S. 1324 THE INTELLIGENCE INFORMATION ACT OF 1983

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000200140015-1
• Release Decision: RIPPUB
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• Document Page Count: 52
• Document Creation Date: December 21, 2016
• Document Release Date: December 11, 2008
• Sequence Number: 15
• Publication Date: November 29, 1983
• Content Type: MEMO

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OLL 83-2844
29 November 1983
MEMORANDUM FOR: See Distribution
STAT
Legislation Division, OLL
SUBJECT: S. 1324, the "Intelligence Information
I
Act of 1983"
1. I have attached for your information the following:
-- a copy of the SSCI Report on S. 1324; and
-- a copy of the statements made on the Senate floor
prior to passage as printed in the Congressional Record.
Reporpassed by
The Bill as amended by y on hel34n36subsequently
the Senate is printed pages
2. Hearings are expected to be held by HPSCI in February.
HPSCI will not only be considering H.R. 3460, as introduced by
Representative Romano Mazzoli (D.,KY), but also H.R. 4431, a
companion bill to S. 1324 as amended, introduced by
Representative William Whitehurst (R.,VA) on 16 November.
Attachment
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STAT
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98TH CONGRESS ) SENATE
1st Session
Calendar No. 553
REPORT
No. 98-305
INTELLIGENCE INFORMATION ACT OF 1983
NOVEMBER 9 (legislative day NOVEMBER 7), 1983.-Ordered to be printed
Mr. GoLDWATER, from the Select Committee on Intelligence,
submitted the following
REPORT
together with
ADDITIONAL VIEWS
[To accompany S. 1324]
The Select Committee on Intelligence, having considered (S. 1324),
a bill to amend the National Security Act of 1947 to regulate public
disclosure of information held by the Central Intelligence Agency, re-
ports favorably with an amendment in the nature of a substitute and
recommends unanimously that the bill as amended do pass.
PURPOSE
The purpose of S. 1324, as reported, is to relieve the Central Intelli-
gence Agency (CIA) from undue burdens of searching and reviewing
certain operational files for information in response to Freedom of
Information Act requests and thereby enable the Agency to respond to
other requests under the Act in a more timely and efficient manner.
AMENDMENT
Strike all after the enacting clause and insert thereof the following:
That this Act may be cited as the "Intelligence Information Act of 1983."
FINDINGS AND PURPOSES
SEC. 2(a). The Congress finds that-
(1) the Freedom of Information Act is providing the people of the United
States with an important means of acquiring information concerning the
workings and decisiunmaking processes of their Government, including the
Central Intelligence Agency ;
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(2) the full application of the Freedom of Information Act to the Cen-
tral Intelligence Agency is, however, imposing unique and serious burdens
on this Agency ;
(3) the processing of a Freedom of Information Act request by the Cen-
tral Intelligence Agency normally requires the search of numerous systems
of records for information responsive to the request ;
(4) the review of responsive information located in operational files
which concerns sources and methods utilized in intelligence operations can
only be accomplished by senior intelligence officers having the necessary
operational training and expertise ;
(5) the Central Intelligence Agency must fully process all requests for
information, even when the requester seeks information which clearly can-
not be released for reasons of national security ;
(6) release of information out of operational files risks the compromise
of intelligence sources and methods ;
(7) eight years of experience under the amended Freedom of Informa-
tion Act has demonstrated that this time-consuming and burdensome search
and, utherefore, the CentraltInteligence
and review of information contained ~i asuch files has
Agency should, no longer be required to expend valuable manpower and
( Central
other resources application of the Freedom oflInformation lAct to thee
8) the full eull Intelligence Agency is perceived by those who cooperate with the United
States Government as constituting a means by which their cooperation and
the information they provide may be disclosed ; gathered (9) information cry orhpublic debate onhthetdefen a and foreign
generally is s not necessary
policies of the United States, but information gathered by the Central In-
telligence Agency should remain accessible to requesters, subject to existing
exemptions under law ;
(10) the organization of Central Intelligence Agency records allows the
the exclusion Freedom ofeInformatiion Act while leaving files containing information
gathered through intelligence operations accessible to requesters, subject to
existing exemptions under law ; and
(11) the full application of the Freedom of Information Act to the Cen-
tral Intelligence Agency results in inordinate delays and the inability of the
Agency to respond to requests for information in a timely fashion.
(b) The purposes of this Act are-
(1) to protect the ability of the public to request information from the
Central Intelligence Agency under the Freedom of Information Act to the
extent that such requests do not require the search and review of opera-
tional files ;
(2) to protect the right of individual United States citizens and per-
manent resident aliens to request information on themselves contained in
all categories of files of the Central Intelligence Agency ; and
(3) to provide relief to the Central Intelligence Agency from the burdens
of searching and reviewing operational files, so as to improve protection
for intelligence sources and methods and enable this Agency to respond to
the requests of the public for information in a more timely and efficient
manner.
SEC. 3(a) The National Security Act of 1947 is amended by adding at the end
thereof the following new title :
INTELLIGENCE AGENCY
TITLPUBLIC BY THE CENTRAL THE
"DESIGNATION OF FILES SEAR B IY ,THE EDIRECTOR OF CENTRAL INTELLIGENCE LI CAS EXEMPT FROM
"SEC. 701(a) In furtherance of the responsibility of the Director of Central
Intelligence to protect intelligence sources and methods from unauthorized dis-
closure as set forth in section 102(d) (3) of this Act (50 U.S.C. 403(d) (3)) and
section 6 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403g), op-
erational files located in the Directorate of Operations, Directorate for Science
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and Technology, and Office of Security of the Central Intelligence Agency shall
be exempted from the provisions of the Freedom of Information Act which re-
quire publication or disclosure, or search or review in connection therewith, if
such files have been specifically designated by the Director of Central Intel-
ligence to be-
"(1) files of the Directorate of Operations which document foreign intel-
ligence or counter intelligence operations or intelligence or security liaison
arrangements or information exchanges with foreign governments or with
intelligence or security services ;
"(2) files of the Directorate for Science and Technology which document
the means by which foreign intelligence or counterintelligence is collected
through scientific and technical systems ; or
"(3) files of the Office of Security which document investigations con-
ducted to determine the suitability of potential foreign intelligence or coun-
terintelligence sources ;
Provided, however, That nondesignated files which may contain information de-
rived or disseminated from designated operational files shall he subject to search
and review. The inclusion of information from operational files in nondesignated
files shall not affect the designation of the originating operational files as exempt
from search, review, publication, or disclosure : Provided further, That the desig-
nation of any operational files shall not prevent the search and review of such
files for information concerning any special activity the existence of which is not
exempt from disclosure under the provisions of the Freedom of Information Act
or for information reviewed and relied upon in an investigation by the intelligence
committees of the Congress, the Intelligence Oversight Board, the Office of
General Counsel of the Central Intelligence Agency, the Office of Inspector Gen-
eral of the Central Intelligence Agency, or the Office of the Director of Central
Intelligence for any impropriety, or violation of law, Executive Order, or Presi-
dential directive in the conduct of an intelligence activity.
"(b) The provisions of this section shall not be superseded except by a pro-
vision of law which is enacted after the date of enactment of this section and
which specifically cites and repeals or modifies its provisions.
"(c) Notwithstanding subsection (a) of this section, proper requests by United
States citizens, or by aliens lawfully admitted for permanent residence in the
United States, for information concerning themselves, made pursuant to the
Privacy Act of 1974 (5 U.S.C. 552a) or the Freedom of Information Act (5 U.S.C.
552), shall be processed in accordance with those Acts.
"(d) The Director of Central Intelligence shall promulgate regulations to
Implement this section as follows :
"(1) Such regulations shall require the appropriate Deputy Directors or
Office Head to :
(A) specifically identify categories of files under their control which
they recommend for designation ;
(B) explain the basis for their recommendations; and
(C) set forth procedures consistent with the statutory criteria in
subsection (a) which would govern the inclusion of documents in desig-
nated files. Recommended designations, portions of which may be classi-
fied, shall become effective upon written approval of the Director of
Central Intelligence.
"(2) Such regulations shall further provide procedures and criteria for
the review of each designation not less than once every ten years to determine
whether such designation may be removed from any category of files or any
portion thereof. Such criteria shall include consideration of the historical
value or other public interest in the subject matter of the particular cate-
gory of files or portion thereof and the potential for declassifying a signifi-
cant part of the information contained therein.
(e) (1) on the complaint under section 552 (a) (4) (B) of title 5, United States
Code, that the Agency has improperly withheld records because of improper desig-
nation of files or improper placement of records solely in designated files, the
review of the district court, notwithstanding any other provision of law, shall
be limited to a determination whether the Agency's regulations implementing
subsection (a) conform to the statutory criteria set forth in that subsection
for designating files unless the complaint is supported by an affidavit, based on
personal knowledge or otherwise admissible evidence, which makes a prima
facie showing, that-
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(A) a specific file containing the records requested was improperly desig-
nated ; or
(B) the records requested were improperly placed solely in designated
files.
If the court finds a prima facie showing has been made under this subsection, it
shall order the Agency to file a sworn response, which may be filed in camera and
ex parte, and the court shall make its determination based upon these submissions'
and submissions by the plaintiff. If the court finds under this subsection that the
regulations of the Agency implementing subsection (a) of this section do not
conform to the statutory criteria set forth in that subsection for designating files,
or finds that the Agency has improperly designated a file or improperly placed
records solely in designated files, the court shall order the Agency to search the
particular designated file for the requested records in accordance with the pro-
visions of the Freedom of Information Act and to review such records under the
exemptions pursuant to section 552(b) of title 5, United States Code. If at any
time during such proceedings the Agency agrees to search designated files for the
requested records, the court shall dismiss the cause of action based on this sub-
section.
"(e) (2) On complaint under section 552(a) (4) (B) of title 5, United States
Code, that the Agency has improperly withheld records because of failure to com-
ply with the regulations adopted pursuant to subsection (d) (2), the review of
the Court shall be limited to determining whether the Agency considered the cri-
teria set forth in such regulations."
(b) The table of contents at the beginning of such Act is amended by adding
at the end thereof the following :
"TITLE VII-RELEASE OF REQUESTED INFORMATION TO THE, PUBLIC
BY THE CENTRAL INTELLIGENCE AGENCY
"Sec. 701. Designation of files by the Director of Central Intel-
ligence as exempt from search, review, publication,
or disclosure".
SEC. 4. The amendments made by section 3 shall be effective upon enactment
of this Act and shall apply with respect to any request for records, whether or not
such request was made prior to such enactment, and shall apply to all cases and
proceedings pending before a court of the United States on the date of such
enactment.
COMMITTEE ACTION
On October 4, 1983, the Select Committee on Intelligence, a quorum
being present, approved the bill with an amendment and ordered it
favorably reported by a unanimous vote.
The purpose of the amendment adopted by the Select Committee is
to clarify the legislative intent and to provide greater assurance that
the bill will be implemented in accordance with the legislative intent.
The third purpose of the Act as stated in section 2(b) (3) is revised
to express the intent to improve protection for intelligence sources and
methods.
Other changes are made in a new section 701 to be added by the
bill to the National Security Act of 1947. First, criteria for designa-
tion of operational files by the Director of Central Intelligence are
specified more precisely for each affected CIA component-the Direc-
torate of Operations, the Directorate for Science and Technology, and
the Office of Security. Second, additional language in the second pro-
viso to section 701(a) preserves access for search and review of in-
formation in designated operational files that was reviewed and relied
upon in official investigations for impropriety or illegality in the con-
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duct of an intelligence activity. Third, a new subsection (d) is added to
require the promulgation of regulations by the Director of Central
Intelligence to implement section 701. These regi`ilations have two
separate purposes. The regulations under subsection (d) (1) require
the appropriate Deputy Directors or Office Head to identify cate-
gories of files recommended for designation, explain the basis for their
recommendation, and set forth criteria governing the inclusion of doc-
uments in designated files. The regulations under subsection (d) (2)
provide procedures and criteria for the review of designations at least
once every ten years to determine whether the designation may be re-
moved from a category of files or portion thereof. Such criteria are
to include consideration of the historical value or other public interest
in the subject matter of the particular file or category of files and the
potential for declassifying a significant part of the information con-
tained therein.
The final change in section 701 is the addition of a new subsection
(e) establishin procedures for judicial review. The procedures under
subsection (e) (1) apply to cases of alleged improper withholding of
records because of improper designation of files or improper place-
ment of records solely in designated files. The procedures under sub-
section (e) (2) apply to cases of alleged improper withholding of
records because of failure to comply with the regulations adopted
under subsection (d) (2) for periodic review of file designations.
A more detailed explanation of each of these changes in the pro-
posed section 701 is contained in the section-by-section analysis of this
report. HISTORY OF THE BILL
Concern over the burdens imposed on intelligence agencies under the
Freedom of Information Act (FOIA) is not new. Congress considered
the FOIA's impact on the Central Intelligence Agency as early as
1977, three years after the Act was amended to provide for de wvo
review of the withholding of classified information.
In September, 1977, the Subcommittee on Administrative Practice
and Procedure of the Senate Judiciary Committee heard CIA officials
testify about the effects of the 1974 amendments on the Agency. Acting
CIA Director John F. Blake, who was chairman of the CIA's In-
formation Review Committee, stated that the 1974 amendments had
"constituted a somewhat traumatic experience" and had "required a
considerable adjustment in attitude and practice." He added, "We have
been able to make the necessary adjustments. I am pleased to report
that, in fact, I think the Agency is better off for it." 1
96TH CONGRESS
By 1979, however, CIA's position changed. Testifying before the
House Intelligence Committee, Deputy Director of Central Intelli-
gence Frank Carlucci declared that "the total application of public
disclosure statutes like FOIA to the CIA is seriously damaging our
l Freedom, of Information Act, Hearings before the Subcommittee on Administrative
Practice and Procedure of the Committee on the Judiciary, United States Senate, 95th
Congress, 1st session (1977), p. 69.
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ability to do our job." Mr. Carlucci did not seek total exemption from
FOIA for the CIA. Instead, lie proposed an exemption for certain
designated operational files, with a provision allowing U.S. citizens
and permanent resident aliens to continue to use FOIA to obtain infor-
mation about themselves. Mr. Carlucci described this approach as
"fully consistent with the spirit and letter of national security exemp-
tions already in the Freedom of Information Act." 2
This CIA proposal was included as Section 3 of S. 2216, introduced
in the 96th Congress by several Members, including Senators Moyni-
han, Wallop, Jackson, and Chafee of the Select Committee on Intelli-
gence. A similar provision was included as Section 421 (d) of S. 2284,
the National Intelligence Act of 1980, introduced in the 96th Congress
by Senators Huddleston, Mathias, Bayh, and Goldwater. The bills
differed in that S. 2216 would have exempted designated files of all
U.S. intelligence agencies, while S. 2284 would have exempted desig-
nated files of the CIA only.
During hearings on S. 2284, Director of Central Intelligence Stans-
field Turner stated the Carter Administration's support of the wider
scope of S. 2216. However, the Carter Administration subsequently
supported a different proposal by the Department of Justice which
would have permitted the CIA to exempt by Agency certification cer-
tain types of information from disclosure with no judicial review. This
proposal, H.R. 7056, was introduced by Representative Richardson
Preyer.
Numerous witnesses testified for and against these various proposals
during Senate and House Intelligence Committee hearings on the
National Intelligence Act of 1980.3 However, no action was taken on
any of these measures in the 96th Congress.
97TH CONGRESS
In 1981 Senators Chafee and Goldwater introduced S. 1273, a bill
identical to the CIA's original proposal previously considered as Sec-
tion 3 of S. 2216. It would have allowed the Director of Central In-
telligence to designate as exempt from search and review, publica-
tion or disclosure, those files maintained by any U.S. intelligence
agency which fell within certain operational categories. Admiral
Bobby R. Inman, then Deputy Director of the CIA, testified at an open
hearing, July 21, 1981 before the Senate Intelligence Committee. His
testimony stressed the unique problems the FOIA places on intel-
ligence agencies which operate under compartmented records systems
and restricted access to records based on a "need to know" principle. In
addition, CIA expressed concern that reviewing documents responsive
to an FOIA request frequently requires the time and expertise of
trained intelligence officers who would otherwise be focusing on cur-
rent intelligence requirements. Other arguments for relief were CIA's
2 Impact of the Freedom of Information Act and the Privacy Act on Intelligence Activi-
ties, Hearing before the Subcommittee on Legislation of the Permanent Select Committee
on Intelligence, House of Representatives. 96th Congress, lst session (1979), pp. 3, 7, 162.
2 National Intelligence Act of 1980, Hearings before the Select Committee on Intelligence,
United States Senate. 96th Congress, 2d session (1980); H.R. 6588, The National Intel-
ligence Act of 1980, Hearings before the Subcommittee on Legislation of the Permanent
Select Committee on Intelligence, House of Representatives, 96th Congress, 2d session
(1980).
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large amount of FOIA litigation, the risk of court-ordered disclosure
of classified information, the possibility of human error in release de-
cisions and processing, and the perception by foreign governments that
the United States Government cannot maintain the confidentiality of
the information entrusted to it. In his written statement, Admiral In-
man expressed the view that while partial relief via the file designation
process was a "promising approach" which "would have a major posi-
tive impact," only a total exclusion of CIA's records from the require-
ments of the FOIA could resolve all the problems caused by the Act.
Other witnesses included General Faurer, Director of the National
Security Agency, General Larkin, Director of the Defense Intelli-
gence Agency, and representatives of the news media, civil liberties
groups, and historians.
