to the Access Act should commence
as follows: "Notwithstanding the Access to Information Act. . .-
In this way, concluded the committee, "Parliament will be made
explicitly aware of the impact of its actions. As a result, it is hoped
that future provisions which are inconsistent with the code of disclosure
established in the Access Act will be minimal."
The committee's final report is not expected until later this year. The
current report was tabled at the end of June as a review and Report to
Parliament of Section 24 of the Act, which was required within three years
of the effective date of the Act. The Access to Information Act became
operational on July 1, 1983.
Quebec's Commission on Access to Information has presented its annual
report to the provincial Minister of Communications, Richard D. French. A
summary of the report will appear in the next edition of Access Reports.
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ACCESS Reports/July 16, 1986 Page 9
The annual reports of the Information Commissioner and the Privacy
Commissioner were tabled in Parliament at the end of June. They will be the
subject of special reports in future editions of Access Reports.
In Brief ...
In an important decision for the Justice Department's efforts to block
release of settlement negotiations, Judge Gerhard Gesell has upheld an
agency application of Exemption 4 (confidential business information to
documents generated during an unsuccessful attempt to settle a debarment
action brought by the Department of Health and Human Services against
Tara-dyne Corporation. Gesell pointed out that the documents in question
contained information In which Paradyne had a commercial interest.
Continuing, he noted that "it is in the public interest to encourage
settlement negotiations In matters of this kind and it would impair the
ability of HHS to carry out its governmental duties if disclosure of this
kind of material under FOIA were required." Although he found the
commercial interest of the records was "slight," he said it should be
protected under the exemption. He rejected the government's claim that the
records were also exempt under (b)(5), noting that that exemption "does not
cover papers exchanged between a government agency and an outside adverse
party." (M/A-Com Information Systems v. United States Department of Health
and Human Services, Civil Action No. 85-3215, U.S. District Court for the
District of Columbia, Mar. 4)
By a 7-2 vote, the Supreme Court has decided the public does have a
First Amendment right to attend most pretrial hearings in criminal cases.
The Court ruled that the public could be barred from such proceedings only
if there was a "substantial probability" that the defendant's right to a
fair trial would be prejudiced by publicity and if there was no other means
to adequately protect his right to a fair trial. The case involved Robert
Diaz, a California nurse accused of murdering 12 patients. The California
Supreme Court had upheld the lower judge and ruled the hearing had been
properly closed. Overturning that ruling, Chief Justice Warren Burger wrote
that "[the) risk of prejudice does not automatically justify refusing public
access to hearings. . ." (Press-Enterprise Company v. Superior Court of
California for the County of Riverside, No. 84-1560, U.S. Supreme Court,
June 30Y -
A panel for the D.C. Circuit, saying it did not have enough information
to rule on Exemption 5 predecisional claims made by the Justice
Department, has remanded an FOIA suit back to the district court for a
decision. The suit, filed by free-lance writer Steve Emerson, concerned
Justice's refusal to release information on specific persons suspected of
violating the reporting requirements of the Foreign Agents Registration
Act. The district court initially rejected the Department's claim that the
materials were protected by Exemption 7(C) (invasion of privacy concerning
law enforcement files), but the government then moved to alter that judgment
by submitting a sealed affidavit in which Exemption 5 claims were made. In
his affidavit, Joseph Clarkson, Chief of the FARA unit In the Department's
Criminal Division, stated the records were deliberative process materials
and attorney work product. The district court denied the government's
motion, which was then appealed to the circuit court. Noting that "it is
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far from evident that all of the documents were prepared in anticipation of
litigation, or that deliberative-process materials include no purely factual
data," the panel sent the case back to the district court for further
proceedings. (Steven A. Emerson v. Department of Justice, No. 84-01304,
U.S. Court of Appeals for the District of Columbia, June 30)
The Senate's experiment with live televisio*. coverage ended temporarily
July 15. The cameras will be turned off for at least three days while
members collect their thoughts about the just concluded six-week
experimental coverage. The Senate passed by voice vote a resolution to
resume coverage on July 21. The full Senate is scheduled to vote July 29 on
whether to make coverage permanent.
The Spring issue of FOIA Update, a publication of the Justice
Department's Office of Information and Privacy, has shed further light on
the failure of the comprehensive draft FOIA legislation. In an article on
H.R. 4862, the business procedures bill introduced in the House Subcommittee
on Government Information, Justice and Agriculture, OIP notes that the
Government Information Subcommittee staff experienced difficulty reaching a
concensus with public interest groups, particularly press groups. As the
discussions reached an end, the article points out that press groups
insisted on interpreting an expedited access provision in such a way as "to
apply almost automatically to any journalist working on a deadline -- which
would have presented totally unacceptable difficulties to agencies."
In an addendum to its May decision in Church of Scientology v. Internal
Revenue Service, the majority and dissent continue to spar over whether the
Haskell Amendment to Section 6103 of the Internal Revenue Code allows for
release of tax returns where all identifying information has been deleted.
Informed by the ACLU after their original decision that the "tax model"
referred to during floor debate of the amendment was "an actual return with
identifying details eliminated," Circuit Court Judge Antonin Scalia insisted
this did not affect the basis of his decision. He preferred to rely on the
statutory text rather than what Sen. Haskell and his colleagues may or may
not have understood the tax model to be at that time. He pointed out that
"the mere term 'Tax Model' assuredly does not suggest a redacted actual
return." In dissent, Circuit Court Judge Patricia Wald said "I am amazed
that the majority continues to claim that redaction is insufficient under
the Haskell Amendment. She noted that the additional information provided
by the ACLU "demonstrates that both the interpretations advanced by the
government and the majority are wrong, and that all that the framers of the
Amendment thought necessary under Section 6103 was effective redaction."
The public interest group People For the American Way has issued an
overview report on the Freedom of Information Act on its twentieth
anniversary. Reviewing the legislative history of the Act, citing several
examples of the importance of information uncovered by the FOIA, and
rebutting standard arguments concerning the costs and burdens of the law,
the report concludes that the Act is "a symbol of open information in a
democratic society" and that its existence has been of "enormous benefit to
American society." Copies of the report can be obtained from People For the
American Way, 1424 16th St. NW, Washington, DC 20036; phone [phone].
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ACCESS Reports/July 16, 1986 Page 11
The Securities and Exchange Commission has published notice of
rulemaking for its EDGAR system of electronic filing. Currently being used
under a pilot program which includes filings by voluntary participants, the
operational EDGAR system would call for electronic filing of most documents
processed by the SEC's Divisions of Corporation Finance and Investment
Management. Of the issues on which the SEC requests comment, one deals with
correspondence submitted with electronic filings and the question of how
such correspondence ought to be processed under the FOIA. For further
information, contact Mauri L. Osheroff at [phone], or Patricia M.
Jayne at [phone]. (Federal Register, p. 24155, July 2)
The Office of Technology Assessment has begun work on a study of federal
information dissemination. The study, slated for completion in November
1787-,will focus on present and future public information needs and how
technology might help meet those needs. It will include a look at the role
of the Government Printing Office, agencies, libraries, and private firms
with an eye to possible uses of technological innovations in information
dissemination.