Representatives of groups opposed to the legislation testified that
valuable information had been released through the FOIA process,
and the public interest in receiving such information outweighed any
burdens in complying with the Act. The witnesses emphasized that cur-
rent FOIA exemptions (b) (1), protecting classified information, and
(b) (3), protecting information specifically covered by other statutes,'
were adequate to meet CIA's needs. However, the witnesses did not rule
out the possibility of a more carefully and narrowly framed alterna-
tive to relieve some of the burdens on the CIA. For example, Mark
Lynch of the American Civil Liberties Union suggested adopting "a
random sample procedure" to alleviate document-by-document review
in response to requests on extremely sensitive subjects. Without
amending FOIA itself, the courts could use such a procedure when "no
information or very little information" on a subject could actually be
released. Recognizing the CIA's special personnel and resource prob-
lems, Mr. Lynch urged "a careful and constructive approach . . . to
examining the administrative procedure to see if it cannot be stream-
lined" before turning to a legislative solution.'
On November 24, 1981, Admiral Inman testified in closed session
before the Select Committee regarding the Freedom of Information
Act's impact on' the CIA's ability to collect intelligence and to main-
tain its relationships with friendly intelligence services. The purpose
of this hearing was to examine specific examples of damage that could
not be discussed in open session. Admiral Inman stated that the "real
damage" was not the personnel and resource burden or releases due to
administrative error. Instead, he emphasized the damage in terms of
"lost collection opportunity" where both individuals and foreign gov-
ernments have been reluctant to provide information to CIA. He
cited particular cases of FOIA responses where, even though no docu-
ments were released, sensitive information appeared to be disclosed.
This occurred because the CIA in certain cases could not classify the
fact that it possessed documents on a particular subject. The Agency's
mere acknowledgement of possessing documents on a subject was char-
acterized by the press as confirmation of controversial alleged CIA
activity. Such inferences were almost always erroneous, but individ-
4 An example of a (b) (3) statute is 50 U.S.C. ? 403(d) (3), which gives the Director of
Central Intelligence a duty to protect intelligence sources and methods.
St es Senatre, 97th of 1981 Before the seetesComittee on p. pp. In44tel4ligence
67.
United Intelligence
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uals' and governments' confidence in the CIA's ability to maintain
secrecy was undermined.
At the closed hearing, Admiral Inman repeated his testimony fa-
voring a "total exemption" as the only way to "restore confidence of
the foreign intelligence sources and others] who would collaborate
with us . . . that they are not running a risk . . . in providing in-
formation to us . ." He added that, if a total exemption were im-
possible, "certainly one that at least limits the scope of the cases .
would be a substantial improvement over the situation in which we
find ourselves."
No further legislative action occurred in connection with S. 1273 in
the 97th Congress.
98TH CONGRESS
Senator Goldwater, Chairman of the Select Committee, introduced
S. 1324, the Intelligence Information Act of 1983, on May 18, 1983.
Public hearings were held on June 21 and 28, 1983. At the Time 21
hearing, Senator Strom Thurmond, Chairman of the Judiciary Com-
mittee and cosponsor of S. 1324, testified in support of the legislation.
He was followed by CIA Deputy Director John N. McMahon and
other senior CIA officials including Deputy General Counsel Ernest
Mayerfeld, Deputy Director for Operations John Stein, Deputy Di-
rector for Science and Technology, Evan Hineman, Director of Se-
curity William Kotapish, and the Chief of the Information and Priv-
acy Division, Larry Strawderm-an. Mr. McMahon urged enactment
of S. 1324 as a carefully balanced effort to benefit both CIA's intel-
ligence mission and the public's access to government information. He
stated that the bill "will send a clear signal to our sources and to those
we hope to recruit that the information which puts them at risk will
no longer be subject to the [FOIA] process." At the same time, he
emphasized that the "public would receive improved service from the
Agency under the FOIA without any meaningful loss of information
now released under the Act."
During Deputy Director McMahon's testimony, members of the
Select Committee asked whether the bill might be a prelude to later
requests for broader exemption from the FOIA for the intelligence
community. Deputy Director McMahon replied that the CIA recog-
nized "it cannot have total exemption and must seek something that
protects our sources, yet at the same time lives with the spirit and the
intent of Freedom of Information." The Chairman also described his
communication with the President in which the President had indi-
cated his support for this approach. The CIA subsequently advised
the Committee that the Administration "has no intention to seek addi-
tional FOIA relief for the Agency."
At the hearing on Time 28, 1983, S. 1324 was endorsed by Major
General Richard Larkin. President of the Association of Former
Tntellifrence Officers, and two members of the American Bar Associa-
tion's Standing Committee on Law and National Security, University
of Virginia Law Professor John Norton Moore, and former Associate
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Attbrney General John Shenefield.s Mary Lawton, Counsel for Intel-
ligence Policy in the Department of Justice, expressed "wholehearted
support" for S. 1324 and indicated that the Department considered it
appropriate to consider the CIA exemption "as separate and distinct
from efforts to secure Government-wide amendments to the Freedom
of Information Act itself."
Mark Lynch of the ACLU stressed three key principles that would
prevent any meaningful loss of information currently available :
(1) "all gathered intelligence" would continue to be subject to search
and review; (2) U.S. citizens and permanent resident aliens could
still use FOIA to request information concerning themselves; (3)
covert action operations (or "special activities") would continue to
be accessible if their existence can be disclosed under the FOIA. Mr.
Lynch went on to state, however, that the ACLU could not support the
bill without certain amendments. Essential, in his view, were amend-
ments concerning FOIA requests for information about operations
that had been the subject of "abuse" investigations and judicial review
of whether a file has been properly characterized as an operational file.
The press was represented by Charles S. Rowe, editor and co-pub-
lisher of the Fredericksburg, Virginia, Free-Lance Star, testifying
on behalf of the American Newspaper Publishers Association, and
Steven Dornfeld of Knight-Ridder Newspapers, National President
of the Society of Professional Journalists. These witnesses seconded
the concerns raised by the ACLU and emphasized the importance
of obtaining specific commitments from the CIA regarding improved
servicing of FOIA requests.
Dr. Anna Nelson, Professor of History at George Washington
University, testified on behalf of the National Coordinating Com-
mittee for the Promotion of History. Dr. Nelson called for a narrower
definition of "operational files," a time limit on the duration of an
operational file's designated status, and clarification of the bill's
intent regarding policy memoranda and intelligence disseminated
outside of designated files.
After the public hearings, members of the Committee, in consultation
with the CIA and some of the other witnesses, formulated four princi-
pal modifications to the bill. Because of concern about the need to spec-
ify more clearly the standards for designation of operational files, bill
language was revised to establish criteria for designation of files in each
of the three affected CIA components. Access to information reviewed
and relied on during investigations of alleged illegal or improper intel-
ligence activities was assured by adding a new proviso to the bill. In
addition, a new section provided for review of file designations at least
every 10 years in order to permit removal of file designations based on
the historical value or other public interest in the materials. Finally,
O At the time of the hearing, the ABA had not taken a stand on a proposed FOIA
Resolution. Subsequent to the hearing, on August 3. 1983. the ABA adopted a Resolution
calling for "significant relief from the FOIA for the intelligence agencies. " limiting judicial
review in FOIA to "determining whether there is non-frivolous certification . . . that the
material has been properly classified." and a specific exemption for sources and methods.
The ABA resolution also encouraged intelligence agencies to "experiment with modifica-
tions in current administrative practices for handling FOIA requests.
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provision was made for judicial review in cases of alleged improper file
designation or improper placement of documents solely in designated
files. The Chairman incorporated all these revisions in an amendment
in the nature of a substitute, which was adopted by the Select Commit-
tee on October 4, 1983. The amended bill was approved unanimously
thereafter.
GENERAL STATEMENT
I. INTRODUCTION AND OVERVIEW
The Committee considered and unanimously approved this bill as
amended because it relieves the CIA of serious burdens imposed by the
Freedom of Information Act without diminishing the amount of
meaningful information released to the public. After examining CIA's
file systems and the type of documents released under FOIA, the Com-
mittee found that exempting certain sensitive operational files from
search and review would not result in any significant loss of informa-
tion to the public. This is because virtually all CIA information re-
leasable under the FOIA is available outside these certain sensitive
operational files. The Committee also determined that enactment of
this bill would improve the timeliness and efficiency of CIA responses
to requests for information under the FOIA.
Nature of the problem
The Committee first studied both the burden the FOIA places on
the CIA and the delays that confront individuals seeking informa-
tion from the CIA. Presently, the Agency is mandated under the Act
and case law interpretation to search and review all sensitive opera-
tional records and, if the matter goes to Court, to justify the basis
for exempting "each and every segregable item." This procedure re-
quires almost every sentence, certainly every paragraph, to have a writ-
ten explanation of the claimed exemption.
The Committee examined in depth how the search and review proc-
ess works at CIA. The essential features of that process were described
by CIA officials in the public hearings. The Committee received addi-
tional briefings, most at CIA Headquarters where presence at the
physical location illuminated the oral explanations of the file system.
CIA records are maintained in numerous self-contained file systems,
with access to these systems limited to individuals having a legitimate
need for access. Therefore, a search for documents responsive to an
FOIA request can involve many separate file systems. This is especial-
ly true for documents stored in operational files which contain details
of source relationships and sensitive intelligence-gathering techniques.
Broad FOIA requests penetrate this compartmentation, as the mere
act of searching for responsive data may require examining the entire
filing system. Once responsive documents are compiled, they must be
reviewed by experienced intelligence officers, often an officer assigned
to current substantive intelligence duties. Only an individual with the
necessary training in intelligence and knowledge of present and past
operations can make the final, critical judgment about which informa-
tion can be released without jeopardizing the national security or intel-
ligence sources and methods. Typically, the result of this lengthy
process is the release of no material or fragmented phrases or sentences.
Nevertheless, painstaking attention to detail is required because of the
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possibility of de novo judicial review. If the withholding of informa-
tion is challenged in court, detailed justifications are required for "each
and every segregable item." This means that almost every sentence
must be scrutinized and justified. Affidavits explaining the withhold-
ing of sensitive operational information must be prepared by intel-
ligence officers having the knowledge and expertise to attest to the
probable consequences of public release. The ultimate risk is that sensi-
tive information can be released mistakenly and jeopardize an intel-
ligence relationship or technique. CIA makes every effort to minimize
that risk, at the price of lengthy delays. It is this process that is respon-
sible for the two to three year backlog facing requesters seeking CIA
information.
The CIA advised the Committee there is a two to three year delay
responding to FOTA requests where responsive documents are located
in Operations Directorate files and review of documents is required.
Moreover, responses to requests for information located in other CIA
components are affected by this delay. For example, documents orig-
inating in the Operations Directorate but located in another Direc-
torate's files are referred to the Operations Directorate for classifica-
tion review. Also, documents originating outside the Operations
Directorate are usually sent to the Operations Directorate for "coor-
dination/review." Thus, the review necessary for documents found in
the Operations Directorate is the primary cause of the overall CIA
backlog in responding to FOIA requests. Because most requests must
be handled on a first in, first out basis, those involving hundreds of
pages of responsive documents can delay the processing of far smaller
cases in the queue.
The Operations Directorate backlog developed rapidly in the 1970s
and has remained stable since. The number of FOIA requests has de-
clined gradually from a peak of 1,608 in 1978 to 1,010 in 1982. Because
many of these requests continue to be broad and, thus, time-consum-
ing, it has not been possible for CIA to reduce the backlog even with
a large number of experienced employees. Of 26 full-time positions
assigned to FOIA processing in the Operations Directorate, 22 are
professionals with significant operational CIA experience. The Oper-
ations Directorate effort consists of 71 work-years (equivalent to 71
full-time positions) out of a total CIA effort of 128 work-years on
processing requests for information during 1982.7 Assignment of more
personnel cannot significantly reduce the backlog in the Operations
Directorate, because many declassification review decisions can be
made only by officials having current responsibility for supervising
intelligence operations.
Bene4Cts of S. 1324
By eliminating search and review of these designated files, and where
there are court challenges, eliminating the need to justify withholding
of each segregable item, S. 1324 will enable the CIA to reduce this
backlog substantially.
7 This figure includes full-time and part-time positions. The effort in other CIA com-
ponents is as follows: Directorate of Administration (which houses the Information and
Privacy Division having overall responsibility for all FOIA requests) 33 work-years. Office
of the Director 19 work-years, Directorate of Intelligence 4 work-years. and Directorate
for Science and Technology 2 work-years. CIA estimates that the services of some 100 pro-
fessionals with a variety of intelligence disciplines are pulled away from regular duties to
focus on FOIA matters.
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This bill is also crucial from a national security perspective because
it will enhance confidence that intelligence sources and methods are
being protected. Intelligence sources can be assured that under S. 1324
records identifying them and describing their secret activities will not
be subject to search and review under the FOIA. Deputy Director of
Central Intelligence John N. McMahon testified that the bill "will do
away with the perception that a number of our sources have that they
are threatened because of the present FOIA." He explained that the
CIA's sources "will know that their identities are not likely to be ex-
posed as a result of a clerical error and they will know that the same
information will be handled in a secure and compartmented manner
and not be looked at by people who have no need to know the informa-
tion." Deputy Director for Operations John Stein agreed with this
assessment and stressed the need to preserve "one of the cardinal rules
of the intelligence business, namely the compartmentation of its
information."
In considering this bill, the Committee balanced the benefits of an
informed public with the national security need for an effective intelli-
gence service. Since the 1974 FOIA amendments, a substantial amount
of information has been released to the public by the CIA as a direct
or indirect result of the Act. Several examples illustrate the scope of
this information and its importance for public understanding of the
workings and decisionmaking processes of Government. Portions of or
complete copies of the Director of Central Intelligence Directives
issued from 1946 to 1976 have been released. These policy documents
cover a wide range of issues relating to the management, coordination,
and general conduct of intelligence activities. Substantially complete
texts of significant National Intelligence Estimates have been declassi-
fied and released, including estimates relating to the October, 1962
Cuban missile crisis. Memoranda from the General Counsel to the
Director on the legality of covert action operations have been made
public. CIA documents on Director William Colby's efforts to forestall
publication of news stories on the Glomar Explorer have been provided
under FOIA, as have internal CIA studies of particular intelligence
operations such as the Berlin Tunnel in the 1950's.
CIA officials have recognized that, within the spirit of what Congress
intended FOTA to do for the American people, the Agency does possess
information which the public may legitimately inquire about. Deputy
Director McMahon's testimony reaffirmed categories which would re-
main subject to search and review:
(1) all intelligence disseminations, including raw intelligence
reports direct from the field;
(2) all matters of policy formulated at Agency executive levels,
even operational policy;
(3) information concerning those covert actions the existence
of which is no longer classified ;
(4) information concerning U.S. citizens and permanent resi-
dent aliens requested by such individuals about themselves; and
(5) information concerning any Agency intelligence activity
that was improper or illegal or that was the subject of an investi-
gation for alleged illegality or impropriety.
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The acceptance by the Agency of the obligation to provide infor-
mation to the public under FOIA is one of the linchpins of this legis-
lation. The Act has played a vital part in rebuilding the American
people's faith in their Government, and particularly in agencies like
the CIA that must necessarily operate in secrecy. In a free society, a
national security agency's ability to serve the national interest depends
as much on public confidence that its powers will not be misused as it
does on the confidence of intelligence sources that their relationships
with the CIA will be protected.
The Committee believes that current FOIA requirements create
greater burdens and risks for the CIA than is necessary to insure full
public -access to significant information. But of equal importance to
the Committee was that relieving CIA from the search and review
burden does not deny public access to releasable information. This is
so because the characteristics of CIA file systems permit releasable in-
formation to be duplicated in designated and non-designated files.
For example, certain CIA operational files are the repository for
documents generated in the course of the conduct and management of
intelligence-gathering activities. Where there is collection from human
sources, such documents concern development of potential sources, as-
sessment of their value and likelihood of their cooperation, arrange-
ments to approach and contact the individual, and a wide variety of
decisions and problems that may be involved in working with the
source, such as determining compensation, testing bona fides, and re-
settlement after completion of service.
Other administrative documents discuss maintenance of cover, de-
velopment and use of clandestine communications methods, selection
of personnel for hazardous assignments, evaluation of success and fail-
ure, and assessment of vulnerabilities of individuals and techniques.
Virtually all of this information is highly sensitive and properly class-
ified; most is strictly compartmented. It is the type of information
that has always been withheld from FOIA release by exemption (b)
(1) for classified information and exemption (b) (3) for information
pertaining to intelligence sources and methods.
Nevertheless, these operational files also contain other information
that may in some cases be releasable under FOIA. One typical example
is "raw" intelligence reports. Intelligence information can be divided
roughly into two categories : "finished" intelligence and "raw" intel-
ligence. Finished intelligence is written by professional intelligence
analysts to be read by policymakers. It ranges from National Intel-
ligence Estimates coordinated among several agencies to research
papers, studies, and regular publications all designed to convey assess-
ments of intelligence to the President, the NSC, the State and Defense
Departments, and other agencies. Finished intelligence is primarily
the responsibility of the Directorate of Intelligence, which stores all
CIA finished reports in its files.
Raw intelligence is the information provided by a CIA source and
written to protect the source's identity in order to permit dissemina-
tion to analysts and policymakers. Raw intelligence and information
from other agencies form the basis for the finished intelligence reports
written by analysts. Unlike finished intelligence which is stored mainly
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in the files of the Directorate of Intelligence, raw intelligence reports
are stored in files of both the Intelligence Directorate and the Opera-
tions Directorate.
Frequently, copies of raw intelligence reports will be included in
the same file as operational materials on the handling of the source;
and information contained in the raw report may also be mentioned in
documents that directly concern the handling of the source. Therefore,
an FOIA request for information on a subject contained in raw intel-
ligence reports triggers a search of the files of both Directorates.
Suppose information in a raw report can be declassified and re-
leased without jeopardizing the source. Under current FOIA require-
ments, CIA must search both the files on intelligence reports in the
Directorate of Intelligence and the files on the handling of the source
in the Operations Directorate. In addition, the CIA must review not
only the intelligence report, but also any documents concerning the
handling of the source that may include the same information. The
result could be release of three substantially similar documents-the
declassified report filed in the Directorate of Intelligence, a copy of
the same report filed in the Operations Directorate, and a third opera-
tional document heavily edited to delete any sensitive information
that might endanger the source while still releasing the information
duplicating the declassified intelligence report.