Because he was unable to document any urgent need for the records, a
district court judge has refused to make the Justice Department process a
prisoner's request faster than it would be otherwise under the department's
"first in, first out schedule. Noting that there were 150 requests ahead
of his, Judge Charles Richey said "there is no justification for moving
plaintiff's request ahead of those of persons who have been patiently
waiting." However, Richey instructed the Department to inform the requester
within 30 days of the current status of the request and the anticipated date
of completion, and added that "the Court is mindful of plaintiff's status as
a pro PP prisioner, and, therefore, grants this stay subject to review
upon plaintiff's showing of urgency in the future." (Harry Aleman v. Gary
S. Shapiro, Civil Action No. 85-3313, U.S. District Court for the District
of Columbia, June 30)
A prisoner's Privacy Act suit has been dismissed because he failed to
Identify a physician to receive his medical records as provided for in
Justice Department regulations. Dismissing the suit, Judge Norma Holloway
Johnson pointed out that subsection (f)(3) of the Privacy Act instructed
agencies to promulgate "special procedures" for the release of an
individual's medical records. She noted the Justice Department regulations
implementing (f)(3) provided the individual identify a doctor who would
request the records directly; the regulations also required the doctor to
verify his identity in making the request. Johnson observed that the
prisoner had "made no effort whatsoever to comply with the requirements for
the release of these documents." (George I. Benny v. Federal Bureau of
Prisons, Civil Action No. 86-0112, U.S. District Court for the District of
Columbia, June 30)
Destruction of a file does not violate the Privacy Act, according to the
Tenth Circuit. The Privacy Act was created to protect individuals against
invasions of their privacy flowing from the misuse of existing files, not to
mandate. . .that files be created and maintained." The case involved a
sexual discrimination complaint filed by Allen Tufts on behalf of his wife
Debra. After an investigation was started, the inspector general decided
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Page 12 ACCESS Reports/July 16, 1986
the investigation was improperly handled and had the file destroyed. The
Tufts later requested the file and sued for damages after learning the file
no longer existed. Although the court found no Privacy Act violation, it
noted in a footnote that the inspector general may have violated Air Force
regulations which prohibit destruction of documents on the basis of an
individual's opinion that they have no value. (Allen P. Tufts and Debra R.
Tufts v. Department of the Air Force, No. 85-1794, U.S. Court of Appeals for
the Tenth Circuit, June 11)
Using the Freedom of Information Act, a journalism professor at the
State Universit of New York has uncovered an Energy Department project to
sen an unmanned space vehicle powered by plutonium up in the space
shuttle. According to documents released to Karl Grossman, the project,
known as Project Galileo, was slated for launch sometime this year. Because
of the fallibility of the shuttle program, Grossman's sources told him such
a launch could be catastrophic since, according to one source, one pound of
plutonium, "if uniformly distributed, could hypothetically induce lung
cancer In every person on earth." Critics contend that if the shuttle had
exploded with a plutonium generator on board, the resultant fallout would
have caused a substantial rise in eventual deaths due to lung cancer.
Writing in the July issue of common cause, Grossman describes the
difficulties he experienced in trying to get the Energy Department to
release information on the project. After being denied a fee waiver, and
after several appeals, he was informed the records would be released.
However, Energy later told him the documents were "predecisional" and would
not be released. Finally, Grossman resorted to congressional help, and a
press release accusing the government of covering up its shuttle plans. At
that point he was told that a "special" Energy Department-NASA team was
assembling the information. A month later he received hundreds of pages of
documents.
The Washington Post and the New York Daily News have asked a special
panel of the D.C. Circuit to allow press access to proceedings involving
grand jury records created during a special prosecutor's investigation of
former Labor Secretary Raymond Donovan. The panel, which is responsible for
appointing special prosecutors under the provisions of the Ethics in
Government Act, has recently balked at releasing the records to New York
state prosecutors who are preparing to try Donovan and several associates on
charges of fraud and grand larceny. Although Bronx District Attorney Mario
Merola and his staff have had access to many of the documents, the panel has
so far declined to authenticate the records so that they can be introduced
as evidence in Donovan's trial. In their briefs to the court, the two
papers noted that "the Ethics in Government Act was enacted, and this court
created, to restore the public's confidence that evidence of wrongdoing by
high government officials will be fully and fairly pursued. The public's
trust in the Integrity of the government's handling of such evidence is
seriously undermined if a proceeding such as this, which would normally be
open to the public, is shrouded in secrecy."
The New York State Commissioner of Education has decided that an index
of administrative fair hearings" for the Office of Vocational
Rehabilitation are available under the state's open records law. After
initially being told the index was not disclosable under a provision in the
law similar to Exemption 3 (other statutes) of the FOIA, New York attorney
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- ACCESS Reports/July 16, 1986 Page 13
David Jacoby appealed to the Commissioner who noted in his ruling that -1
find that [Education Law Section 1007 and the relevant regulations of the
State Education Department] do not prohibit the disclosure of the requested
index as long as details identifying the persons involved are deleted."
The media has scored victories in two recent records access cases in
Florida. According to t e Florida Freedom of Information Clearing House
Newsletter, a publication of the journalism school at the University of
Florida, a Dade County circuit court judge ordered the Miami police
department to release copies of subpeonas and other documents involving a
federal investigation of police corruption to The Miami Herald. The
department had withheld the records because they involved an active
investigation, but The Herald's attorney argued the department could not
withhold the documents since it was the target of the investigation, not the
investigating agency.
In a second Florida case, a judge in West Palm Beach has ordered the
state attorney to pay nearly $29,000 in legal fees incurred by four media
organizations in their fight to get records relating to the 1984
drug-overdose death of David Kennedy. Ruling in the case, the judge said
the state attorney had "unlawfully and unreasonably" withheld the records.
The New York State Senate has rejected a proposal which would have
allowed for a 30-month experiment in providing television, radio, and
photographic coverage of state trial courts. The bill woul have barred
coverage of jurors, victims in sexual offense trials, and undercover
policemen testifying at a trial. It would also have prohibited coverage of
pretrial hearings, conferences between attorneys and judges, and jury
selection. In all other courtroom situations, the coverage would have been
permitted at the judge's discretion.
A bill introduced in the California State Senate would require the
state's Department of Food and Agriculture to make public information about
produce contaminated with illegal pesticides and where the produce was
grown, according to News Media Update, a weekly joint publication of the
National Newspaper Association, the Reporters Committee for Freedom of the
Press, and the Society of Professional Journalists. The bill, which passed
the Senate in mid-April, requires the head of the Food and Agriculture
Department to monitor and release quarterly reports. It also requires
publication of the names of individuals convicted of violating state
pesticide regulations. State Sen. Gary K. Hart of Santa Barbara said he
introduced the bill because "I believe that the public has a right to know
just what kind of chemicals are on the food sold in California."