This example illustrates how raw intelligence could still be located
and reviewed for declassification with less risk to the source and less
delay in processing the request notwithstanding the exemptions in
S. 1324. In this case the crucial feature of the CIA filing system is
the practice of disseminating copies of raw intelligence reports for
storage in the files of the Directorate of Intelligence.' Under current
FOIA requirements, a request for intelligence reports readily acces-
sible through the Directorate of Intelligence must normally wait until
the longer search and review of Operations Directorate files is com-
pleted. Even if the request is limited to Directorate of Intelligence
files, it must wait its turn behind previous requests that involve search
and review of Operations Directorate files. Exempting the duplicative
operational files from search and review would expedite the process
with no loss of access to the desired information.
The same is true for information on policy issues, including opera-
tional policy matters, considered at CIA executive levels by the Direc-
tor and Deputy Director of Central Intelligence, the Executive Di-
rector, the Comptroller, the General Counsel, the Deputy Director
for Administration, and other senior CIA officials outside the Opera-
tions Directorate. For example, Deputy Director McMahon testified
that documents handcarried to the Director or Deputy Director and
returned to operational files for safekeeping are referenced in the
CIA's Executive Registry, which logs all documents that go into
or out of the Office of the Director and Deputy Director. All docu-
ments referenced in the Executive Registry will be subject to search
and review. These documents could concern significant policy ques-
tions requiring the attention of the Director or Deputy Director.
8 See the sectional analysis of section 707(a) for a discussion of exceptional cases where
intelligence reports from very sensitive sources are returned for storage solely in Opera-
tions Directorate flies.
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Such matters range from general policy directives to specific deci-
sions approving particular operational activities.
The fact that raw intelligence reports and policy documents are
accessible through index and retrieval systems located in the Direc-
torate of Intelligence and the Office of the Director and Deputy Di-
rector has made it possible to refine the standards for designation of
CIA operational files in the bill. Specific statutory language guaran-
tees that all nondesignated files remain subject to search and review,
including any information in those files that was derived or dissemi-
nated from designated operational files.
Moreover, in recognition of the public interest in CIA "special
activities" (or covert action operations), the bill contains a proviso
that preserves existing law for access to information about any special
activity the existence of which is not exempt from disclosure under
the FOIA. The bill also takes account of the comparable public interest
in investigations of allegedly illegal or improper intelligence activi-
ties. As amended, the bill ensures access for search and review to infor-
mation in designated operational files that was reviewed and relied on
during an investigation. Finally, as the CIA originally proposed in
1979, United States citizens and permanent resident aliens will con-
tinue to have the same ability to obtain information about themselves
from operational files.
Assured access to the files of important CIA components such as
the Directorate of Intelligence and the Office of the Director, and the
provisions for access to particular types of information, effectively
safeguard continued public access to releasable CIA information.
The 1979-82 CIA proposals would have established general stand-
ards for designation of files of any CIA component as operational files
exempt from search and review. By contrast, S. 1324 limits such
designation to certain specified categories of files of only three CIA
components-the Operations Directorate, the Directorate for Science
and Technology, and the Office of Security. This ensures by statute
that the files of the Directorate of Intelligence, analytic elements of
the Directorate for Science and Technology, and the Office of the Di-
rector and Deputy Director, as well as other significant CIA compo-
nents such as the Directorate for Administration and the Offices of
Executive Director, Comptroller, General Counsel, Inspector General
and portions of the Office of Security will remain subjert to search
and review.
IT. FINDINGS AND PURPOSES
The Committee has considered various proposals to modify the
effects of the Freedom of Information Act on the CIA since 1980. The
issues were discussed extensively at hearings on S. 2284, the National
Intelligence Act of 1980, and on S. 1273 during 1981. The hearings on
S. 1324, detailed questions answered for the record by CIA, and addi-
tional information provided in staff briefings and interviews with
CIA officials have provided the Committee a full picture of the value
of the information released under FOIA from CIA files, the impact of
current FOIA requirements on the CIA, and the probable conse-
quences of various proposals. On the basis of this record, the Commit-
tee makes the following findings and recommends them to the Senate
as Section 2(a) of S. 1324:
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(1) The Freedom of Information Act is providing the people of the
T`nited States with an important means of acquiring information con-
cerning the workings and decisionmaking processes of their Govern-
ment, including the Central Intelligence Agency;
(2) The full application of the Freedom of Information Act to the
Central Intelligence Agency is, however, imposing unique and serious
burdens on this agency;
(3) The processing of a Freedom of Information Act request by
the Central Intelligence Agency normally requires the search of num-
erous systems of records for information responsive to the request;
(4) The review of responsive information in operational files which
concerns sources and methods utilized in intelligence operations can
only be accomplished by senior intelligence officers having the neces-
sary operational training and experience;
(5) The Central Intelligence Agency must fully process all requests
for information, even where the requester seeks information which
clearly cannot be released for reasons of national security;
(6) Release of information out of operational files risks the com-
promise of intelligence sources and methods;
(7) Since eight years of experience under the amended Freedom of
Information Act has demonstrated that time-consuming and burden-
some search and review of operational files has resulted in the proper
withholding of information contained in such files, the Central Intel-
ligence Agency should no longer be required to expend valuable per-
sonnel and other resources in the search and review of information
in these files;
(8) The full application of the Freedom of Information Act to the
Central Intelligence Agency is perceived by individuals who cooperate
with the TTnited States Government as a means by which their co-
operation and the information they provide may be disclosed;
(9) Information concerning the means by which intelligence is
gathered generally is not necessary for public debate on the defense
and foreign policies of the United States, but information gathered
by the Central Intelligence Agency should remain accessible to re-
questers. subject to existing exemptions under law;
(10) The organization of Central Intelligence Agency records al-
lows the exclusion of operational files from the search and review re-
quirements of the Freedom of Information Act while leaving files
containing information gathered through intelligence operations ac-
cessible to requesters, subject to existing exemptions under the law;
and
(11) The full application of the Freedom of Information Act to the
Central Intelligence Agency results in inordinate delays and the in-
ability of the Agency to respond to requests for information in a
timely fashion.
Therefore, the Committee reports S. 1324 to the Senate with a rec-
ommendation for favorable action thereon to achieve the following
purposes set forth in Section 2 (b) of the bill :
(1) To protect the ability of the public to request information from
the Central Intelligence Agency under the Freedom of Information
Act to the extent that, such requests do not require the search and re-
view of operational files;
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(2) To protect the right of individual United States citizens and
permanent resident aliens to request information on themselves con-
tained in all categories of files of the Central Intelligence Agency;
and
(3) To provide relief to the Central Intelligence Agency from the
burdens of searching and reviewing operational files, so as to improve
protection for intelligence sources and methods and enable this agency
to respond to requests for information in a more timely and effective
manner.
III. ACTIONS TO IMPROVE CIA RESPONSIVENESS
In stating the purposes of this bill, the Committee expressly noted
its intent "to enable this agency to respond to the public's requests for
information in a more timely and efficient manner." With the enact-
ment of S. 1324 the Committee expects that FOIA requesters will re-
ceive responses to their requests in a far more timly manner.
To achieve this objective, the Committee has requested the CIA to
provide a specific program of administrative measures the Agency
will take to improve processing of FOIA requests following enact-
ment of this legislation. The Committee believes that the essential ele-
ments of this program should include a detailed plan for eliminating
the present backlog of FOIA requests and a description of the bill's
impact on the Agency's ongoing efforts to process promptly those re-
quests that do not require extensive search, review, and coordination
and to expedite other requests under criteria established by the Jus-
tice Department.
With respect to the allocation of resources and personnel freed by
the bill's impact on search and review requirements, the Committee
requests the Agency to appropriately apply such resources and per-
sonnel to the task of eliminating the present backlog. To accomplish
this, the Committee expects the Agency not to reduce its budgetary
and personnel allocation for FOIA during the period of 2 years im-
mediately following enactment of this legislation. The Committee will
examine the question of budgetary and personnel allocation thereafter
during consideration of the annual CIA budget authorization. More-
over, the Committee intends and the CIA agrees that resources freed
by elimination of the backlog will be reallocated to augment resources
for search and review of nondesignated files.
For its part, the Committee will regularly and closely scrutinize
the CIA's implementation of each aspect of this program to insure
that concrete results are achieved toward stated objectives. The Com-
mittee expects its oversight performance will be facilitated by periodic
progress reports and meetings in which Committee members will be
apprised of the status of the agency's FOIA processing operations. To
this end, the CIA will also provide the Committee with the annual
statistical FOIA report it currently provides to the Senate. Finally,
the Committee will insure that all FOIA requests are responded to
in a timely and courteous manner.
Next-of-Kin Responsiveness
This legislation does not give next-of-kin a right to request infor-
mation about a deceased person. However, the Committee expects the
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CIA to treat generously bereaved families of CIA officers and agents
who have died under suspicious circumstances. CIA assured the Com-
mittee it will search without restriction for documents where there is a
"request by next-of-kin for information on employees or agents who
have died in service to their country." In addition, the CIA has ad-
vised the Committee that "requests by next-of-kin for information
about MIA's will be searched without restriction."
The original version of this bill did not provide for the eventual
removal from designation files or portions of files that no longer
warranted the special protection afforded by this Act. Professor Anna
Nelson of George Washington University, speaking on behalf of the
major associations of historians, noted that permanent designation
could result in important material never being made available to the
public, even after the passage of time had eroded its sensitivity. Gen-
eral Richard Larkin, President of the Association of Former Intelli-
gence Officers, responded to a question from the Chairman of the
Committee by affirming that historical research and writing on the
role of intelligence in American history was of "tremendous value in
our educational system as well as in our political system."
The CIA assured the Committee that "the designation process will
be a dynamic one, in which recommendations for removal of files from
designated status will be made to the DCI whenever such a lifting of
the designation is appropriate either because of the passage of time
or for some other reason." Thus, the Deputy Director for Operations
decided that the files of the OSS would not be designated. The CIA
opposed any specific time limit on designations because such a limit
would inevitably be arbitrary and would expose sensitive files to need-
less FOJA search and review.
After further consideration, the Committee adopted, with CIA's
support, an amendment specifying that file designation must be re-
viewed at least once every ten years and setting forth basic criteria to
be applied in this de-designation review.
The Committee, recognizing the necessity to protect sensitive infor-
mation, expects that the Agency will de-designate operational files to
the maximum extent possible consistent with the criteria.
In the course of hearings on S. 1324, there was extensive discussion
of whether the bill would or should provide for judicial review of the
DCI's decision to designate a particular file as exempt from
search and review. In testimony before the Committee, CIA testified
that "the designation by the DOI would not be judicially reviewable,"
because the bill gave the DCI authority to designate files at his sole
discretion. CIA also expressed grave concern that judicial review could
defeat the entire purpose of the bill if it required the court to inspect
each and every document in a designated file to determine if the file
had been properly designated or to inspect each and every designated
file to determine if, a document had been properly placed in a desig-
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nated file. CIA feared that this process could result in the court be-
coming mired in an item-by-item review of large numbers of docu-
ments.
Other witnesses suggested the need for judicial review and disagreed
with the CIA's interpretation of the bill. For example, Mark Lynch
of the ACLU said there was "not really anything in the bill to indicate
non-reviewability" and urged that the legislative history reject the
CIA's interpretation. Summarizing the arguments in favor of judicial
review, Mr. Lynch stated that "judicial review is absolutely essential,
because I think that the public simply would not have confidence that
the Agency had not succumbed to the temptation to go overboard in
the designation of files as operational if there were no judicial review."
Mary Lawton, Counsel for Intelligence Policy in the Justice Depart-
ment, testified that it would be "left to the court's own judgment as to
whether there was an intent or not of Congress to preclude judicial re-
view of the designation." As she understood the bill, it was "absolutely
silent" and would neither invite nor bar judicial review of file designa-
tions. However, she also predicted that "courts would be very reluctant
under ... standing judicial precedent to engage in judicial review of
the categorization of files of an agency by the head of the agency." She
also predicted that the Justice Department would urge the courts to
give "the greatest deference to the Executive branch." Similarly,
former Associate Attorney General John Shenefield said he thought
"a fair interpretation of the language would allow one to conclude
that judicial review is not as a practical matter available in the typical
case."
After reviewing these arguments as to the meaning of the bill and
advantages and disadvantages of judicial review, the Committee
amended the bill to provide for judicial review in certain circum-
stances. The Committee does not intend that this amendment will re-
quire CIA to expose through litigation, via discovery or other means,
the makeup and contents of sensitive file systems of the Agency to
plaintiffs. The Committee expects the procedure for judicial review in
this bill will be entirely consistent with the objective of reducing the
FOIA burden on the Agency. At the same time, the Committee believes
this judicial review procedure is necessary to guard against any im-
proper designation of CIA files or improver inclusion of documents
solely within particular designated files. The Committee is confident
that the CIA will implement this bill in accordance with the statutory
requirements. Therefore, the Committee does not anticipate that judi-
cial review will be needed routinely.
SECTION-BY-SECTION ANALYSIS
SECTION 701. DESIGNATION OF FILES BY THE DIRECTOR OF CENTRAL
INTELLIGENCE
Section 3 of the bill amends the National Security Act of 1947 by
adding a new Title VII designating certain CIA files exempt from
search and review under the Freedom of Information Act.
Section 701 authorizes the Director of Central Intelligence to desig-
nate certain operational files within the Directorate of Operations
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(DO), Directorate for Science & Technology (DS&T), and the Office
of Security (QS) of the Central Intelligence Agency which store cer-
tain delineated categories of information. Such designation exempts
these files from the FOIA provisions requiring publication or dis-
closure, or search and review related to publication or disclosure. The
section also provides for exceptions to these exemptions to ensure that
currently releasable CIA information remains accessible under the
FOIA.
SECTION 701 (a) -STANDARDS FOR DESIGNATION
Section 701 (a) allows the Director of Central Intelligence, in fur-
therance of his statutory responsibilities to protect intelligence
sources and methods, to designate certain operational files located in
the DO, DS&T, and OS of the Central Intelligence Agency as exempt
from the provisions of the Freedom of Information Act which re-
quire search, review, publication, or disclosure.
The term "operational files" describes files that store information
about particular intelligence sources and methods. These kinds of files
concern the intelligence process-including information on the iden-
tities of and contacts with human intelligence sources, the various
methods used to collect intelligence from human and technical sources,
and day-to-day administration and management of sensitive human
and technical intelligence activities. These files should be distinguished
from what may be called "intelligence product files" whose function is
to store intelligence gathered from human and technical sources. It is
the intent of the bill that for affected CIA components having both
types of files-that is, the Directorate of Operations and the Direc-
torate for Science and Technology-the term "operational files" does
not apply to files whose function is to store gathered intelligence not
stored in files of other CIA components that remain subject to search
and review.
As introduced, the bill listed four separate categories of files that
could be designated in any of the three affected CIA components.
After the Committee reviewed the functions of each component and
CIA's plans for file designation, the bill was revised to specify the
particular category (or categories) of files that may be designated in
each component. The CIA emphasized and the Committee agrees that
the basis for file designation should be the function of the file, i.e., the
purpose for which the file has been established, rather than the speci-
fic contents of the file. Therefore, the language of the bill has been
modified to refer to files which "document" certain operational activi-
ties of the CIA. The intent is that designated files will be those which
serve as the repository for storage of documents generated in the
course of conducting intelligence operations. The categories have been
framed to concentrate on those CIA files that contain the most highly
sensitive information that directly concerns intelligence sources and
methods. Finally, the term "counterterrorism" has been deleted from
the bill as introduced, because it is subsumed by the terms "foreign in-
telligence" and "counterintelligence" in Executive Order 12333 which
governs the conduct of U.S. intelligence activities. Special activities or
covert action is considered included in the term "files of the Direc-
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torate of Operations which document foreign intelligence or counter-
intelligence operations. . . ."
Experience has shown that very little, if any, information of any
meaningful benefit to the public has ever been released from these
operational files.' By exempting these categories of files from search
and review requirements, endless hours will no longer be spent by
experienced intelligence officers in a line-by-line review process that
invariably results in little or no actual release of information. Exemp-
tion of these categories of files from search and review will also sub-
stantially limit the risk of human error resulting in the mistaken re-
lease of classified information and assure those who cooperate with our
country at great personal risk that the United States is able to main-
tain the confidentiality of such relationships and to safeguard the in-
formation entrusted to it.
The FOIA already exempts information concerning intelligence
sources and methods from publication or disclosure. If properly clas-
sified, such information is exempt under subsection (b) (1) of the Act.
Even if the information concerning sources and methods is unclassi-
fied, there is a separate exemption under subsection (b) (3) for such in-
formation so the DCI can fulfill his statutory duty under the National
Security Act to protect intelligence sources and methods. Neverthe-
less, in some circumstances the FOIA requirement to search and re-
view a file or set of files can pose a risk to intelligence sources and
methods. This is especially so with regard to "operational files" located
in the Directorate of Operations, Directorate for Science and Tech-
nology, and Office of Security.
It is, however, extremely important to understand that exempting
certain files from search, review, publication or disclosure does not
constitute a total exclusion of CIA files from the processes of the
FOIA. The effect of section 701(a) will be that files located in any
records system outside of these designated categories will remain
subject to the search, review, publication, and disclosure requirements,
as well as the exemptions, of the Act. The further effects of the pro-
visos in section 701(a) are discussed separately below. In addition,
under section 701 (c), all files will continue to be subject to the present
provisions governing the handling of requests from citizens and resi-
dent aliens for information about themselves pursuant to the Privacy
Act of 1974.
The first category of files listed in Section 701 (a) allows desig-
nation of files in the Directorate of Operations which document
foreign intelligence or counterintelligence operations or intelligence
or security liaison arrangements or information exchanges with for-
eign governments or their intelligence or security services. Special
activities or covert action is included in this concept.
The Committee reviewed the file systems of the DO and found that
by far the majority of the file systems in this Directorate deal with
the sources and methods used in our collection efforts. The Committee
is satisfied that information contained solely in these files systems has
9 During 1982. the CIA released to the public. In whole or in part. material in twenty-
eight percent of the FOIA cases processed. Although exact figures on the three affected
CIA components are not readily available, the CIA estimates that no more than five percent
of the material released came from those components. This small amount of material was
itself fragmentary and seldom meaningful or significant.
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been protected thus far from release to the public under exemptions
(b) (1) and (b) (3) of the FOIA. However, there are a few files
systems within the DO which would not be designated under the
terms of this bill because they do not document operations but rather
serve as the sole repository for sensitive intelligence reports. For
example, be cause of the sensitivity of the sources, a small number of
intelligence reports prepared by the Operations Directorate are dis-
seminated by memoranda and returned for storage solely in DO files.
To the extent that administrative, management, and policy docu-
ments are generated by and used within the Operations Directorate,
but are not disseminated outside the Directorate, the files that store
those documents are intended to be designated because such materials
directly concern sources and methods and contain little if any infor-
mation releasable under the FOIA. However, any administrative,
management, or policy documents disseminated outside the Director-
ate will remain subject to search and review because they will be
contained in nondesignated files of the recipient. This includes
analyses of the prospects for and results of operations, as well as
reports on their outcomes and instructions for their conduct. Simi-
larly, Operations Directorate files on personalities and impersonal
subjects are generally used by the Directorate as an integral part of
the conduct of operations. Insofar as the information in DO files is
ever used by national policymakers or at Agency executive levels, it
will be duplicated in or accessible through the files of other Agency
components.
The second category of files designated are those in the Directorate
for Science and Technology which document the means by which for-
eign intelligence or counterintelligence is collected through scientific
and technical systems. The Committee examined the DS&T files sys-
tems and is satisfied it is possible to identify and designate only those
files concerned with scientific and technical systems collections efforts.
The Committee is also satisfied that over the past several years in-
formation contained in the file systems which would be designated
within the DS&T has been withheld from release under the FOIA pur-
suant to exemptions (b) (1) and (b) (3) of the Act. Therefore, there
will be no withholding of information from the DS&T which would
have otherwise been released under the current Act. The files of the
DS&T which store intelligence product and the results of intelligence
analysis, such as scientific and technical intelligence assessments, will
not be designated. Those files do not meet the standards for designa-
tion either as "operational files" or as files that document scientific
and technical collection methods. To the extent the DS&T files on ad-
ministrative, management, and policy matters involve both collec-
tion methods and analysis functions, such files will also be ineligible
for designation.
Category three under subsection 701 (a) exempts from search and
review those files of the Office of Security which concern investigations
conducted to determine the suitability of potential foreign intelligence
or counterintelligence sources of the DO and the DS&T. After a re-
view of the files systems contained in the Office of Security by staff, the
Committee has satisfied itself that it is possible to identify those file
systems within the Office of Security which deal with such investiga-
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23
tions for the purpose of designation by the Director of Central Intel-
ligence. The information contained in these files systems has been pro-
w"1
tected from release under exemptions (b) (1) and (b) (3) and there-
fore there is no loss of information to the public. Files on activities
within the United States to protect the physical security of agency
facilities will be ineligible for designation.
PROVISO REGARDING DISSEMINATED INFORMATION
Section 701 (a) contains two provisos. The first makes it clear that
nondesignated files remain subject to search and review even if they
include information derived or disseminated from designated opera-
tional files. The search and review of these nondesignated files include
the information derived or disseminated from designated files. On
the other hand, the fact that information from designated operational
files has been included in the non-designated files shall not affect the
designation of the originating operational files.
It is the Committee's intent that documents entered into a nondesig-
nated file system, but returned for storage solely in designated files,
will be considered part of the non-designated file system. Thus, if a
request is made for information in non-designated files, and the records
contained in those files indicate that a responsive document was en-
tered into the non-designated files, that document will be retrieved
from designated files. This search is not intended to affect the desig-
nation of the originating operational files.
Two examples illustrate the intent of the Committee. First, Deputy
Director McMahon testified that documents handcarried to the Di-
rector or Deputy Director and returned to operational files for safe-
keeping are referenced in the CIA's Executive Registry, which logs
all documents that go into or out of the Office of the Director and
Deputy Director. All documents referenced in the Executive Registry
will be subject to search and review. These documents deal with policy
questions that receive the attention of the Director or the Deputy Di-
rector, ranging from general policy directives to approval of specific
operational activities. Thus, for example, the record of any authoriza-
tion by the Director, Deputy Director, or Executive Director will re-
main subject to search and review through the files of the Office of the
Director, even if the authorizing document is returned for storage in
files of the Operations Directorate.
The second example concerns sensitive intelligence reports that are
disseminated to the Directorate of Intelligence and returned for stor-
age solely in the files of the Operations Directorate. The files of the
Operations Directorate that serve as the repository for these reports
will not be designated as operational files. Moreover, if a sensitive in-
telligence report is entered into the Directorate of Intelligence file
system and returned for storage solely in a designated operational file,
that report will be considered part of the non-designated Directorate
of Intelligence files and will be retrievable as if it continued to be
stored in the non designated files.
The first proviso is especially important for historians. Documents
contained in non-designated files cannot be exempted from the search
and review process because they discuss operational subject-matter or
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24
otherwise include information derived or disseminated from desig-
nated operational files. Historians are especially interested in opera-
tional policy documents disseminated to the President and the Na-
tional Security Council. According to the CIA, all such documents are
sent via the Office of the Director and thus will be accessible through
the Executive Registry. It is the intent of the Committee that this
procedure should not be modified.
It shall be noted that requests made by historians and others pursu-
ant to Executive Order 12356 on national security information will not
be affected Eby this legislation. This order includes a mandatory search
and declassification review upon receipt of a request that describes "the
documents or material containing the information with sufficient speci-
ficity to enable the Agency to locate it with a reasonable amount of
effort." Section 3.4(a) (2). The CIA will continue to respond to such
requests for information in designated operational files, and the Com-
mittee intends that CIA should do so in the same manner as it presently
does.
PROVISO REGARDING SPECIAL ACTIVITIES
The second proviso in section 701 (a) is an extremely important pro-
vision in the legislation. It is intended to make clear that designated
operational files will be subject to search and review in response to an
FOIA request when they contain information concerning a special
activity the fact of whose existence or nonexistence is not exempt from
disclosure under the FOIA.
Current case law concerning FOIA requests for information about
special activities holds that in certain circumstances, the CIA response
can neither confirm nor deny the existence or nonexistence of records
responsive to an FOIA request relating to an alleged special activity.
The issue in these cases is whether the fact of the existence or non-
existence of the special activity is currently and properly classified.
When properly classified, the CIA can only protect that classified fact
by declining to even admit or deny it possesses responsive documents.
Hence, under present case law, once it is upheld that the existence or
nonexistence of a special activity is properly classified, there is no re-
quirement to search any files, including operational, for responsive doc-
uments. Furthermore, this is a response required to be made in specified
circumstances under Section 3.4(f) (1) of Executive Order 12356.
Nothing in this legislation is intended in any way to limit this ability
of the CIA to utilize the "Glomar" response, so named as a result of
Freedom of Information Act requests to the CIA concerning the Glo-
mar Exploration ship.
Courts have held that where an authorized Executive Branch
official has officially and publicly acknowledged the existence or non-
existence of a specific special activity the existence of that special
activity is no longer a classified fact exempt from disclosure under the
provisions of the FOIA. In such a case, files containing information
concerning an acknowledged special activity become accessible to an
FOIA request, subject to search and review, and release using the cur-
rent exemptions in the FOIA. This access to files containing informa-
tion on an acknowledged special activity will continue under this
proviso.
Under this proviso, a request triggering search and review for
information on a special activity must establish that the existence of a
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25
specific covert action operation, such as the Bay of Pigs invasion or the
CIA's role in replacement of the Guatemala regime in the 1950s, is
not exempt from disclosure under the FOIA. A request is not sufficient
to require search and review of designated files if it refers to a broad
category or type of covert action operations. For example, a request
predicated on declassification of the existence of CIA covert efforts to
counter Soviet influence in Western Europe during the 1950s would
not be sufficiently specific. In contrast, requesting information about
a particular individual or organization alleged to have provided oper-
ational assistance in the conduct of a special activity would be suffi-
ciently specific. However, these examples illustrate the specificity re-
quirement and not the "Glomarization" standard. Thus, a request may
be sufficiently specific, but nevertheless, as is presently the case, not be
subject to search and review because the fact of the existence or non-
existence of the special activity is properly classified.
It is not possible in unclassified legislative history to spell out all
the relevant examples which would fully illustrate the meaning of the
specificity requirement. Nevertheless, persons seeking to use this pro-
viso as a means of securing access to information in designated files
should understand that the purpose is to provide for search and review
only if the existence of a particular special activity must be disclosed
under the FOIA.
The determination of whether or not the fact of the existence or
non-existence of a particular special activity is currently and properly
classified will be treated in the same manner as any other classification
determination by the CIA. The initial determination is made by
Operational Directorate officers assigned to the Directorate's Informa-
tion Management Staff in consultation with the concerned area divi-
sion in the Directorate. They will consider, among other things,
whether the fact of the existence of a special activity has been officially
and publicly acknowledged by an authorized representative of the U.S.
Government. Of course, the existence of an officially and publicly
acknowledged special activity is ipso facto not classified. In any case
where the fact of the existence of a particular special activity is not
properly classified, files containing information concerning that ac-
tivity will become accessible to an FOIA request for information con-
cerning that activity.
The term "special activity" as used in this proviso means any ac-
tivity of the United States Government, other than activities intended
solely for obtaining necessary intelligence, which is planned and ex-
ecuted so that the role of the United States is not apparent or ac-
knowledged publicly, and functions in support of any such activity,
but not including diplomatic activities.
PROVISO REGARDING IMPROPRIETIES
Under this bill as introduced, files within the OGC and the Office of
Inspector General, which are the components within the CIA charged
with investigating allegations of improper or illegal intelligence ac-
tivities, could not be designated exempt from search and review. This
was intended to insure that material dealing with improper or illegal
intelligence activites would continue to be accessible to search and re-
view. Concern was expressed, however, that material relied upon in the
course of an investigation of an illegal or improper intelligence ac-
tivity would be located in a designated file rather than the files of the
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26
IG or the OGC and therefore this material would be exempt from
search and review. Therefore, the Committee amended the second pro-
viso to assure any such material will continue to be subject to search
and review.
The Select Committee examined Agency practices for maintaining
records of such investigations and found that when an investigation is
conducted by the Inspector General's office, the General Counsel's
office, or the Director's office, a great deal of the reviewed relevant in-
formation is copied and retained in the investigating office files, which
are not designated under the bill. When the amount of information
reviewed is too voluminous to be reproduced, the report of the in-
vestigating office will frequently reference various files or portions of
files which were reviewed and relied upon by the investigators. It is
intended that all materials relevant to the subject matter of the in-
vestigation which were reviewed and relied upon by those who con-
ducted the investigation will he subject to search and review, even if
stored solely in designated files.
This provision applies to information reviewed and relied upon in
investigations by the intelligence committees of the Congress, the In-
telligence Oversight Board, the Office of the CIA General Counsel, the
Office of the CIA Inspector General, or the Office of the Director of
Central Intelligence. In the case of the Office of the DCI, the Commit-
tee intends to include the Office of the Deputy DCI and the Executive
Director. Reference to the Intelligence Oversight Board should include
any future Presidentially authorized oversight body or Presidential
Commission. Moreover, pursuant to Executive Order 12334 and prede-
cessor orders, the Intelligence Oversight Board has been directed by
the President to forward to the Attorney General reports received
by the IOB concerning intelligence activities that the Board believes
may be unlawful. The Committee intends that investigations con-
ducted for the IOB by the Attorney General should be included within
the scope of this provision.
Internal CIA investigations will be conducted by Agency compo-
nents whose files cannot be designated under this bill. These compo-
nents are the General Counsel's office, the Inspector General's office
and the Director's office. The Select Committee has reviewed CIA
procedures for initiating and conducting such investigations. Allega-
tions of abuse or impropriety can originate either inside or outside
of the Agency.
Allegations raised by Agency employees are directed either to the
Office of the Inspector General or to the Office of General Counsel.
CIA regulations require that Agency employees report any "past,
current, or proposed CIA activities that might be construed to be
illegal, improper, or questionable, or not authorized by applicable
law, Executive Order, regulations, or . .. any instructions received
in any way [which] appear to be illegal, improper, or questionable."
CIA regulations also specifically require employees to report possible
violations of federal criminal law to the General Counsel. In addi-
tion, the Office of the Inspector General periodically inspects indi-
vidual Agency components. These IG inspections include multi-
disciplinarjy teams which thoroughly examine every aspect of a
components activities. The General Counsel also periodically requires
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his staff to advise him of any items that could require reporting by
the General Counsel to the Intelligence Oversight Board under
Executive Order 12334.
The Inspector General's staff substantively investigates all em-
ployee allegations of abuse or impropriety. When the allegation raises
any question of illegality, the IG Staff either fully coordinates its in-
vestigation with the Office of General Counsel or refers the matter to
the Office of General Counsel for reporting to the Attorney General
under Executive Order 12333. Allegations which arise internally are
never dismissed without some recorded inquiry. Hence, they are
never determined to be "frivolous" in the sense of not warranting a
documented investigation.
Allegations made by persons outside the Agency almost exclusively
arrive in the form of a letter received by the Agency Mail Room. (On
occasion, complaints are received by telephone, sometimes anony-
mously.) If the letter contains allegations of abuse, impropriety, or
illegality, but appear frivolous (e.g., "CIA is manipulating my, brain
waves," or an actual and recent example, "CIA is making me fat"),
there may not be an investigation or response. If the letter does not
appear frivolous, it is forwarded to the Office of Inspector General
or the Office of General Counsel, as appropriate, for action. The ap-
parently frivolous letters are individually reviewed by a supervisory
CIA official. An allegation will be deemed frivolous and closed with-
out any investigation only where the writer has sent previous letters
and the allegation is preposterous on its face. If Agency records
reflect that the CIA has had contact with the individual making the al-
legation and the individual is not a prior correspondent of known fri-
volity, the allegation is never determined to be frivolous, but is for-
warded to the Inspector General or General Counsel, as appropriate.
In cases of repeated and frivolous correspondence, the letter may be
destroyed and no record made of it. In all other cases, a record is made
and retained in files that will not be designated under this bill.
The scope of investigations is determined by the Inspector General,
General Counsel, or other investigating body. Consequently, the scope
of information concerning the subject of an investigation accessible
for search and review under the bill is contingent on the scope of the
initial inquiry. If the records of an investigating body indicate that
only a representative sample of documents in a specific file was ex-
amined but that particular entire file was considered directly relevant
to the subject of the investigation, such file shall be accessible for
search and review.
There may be rare instances in which a file was not reviewed in con-
nection with the investigation because it was withheld or overlooked
through inadvertence. To the extent that such file contains informa-
tion relating to the subject of the investigation but not reviewed and
relied upon by the investigating body, it can become accessible if the
investigation is reopened or if the file is examined in a new investiga-
tion. For example, if it is established that a file was deliberately with-
held, that matter would itself become a subject of investigation, and
the, records of that investigation would become accessible under the
bill. Additionally, the Committee intends that where there is a prima
facie showing that a document was withheld or overlooked through in-
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advertence, the provisions for judicial review of improper placement
of records under subsection 701(e) apply. Certainly the Committee
expects and the CIA agrees that if it discovers on its own that a docu-
ment was inadvertently overlooked or deliberately withheld, it will
review such document under the provision of FOIA. However, the
proviso is not intended to open up all designated files or even an en-
tire file because portions contain information relevant to an activity
that was the subject of an investigation. The Committee's intent is
rather that only those directly relevant files or portions of files shall
be reviewed.
SECTION 701(b)
Section 701(b) is intended to insure that no provision of law enacted
after the date of enactment of the Intelligence Information Act of 1983
repeals or modifies section 701 unless such subsequently enacted provi-
sion does so by specific citation and repeal or modification.
SECTION 701(c)-FIRST PERSON REQUESTS
Section 701 (c) is intended to insure that this legislation shall not
affect the processing of proper requests by United States citizens or
permanent resident aliens for information concerning themselves made
either under FOIA or the Privacy Act of 1974, 5 U.S.C. 552(a).
According to the CIA, as of July 5, 1983, there were 1,104 pending
requests for information under the Privacy Act. In calendar year 1982,
the CIA received 1,016 Privacy Act requests.
While subsection (j) (1) of the Privacy Act authorizes the CIA
Director to promulgate rules to exempt from portions of the Act "any
system of records," this authority has only been narrowly used to the
extent necessary to protect its security methods, intelligence sources
and methods, and relationships with other public agencies or foreign
services. (See, 32 C.F.R. 1901.61.) The committee understands that the
CIA has no intention of expanding its use of this broad exemption
authority.
This provision does not permit organizations to require search and
review of designated files for information about themselves or their
members. This accords with the principles embodied in the Privacy Act,
which applies only to information concerning individuals. The com-
mittee has determined that CIA should not be required to search opera-
tional files for information concerning a requesting U.S. organization.
Such search could run the gamut of operational files because U.S. orga-
nizations are frequently referred to incidentally in Agency operational
documents. Reference to a U.S. organization in an operational docu-
ment does not necessarily indicate that the.organization was targeted
by or involved in a CIA operation. Because of the volume of inciden-
tally acquired information, granting domestic organizations the same
access as individuals would resurface the problems this bill is designed
to alleviate-risks to sources and methods by breaking down compart-
mentation of operational files and commitment of operations officers to
nonproductive FOIA review.