Coca-Cola has refused to obey a court order directing it to reveal the
formulae for several of its soft drinks, information Coca-Cola has always
kept as a closely-guarded secret. A federal court judge, declining to enter
a default judgment against Coke, has barred the company from introducing
certain evidence at trial, and establishing certain facts which the company
cannot rebut. The trial involves a trademark infringement and breach of
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Page 14 ACCESS Reports/July 16, 1986
contract suit brought against Coke by several of its bottlers who allege
that Coca-Cola and Diet Coke are merely different versions of the same
product. (Coca-Cola Bottling Co. of Shrevesport v. Coca-Cola, 32 Patent,
Trademark & Copyright Journal 123, U.S. District Court for the District of
Delaware, May 23)
A confidential report on an alleged mock-Ku Klux Klan i CIA
meet n at
headquarters, w is one o icial referred to as a tasteless joke, has been
submitted to the Senate Select Committee on Intelligence in response to
inquiries made by the committee. When asked about the report, vice-chairman
Patrick Leahy D-Vt replied: I can't talk about it. It's classified."
Under the 1982 executive order on classification issued by President Reagan,
only information whose "disclosure reasonably could be expected to cause
damage to the national security" may be classified. The confidential stamp
applies only to information "the unauthorized disclosure of which reasonably
could be expected to cause damage to the national security."
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Ccntnf Inldligena Agency
The Honorable Dave Durenberger, Chairman
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
RECPT 9
22 May 1986
OCA 86-1725
The Director has asked me to respond to your letter received
May 14, 1986 regarding allegations of a Ku Klux Klan group in
the Computer Services Division of CIA. At the outset, let me
assure you that after a thorough review we can find no
indication that there has been any such group, or any such
activity in CIA. It appears that the allegations you have
received stem from a tasteless prank that occurred in late 1981
and was investigated at the time. The facts are as follows.
The in, ;.deal- wa' prompted when several employee:, iu the
Computer Center happened to be listening to a local 25X1
ra~tation that announced an upcoming meeting of the Ku Klux
Klan. Upon hearing the announcement, a black employee joked to
his white colleagues that they should attend the meeting.
Shortly thereafter, upon returning to the office from an outside
errand, the black employee found white paper hats made from
computer paper and was told a KKK meeting had taken place. This
was a tasteless attempt at a joke and was interpreted as such by
the black employee. The following morning, in yet another
misguided attempt at humor, Ku Klux Klan literature was found on
thel Center bulletin board AFt
r I
i
t.
251
e
n
nvest ga
on
conducted by senior supervisory personnel all of the employees
involved in these pranks received stern oral reprimands.
The other two racial incidents on record in recent years
involve separate, informal one-on-one discussions that took
place between a white and a black employee regarding the Ku Klux
Klan. In one case, an oral reprimand was given, and in the
other, the two employees were reprimanded and sent to a special
seminar.
STAT
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None of the incidents outlined above involved employees
found to be KKK members, and none consisted of anything more
than off-the-cuff remarks and/or dubious efforts at humor. I
should emphasize, however, that each was taken seriously and
investigated thoroughly. We take seriously any indications of
KKK involvement on the part of Agency personnel. In our view,
any such involvement bears directly on the issue of employee
suitability.
I trust this letter addresses the matters you have raised.
A separate copy is being provided to Vice Chairman Leahy.
Sincerely,
David D. Gries
Director of Congressional Affairs
Distribution:
Original - The Honorable Dave Durenberger (OCA 86-1725)
Original - The Honorable Patrick J. Leahy (OCA 86-1726)
1 - DCI
1 - DDCI
1 - ExDir
I - ER
1 - DDA
1 - DA/OIT
1 - GC
1 - IG
D/OS/SSD/OSB
- OCA Record
1 - D/OCA
1 - DD/Legislation
D/OCA:DDG:mdo (22 May 1986)
~i, +r?~C~F,~ r r, rr-~ ri
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ROUTING AND RECORD SHEET
SUBJECT: (Optional)
FROM
EXTENSION
No
:
. 01 S* 3 7 8* 8 6
S
Director of Information Services
DATE
1206 Ames
31 July 1986 S
TO: (Officer designation, room number, and
building)
DATE
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
Bill:
DDA
7D24 HDQS
2.
This is what I was calling
about yesterday.
3.
We received a call from the
Information Security Oversight
Office (IS00) concerning a para-
4.
graph in a publication called
Access that dealt with the Ku Klux
Klan incident in the Agency. That
s.
article is attached. Steve
Garfinkel, the Director of ISOO was
anticipating questions as to why
6.
such a report would be classified.
In looking into it, I find that
7.
the so-called report was a letter
from Dave Gries to Senator
Durenberger, see attached. It was
8.
classified Confidential. Note that
there is no additional information
in that letter of 22 May 1986 than
9.
what was put out as a Headquarters
Notice, also attached. The
Headquarters Notice has since been
10.
released with minimum sanitization
to FOIA requesters.
The letter from Gries to
Senator Durenberger is, in our
j
d
t
i
l
l
ifi
d
12.
u
gmen
,
mproper
y c
ass
e
.
We have requested OCA to downgrade
the letter and will so report to
i
Steve Garf
nkel.
13.
14.
Attachments:
15.
As Stated
FORM 610 USE DITION PREVIOUSS
1-79 E
TAT
TAT
STAT
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DA:D/OIS:
Distribution:
Original & 1 - Addressee w/att.
1 - OIS SUBJECT w/att.
1 - OIS Chrono wo/att.
STAT
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ACCESS
REPORTS
FENEELPIMUFAMFURNEAMM
Volume 12 Number 15 July 16, 1986
Washington Focus: The House Government Operations Committee is expected
to consider H.R. 4862, a business procedures amendment to the FOIA sponsored
by Rep. Glenn English (D-Okla), chairman of the House Subcommittee on
Government Information, Justice and Agriculture, and Rep. Tom Kindness
(R-Ohio), ranking minority member of the subcommittee, when it meets in
early August. English will apparently introduce an amendment to the bill at
that time allowing agencies to promulgate regulations providing for the
routine disclosure of certain categories of business information which would
not require a notice to the company before release. The change, which was
suggested by Public Citizen and other public interest and press groups, has
met some resistance from business, which fears it may give agencies too much
leeway in defining what types of business information can be routinely
disclosed. If the issue can not be settled by negotiation, and business
support for the amended bill begins to wane, it is almost certain to spell
the end of the business procedures amendments, at least for this session.
Bill A
imed at Spies
FBI Won't Confirm or Deny
May
Hit the Press. . . . . . .
1
Presser's Role as Informant. . .
5
D.C. C
ircuit Puts Ball
Exemption 5 Protects
In F
EC's Court. . . . . . . .
. 3
Negotiations with Expert. . . .
. 6
Commit
tee Considers Raising
News From Canada. . . . . . . . .
. 7
Cost
s of Technical Data. . . .
4
BILL AIMED AT SPIES
MAY HIT THE PRESS
An amendment to the Diplomatic Security and Antiterrorism Act, meant to
deprive convicted spies of any money they might have gained, or stand to
gain, from their illegal activities, has sparked concern among public
interest and press groups who fear the amendment's provisions could be used
against the press.
Besides providing for forfeiture of any profits from espionage
activities, the amendment requires government seizure of "any of the
person's proerty used, or intended to be used, in any manner or part, to
commit, or to faciliate the commission of, such violation."
Editor. Harry A. Hammitt
Access Reports!FOl newsletter is published biweekly, 24 times a year. Subscription price is $250 per year
Washington, D.C. [0004 [phone]. Available electronically through NewsNet. No portion of this publica
tion may be reproduced without permission. ISSN 0364.7625.
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Page 2 ACCESS Reports/July 16, 1986
Critics contend that, if the government were to make good on CIA
Director William Casey's threats to prosecute the press for violations of
communications intelligence statutes, and a media Organization were found
guilty, the amendment could be used to seize all assets of the
organization. The Reporters Committee for Freedom of the Press points out
that the forfeiture provisions are so broad that "in the case of a news
organization convicted under the espionage statutes, [forfeiture] logically
could include virtually any assets used in news gathering and dissemination,
such as video equipment, computers, word processors, and printing equipment."
The amendment, introduced by Sen. Ted Stevens (R-Alaska), and
cosponsored by 40 other Senators, would adopt forfeiture provisions
currently included in federal drug laws, allowing the government to freeze
all assets of those indicted under espionage laws pending the outcome of the
trial.
During floor debate, Stevens emphasized that his bill, patterned
generally after a federal "Son of Sam" statute, was aimed solely at
confiscation of ill-gotten gains of spies themselves. He stated that "it
[is not] an attempt to in any way prevent a third party from engaging in the
business of writing either for the print media or for the air or television
media the stories of those who have been involved in these kinds of
activities."
Stevens made those remarks in response to a question posed by Sen.
Charlies Mathias (R-Md) concerning the Samuel Morison espionage case.
Noting that the case was currently on appeal and that it had "wide-ranging
First Amendment implications," Mathias asked Stevens if his amendment would
have any substantive impact on the espionage law under which Morison was
convicted.
Stevens responded by saying it was not his intention to in any way
change the definition of the underlying offenses contained in the espionage
statutes.
Although the implications of the bill, which was passed by the Senate
June 25, may have been unintended, they have nevertheless caused an uproar.
Rep. Don Edwards (D-Calif), chairman of the House Subcommittee on
Constitutional Rights said that "coupled with Casey's threats to prosecute
the press, this provision is frightening. . .If this provision is enacted,
the media can publish stories on intelligence matters only at the risk of
their businesses. Obviously it will have a chilling effect."
Allan Adler, legislative counsel for the ACLU, added that if the
government could prosecute The Washington Post for publishing classified
information, "then the property of The Post, if it were a named defendant,
would be forfeited to the government." Commenting on the forfeiture
provisions, Adler noted that the purpose of forfeiture in the case of the
press would be "to end the ability to engage in the enterprise that
constitutes the offense. In Casey's view, the act of publishing the story
is the offense."
Since the House has already passed a different version of the bill, the
whole issue will now go to conference where there is a good chance that the
problematic language of the Stevens amendment will either be modified or
taken out completely.
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ACCESS Reports/July 16, 1986 Page 3
D.C CIRCUIT PUTS BALL
IN FEC'S COURT
A D.C. Circuit panel has put off a decision on whether Legi-Tech, a
company which provides its subscribers with computerized information about
campaign contributions on file at the Federal Election Commission, may be
violating the Federal Election Campaign Act by disseminating the donor lists
of organizations such as the National Republican Congressional Committee.
Writing for the majority, Circuit Court Judge Kenneth Starr stated that
"[c]onsiderations of uniformity in the application of law, efficient use of
judicial resources, and appropriate deference to Congress' mandate to the
FEC combine to lead us here to. . .stay our hand until the FEC has had an
opportunity to speak to this question."
Saying he was unconvinced that the Congressional Committee's claims that
copyrighting its donor list was consistent with the FECA, Starr also said he
was troubled by the Committee's interpretation of the FECA's prohibition
against use of contributor information for "commerical purposes." He
Indicated that if the phrase really applied to any organization that sold
such information, it "would bar newspapers and other commerical purveyors of
news from publishing the information contained in those reports [to the FEC)
under any circumstances. Such a result would obviously impede, if not
entirely frustrate, the underlying purpose of the disclosure provisions of
the FECA."
Although an FEC regulation allowed the media to print contributor
information as long as the principal purpose of such communications "is not
to communicate any contributor information listed on such reports for the
purposes of soliciting contributions or for other commercial purposes,"
Starr noted that it was unclear as to whether the FEC would group Legi-Tech
with the media for purposes of the regulation. In withholding judgment
until the FEC could act on a pending complaint filed by the National
Republican Congressional Committee, Starr pointed out that for the court
panel to resolve the controversy "would require judicial speculation as to
the Commission's views."
The case was before the panel on appeal from a lower court decision that
the donor lists were not copyrightable. But Starr observed that even the
Copyright Office expressed uncertainty about the issue, and declined to rule
on that point since the resolution of the FEC complaint could well obviate
any need to resolve the copyright issue.
In a separate concurring opinion, Senior Circuit Court Judge J. Skelley
Wright pointed out that the FEC should keep in mind the "important and
troubling First Amendment implications raised by any construction of the
statute that bars the use of the information at issue in this case by
organizations such as Legi-Tech." He also indicated he was troubled by the
possibility that the Congressional Committee, if it were to lose its
administrative appeal to the FEC, might still be able to pursue a copyright
claim. He said it was doubtful that Congress "had intended to permit such
private enforcement." (National Republican Congressional Committee v.
Legi-Tech Corporation, No. 85-6037 and No. 85-6041, U.S. Court of Appeals
for the District of Columbia, July 15)
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COMMITTEE CONSIDERS RAISING
COSTS OF TECHNICAL DATA
The House Armed Services Committee is working on an amendment to the
Defense Authorization Bill which would allow the Defense Department to
charge requesters the full cost of providing technical data under the
Freedom of Information Act.
The amendment is apparently a response to complaints from the Defense
Department that the cost of processing such requests has become burdensome.
Because of the FOIA, the Department has never been able to recoup the true
costs of requests, such as the cost of new equipment, duplication costs,
and, particularly, the costs of high-level review of technical data to
determine its releasability.
Most of these concerns would be addressed in the amendment. It would
allow the Department to charge "all costs reasonably and directly
attributable to responding to such request, including reasonable charges for
the cost of services of agency personnel." This would include staff time
spent locating the requested data, reviewing the data, and duplicating and
other processing charges.
In an attempt to make sure defense contractors are not stymied by these
provisions, the amendment would provide for waivers to U.S. citizens or
corporations where they certified they were requesting the technical data to
use in bidding on a contract, where the data was needed to comply with the
terms of an international agreement, or where the Secretary of Defense
determines that "such a waiver is in the interests of the United States."
However, small contractors are opposed to the legislation on several
grounds. In a paper circulated to members of the Armed Services Committee,
the National Tooling & Machining Association points out that "there is no
reason to charge FOIA requesters more for technical data than other types of
Government records. In fact there is reason to charge less or nothing since
the dissemination of such data saves the Government money by permitting
competition."
The Association also argues that charging to review the releasibility of
the data would discourage small contractors from using the FOIA as a way of
challenging proprietary markings that are frequently put on technical data
by the submitting contractor.
Because it takes the Department so long to respond to requests,
certifying that the information is requested for use in bidding on a
contract is useless, according to the Association. It contends that
technical data must be requested far in advance to be useful in responding
to a contract solicitation.
Noting that the Committee claims the waiver provision is intended to cut
down the volume of requests from data brokers, the Association argues that
because of the poor performance of Defense Department data repositories,
data brokers are often the only means of getting the information in a timely
manner. The paper points out that "data brokers exist only because of DoD
inefficiency and could not remain in business if DoD became efficient at
data dissemination."