Since individual officers and members of domestic organizations have
the right to request information from designated files about themselves,
and that information sometimes refers to the organization, the commit-
tee believes the bill strikes the proper balance in this area.
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SUBSECTION 701(d) (1)
Subsection 701(d) (1) mandates that the Agency shall promulgate
regulations implementing section 701. These regulations will require
that the appropriate Deputy Directors or Office Heads identify cate-
gories of files for designation, explain the basis for their recommen-
dation, and set forth procedures governing the inclusion of documents
within designated files. The recommended designations, which will in-
clude the explanation for the designation and the procedures for in-
cluding documents in the designated files, will be forwarded to the
DCI for approval. The Committee does not intend that the imple-
menting regulations require the appropriate Deputy Directors or Of-
fice Heads to identify or list each file to be designated. Instead, the
Committee intends that the implementing regulations will require
that the appropriate Deputy Directors or Office Heads provide a de-
scription specific enough so that the purpose for which the categories
of files were created could be identified. Because the description of cer-
tain specific categories of CIA files must of necessity be classified, the
subsection specifically provides that portions of the recommended des-
ig-nation may be classified.
The procedures for including documents in designated files are es-
pecially important to insure proper implementation of the provisions
of the bill and the DCI's designations. As is current practice in other
areas, the Committee expects to be informed of proposed designations
prior to their effective date. The proposed designations will become
effective after reporting to the Intelligence Committee and written
approval of the DCI.
SUBSECTION 701 (d) (2)
Subsection 701(d) (2) requires a determination of "whether such
designation may be removed from any category of files or any portion
thereof." The phrase "or any portion thereof" is in no way intended
to require the review and removal from designation of individual docu-
ments contained within designated files. It is intended, however, to pro-
vide for the de-designation of an individual file, or files, which belong
to a larger category of designated files. For example, the file on a
specific intelligence operation might be removed from designation even
though contained in a larger designated category of project files which
continue to merit designation. The Committee does not intend that
the continuing sensitivity of particular files within a designated cate-
gory serve as a basis for retaining the designation of those files within
the designated category which meet the criteria for removal from
designation.
One criterion to be applied in determining whether designation
may be removed is "the historical value or other public interest in the
subject matter of the particular category of files or portion thereof."
The Committee intends this criterion to be applied solely by the CIA,
but that the CIA should consult with and take into account the recom-
mendations of persons who could provide an independent evaluation
of what topics meet this criterion. Such persons could include the CIA
Historian, historians in the Departments of State and Defense, the
Archivist of the United States and outside historians. "Public in-
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terest" in materials would include interest expressed by journalists and
authors and the contribution that such materials could make to an
understanding of intelligence, foreign policy, and international de-
velopments.
A second criterion to be applied in determining whether designa-
tion of a file may be removed is "the potential for declassifying a sig-
nificant part of the information contained therein." Its application
will require the consideration of factors such as the sensitivity of the
operation, the likelihood of damaging foreign relations or revealing
sources or methods, and the passage of time. Some materials could lose
their sensitivity even before the passage of ten years and the Com-
mittee intends that CIA regulations provide for the possibility of de-
designation review before the minimum scheduled 10-year review. It
is much more likely, however, that files on an operation would remain
designated for at least twenty-to-thirty years. Although the agency
cannot predict the number of files to be de-designated by a particular
date, the committee hopes that most files will be removed from desig-
nation by the time they are forty years old.
SUBSECTION 701(e) (1)
Subsection 701(e) (1) provides for judicial review where a com-
plaint alleges that the Agency has improperly withheld records be-
cause of improper designation of files or improper placement of rec-
ords solely in designated files. Under this subsection, the court would
have jurisdiction to review the Agency's regulations implementing
subsection 701(a) of this Act to determine if those regulations con-
form to the statutory criteria set forth in that subsection for designat-
ing files. Except in the situation described below, the courts should re-
view only the regulations requiring the appropriate Deputy Directors
or Office Heads to designate categories of files, and not the actual rec-
ommended designations, the explanation for those designations or the
procedures for the inclusion of documents in designated files. In re-
viewing these regulations, the Committee expects the court will up-
hold the validity of those regulations if there is a rational basis to con-
clude that the implementing regulations conform with the statutory
criteria for designating files.
The Committee recognizes there may be situations in which a plain-
tiff can make a showing that a particular file was improperly desig-
nated or a document improperly placed solely in designated files. The
judicial review provision provides for such review only if the com-
plaint is supported by an affidavit, based on personal knowledge or
otherwise admissible evidence, which makes a prima facie showing,
that (1) a specific file containing the records requested was improperly
designated, or (2) the records requested were improperly placed solely
in designated files. The reason for requiring that a complaint be ac-
companied by an affidavit based on "personal knowledge or otherwise
admissible evidence, which make a prima facie showing" is to insure
that the courts conduct review only when such prima facie evidence
exists that CIA files or documents have been improperly exempted
from search and review. Should a complainant present such evidence,
the court would have jurisdiction to determine whether the Agency
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has improperly designated a file or improperly placed records solely
in a designated file.
In conducting such review in an action in which the complainant
has made a prima facie showing, the Court shall order the Agency
to submit a sworn response. Such response shall consist of an affidavit
setting forth the justification for designating the file containing the
records requested or for filing such records solely in designated files
and shall have attached to it the explanation required in subparagraph
(d) (1) (B) of this section which serves as the basis for the designation
or the procedures required in subparagraph (d) (1) (C) of this section
which govern the inclusion of documents in the designated files. The
Committee believes that review of these materials as well as the sub-
missions of the plaintiff will in almost all cases be sufficient to enable
the court to determine whether the Agency has improperly designated
a file or improperly placed records solely in designated files. However,
the court, after reviewing the Agency's affidavit, may require addi-
tional affidavits. The bill does not deprive the court of its authority to
order the Agency to attach to its additional affidavits, as part of its
sworn response, the requested Agency records in extraordinary cir-
cumstances where essential to determine whether such records were
improperly placed solely in designated files. Because the Committee
anticipates that the Agency submission may contain classified infor-
mation, the Committee expects the court to permit such submissions
to be made on an in camera, ex parte basis, when necessary to protect
classified information. The Committee does not anticipate the court's
review to include examining the file in question or conducting any
other form of discovery.
Should the court find, after examining the Agency's affidavits and
regulations, that there is no rational basis to conclude that the reg-
ulations implementing subsection 701 (a) of this Act conform to the
statutory criteria set forth in that subsection for designating files, or
that the Agency has improperly designated a file or improperly
placed records solely in designated files, the court shall order the
Agency to search the particular designated file for the records which
are the subject of the FOIA request and to review such records under
the provisions of the FOIA. It is the intent of this Committee that
this be the sole remedy for either nonconformance of the regulations
with the statute, improper placenient of records solely in designated
files, or improper designation of a file. If the court finds that the
Agency has improperly designated a file or improperly placed records
solely in designated files, the court shall order the Agency to search
the particular designated file for the records which are the subject of
the FOIA request.
SUBSECTION 701(e) (2)
Subsection 701 (e) (2) provides that judicial review of CIA appli-
cation of its regulations pursuant to subsection 701(d) (2) "shall be
limited to determining whether the Agency considered the criteria
set forth in such regulations." A court could thus ascertain whether
proper procedures had been followed, but would not be allowed to
second-guess the CIA's substantive judgment regarding whether a
particular file or portion thereof met the de-designation criteria
outlined above.
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POSITION OF THE ADMINISTRATION
The Administration supports S. 1324, as reported by the Senate
Select Committee on Intelligence with amendments. This position
was reported to the Chairman in the following letter signed by
Director of Central Intelligence, William J. Casey :
OCTOBER 12,1983.
IIon. BARRY M. GOLDWATER,
Chairman, Select Committee on Intelligence, U.S. Senate, Was/ting-
ton, D.C.
DEAR MR. CHAIRMAN : This is to extend to you my personal thanks,
as well as the appreciation of the entire Central Intelligence Agency,
for your leadership and support in securing the favorable considera-
tion of S. 1324 by the Select Committee on Intelligence.
As introduced by you, S. 1324 sought to provide the Agency with
substantial relief from the unique and serious burdens imposed upon
it by the Freedom of Information Act. The Agency supported this
legislation. As you know, during the course of the hearings on the Bill
several issues were raised which had to be addressed. Over the follow-
ing several weeks, efforts were made to resolve these issues. These ef-
forts were successful and resulted in the amendments unanimously ap-
proved by the Committee in the substitute Bill. I greatly appreciate
the hard work put in by your staff and their consideration in seeking
our comments on the various proposals.
I believe this amended Bill has shown your willingness, and that
of the Agency's, to work to accommodate the interests of several dif-
ferent groups, particularly since the Bill as introduced was less than
the total exemption we had both originally hoped for. I trust that
our good faith efforts will be matched by strong support for the
amended Bill by those we have sought to accommodate. You have our
wholehearted support. It is our view that the Bill, as now amended,
will meet the stated purpose of the Act to provide substantial relief
from the search and review burdens of the Agency, thus enabling us
to improve our responsiveness to requests for information by the
public.
Sincerely,
WILLIAM J. CASEY,
Director of Central Intelligence.
COST ESTIMATE OF CONGRESSIONAL BUDGET OFFICE
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Hon. BARRY GOLDWATER, D.C., October 25, 1983.
,
Chairman, Select Committee on Intelligence,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : Pursuant to Section 403 of the Congressional
Budget Act of 1974, the Congressional Budget Office has reviewed
S. 1324, which would amend the National Security Act of 1947 that
regulates public disclosure of information held by the Central Intel-
ligence Agency, as ordered reported on October 4, 1983.
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It is estimated that there is no net cost to the federal government for
this bill. Changes in procedures, as mandated in the bill, may reduce
the level of effort needed to respond to Freedom of Information Act
requests. Changes in staff levels are not anticipated, however, as
resources would be used to reduce an existing backlog of requests and
improve response time.
Should the Committee so desire, we would be pleased to provide
further details on this estimate.
Sincerely,
RUDoI.PII G. PENNER,
Director.
EvALITATION Or REGULATORY IMPACT
In compliance with subsection 11(b) of Rule XXVI of the Standing
Rules of the Senate, the Committee finds that S. 1324 will improve
protection of the CIA's sources and methods while enabling the CIA
to respond to Freedom of Information requests in a more timely and
effective manner. The bill will protect the public's right to request
information from the CIA to the extent that these requests do not
require search and review of operational files; and will protect the
right of individual citizens and permanent resident aliens to request
information on themselves contained in all category of CIA files. The
Committee finds no additional paperwork will be required from in-
dividuals filing Freedom of Information requests. In addition, the
amount of paperwork required from the CIA should, in fact, be
reduced.
TABLE OF CONTENTS
Section 3(b) of S. 1324 sets forth an amendment to the table of con-
tents at the beginning of the National Security Act of 1947 so as to
reflect new section 701 of the new title VII.
EFFECTIVE DATE
Section 4 of the "Intelligence Information Act of 1983" sets forth the
effective date of the proposed amendment to the National Security Act
so that it will apply retroactively to all requests for records that are, on
the effective date of the amendment, pending before the Central Intelli-
gence Agency. This would include those requests on administrative
appeal and any pending initial requests that had not been finally proc-
essed. The agency could, however, as a matter of administrative discre-
tion, decide to complete the processing of any such requests which had
been substantially completed. The amendment would also apply to any
case or proceeding, including appeals, pending before any court of the
United States on the effective date of the amendment. This would result
in the dismissal by the courts of all such legal proceedings, or portions
thereof, for want of jurisdiction, where the documents in question are
located solely in designated operational files and not subject to search
and review under the terms of section 701. Without retroactive ap-
plicability, it would take years for the relief envisioned by the
amendment.
CHANGES IN EXISTING LAW MADE BY THE BILL
In compliance with subsection (4) of rule XXIX of the Standing
Rules of the Senate, changes in the existing law made by the bill, as
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reported, are shown as follows (new matter is printed in italic, and
existing law in which no change is proposed is shown in roman) :
(61 STAT. 497) CHAPTER 343
AN ACT To promote the national security by providing for a Secretary of De-
fense ; for a National Military Establishment ; for a Department of the Army,
a Department of the Navy, and a Department of the Air Force; and for the
coordination of the activities of the National Military Establishment with other
departments and agencies of the Government concerned with the national
security
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SHORT TALE
That this Act may be cited as the "National Security Act of 1947."
TABLE OF CONTENTS
TITLE VII-RELEASE OF REQUESTED INFORMATION
TO THE PUBLIC BY THE CENTRAL INTELLIGENCE
AGENCY
Sec. 701. Designation of files by the Director of Central Intelli-
gence as exempt from search, review, publication, or
disclosure.
* * * * * * *
TITLE VII-RELEASE OF REQUESTED INFORMATION
TO THE PUBLIC BY THE CENTRAL INTELLIGENCE
AGENCY
DESIGNATION OF FILES BY THE DIRECTOR OF CENTRAL INTELLIGENCE AS
EXEMPT FROM SEARCH, REVIEW, PUBLICATION, OR DISCLOSURE
SEC. 701. (a) In furtherance of the responsibility of the Director of
Central Intelligence to protect intelligence sources and methods from
unauthorized disclosure as set forth in section 10.(d) (3) of this Act
(50 U.S.C. 403(d) (3)) and section 6 of the Central Intelligence
Agency Act of 1949 (59 U.S.C. 403g), operational files located in the
Directorate of Operations, Directorate for Science and Technology,
and Office of Security of the Central Intelligence Agency shall be
exempted from the provisions of the Freedom of Information Act
which require publication or disclosure, or search or review in con-
nection therewith, if such files have been specifically designated by the
Director of Central Intelligence to be-
(1) files of the Directorate of Operations which document for-
eign intelligence or counterintelligence operations or intelligence
or security liaison arrangements or information exchanges with
foreign governments or their intelligence or security services;
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(2) files of the Directorate for Science and Technology which
document the means by which foreign intelligence or counterin-
telligence is collected through scientific and technical systems; or
(3) files of the O fice of Security which document' investiga-
tions conducted to determine the suitability of potential foreign
intelligence or counterintelligence sources:
Provided, however, That nondesignated files which may contain in-
formation derived or disseminated from designated operational files
shall be subject to search and review. The inclusion of information
from operational files in nondesignated files shall not affect the desig-
nation of the originating operational files as exempt from search, re-
view, publication, or disclosure: Provided, further, That the designa-
tion of any operational files shall not prevent the search and review
of such files for information concerning any special activity the exist-
ence of which is not exempt from, disclosure under the provisions of the
Freedom of Information Act or for information reviewed and relied
upon in an investigation by the intelligence committees of the Con-
gress, the Intelligence Oversight Board, the Office of General Counsel
of the Central Intelligence Agency, the Office of Inspector General of
the Central Intelligence Agency, or the Office of the Director of Cen-
tral Intelligence for any impropriety, or violation of law, Executive
order, or Presidential directive in the conduct of an intelligence ac-
tivity.
(b) The provisions of this section shall not be superseded except by
a provision of law which is enacted after the date of enactment o f this
section and which specifically cites and repeals or modifies its pro-
visions.
(c) Notwithstanding subsection (a) of this section proper requests
by United States citizens, or by aliens lawfully admitted for perma-
nent residence in the United States, for information concerning them-
selves, made pursuant to the Privacy Act of 1974 (5 U.S.C. 552a) or
the Freedom of Information Act (5 U.S.C. 552), shall be processed
in accordance with those Acts.
(d) The Director of Central Intelligence shall promulgate regula-
tions to implement this section as follows :
(1) Such regulations shall require the appropriate Deputy Directors
or O ffiee Head to:
(A) specifically identify categories of files under their control
which they recommend for designation;
(B) explain the basis for their reeonvm.endations; and
(C) set forth procedures consistent with the statutory criteria
in subsection (a) which would govern the inclusion of documents
in designated les.
Recommended designations, portions of which may be classified,
shall become effective upon written approval of the Director of
Central Intelligence.
(2) Such regulations shall further provide procedures and criteria
for the review of each designation not less than once every ten years
to determine whether such designation may be removed from any cat-
gory of files or any portion thereof. Such criteria shall include con-
sideration of the historical value or other public interest in the subject
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matter of the particular category of files or portion thereof and the
potential for declassifying a significant part of the information con-
tained therein.
(e) (1) On the complaint under section 552(a) (4) (B) of title 5,
United States Code, that the Agency has improperly withheld records
because of improper designation of files or improper placement of
records solely in designated files, the review of the district court not-
withstanding any other provision of law, shall be limited to a deter-
mination whether the Agency regulations implementing subsection (a)
conform to the statutory criteria set forth in that subsection for
designating files unless the complaint is supported by an a fjidavit,
based on personal knowledge or otherwise admissable evidence, which
makes a prima facie showing, that
(A) a specific file containing the records requested was improperly
designated; or
(B) the records requested were improperly placed solely in desig-
nated files.
If the courts finds a prima facie showing has been made under this
subsection, it shall order the Agency to file a sworn response, which
may be filed in camera and ex parte, and the court shall make its deter-
mination based upon these submissions and submissions by the plain-
tiff. If the court finds under this subsection that the regulations of the
Agency implementing subsection (a) of this section do not conform
to the statutory criteria set forth in that subsection for designating
files, or finds that the Agency has improperly designated a file or im-
properly placed records solely in designated files, the court shall order
the Agency to search the particular designated file for the requested
records in accordance with the provisions of the Freedom of In f orina-
t;on Act and to review such records under the exemptions pursuant to
section 552(b) of title 5, United States Code. If at any time during
such proceedings the Agency agrees to search designated files for the
requested records, the Court shall dismiss the cause of action based
on this subsection.
(e) (2) On complaint under section 552(a) (4) (B) of title 5, United
States Code, that the Agency has improperly withheld records because
of failure to comply with the regulations adopted pursuant to subsec-
tion (d) (2), the review of the Court shall be limited to determining
whether the Agency considered the criteria set forth in such
regulations.