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Although the amendment does not provide for withholding information and
would not be considered an Exemption 3 statute, it does make several
important procedural changes. In the very limited sphere of defense
technical data, it would become permissible to charge for time spent
reviewing documents for release, a concession which was included in the
recent comprehensive draft FOIA legislation, but one which has been opposed
by most public interest groups. It would also allow the Defense Department
to keep the funds collected for processing technical data requests rather
than mandating that the money be sent to the general Treasury fund as is the
case with fees collected under the FOIA.
FBI NEITHER CONFIRMS OR DENIES
PRESSER'S ROLE AS GOVT INFORMER
The Justice Department has won a victory in its effort to expand the use
of the neither confirm or deny response in the area of invasion of privacy
under Exemption 6 and Exemption 7(C).
A federal judge in Alexandria has sided with the Department, saying it
need not disclose whether or not it has an informant file on Teamster
President Jackie Presser. District Court Judge Claude Hatton noted that,
absent a notarized release, Presser's "interest in non-disclosure of
personal privacy information outweighs the public interest in scrutinizing
the integrity of the FBI. An individual's willingness to serve as an
informant is based, in large part, on FBI assurances that their relationship
will remain confidential." He pointed out that "the public has an interest
in such non-disclosure: impairment of ongoing and future law enforcement
investigations."
The FOIA suit was brought by Mary Jane Freeman after the FBI told her it
could locate no records documenting a connection between the Teamsters union
and Lyndon LaRouche or any of his organizations. She specifically asked for
Presser's informant's file in so much as it related to contacts with
LaRouche.
After telling Freeman that no documents had been found, she produced an
internal FBI document which mentioned Presser, LaRouche, and several of his
organizations. In light of the memo, the FBI told the court it would
conduct a further search, but later reported that it was still unable to
find any responsive documents.
Hitton accepted the FBI's explanation that its search did not turn up
the internal memo because it did not specifically reference the Teamsters
and was thus not included in the file on the Teamsters or in LaRouche's file
as a cross-reference to the Teamsters. In ruling on the search, Hitton
noted that the issue to be resolved is not whether there might exist any
other documents possibly responsive to the request, but rather whether the
search for the documents was adequate."
Although Freeman argued that press accounts had established the fact
that Presser was an FBI informant, Hatton ruled that "the FBI has not made
an official public disclosure concerning Mr. Presser's alleged relationship
with it and media speculation as to the thrust of an investigation does not
constitute a disclosure. . .sufficient to justify the release of
confidential informant information." (Mary Jane Freeman v. U.S. Department
of Justice, Civil Action No. 85-0958-A, U.S. District Court for the Eastern
District of Virginia, Mar. 12)
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EXEMPTION 5 PROTECTS
NEGOTIATIONS WITH EXPERT WITNESS
A government expert witness has lost his bid to obtain records of Labor
Department negotiations with another expert witness who was hired to take
his place during a second administrative proceeding concerning a job
discrimination suit against Harris Trust.
The Labor Department claimed the General Information Form and two
paragraphs of a letter sent by the president of Statistica, Inc. were
protected under Exemption 5 (attorney work product). Stephan Michelson, the
original expert witness, argued the material contained factual information
which could be separated from the opinion portion of the records.
After closely examining the case law in the D.C. Circuit, District Court
Judge John Pratt agreed with the government that all the claimed materials
had been properly withheld. Noting that "where work product is involved,
drawing a line between facts and protected opinion work product" is less
than helpful, Pratt found that the affidavit submitted by the Department was
"sufficiently detailed and credible to uphold defendant's claim of
exemption. . ."
However, Pratt did not agree with the government's argument, based on
the Supreme Court's decisions in FTC v. Grolier and Weber Aircraft, that
factual material did not have to be segregated from privileged documents
because the records would not be "routinely available" in litigation. Pratt
pointed out that a 1978 D.C. Circuit decision noted that "the government
cannot exempt pure statements of fact from disclosure by calling them
attorney work-product. . ."
He went on to observe that there would be times when an attorney's
mental impressions were so inextricably intertwined with the facts that
factual material could not be released without divulging protected
opinions. He noted that the D.C. Circuit had said those facts "which might
disclose an attorney's appraisal of factual evidence" could be protected.
Pratt also found that the letter from Statistica to the Labor Department
met the threshold test contained in (b)(5) that the records be "inter-agency
or intra-agency" in nature. He pointed out that the phrase had been
previously used to include reports prepared by outside experts at the
agency's request.
Pratt rejected Michelson's contention that the Labor Department
affidavit was inherently unreliable because it had been submitted by the
attorney involved in the case and was "self-serving." Quoting from an
earlier D.C. Circuit opinion, Pratt pointed out that "in every FOIA case,
there exists the possibility that Government affidavits claiming exemptions
will be untruthful." But, quoting from an opinion by District Court Judge
Gerherd Gesell, Pratt also noted that "if the agency cannot be trusted, the
Act will never work. It is a profound mistake to transfer administrative
responsibility to judges on the theory that persons employed by the
Executive branch are not honest or lack judgment." (Dr. Stephan Michelson
v. United States Department of Labor, Civil Action No. 85-2518, U.S.
District Court for the District of Columbia, June 30)
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News From Canada ....
From Canadian Correspondent Tom Riley, an International Information consultant who heads his own company,
Riley Information Services, P.O. Box 261, Station F., Toronto, Canada M4Y 2L5, Phone: [phone].
First Parliamentary Report on Access Act
The first report resulting from the mandatory three-year review of the
Access to Information Act by a parliamentary committee has recommended that
Parliament revise Section 24 to give the Act precedence over secrecy
provisions in other statutes. Statutes with secrecy provisions, which are
currently exempt from the Access Act, are listed in Schedule 11 of the Act.
Section 24(1), which exempts information laid out in Schedule 11, "unlike
other freedom of information statutes which [refer] to the categories of
statutes to be covered by such an exemption," is exhaustively defined, says
the committee in its report.
When the Act was first passed there were a considerable number of
records exempted from disclosure, with 33 other Acts listed in Schedule 11,
"embracing some 40 identified sections and subsections in other federal
statutes."
This gap created an anomalous situation contrary to the spirit of
openness reflected in Section 2 of the Access Act. As it now stands, the
report notes, if a head of a department exercises a discretion to withhold
information which is deemed secret by another statute, even the Information
Commissioner cannot review that decision. This, says the committee, is
inconsistent with Section 2 of the Act which gives a statutory right of
access to the citizen, with limited exceptions, with the burden of proof on
the government to show why the information should not be released.
The report says that "two of the three principles set out in [Section 2]
are violated to some degree by the existence of Section 24(1). First, this
exception to the rule of open government cannot be termed 'limited and
specific.' To the extent that these other statutory provisions contain
broad discretion to disclose records, these exceptions to the rule of
openness will remain unclear until the discretion is actually exercised in
each case."
The report, written by the House of Commons' Standing Committee on
Justice and the Solicitor General, which has been reviewing the Act for the
last few months, goes on to say that "in the words of a leading American
court decision interpreting the analogous provisions In the United States
Freedom of Information Act, the thrust of the exemption is to 'assure that
the basic policy decisions on government secrecy be made by the legislative
branch rather than the executive branch,' a thrust consistent with one of
the major objectives of the Act which is to substitute 'legislative judgment
for administrative discretion.'"
The committee concluded it was not necessary to include Schedule 11 in
the Access Act. "We are of the view that in every instance, the type of
information safeguarded in an enumerated provision would be adequately
protected by one or more of the exemptions already contained in the Access
Act," the report says. "Most of the enumerated provisions in Schedule 11
protect either confidential business information or personal information.
The exemptions In Sections 20 and 19 respectively of the Access Act provide
ample protection for these interests."
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The report points out that in other acts with secrecy provisions the
information would be protected because there is a balancing test for certain
confidential business information, "meaning in theory that some of the
information described in [some of the Acts listed in Schedule 111 could
possibly be released should Schedule 11 be eliminated. However, even here
the information is protected because of the third-party provisions of the
Access Act and the fact that only information given in confidence is
protected."
The committee recognizes that "less frequently, information pertaining
to national security, law enforcement, federal-provincial relations, or
governmental economic interests is protected by certain Schedule 11
provisions. Once again, however, there are ample exemptions in the Access
Act to address these important state interests."
Despite these views, the committee stated they "were persuaded that
there should be three exceptions to the conclusions" -- the Income Tax Act,
the Statistics Act, and the Corporations and Labour Unions Returns Act.
"Even though the exemptions in the Access Act afford adequate protection for
these kinds of information, the Committee agrees that it is vital for
agencies such as Statistics Canada to be able to assure those persons
sypplying data that absolute confidentiality will be forthcoming. A similar
case has been made for income tax information."
As a result of these findings, the committee made three recommendations
for change:
o that the Access Act be amended to repeal Section 24/Schedule 11 and
replace it with new mandatory exemption which are drafted so as to
incorporate explicitly the interests reflected in the three provisions
found in the three cited statistical and tax return statutes;
o that the Department of Justice undertake an extensive review of these
other statutory restrictions and amend their parent Acts in a manner
consistent with the Access to Information Act; and
o that any legislation seeking to provide a confidentiality clause
which is not to be made subject to the Access Act should commence
as follows: "Notwithstanding the Access to Information Act. . .-
In this way, concluded the committee, "Parliament will be made
explicitly aware of the impact of its actions. As a result, it is hoped
that future provisions which are inconsistent with the code of disclosure
established in the Access Act will be minimal."
The committee's final report is not expected until later this year. The
current report was tabled at the end of June as a review and Report to
Parliament of Section 24 of the Act, which was required within three years
of the effective date of the Act. The Access to Information Act became
operational on July 1, 1983.
Quebec's Commission on Access to Information has presented its annual
report to the provincial Minister of Communications, Richard D. French. A
summary of the report will appear in the next edition of Access Reports.
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The annual reports of the Information Commissioner and the Privacy
Commissioner were tabled in Parliament at the end of June. They will be the
subject of special reports in future editions of Access Reports.
In Brief ...
In an important decision for the Justice Department's efforts to block
release of settlement negotiations, Jude Gerhard Gesell has upheld an
agency application of Exemption 4 (confidential business information to
documents generated during an unsuccessful attempt to settle a debarment
action brought by the Department of Health and Human Services against
Para yne Corporation. Gesell pointed out that the documents in question
contained information In which Paradyne had a commercial interest.
Continuing, he noted that "it is in the public interest to encourage
settlement negotiations in matters of this kind and it would impair the
ability of HHS to carry out its governmental duties if disclosure of this
kind of material under FOIA were required." Although he found the
commercial interest of the records was "slight," he said it should be
protected under the exemption. He rejected the government's claim that the
records were also exempt under (b)(5), noting that that exemption "does not
cover papers exchanged between a government agency and an outside adverse
party." (M/A-Com Information Systems v. United States Department of Health
and Human Services, Civil Action No. 85-3215, U.S. District Court for the
District of Columbia, Mar. 4)
By a 7-2 vote, the Supreme Court has decided the public does have a
First Amendment right to attend most pretrial hearings in criminal cases.
The Court ruled that the public could be barred from such proceedings only
if there was a "substantial probability" that the defendant's right to a
fair trial would be prejudiced by publicity and if there was no other means
to adequately protect his right to a fair trial. The case involved Robert
Diaz, a California nurse accused of murdering 12 patients. The California
Supreme Court had upheld the lower judge and ruled the hearing had been
properly closed. Overturning that ruling, Chief Justice Warren Burger wrote
that "[the] risk of prejudice does not automatically justify refusing public
access to hearings. . ." (Press-Enterprise Company v. Superior Court of
California for the County of Riverside, No. 84-1560, U.S. Supreme Court,
June
A panel for the D.C. Circuit, saying it did not have enough information
to rule on Exemption 5 predecisional claims made by the Justice
apartment, has remanded an FOIA suit back to the district court for a
decision. The suit, filed by free-lance writer Steve Emerson, concerned
Justice's refusal to release information on specific persons suspected of
violating the reporting requirements of the Foreign Agents Registration
Act. The district court initially rejected the Department's claim that the
materials were protected by Exemption 7(C) (invasion of privacy concerning
law enforcement files), but the government then moved to alter that judgment
by submitting a sealed affidavit in which Exemption 5 claims were made. In
his affidavit, Joseph Clarkson, Chief of the FARA unit in the Department's
Criminal Division, stated the records were deliberative process materials
and attorney work product. The district court denied the government's
motion, which was then appealed to the circuit court. Noting that "it is
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far from evident that all of the documents were prepared in anticipation of
litigation, or that deliberative-process materials include no purely factual
data," the panel sent the case back to the district court for further
proceedings. (Steven A. Emerson v. Department of Justice, No. 84-01304,
U.S. Court of Appeals for the District of Columbia, June 30)
The Senate's experiment with live televisio*. coverage ended temporarily
July 15. The cameras will be turned off for at least three days while
members collect their thoughts about the just concluded six-week
experimental coverage. The Senate passed by voice vote a resolution to
resume coverage on July 21. The full Senate is scheduled to vote July 29 on
whether to make coverage permanent.
The Spring issue of FOIA Update, a publication of the Justice
Department's Office of Information and Privacy, has shed further light on
time -failure of the comprehensive draft FOIA legislation. In an article on
H.R. 4862, the business procedures bill introduced in the House Subcommittee
on Government Information, Justice and Agriculture, OIP notes that the
Government Information Subcommittee staff experienced difficulty reaching a
concensus with public interest groups, particularly press groups. As the
discussions reached an end, the article points out that press groups
insisted on interpreting an expedited access provision in such a way as "to
apply almost automatically to any journalist working on a deadline -- which
would have presented totally unacceptable difficulties to agencies."
In an addendum to its May decision in Church of Scientology v. Internal
Revenue Service, the majority and dissent continue to spar over whether the
Haskell Amendment to Section 6103 of the Internal Revenue Code allows for
release of tax returns where all identifying information has been deleted.