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ADDITIONAI. VIEWS OF SENATOR DANIEI. PATRICK
MOYNIHAN, VICE CHAIRMAN
I wish to commend our distinguished Chairman, Senator Goldwater,
for his leadership in bringing to fruition the Committee's effort to
formulate legislation which strikes a proper balance between the se-
curity requirements of the Central Intelligence Agency and the public's
right to know. This undertaking began in earnest in 1980 when our
colleague Senator Huddeston introduced the Intelligence Charter bill,
which included additional exemptive relief from the Freedom of In-
formation Act for the CIA (S. 2284, 96th Congress). At the same time,
I offered a bill providing a similar exemption for all intelligence agen-
cies (S. 2216). Unfortunately, the press of time on other matters pre-
vented the Committee from taking any action.
In the last Congress, Senator Chafee introduced S. 1273, which pro-
vided an exemption essentially the same as the one in my earlier bill.
The Committee held hearings in July 1981, but we encountered an
impasse. The CIA rejected the limited relief provided in that bill,
asserting that FOIA was fundamentally incompatible with the
Agency's mission and insisting on nothing less than a virtually com-
plete exemption from the Act.
On that occasion, I noted that I was not prepared to accept the
suggestion that subjecting the CIA to a public disclosure statute was
an absurdity. Rather, I offered this alternative thesis : That the ap-
plication of the freedom of information concept to the Agency is a
paradox-that is to say-while seemingly a contradiction in terms, in
reality it expresses a great truth. It is a truth reflected in our Con-
stitutional tradition of balancing the requirements of secrecy in na-
tional security matters with other values including those of free speech
and press. We see this manifested in the extent of Congressional over-
sight of our intelligence community, which is unique in the world. The
accountability of our intelligence agencies to standards of conduct stip-
ulated in statutes and in a public Executive Order is equally singular.
The Freedom of Information Act is in keeping with this tradi-
tion. In considerable measure it is an attempt-perhaps an imperfect
one-to find a prudent way to reconcile the need for people to know
about the workings of their government, which is implicit in the
First Amendment, and the need for secrecy in certain national security
matters, which is vital to the survival of our country. Thus, Congress
exempted our intelligence agencies from the Act to the extent thought
necessary to protect sources and methods and properly classified in-
formation.
So I then urged my colleagues to keep the American character of
our intelligence service in mind as we studied the important issues
raised in the FOIA debate. I further suggested that any broadening
of current exemptions should be commensurate to the need as demon-
strated by the evidence.
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Senator Goldwater's bill-the Intelligence Information Act of 1983
(S. 1324)-was drafted in this spirit. And it was in this spirit that
the Chairman worked so diligently to accommodate the legitimate con-
cerns of the witnesses at our public hearings and our colleagues on
the Committee. Thus, several amendments were incorporated in the
substitute bill which we ordered reported to the Senate. Three of these
are of especial importance.
First, the amended bill assures that the CIA's new exemptive au-
thority will be subject to judicial review. A Court will have jurisdic-
tion to determine whether implementing regulations conform to
statutory criteria; that is to say, whether they have a rational basis.
Broader review is required if a plaintiff makes a prima facie showing
that a specific file was improperly designated or that a document was
improperly placed in a designated file. This preliminary threshold
was considered appropriate in light of the special source and method
sensitivity of operational files. Upon a proper showing, the court
must order the Agency to file a sworn response, which may be in camera
and ex parte if it contains classified information, and must order an
appropriate search if it finds against the Agency.
Second, the amended bill makes it clear that any information re-
viewed and relied upon in an official investigation of any alleged
improper or illegal intelligence activity will remain subject to search
and review under FOIA, even if found exclusively in an exempt des-
ignated file. It is understood and agreed that any record in such a
file which is relevant to an investigation, but was overlooked or delib-
erately withheld, would be accessible through the judicial review
provisions of the bill. Such a record would be deemed improperly
placed in an exempt designated file.
The third amendment requires that implementing regulations pro-
vide procedures and criteria for the review of each exemption des-
ignation not less than once every ten years. The criteria will include
the historical or other public interest value of the subject matter of
the file and the potential for declassifying a significant part of the
contents. In this connection, the Director of Central Intelligence, Mr.
Casey, has indicated his willingness to expand the CIA's rather
limited program for reviewing and declassifying historical intelli-
gence files. I certainly will join in efforts to assure that adequate re-
sources are provided.
I am pleased that the CIA has expressed its support for the meas-
ured approach to the Freedom of Information Act represented by
S.1324 ' as amended. The Agency's cooperation with the Committee in
finding compromises on difficult issues has resulted in a bill which
should serve the public interest in more efficient processing of FOIA
requests, while giving better protection to intelligence sources and
methods. I wish also to thank my colleagues, Senators Leahy, Hud-
dleston, Durenberger and Inouye for the suggestions we incorporated
in this legislation.
In closing, I believe that the amendments to this legislation con-
stitute significant improvements. I, therefore, join in the recommenda-
tion that the substitute be reported favorably to the Senate.
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ADDITIONAL VIEWS OF SENATORS I)URENBERGER,
HUDDLESTON, INOUYE, AND LEAHY
For over four years under two Administrations, the CIA has
sought relief from the burdens imposed on the Agency by the Free-
dom of Information Act. CIA officials presented their case at hear-
ings in 1979, 1980, and 1981, but no action was taken on any of the bills
then introduced to exempt the CIA from the FOIA. Introduction of
the Intelligence Information Act (S. 1324) by Senator Goldwater in
1983 provided the first real prospect for passage of legislation to
modify the CIA's responsibilities under the FOIA. This bill at-
tempted to strike a balance between the public's right to access to in-
formation and the Agency's interest in protecting intelligence
sources and methods involved in its operations. Because of the sig-
nificant amendments to S. 1324 adopted by the Select Committee on
Intelligence, we agree that this legislation deserves favorable con-
sideration by the Senate.
CIA's past claims that the FOIA created major security problems
for the Agency have engendered considerable skepticism. While
sources and cooperating foreign governments have voiced complaints
about intelligence disclosures in the United States, very few of those
disclosures could actually be attributed to operation of the FOIA;
and the CIA could point to no case in which the Act forced the dis-
closure of properly classified material relating to intelligence sources
or methods. The FOIA permits the CIA to withhold any information
that is properly classified pursuant to Executive Order. As revised
by President Reagan in 1982, the Executive Order on National Secu-
rity Information provides for classification of any information the
unauthorized disclosure of which reasonably could be expected to
cause damage to the national security. Therefore, the FOIA does not
require the CIA to disclose any information from its files that would
cause damage to the national security.
In fact, President Reagan's Executive Order was intended in part
to make it easier for the CIA to justify withholding information un-
der the FOIA when challenged in court. The new standard for classi-
fication no longer required the government to show "identifiable"
damage to the national security. Moreover, a new provision in the
order established a presumption that unauthorized disclosure of any
"intelligence sources or methods" causes damage to the national secu-
rity. Both of these changes, as well as other revisions in the Execu-
tive Order, were strongly recommended by the CIA as a means to
make it easier for the Agency to justify withholding information re-
quested under the FOIA. Some of us have serious concerns about
aspects of the order and have cosponsored legislation to restore the
"identifiable damage, to national security" standard and a previous
requirement to balance the public interest in disclosure.
(39)
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We believe that excessive secrecy is an enemy of free government
and that the FOIA is one of the most vital laws for the preservation
of our democracy. Censorship powers based on national security
grounds are increasingly being asserted in countries throughout the
world. In our country, however, the First Amendment firmly guar-
antees the freedom of the press, and laws such as the FOIA buttress
that guarantee by ensuring that the government does not have unfet-
tered power to control the release of information about its activities.
Therefore, we have examined the Intelligence Information Act of
1983 with the greatest care and deliberation. At the time of its intro-
duction, it was asserted that the Act would be consistent with the prin-
ciples of freedom of information because it would not result in with-
holding from the public significant releasable information from CIA
files. We also discovered that, under current law, persons seeking in-
formation from the CIA under the FOIA often have to wait two years
or more before they receive a full response. According to its pro-
ponents, this bill could enable the CIA to clear up this backlog and
substantially reduce future delays, without adversely affecting the
public's access to the type of information that CIA is required to re-
lease under the FOIA. These arguments could not be ignored. They
presented a possibility that a bill could be drafted to serve both the
CIA's desire for some relief from current FOIA requirements and the
public's need for more timely release of information from CIA files.
Following hearings on S. 1324 and detailed review of relevant CIA
practices, we determined that the bill as introduced came close to
achieving these objectives, but that changes were needed to ensure that
the bill would not detract from the principles of freedom of informa-
tion. Several amendments have been made to the bill in response to
our concerns. On key points, specific report language has been neces-
sary to reduce ambiguities and clarify the legislative intent. Beyond
the language and intent of the bill, assurances from the CIA and com-
mitments by the Select Committee itself have been required. The over-
all result is a set of proposals that, we believe, provide a unique oppor-
tunity to resolve the problems associated with application of the Free-
dom of Information Act to CIA records. These proposals take into
account the concerns expressed by representatives of the news media,
historians, and civil liberties groups, as well as others interested in
public access to government information.
As important as the bill, the report, and related assurances and
commitments is the prospect that passage of the Intelligence Informa-
tion Act will make it unnecessary for the Congress to consider further
requests for broader exemptions from the FOIA for intelligence rec-
ords. Deputy Director of Central Intelligence John N. McMahon tes-
tified at the hearings on S. 1324 that proposals for broader intelligence
exemptions from the FOIA "would not be sanctioned" by the Admin-
istration. The Committee report cites the Chairman's communication
with the President in which the President indicated his support for the
approach taken in S. 1324. Thus, we do not envision a need for further
legislation in this area for the foreseeable future.
The bill, as amended by the Select Committee, is carefully designed
to preserve public access for search and review of those CIA files that
are likely to contain releasable information. This has been accom-
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pushed through a combination of specific statutory provisions and
report language.
The intelligence collected by the CIA and reported to intelligence
analysts and policyniakers will continue to be subject to search and
review in response to FOIA requests. Likewise, all documents regard-
ing CIA policy matters, including high-level operational policy deci-
sions, will continue to be accessible. This is because the bill does not
apply to nonoperational files or to files of the CIA's Directorate of
Intelligence or of the Office of the Director. Moreover, the Committee's
report makes clear its, intent that any intelligence reports or policy
documents which are disseminated to the Directorate of Intelligence or
the Director's Office and returned for storage solely in operational
files will remain subject to search and review.
As for the three affected CIA components-the Operations Direc-
torate, the S&T Directorate, and the Office of Security-the Commit-
tee has amended the bill to specify that particular standards be
adopted for designation of exempted files. Operations Directorate files
may be designated only if they document foreign intelligence or
counterintelligence operations or liaison relationships with foreign
governments. The Committee's report specifies that Operations Direc-
torate files that are used as the sole repository for intelligence reports
cannot be so designated. S&T Directorate files may be designated only
if they document the means of intelligence collection through scientific
or technical systems. Other S&T Directorate files, such as those which
store scientific and technical intelligence assessments, cannot be desig-
nated. Office of Security files may be designated only if they document
investigations to determine the suitability of potential foreign intel-
ligence or counterintelligence sources. Files on other Office of Security
functions, such as protection of the physical security of CIA facilities
in the United States, cannot be designated. These narrow standards
for designation of files exempted from FOIA search and review are
crucial for ensuring continued access to significant, potentially releas-
able information.
But constraints on file designation are not enough. Additional pro-
visions in the bill ensure continued search and review for information
in designated operational files about certain CIA covert action opera-
tions, illegal or improper intelligence activities, other historically
significant matters, and U.S. citizens or resident aliens who request
information on themselves.
Perhaps the CIA's most controversial operations have been covert
actions, rather than sensitive collection activities. Covert actions rep-
resent the secret side of U.S. foreign policy, although in some cases
their existence becomes suspected, widely known, or even subject to
full-scale public debate. Hence, S. 1324 includes a special proviso to
ensure that the bill makes no change in public access to releasable in-
formation in designated files about CIA covert action operations (or
"special activities"). If the fact of the existence of the activity is not
exempt from disclosure under the FOIA, the CIA will have to con-
tinue to search and review operational files in response to a request for
information about that operation in accordance with the FOIA. The
Committee report defines "special activities" broadly to cover any
secret nondiploinatic activities, other than those intended solely to col-
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42
lect intelligence. In other words, S. 1324 will not restrict the ability
of the public to obtain information about CIA intelligence operations
undertaken to influence events rather than just to gather information.
The Select Committee's report does not specifically address the gnes-
tion of what circumstances, other than official Executive branch
acknowledgement, would justify a determination that the fact of the
existence or nonexistence of a covert action operation is not properly
classified. The Committee's report does not, for example, address the
issue of whether action by one or both Houses of the Congress, based
on the recommendation of a Congressional committee or an individual
Member, would affect this determination. Nor does the Select Commit-
tee endorse or reject the argument that the existence of an operation
may become so well known as a matter of fact that the Executive
Branch could no longer justify refusing to confirm its existence in re-
sponse to an FOIA request. Nothing in this bill or in the legislative
history should be interpreted as an endorsement of the position that
disclosure by an authorized Executive Branch official is necessary to
establish that the existence of a special activity is not exempt from dis-
closure under the FOIA, although such a disclosure would certainly
be sufficient for this purpose, as the Committee report notes.
The public interest in covert action by the CIA is matched by
legitimate public concern about potentially illegal or improper in-
telligence activities, such as violations of constitutional rights or the
limitations imposed by statute or Executive Order. At the hearings
on S. 1324, CIA officials testified that information about alleged abuses
or improprieties would remain accessible under the FOIA because
the files of the investigating bodies-such as the CIA Inspector Gen-
eral's Office or General Counsel's Office-could not be designated and
thus would be subject to continued search and review. However, the
Select Committee's review of current CIA procedures uncovered a
major problem with this approach. Sometimes the investigating office
does not include all relevant information about an alleged abuse in its
own files, but leaves relevant information in operational files that
would be designated under the bill. To remedy this problem, the bill
has been amended to provide access to all information in designated
files that was reviewed and relied upon in an official investigation for
illegality or impropriety in the conduct of an intelligence activity.
This amendment itself did not fully resolve the problem of access
to information on illegal or improper intelligence activities. Report
language was still needed to deal with cases where investigators merely
sample a relevant file or where relevant information is withheld from
investigators or overlooked through inadvertence. The Committee re-
port makes clear that in all these circumstances information relevant
to the subject of the investigation will remain accessible for search
and review. It was essential for our agreement to the bill to close these
potential loopholes in the amended bill language referring to infor-
mation "reviewed and relied upon" by official investigators.
Another amendment provides continued access to information for
the purpose of historical research. We believe that the designation of
operational files should not put historically valuable materials out of
reach of legitimate historical inquiry. Thus, the amended bill requires
review of file designations at least every ten years to determine
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whether the designation can be removed and the file made subject to
FOIA search and review. The criteria for this review must include
consideration of the historical value or other public interest in the
subject of the file and the potential for declassifying a significant part
of its contents. These criteria are especially significant in light of the
Executive Order on classification, which eliminated the requirement
to take the public interest in such materials into account in making
declassification decisions. S. 1324 will restore that requirement at least
for "de-designation" decisions. We fully share the Select Committee's
view in the report that most files ought to be "de-designated" within
40 years.
This is not all that would be done for historical research in conjunc-
tion with this bill. As a result of an exchange of letters between Sen-
ator Durenberger and CIA Director Casey, the CIA has agreed to set
up a new program to declassify historical documents. The CIA has
pledged to review those materials that "would be of greatest historical
interest and most likely to result in declassification of useful informa-
tion." This program will extend to all types of CIA files, not just
operational files, and should provide information to historians that
they might not even have known existed in the absence of the CIA's
review.
Further assurance of assistance for historical research is contained
in the Select Committee's report. The CIA will continue to respond in
its current manner to requests for material in designated operational
files when requests are made under the mandatory search and declas-
sification review provisions of the Executive Order on National Se-
curity Information. There is a significant connection between such
requests and the FOIA. Appeals from initial CIA decisions in Execu-
tive Order mandatory review cases are processed by the CIA's Infor-
mation and Privacy Division and considered by an Information Re-
view Committee. Under S. 1324, the files of that division and coin-
mittee are ineligible for designation. Thus, the documents in question
will be subject to review under the FOIA if they are subsequently
requested from Information and Privacy Division files pursuant to
the FOIA rather than the Executive Order.
A final safeguard for continued public access to releasable CIA
information is the provision in the bill, as introduced, that requires the
CIA to respond to requests, in accordance with the FOIA or the Pri-
vacy Act, from U.S. citizens and permanent resident aliens for infor-
mation concerning themselves. It is to the CIA's credit that all of its
proposals for exemption from the FOIA have included such a provi-
sion, which recognizes the importance of assuring the American people
access for search and review to any files on themselves.
Perhaps the most significant and difficult accomplishment of the
Select Committee in considering S. 1324 has been the establishment
of clear procedures for judicial review in cases of alleged improper
file designation or alleged improper placement of records solely in
designated files. At the first public hearing on the bill, CIA officials
indicated their belief that there would be no judicial review whatso-
ever under the provisions of the bill. This raised very serious problems,
because a basic principle developed under the Freedom of Information
Act is that the courts have an opportunity to review administrative
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decisions to withhold information. We are very pleased, therefore, that
agreement has been reached to add specific provisions to the bill re-
garding judicial review. These provisions will give an opportunity for
persons who have prima facie evidence of improper file designation or
improper placement of records solely in designated files to have the
courts look into the matter and determine whether CIA should conduct
the requested search and review for information in the designated files.