Informed by the ACLU after their original decision that the tax model
referred to during floor debate of the amendment was "an actual return with
identifying details eliminated," Circuit Court Judge Antonin Scalia insisted
this did not affect the basis of his decision. He preferred to rely on the
statutory text rather than what Sen. Haskell and his colleagues may or may
not have understood the tax model to be at that time. He pointed out that
"the mere term 'Tax Model' assuredly does not suggest a redacted actual
return." In dissent, Circuit Court Judge Patricia Wald said "I am amazed
that the majority continues to claim that redaction is insufficient under
the Haskell Amendment. She noted that the additional information provided
by the ACLU "demonstrates that both the interpretations advanced by the
government and the majority are wrong, and that all that the framers of the
Amendment thought necessary under Section 6103 was effective redaction."
The public interest group People For the American Way has issued an
overview report on the Freedom of Information Act on Its twentieth
anniversary. Reviewing the legislative history of the Act, citing several
examples of the importance of information uncovered by the FOIA, and
rebutting standard arguments concerning the costs and burdens of the law,
the report concludes that the Act is "a symbol of open information in a
democratic society" and that its existence has been of "enormous benefit to
American society." Copies of the report can be obtained from People For the
American Way, 1424 16th St. NW, Washington, DC 20036; phone [phone].
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The Securities and Exchange Commission has published notice of
rulemaking for its EDGAR system of electronic filing. Currently being used
under a pilot program which includes filings by voluntary participants, the
operational EDGAR system would call for electronic filing of most documents
processed by the SEC's Divisions of Corporation Finance and Investment
Management. Of the issues on which the SEC requests comment, one deals with
correspondence submitted with electronic filings and the question of how
such correspondence ought to be processed under the FOIA. For further
information, contact Mauri L. Osheroff at [phone], or Patricia M.
Jayne at [phone]. (Federal Register, p. 24155, July 2)
The Office of Technology Assessment has begun work on a study of federal
information dissemination. The study, slated for completion in November
1987, will focus on present and future public information needs and how
technology might help meet those needs. It will include a look at the role
of the Government Printing Office, agencies, libraries, and private firms
with an eye to possible uses of technological innovations in information
dissemination.
Because he was unable to document any urgent need for the records, a
district court judge has refused to make the Justice Department process a
prisoner's request faster than it would be otherwise under the department's
first in, first out schedule. Noting that there were 150 requests ahead
of his, Judge Charles Richey said "there is no justification for moving
plaintiff's request ahead of those of persons who have been patiently
waiting." However, Richey instructed the Department to inform the requester
within 30 days of the current status of the request and the anticipated date
of completion, and added that "the Court is mindful of plaintiff's status as
a pro FP prisioner, and, therefore, grants this stay subject to review
upon plaintiff's showing of urgency in the future." (Harry Aleman v. Gary
S. Shapiro, Civil Action No. 85-3313, U.S. District Court for the District
of Columbia, June 30)
A prisoner's Privacy Act suit has been dismissed because he failed to
identify a physician to receive his medical records as provided for in
Justice Department regulations. Dismissing the suit, Judge Norma Holloway
Johnson pointed out that subsection (f)(3) of the Privacy Act instructed
agencies to promulgate "special procedures" for the release of an
individual's medical records. She noted the Justice Department regulations
implementing (f)(3) provided the individual identify a doctor who would
request the records directly; the regulations also required the doctor to
verify his identity in making the request. Johnson observed that the
prisoner had "made no effort whatsoever to comply with the requirements for
the release of these documents." (George I. Benny v. Federal Bureau of
Prisons, Civil Action No. 86-0112, U.S. District Court for the District of
Columbia, June 30)
Destruction of a file does not violate the Privacy Act, according to the
Tenth Circuit. "The Privacy Act was created to protect individuals against
invasions of their privacy flowing from the misuse of existing files, not to
mandate. . .that files be created and maintained." The case involved a
sexual discrimination complaint filed by Allen Tufts on behalf of his wife
Debra. After an investigation was started, the inspector general decided
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the investigation was improperly handled and had the file destroyed. The
Tufts later requested the file and sued for damages after learning the file
no longer existed. Although the court found no Privacy Act violation, it
noted in a footnote that the inspector general may have violated Air Force
regulations which prohibit destruction of documents on the basis of an
individual's opinion that they have no value. (Allen P. Tufts and Debra R.
Tufts v. Department of the Air Force, No. 85-1704, U.S. Court of Appeals for
the Tenth Circuit, June 11)
Using the Freedom of Information Act, a journalism professor at the
State University of New York has uncovered an Energy Department project to
send an unmanned space vehicle powered by plutonium up in t e space
shuttle. According to documents released to Karl Grossman, the project,
known as Project Galileo, was slated for launch sometime this year. Because
of the fallibility of the shuttle program, Grossman's sources told him such
a launch could be catastrophic since, according to one source, one pound of
plutonium, "if uniformly distributed, could hypothetically induce lung
cancer in every person on earth." Critics contend that if the shuttle had
exploded with a plutonium generator on board, the resultant fallout would
have caused a substantial rise in eventual deaths due to lung cancer.
Writing in the July issue of common Cause, Grossman describes the
difficulties he experienced in trying to get the Energy Department to
release information on the project. After being denied a fee waiver, and
after several appeals, he was informed the records would be released.
However, Energy later told him the documents were "predecisional" and would
not be released. Finally, Grossman resorted to congressional help, and a
press release accusing the government of covering up its shuttle plans. At
that point he was told that a "special" Energy Department-NASA team was
assembling the information. A month later he received hundreds of pages of
documents.
The Washington Post and the New York Daily News have asked a special
panel of the D.C. Circuit to allow press access to proceedings Involving
grand jury records created during a special prosecutor's Investigation of
former Labor Secretary Raymond Donovan. The panel, which is responsible for
appointing special prosecutors under the provisions of the Ethics in
Government Act, has recently balked at releasing the records to New York
state prosecutors who are preparing to try Donovan and several associates on
charges of fraud and grand larceny. Although Bronx District Attorney Mario
Merola and his staff have had access to many of the documents, the panel has
so far declined to authenticate the records so that they can be introduced
as evidence in Donovan's trial. In their briefs to the court, the two
papers noted that "the Ethics in Government Act was enacted, and this court
created, to restore the public's confidence that evidence of wrongdoing by
high government officials will be fully and fairly pursued. The public's
trust in the integrity of the government's handling of such evidence is
seriously undermined if a proceeding such as this, which would normally be
open to the public, is shrouded in secrecy."
The New York State Commissioner of Education has decided that an index
of administrative fair hearings" for the Office of Vocational
Rehabilitation are available-under the state's open records law. After
initially being told the index was not disclosable under a provision in the
law similar to Exemption 3 (other statutes) of the FOIA, New York attorney
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David Jacoby appealed to the Commissioner who noted in his ruling that "I
find that [Education Law Section 1007 and the relevant regulations of the
State Education Department) do not prohibit the disclosure of the requested
index as long as details identifying the persons involved are deleted."
The media has scored victories in two recent records access cases in
Florida. According to t e Florida Freedom of Information Clearing House
Newsletter, a publication of the journalism school at the University of
Florida, a Dade County circuit court judge ordered the Miami police
department to release copies of subpeonas and other documents Involving a
federal investigation of police corruption to The Miami Herald. The
department had withheld the records because they involved an active
investigation, but The Herald's attorney argued the department could not
withhold the documents since it was the target of the investigation, not the
investigating agency.
In a second Florida case, a judge in West Palm Beach has ordered the
state attorney to pay nearly $29,000 in legal fees incurred by four media
organizations in their fight to get records relating to the 1984
drug-overdose death of David Kennedy. Ruling in the case, the judge said
the state attorney had "unlawfully and unreasonably" withheld the records.
The New York State Senate has rejected a proposal which would have
allowed for a 3 -month experiment in providing television, radio, and
p otographic coverage of state trial courts. The bill would have barred
coverage of jurors, victims in sexual offense trials, and undercover
policemen testifying at a trial. It would also have prohibited coverage of
pretrial hearings, conferences between attorneys and judges, and jury
selection. In all other courtroom situations, the coverage would have been
permitted at the judge's discretion.
A bill introduced in the California State Senate would require the
state's Department of Food and Agriculture to make public information about
produce contaminate with illegal pesticides and where the produce was
grown, according to News Media Update, a weekly joint publication of the
National Newspaper Association, the Reporters Committee for Freedom of the
Press, and the Society of Professional Journalists. The bill, which passed
the Senate in mid-April, requires the head of the Food and Agriculture
Department to monitor and release quarterly reports. It also requires
publication of the names of individuals convicted of violating state
pesticide regulations. State Sen. Gary K. Hart of Santa Barbara said he
introduced the bill because "I believe that the public has a right to know
just what kind of chemicals are on the food sold in California."
Coca-Cola has refused to obey a court order directing it to reveal the
formulae for several of its soft drinks, information Coca-Cola has always
kept as a closely-guarded secret. A federal court judge, declining to enter
a default judgment against Coke, has barred the company from introducing
certain evidence at trial, and establishing certain facts which the company
cannot rebut. The trial involves a trademark infringement and breach of
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contract suit brought against Coke by several of its bottlers who allege
that Coca-Cola and Diet Coke are merely different versions of the same
product. (Coca-Cola Bottling Co. of Shrevesport v. Coca-Cola, 32 Patent,
Trademark & Copyright Journal 123, U.S. District Court for the District of
Delaware, May 23)
A confidential report on an alleged mock-Ku Klux Klan meeting at CIA
headquarters, -which one official referred to as a tasteless joke, has been
submitted to the Senate Select Committee on Intelligence in response to
inquiries made by the committee. When asked about the report, vice-chairman
Patrick Leahy (D-Vt) replied: I can't talk about it. It's classified."
Under the 1982 executive order on classification issued by President Reagan,
only information whose "disclosure reasonably could be expected to cause
damage to the national security" may be classified. The confidential stamp
applies only to information "the unauthorized disclosure of which reasonably
could be expected to cause damage to the national security."
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V
Ccnt,al Inldligcncc Agcncy
.1 r
The Honorable Dave Durenberger, Chairman
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
OCA FlEE C-0
RECPT 9
22 May 1986
OCA 86-1725
The Director has asked me to respond to your letter received
May 14, 1986 regarding allegations of a Ku Klux Klan group in
the Computer Services Division of CIA. At the outset, let me
assure you that after a thorough review we can find no
indication that there has been any such group, or any such
activity in CIA. It appears that the allegations you have
received stem from a tasteless prank that occurred in late 1981
and was investigated at the time. The facts are as follows.
The in' +.deut wa' prompted when several employees iii the
Ruffing Computer Center happened to be listening to a local
radio station that announced an upcoming meeting of the Ku Klux
Klan. Upon hearing the announcement, a black employee joked to
his white colleagues that they should attend the meeting.
Shortly thereafter, upon returning to the office from an outside
errand, the black employee found white paper hats made from
computer paper and was told a KKK meeting had taken place. This
was a tasteless attempt at a joke and was interpreted as such by
the black employee. The following morning, in yet another
misguided attempt at humor, Ku Klux Klan literature was found on
the Ruffing Center bulletin board. After an investigation
conducted by senior supervisory personnel all of the employees
involved in these pranks received stern oral reprimands.
The other two racial incidents on record in recent years
involve separate, informal one-on-one discussions that took
place between a white and a black employee regarding the Ku Klux
Klan. In one case, an oral reprimand was given, and in the
other, the two employees were reprimanded and sent to a special
seminar.
ALL PORTIONS CLASSIFIED
CONF I DINT I AL
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STAT
None of the incidents outlined above involved employees
found to be KKK members, and none consisted of anything more
than off-the-cuff remarks and/or dubious efforts at humor. I
should emphasize, however, that each was taken seriously and
investigated thoroughly. We take seriously any indications of
KKK involvement on the part of Agency personnel. In our view,
any such involvement bears directly on the issue of employee
suitability.
I trust this letter addresses the matters you have raised.
A separate copy is being provided to Vice Chairman Leahy.
Sincerely,
David D. Gries
Director of Congressional Affairs
Distribution:
Original - The Honorable Dave Durenberger (OCA 86-1725)
Original - The Honorable Patrick J. Leahy (OCA 86-1726)
1 - DCI
1 - DDCI
I - ExDir
1 - ER
1 - DDA
1 - DA/OIT
1 - GC
1 - IG
D/OS/SSD/OSB
OCA Record
1 - D/OCA
1 - DD/Legislation
D/OCA:DDG:mdo (22 May 1986)
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 Declassified in Part - Sanitized Copy Approved for Release 2012/07/23: CIA-RDP87-00058R000400070001-4
Declassified in Part - Sanitized Copy Approved for Release 2012/07/23: CIA-RDP87-00058R000400070001-4
 Declassified in Part - Sanitized Copy Approved for Release 2012/07/23: CIA-RDP87-00058R000400070001-4
13 June 1986
FULL TEXT OF CIA RESPONSE TO MEDIA ALLEGATIONS OF KKK ACTIVITY
Allegations of Ku Klux Klan activities at CIA are absolutely false.
The charges were investigated by the Agency's Inspector General and shown to
be without foundation. The IG findings were reported to the oversight
committees. Racial attitudes of such groups are incompatible with CIA and
U.S. Government regulations.
Declassified in Part - Sanitized Copy Approved for Release 2012/07/23: CIA-RDP87-00058R000400070001-4
 Declassified in Part - Sanitized Copy Approved for Release 2012/07/23: CIA-RDP87-00058R000400070001-4
A confidential report on an alleged mock-Ku Klux Klan meeting at CIA
Declassified in Part - Sanitized Copy Approved for Release 2012/07/23: CIA-RDP87-00058R000400070001-4
8
applies only to information "the unauthorized disclosure of which reasonably w:;'
could be expected to cause damage to the national security." S.
inquiries made by the committee. When asked about the report, vice-chairman'
Patrick Leahy (D-Vt) replied: I can't talk about it. It's classified."
Under the 1982 executive order on classification issued by President Reagan,
only information whose "disclosure reasonably could be expected to cause
dame a to the national security" may be classified. The confidential stamp
headquarters, which one official referred to as a tasteless Joke,- has been
i t 111 4 e.-na to ..
Cf
 Declassified in Part - Sanitized Copy Approved for Release 2012/07/23: CIA-RDP87-00058R000400070001-4
Declassified in Part - Sanitized Copy Approved for Release 2012/07/23: CIA-RDP87-00058R000400070001-4