Thus, the Agency will not be the sole judge of whether its decisions
comply with the standards for designation established in S. 1324. The
bill provides full authority for the courts to review the basis for file
designations. In addition, the Committee report states that "[t]he
bill does not deprive the court of its authority to order the Agency to
attach to its additional affidavits, as part of its sworn response, the
requested Agency records in extraordinary circumstances where essen-
tial to determine whether such records were improperly placed solely
in designated files." This language makes clear that the court retains
the power to require the Agency to include such documents, even if
highly classified and tightly held, as part of affidavits submitted by
the CIA as part of its sworn response, in order that the court might
itself examine those documents in camera and ex parte if necessary
to reach a determination. This language was central to the agreement
among the Members of the Committee on the judicial review provi-
sions in the bill.
In addition to urging certain changes in the bill, we have tried to
assess its likely practical impact. Several questions needed to be ex-
plored. How could we determine whether the bill would reduce the
actual amount of information that comes out under the FOIA from
CIA files? What would happen to the enormous backlog of FOIA re-
quests that delays CIA responses? How would CIA improve its proc-
essing of requests for information after the bill was passed?
To answer these questions, detailed written questions were sub-
mitted to the CIA and firm commitments obtained on crucial points.
For example, CIA reviewed a list of selected CIA documents which
have been released to the public and indicated which of them would
remain subject to search and review under the bill. This list covered a
wide range of significant documents on CIA policies and controversial
operations. The CIA's item-by-item analysis of the impact of the bill,
which will be part of the record of the Committee's consideration,
explains why virtually all of the documents are the type that would
continue to be accessible for search and review after the bill is enacted.
Additionally, at the hearings on the bill, CIA witnesses testified
that S. 1324 would have a widespread impact on pending litigation
arising out of requests for information in CIA files. However, when
asked to review the cases more carefully in light of the amendments
being considered by the Select Committee, the CIA advised that only
a small proportion of the pending cases would actually be affected.
CIA's explanation of the bill's likely impact on current litigation will
also be part of the record of the Select Committee's consideration of
S. 1324.
In the final analysis, the benefits of the bill for freedom of informa-
tion depend heavily on whether it will improve CIA's responsiveness
to FOIA requests for information in nondesignated files and for in-
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formation in designated files that remains accessible for search and
review under the terms of the amended bill. We are pleased, therefore,
with the assurances given by the CIA and the commitments made by
the Select Committee in its report. The report reflects the CIA's agree-
ment to submit to the Committee a detailed plan for elimination of
the present backlog of FOIA requests as part of a specific program of
administrative measures the CIA will take to improve processings of
FOIA requests after enactment of the bill. The Agency will not reduce
its budgetary and personnel allocation for FOIA processing during
the first two years; and the CIA agrees that resources freed by elimina-
tion of the backlog will be reallocated to augment resources for search
and review of non-designated files. For its part, the Select Commit-
tee has made a commitment to scrutinize the CIA's performance to
ensure that concrete results are achieved and that all FOIA requests
to the CIA are handled in a timely, responsive and courteous manner.
Our conclusion, therefore, is that the changes in the bill, the legisla-
tive intent as spelled out in the report, and the assurances and com-
mitments accompanying the bill make it a positive gain for freedom
of information. We are satisfied that S. 1324 will serve not just the
CIA's interest in preserving secrecy about sensitive intelligence opera-
tions, but the public's right to information about their government.
For these reasons, we urge favorable Senate action on the bill.
DAVID DURENBERGER.
WALTER D. IIUDDLESTON.
DANIEL K. INOUYE.
PATRICK J. LEAHY.
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S'16742 ? CONGRESSIONAL RECORD - ATE November 17, 1983
INTELLIGENCE INFORMATION Central Intelligencee Agency should remain operational 'files as exempt from search,
ACT OF 1983 accessible to requesters, subject to existing review, publication, or disclosure: Provided
exemptions under law; further, That the' designation of any oper.
Mr. BAKER. Mr. President, next I (10) the organization of Central Intelli- ational files shall not prevent the search
propose that the Senate proceed to gence Agency records allows the exclusion and review of such files for Information con.
the consideration of Calendar Order of operational files from The search and cerning any special activity the existence of
No. 553, if the minority leadet has no review requirements of the Freedom of In- which Is not exempt from disclosure under
objection. formation Act while leaving files containing the provisions of the Freedom of Informs.
Mr. BYRD. No objection. information gathered through intelligence Lion Act or for information reviewed and
Mr. BAKER. Mr. President, I make operations accessible to requesters, subject relied upon in an investigation by the Intel.
that request. - to existing exemptions under law; and ligence committees of the Congress, the in.
(11) the full application of the Freedom of telligence Oversight Board, the Office of
The PRESIDING OFFICER. The Information Act to the Central Intelligence General Counsel of the Central Intelligence
clerk will report. Agency results in inordinate delays and the Agency, the Office 'of Inspector General of
The legislative clerk read'as follows: inability of the Agency to respond to re: the Central Intelligence Agency, or the
A bill (S. 1324) to amend the National Se- quests for information in a timely fashion. Office of the Director of Central Intelli.
curity Act of 1947 to regulate public disclo- (b) The purposes of this Act are- gence for any impropriety, or violation of
sure of information held by the Central In- (1) to protect the ability of the public to law, Executive order, or Presidential direc.
telligence Agency. request information from the Central Intel- tive in the conduct of an intelligence activi.
The PRESIDING OFFICER. IS ligence Agency under the Freedom of Infor- ty.
oration Intelligence Agency under the Free- "(b) The provisions of this section shall
there objection to the immediate con- dom of Information Act to the extent that not be superseded except by a provision of
sideration of the bill? such requests do not require the search and law which is enacted after the date of enact.
There being no objection, the Senate review of operational files; ment of this section and which specifically
proceeded to consider the bill which (2) to protect the right of individual cites and repeals or modifies its provision&
had been reported from the Select United States citizens and permanent resi- "(c) Notwithstanding subsection (a) of
Committee on Intelligence, with an dent aliens to request information on them- this section. proper requests by United
amendment in the nature of a substi- selves contained in all categories of files of States citizens, or by aliens lawfully ad.
the Central Intelligence Agency; and milted for permanent residence in the
tute to strike all , after the enacting (3) to provide relief to the Central Intelli- United States, for information concerning
clause and insert: gence Agency from the burdens of searching themselves, made pursuant to the Privacy
That this Act may be cited as the "Intelli- and receiving operational files, so as to im- Act of 1974 (5 U.S.C. 552a) or the Freedom
gence Information Act of 1983". prove protection for intelligence sources and of Information Act (5 U.S.C. 552). shall be
FINDINGS AND PURPOSES methods and enable this Agency to respond , processed in accordance with those Acts
to the requests of the public for information ? (d) The Director of Central Intelligence
SEC. 2. (a) The Congress finds that- in a more timely and efficient manner. shall promulgate regulations to im
(1) the Freedom of Information Act is pro- SEC. 3. (a) The National Security Act of' this section. plement
viding the people of the'United States with 1947 is amended by adding at the end there- "(1) Such regulations shall require the s
and important means of acquiring informa- of the following new title: p
tion concerning the workings and decision- propriate Deputy Directors or Office Head
aking processes of their Government, in- TITLE VII-RELEASE OF REQUESTED making making the Cesal Inhlr ce GAgency:
overnment, INFORMATION TO THE PUBLIC BY "(A) specifically identify categories of files
(2) the full application of the Freedom of THE CENTRAL INTELLIGENCE under their control which they recommend
Information Act to the Central Intelligence AGENCY for designation;
Agency is, however, imposing unique and se- "DESIGNATION or FILES BY THE DIRECTOR OF "(B) explain the basis for their recommen-
rious burdens on this Agency; CENTRAL INTELLIGENCE AS ExEMPT FROM dations; and
(3) the processing of a Freedom of Infor- SEARCH, REVIEW, PUBLICATION, OR DISCLO- "(C) set forth procedures consistent with
mation Act request by the Central Intelli- SURE the statutory criteria In subsection (a)
gence Agency normally requires the search "SEC. 701. (a) In furtherance of the re- which would govern the inclusion of docu-
of numerous systems of records for informs- sponsibility of the Director of Central Intel- ments in designated files Recommended
tion responsive to the request; ligence to protect intelligence sources and designations, portions of which.may be clas-
(4) the review of responsive information methods from unauthorized disclosure as sified, shall become effective upon written
located in operational files which concerns set forth in section 102(d)(3) of this Act (50 approval of the Director of Central Intelli-
sources and methods utilized in intelligence U.S.C. 403(d)(3)) and section 6 of the Cen- Bence.
operations can only be accomplished by tral Intelligence Agency Act of 1949 (50 "(2) Such regulations shall further pro-
senior intelligence officers having the neces- U.S.C. 403g), operational files located in the vide procedures and criteria for the review
sary operational training and expertise; Directorate of Operations, Directorate for. of each designation not less than once every
(5) the Central Intelligence Agency must Science and Technology, and Office of Secu. ten years to determine whether such desig-
fully process all requests for information, rity of the Central Intelligence Agency shall nation may be removed from any category
even when the requester seeks information be exempted from the provisions of the of files or any portion thereof. Such criteria
which clearly cannot be released for reasons Freedom of Information Act which require shall include consideration of the historical
of national security; publication or disclosure, or search of value or other public interest in the the sub-
(6) release of information out of oper- review in connection therewith, if such files ject matter of the particular category of
ational files risks the compromise of intelli- have been specifically designated by the Di- files or portion thereof and the potential for
gence sources and methods; rector of Central Intelligence to be-- declassifying a significant-part of the infor-
(7) eight years of experience under the , "(1) files of the Directorate of Operations mation contained therein.
amended Freedom of Information Act has which document foreign intelligence or "(e)(i) On the complaint under section
demonstrated that this time-consuming and counterintelligence operations or - intelli- 552(aX4XB) of title 5. United States Code.
burdensome search and review of operation- Bence or security liaison arrangements or in- that the Agency has improperly withheld
al files has resulted in the proper withhold- formation exchanges with foreign govern- records because of improper designation of
ing of information contained in such files, meats or their intelligence or security serv- files, or improper placement of records
,.and, therefore, the Central Intelligence ices; or solely in designated files, the review of the
Agency should no longer be required to "(2) files of the Directorate for Science district court, notwithstanding any other
expend valuable manpower and other re- and Technology which document the means provision of law shall be limited to a deter-
sources in the search and review of informa- by which foreign intelligence or counterin- ' mination whether the Agency regulations
tion in these files; telligence is collected through scientific and implementing subsection (a) conform to the
(8) the full application of the Freedom of technical systems; or statutory criteria set forth in that subsec-
Information Act to the Central Intelligence "(3) files of the Office of Security which tion for. designating files unless the com-
Agency Is perceived by those who cooperate document investigations conducted to deter- plaint is supported by an affidavit, based "on
with the United States Government as con- mine the suitability of potential foreign in- personal knowledge or otherwise admissa-
stituting a means by which their coopera- telligence or counterintelligence sources: ble evidence, which makes a prima facie
tion and the information they provide may Provided, however, That nondesignated files showing that- .
be disclosed; which may contain information derived or "(A) a specific file containing the records
(9) information concerning the means by disseminated from designated operational requested was improperly designated; or
which intelligence is gathered generally is files shall be subject to search and review. "(B) the records requested were improper-
not necessary for public debate on the de- The inclusion of information from oper- ly placed solely in designated files -
fense and foreign policies of the United ational files in nondesignated files shall not If the court finds a prima fade showing has
States, but information gathered 'by- the affect the designation of the originating been made_under this subsection. It shall
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November 17, 1988 CONGRESSIONAL.
RECORD - SENATE ' ~ - S 16743
order the Agency to file a sworn response, historians, and journalists were all tion which strikes a proper balance be-
which may be filed in camera and ex pane, here to provide comment. And we Its- tween the security requirements of the
and the court shall make its determination toned. And then we went back and dis- and the
based upon these submissions and submis- Cussed some more how we could adCentral Intelligence Agency
sions by the plaintiff. Il'the court finds public's right to know. This undertak-
-
under this subsection that the regulations dress all these interests. ing began in earnest in 1980 when the
of the Agency implementing subsection (a) These negotiations and discussions distinguished 'Senator from Kentucky
of this section do not conform to the statu. were very successful because everyone (Mr. HUDDLESTON) Introduced the In-
tory criteria set forth in that subsection for went away with most of what they telligence Charter bill, which included
designating files, or finds that the Agency needed. Reaching unanimous agree- additional exemptive relief from the
has Improperly designated a file or improp- ment on this bill is a good example of Freedom of Information Act for the
the erly court placed shall records order solely the Ageenignate of iles, arch how our democratic process should CIA (S. 2284, 96th Congress). At the
the particular designated file for there work. eryone gave a little and in the same time. I offered a bill providing a
quested records in accordance with the pro got a lot more in return, . similar exemption for all intelligence
visions of the Freedom of Information Act The CIA is getting relief from the agencies (S. 2216). Unfortunately, the
and to review such records under the ex- almost Impossible burden the FOIA press of time on other matters
pre-
emptions pursuant to section 552(b)?of title has placed on It, burdens which I do vented the committee from taking any
5, United States Code. If at any time during not think Congress really contemplat- action.
such proceedings the Agency agrees to ed when it
search designated files for the requested passed the I974, amend- In the last Congress, Senator CHAPEE
records, the court shall dismiss the cause of menu- introduced S. C1273, ongress.
action based on this subsection. Presently, FOIA mandates that if
which provided an
"(2) On complaint under section someone requests all the information exemption essentially the same as the
552(a)(4)(B) of title 5, United States Code. . on a certain subject, all the files have one in my earlier bill. The committee
that the agency has improperly withheld to be located. In an intelligence held hearings in July 1981, but we en-
records because of failure to comply with agency, most of the information is countered impasse. The CIA re t t-
tbe regulations adopted pursuant to subsec classified. But that does not end the ed the limited relief provided in that
lion (d)(2), the review of the court shall be
agency's job bill, assert ing that FOIA -was funds-
limited to determining whether the Agency - . gh experienced person mentally incompatible with the
considered the criteria set forth in such reg- must go through stacks and stacks of Agen-cy'
ulations. these papers-,sometimes they - are less mission and insisting on nothing
(b) The table of contents at the beginning. many feet tall-to justify why -almost less than a virtually complete exemp-
of such Act is amended by adding at the end every single sentence should not be re- tion from the act.
thereof the fallowing: leased. If this Is not done well, a court On that occasion, I noted that I was
"TITLE VII-RELEASE OF REQUESTED could order the information released. not prepared to accept the suggestion
INFORMATION TO THE PUBLIC By However, very little information, if that subjecting the CIA to a public
THE CENTRAL INTELLIGENCE any, is ever released from operational disclosure statute was an absurdity.
AGENCY files 'when. the requester seeks irifor- Rather, I .-offered this alternative
"Sec. 701. Designation of files by the Direc- mation concerning the - sources and thesis: That - the application of the
for of Central Intelligence as methods used to' collect intelli encefreedom of information concept to the
exempt from search, review. .Even then, the information released is Agency is a publication, or disclosure,~, paradox; that is to say,
SEC. 4. The amendments made by section 3 usually fragmented, while seemingly a contradiction in
shall be effective upon enactment de yc this Also, there is always the risk that terms, in reality It expresses a great
shall d shall apply with respect to any re- there will be a mistaken disclosure or truth. It is tutional a truth traditiono reflef cted in our
quest for records, whether or not such re- that some court may order the release consti .balancing
quest was made prior to such enactment, of information which could reveal a the requirements of secrecy In nation-
and shall apply to all cases and proceedings source's identity or a liaison relation- al security matters with other values
pending before a court of the United St S.tes ship. That is why only these most sen- Including those of free speech and
on the date of such enactment. sitive operational files would be press. We see this manifested In the
The PRESIDING OFFICER. The exempt from search and review under extent of congressional oversight of
question is on agreeing to the amend- the provisions of my bill. our intelligence community, which is
ment in the nature of a substitute. The FOIA requestors will get some- unique in the world. The accountabil-
The amendment in the nature of a thing in return. They are going to get Ity of our intelligence agencies to
substitute was agreed to. - better service. I have talked with the standards. of conduct stipulated in
Mr. GOLDWATER. Mr. President, I CIA and they have agreed not to statutes and -In R 'Public Executive
rise in support of S. 1324a bill amend- reduce the budgetary and personnel order is equally singular,
ing the National Security Act of 1947. allocation for FOIA Processing for 2 The .Freedom of Information Act is
This legislation will relieve the CIA years immediately following passage in keeping with this tradition. In large
from the , overwhelming burden of of this bill. This means that, to the measure, it Is an attempt-perhaps an
searching and-reviewing certain oper. extent that resources are freed up as a imperfect one-to find a prudent way
ational files under the Freedom of-In- result of S. 1324, the Agency will uti- to reconcile the need for people to
formation Act. In turn, this relief will lize those resources for FOIA process- know about the workings of their Gov-
enable the Agency to become more ef- Ing. - ernment, which is implicit In the first
ficient so. that other FOIA requests I particularly -want to thank Sena- amendment, and `the need for secrecy
may be answered speedly. _ - tors DURENBERGER, LEAHY, and HUD- in certain national security matters,
S. 1324 was reported from the DLESTON for their time and interest, in which is vital to -the survival of our
Senate Select Committee on Intelli- helping the committee reach agree- country. Thus, Congress exempted our
gence earlier this month with every ment on this bill: I thank all 15 com- intelligence agencies from the act, but
single Senator on the committee mittee members for their support of S. only to the extent thought necessary
voting in favor of it. And the reason 1324 and ask my colleagues to support - to protect sources and methods and
this legislation was supported by all 15 Its passage at this time.
Members of our committee was be. Mr. MOYNIHAN. Mr. President, I p SoIl then~ur1ged y colon.
cause we took great care drafting this support-S. a ~ collet o our n-
le
gislation and its accompanying 1324, the Intelligence Infer- keep the American character of our ieport mation Act of 1983. I wish to commend telligence service in mind as we stud-
r
On June 21 and June 28, we held thSenator e chief fs pon o of S. 1324, the senior led the important issues raised in the
open hearings on S. 1324. The Central WATER), the 4j tin (Mr. Goth FOIA debate
ished I Of further
nt exemptions Intelligence Agency,-American Bar As- the Seect Committee on Intelligence. houldobe commensurateto need
sociation, American Civil Liberties The committee is grateful for his lead- as demonstrated by the evidence.
Union. Association of Former Intelli- ership in bringing to fruition our long- The Intelligence Information Act of
gence Officers, newspaper publishers, standing effort to formulate legisla- 1983 (S. 1324) was -drafted in this
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 S 16744
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CONGRESSIONAL RECORD - SENATE November 17, 1981
spirit. And it was in this spirit that our
chairman, the Senator' from Arizona,
worked so diligently to accommodate
the legitimate concerns of the wit-
nesses at our public hearings and our
colleagues on the committee. Thus,
several amendments were incorporated
in the substitute bill which we ordered
reported to the Senate. Three of these
are of especial importance:
First, the amended bill assures that
the CIA's new exemptive authority
will be subject to judicial review. A
court will have jurisdiction to deter-
mine whether implementing - regula-
tions conform to statutory criteria;
that is to say, whether they have a
rational basis. Broader-review is re-
quired if a plaintiff makes a prima
facie showing that a specific file was
improperly designated or that a docu-
ment was improperly placed in a desig-
nated file. This preliminary threshold
was considered appropriate in light of
the special source and method sensi-
tivity of operational files. Upon a
proper showing, the court must order
the Agency to file a sworn response,
which ? may be in camera and ex parte
if it contains classified information,
and must order an appropriate search
if it finds against the Agency.
Second, the amended bill makes it
clear that any information reviewed
and relied upon in an official investi-
gation of any alleged improper or il-
legal intelligence activity will remain
subject to search and- review under
FOIA, even if found exclusively in an
exempt designated file. It is under-
stood and agreed that any record in
such a file which is relevant to an in-
vestigation, but was overlooked or de-
liberately withheld, would be accessi-
ble.through the judicial review provi-
sions of the bill. Such a record would
be deemed improperly placed in -an
exempt designated file. -
The third amendment requires that
implementing regulations provide pro-
cedures and criteria for the review of
each exemption designation not less
than once every 10 years. The criteria
will include the historical or other
public interest value of the subject
matter of the file and the potential for
declassifying a significant part of the
contents. In this connection, the Di-
rector of Central Intelligence, - Mr.
Casey, has indicated his willingness to
expand the CIA's rather limited pro-
gram for reviewing and declassifying
historical intelligence files. I certainly
will join in efforts to assure that ade-
quate resources are provided. -
I am pleased that the CIA has ex-
pressed its support for the measured
approach to the Freedom of Informa-
tion Act represented by S. 1324, as
amended. The Agency's cooperation
'with the committee in finding compro-
mises on difficult issues has resulted
in a bill which should serve the public
interest in more efficient processing of
FOIA requests, while : giving better
protection to intelligence sources and,
methods. I wish also to thank my dis-
tinguished colleagues, the . Senator.
from Vermont (Mr:ZEtuv), the Sena- better the understanding, the better
tor from Kentucky (Mr. HuDD1 SToN), the performance on the job.
the Senator from Minnesota (Mr. Dux- Persons who devote an entire career
ENBERCER), and the. Senator from, to one agency or bureaucracy are
Hawaii (Mr. INOVYE) for the sugges- likely to develop that kind of under-
tions we incorporated in this legisla- standing over time. But senior officials
tion. of the Government
who are appointed
,
Mr. President, I believe that the from other positions, must bring that
amendments to this legislation consti- knowledge with them. They can only,
tute significant improvements. The get it through a lifetime of study,
committee shares this view as evi- reading, education, and reflection.
denced by its unanimous vote to I do not want to suggest that history
report S. 1324 favorably to the Senate. always repeats itself. It does not. But
I urge that our colleagues join us in atterns of behavior can often --
supporting passage of this bill.
Mr. DURENBERGER. Mr. Presi-
dent,'the bill before us today is a clear
signal that the system works. It dem-
onstrates a strong oversight role by
the Senate in matters of intelligence;
It validates the principles which un-
derlie the Freedom of, Information
Act; and it recognizes the compelling
need to provide security for those mat-
ters which must remain secure, while
insuring the maximum possible public
understanding of the role which our
intelligence agencies play in policy. In
short, the bill is a sound balancing of
the need for information and the need
for security.
I'd like briefly to remind my col-
leagues of just how far we have come
with this measure. I clearly recognize
that there are legitimate limits on,
and exemptions from, the FOIA when
we are dealing with intelligence mat-
ters. However, as introduced, S. 1324
did not adequately address certain im-
portant concerns.
in a statement before the committee
on June 28, I expressed my reserva-
tions about these specific issues. I felt
cur. That is why for instance, scholars
and others spend so much time com-
paring and contrasting such things as-
the crises which led to World War I
and World War II. The differences
among these crises are important, and
they inform much of our ongoing
debate about things like deterrence,
crisis management, and defense budg-
ets. We all benefit from the massive
research which has gone ' into those
and other major events. V V
When a vital policy area is potential-
ly exempt from,all.study, however, re-
gardless of specifics, nobody benefits.
Who among us does not wish that the
senior-officials charged with final au-
thorization for the Bay of Pigs fiasco
had spent a little more time reading
and thinking about the limits of para-
military operations? And who among
us does not think that the decision to
declassify sensitive information during
the Cuban missile crisis was a major
factor in both resolving that crisis and
contributing to greater public under-
standing of the importance of good in-
telligence? '
Had this legislation continued to
deny access to selective historical files,
lysts needed information which could nobody would have been well served.
inform future generations; that it But in early October, Director Casey
could have been misinterpreted, ironi- made an important concession when
tally, to prevent the release of infor- he wrote to me stating that the CIA
oration already declassified; and that would cooperate with the Archivist
it could have been construed as an ab- and other historicans in the selective
solute claim of exemption from judi- declassification of older files which are
cial review. historically significant. Director Casey
I was not alone in these and other asked only for the extra money to hire
concerns. As a result, several of us on more historians to assist in that
the committee spent many hours dis- matter. He is entitled to that funding,
cussing these important issues. The and this bill provides for it. It is
result, after prolonged discussions money which is truly spent in the
with Director Casey and others, is the public interest, and I want once again
bill before us today. I think it is a good to congratulate Bill Casey for his will-
piece of work, and that it deserves our ingress to work with us on this and
support. - other matters.
Let me close by noting one aspect of ' Mr. President, I believe that the
this bill which I feel merits special at- work which went-into this bill shows
tention-the . procedures created to that the public can continue to have
permit the maximum possible research full faith and confidence in its intelli-
by historians and others. - gence agencies and in the committees
Policymakers assume office with a which. oversee those agencies. I hope
fixed amount of intellectual, capital. that we will pass the bill quickly.
They thaw on that capital over time Mr. THURMOND. Mr. President, I
when making crucial decisions. If they rise in strong support of 'S. 1324, the .
lack a sufficient understanding of how Intelligence Information Act of 1983,
the processes of government have as reported by' the Select Committee
failed in the past, they are likely to on Intelligence., I was pleased to join
make avoidable mistakes. It is impera- the distinguished, Senator from Arizo-
tive for sound Government that those na, Chairman GOLDWATER, as an origi-
who serve have the best possible un- nal cosponsor of this measure when it
derstanding of history and policy. The was introduced last spring.
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'November 17,1.98,f 06NGRESSIONAL RECORD - SE *E
S. 1324 minimizes the expensive and
burdensome task currently imposed on
the Central Intelligence Agency, of
searching reams of documents in re-
sponse to requests under the Freedom
of Information Act, where virtually no
useful information would be subject to
disclosure under that act. After receiv-
ing testimony from a variety of wit-
nesses, the Intelligence Committee de-
veloped amendments which address
certain concerns, while preserving the
original goals behind the bill. The fact
that It was reported by the committee
unanimously indicates'that it satisfies
a wide variety of views and appropri-
ately balances the universal interests
in encouraging open Government, the
national security, and efficiency.
I commend the chairman of the
committee and his staff for the excel-
lent work that they have done on this
legislation. Through their diligence
, _
work on this bill has been expeditious. this bill will be a third T}+ocPn lIi mation in its files that remains accessi-
L ,J Mr dope that the Senate will also
be able to act on the Freedom of In-
formation Reform Act reported by the
Judiciary Committee. In the very near
S 16745
media, historians, and civil liberties surances and commitments made by
groups, as well as others interested In the CIA and the select committee.
public access to Government informs- The basic point we have tried to
Lion make is that the bill should preserve
In 1980 I introduced one of the first public access for search and review of
bills to exempt the CIA's operational those CIA files that are likely to con-
files from search and review under the tain releasable information. Specific
Freedom of Information Act. That bill provisions of the bill Insure continued
was the National Intelligence Act of search and review for information
1980, the comprehensive intelligence about certain CIA covert action oper-
charter legislation developed in con- ations, illegal or improper Intelligence
sultation with the intelligence commu- activities, other historically significant
nity. It would have been better, in my matters, and U.S. citizens or resident
view, to consider this issue as part of aliens who request information on
an intelligence charter that laid down themselves. Moreover, the procedures
clear legislative standards for intelli- for judicial review guarantee that the
gence operations, especially those that CIA will not be the sole judge of
might affect the rights of Americans. whether its decisions comply with the
The CIA relies for its legal authority requirements of the law.
on the sketchy provisions of the Na- Finally, we have stressed importance
tional Security Act of 1947. In recent of this bill for enhancing the CIA's re-
years we have added two "new signifi?
tions to the 1947 act implement key Die for search and review under the
recommendations from the' charter bill. Because of the assurances given
legislation. - by the CIA and the commitments
ith ,.,._ made by the..select committee in its
The first provision dealt
w
VOW
In the interest of reducing unneces- Senate _te passed - the e IIntelligencc
principles of freedom of
e e Over- LAIC gain for the
nary administrative burdens on the "sight Act, which was subsequently en- information.
Central Intelligence Agency, while acted as part of-the Intelligence Au- This kind of balanced and construc-
my colleagues to give this important
measure their full support.
Mr. HUDDLESTON. Mr. President,
before I discuss the bill as a whole, I
would like to address a question to the
sponsor (Mr. GOLDWATERI, the chair-
man of the Select Committee on Intel-
ligence. There is a provision in the bill
which states that "the designation of
any operational files shall not prevent
the search and review of such files for
information concerning any special ac-
tivity the existence of which is not
exempt from disclosure under the pro-
visions of the Freedom of Information
Act." My question deals with the legal
requirements under the provisions of
the Freedom of Information Act for
determining whether the existence of
a special activity is or is not exempt
from disclosure. I understand that this
is an issue in pending litigation and
that various arguments may be made
in these and future cases. It is correct
that neither this bill nor the report of
the Select Committee attempts in any
way to address or resolve these issues,
except to note that "Iclourts `have
held that where an- authorized execu-
tive branch official has officially and
publically acknowledged the existence
or nonexistence of- a specific special
activity the existence of that special -
thorization Act for Fiscal Year 1981. It tive legislation strengthens the statu-
amended the National Security Act of tory framework for our intelligence
1947 to add a new section setting forth agencies. It demonstrates that the
the duties and responsibilities of the Congress has the ability to follow
intelligence agencies to keep the through on the intelligence charter
House and Senate Intelligence Com- agenda that was developed by 1980.
mittees "fully and currently informed There is, however, more on that
of all intelligence activities" and to agenda that should be considered by
provide prior notice of "any significant the Congress.
anticipated intelligence activity" such I support the Intelligence Informa-
as covert action operations. tion Act, therefore, as part of a con-
In 1982, the Congress adopted the tinuing-process of building a complete
Intelligence Identities Protection Act, and up-to-date statutory framework
which amended the 1947 act to pro- for the conduct of U.S. intelligence ac-
vide criminal penalties for disclosure tivities. And I look forward to joining
by current and former government with other members of the select com-
employees of the identities of covert mittee in examining other areas where
intelligence agents. The new criminal legislation can clarify the authority
penalties also applied to such disclo- and enhance the legitimacy of our in-
stringent standards requiring proof of Mr. LEAHY. I would like to ask the
"a pattern of activities intended -"to sponsor of the bill, Senator Goi.n-
identify and expose covert agents." WATER, a question about the section of
-The bill before us todai,y would con the report of the Select Committee on
tinue this process of expanding - the Intelligence. that deals with actions to
1947 act to include important provi- improve CIA responsiveness to FOIA
sions from the charter legislation. The requests. In that section, the select
new provisions on release of requested committee states that it "has request-
infoimation to the public by the Cen- ed the CIA to provide a specific pro-
tral Intelligence Agency are designed gram of administrative measures the
to serve both the CIA's desire for some Agency will take to improve processing
relief from current requirements to of FOIA requests following enactment
,search and review highly sensitive of this legislation" and that "this pro-
operational files in response to re- gram should include a detailed plan
quests under the Freedom of Informs for eliminatin
the
t b
g
presen
acklog of
exempt from disclosure under the pro- tion Act and the public's need for' FOIA requests and a description of
visions of the FOL!-." more timely release of information the bill's impact on the Agency's on-
Mr. GOLDWATER. That is correct, from CIA files, going efforts to process promptly.
Mr. HUDDLESTON. Mr. President, The report on the bill filed by the those requests that do not requireex-
I want to express my full support for Select Committee on Intelligence, and tensive search, review. and coordina-
enactment of the Intelligence Infor- the additional views of Senators Dun- tion and ' to expedite other requests
mation Act, as reported by the Intelli- ENBERGER, INOttYE, LrAHY, and myself under criteria established by the Jus-
gence Committee, and my gratitude to explain in detail how the bill is intend- Lice Department." - -
the sponsor. Senator GOLDWATER, for ed to work. I urge everyone concerned The report also states: "With .respect
taking into account the concerns ex- about this problem to look at the to the allocation of resources and per- '
pressed by representatives of the news _ report and to consider as well the as- sonnel freed by the' bill's impact on
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S 16746 .CONGRESSIONAL RECORD - SATE -November 19, 1983
search and review requirements, the On page 1, line T. Insert. "as amended," im- Mr. BYRD. I have no-objection; Mr.
committee requests the Agency to ap- mediately before "Is". President.
propriately apply such resources and On page 2, line 1, strike '134,100.000". , The PRESIDING. OFFICER. With-
personnel to the task of eliminating On page 2, line 2, strike "and ending Sep-
the tember 30, 1986" and insert in lieu thereof out objection, it is so ordered.
present backlog. To accomplish ?$34,100,000, to remain available until ex- ?
this, the committee expects the pended?'.
Agency not to reduce its budgetary Amendments to Section 2. Minnesota NATIONAL OCEANIC 'AND AT-
and personnel allocation for FOIA Valley National Wudllfe Refuge.. MOSPHERIC?- ADMINISTRATION
during the period of 2 years immedi- On page 2, line 7, strike all through line OCEAN AND COASTAL PRO-
ately following enactment of this legis- 19. and insert In lieu thereof the following: GRAM AUTHORIZATION ACT
lation." - "(a) Section 4(aXI) of the Act entitled the
Is it correct that the CIA has agreed 'Minnesota Valley National Wildlife Refuge Mr. BAKER. Mr. President, I ask
to these requests for a program and Act" approved October 8, 1976 (Public Law that the Chair lay before the Senate a
for resource allocations? 97-466, 90 Stat. 1993), is amended by- message from the House of Repre-
Mr. GOLDWATER. That is correct, ? (1) striking '9,500' and inserting in lieu sentatives on S. 1098.
thereof
after the bill is enacted. - "(2) striking and
king 'November 1975' The PRESIDING OFFICER laid
Mr. LEAHY. I thank the and insert- before the Senate the following chairman, ing in n lieu thereof f -October 19883 3' . mes-
and I want 'to stress the importance of "(b) Section 4(b)(1) of such Act of October sage from the House of Representa-
these commitments by the CIA. 8, 1976 (90 Stat. 1993), is amended by- tives:
The PRESIDING OFFICER' Is "(1) striking ?, within 6 years after the Resolved, That the bill from the Senate
there any further discussion? date of enactment of this Act,'; and (S. 1098) entitled "An Act to consolidate and
Without objection, the bill is or. "(2) adding at the end thereof the follow- authorize certain ocean and coastal pro.
Bred to be engrossed for a third read- Ing new sentence: 'Notwithstanding any grams and functions of the National Ocean.
de and to be read the for a time. "least interest policy, the Secretary shall Ic and Atmospheric Administration under
ordered to be accept and acquire by donation any lands, the Department of Commerce", do' pass
The bill. (S. ead the third
water, and interests therein,- within, the with the following amendment:
engrossed for a third reading, was read boundaries of the refuge, which are offered Strike out all after the enacting clause
the third time, and passed, . as a donation by any State or local govern- and insert: That this Act may be cited as the
Mr. BAKER. Mr. President, I move ment agency, person, or private organiza. ' National Oceanic and Atmospheric Admin.
to reconsider the vote by 'which the tion istration Ocean and Coastal Program Au.
bill was passed. "(c) Section lo(a) of such Act of_ October thorization Act":
Mr. BYRD. I move to 'lay that 8, 1976 (90 Stat. 1996), is amended by strik- TITLE I-NONLIVING MARINE
motion on the table. ing out'$14,500,000 for the period beginning RESOURCES
The motion to lay on the table was October 1, 1977, and ending September 30, '
1983' andinserting . in lieu thereof AVTMMORrZATJ N
agreed to. a '$29,500,000. to remain available until ex- Sac 101. There are authorized to be appro-
pended . priated to the Department of Commerce to
AUTHORIZATION OF APPROPRI- "(d) Section 10(b) of such Act of October -enable the National Oceanic and Atmos.
ATIONS FOR CERTAIN WILD- 8, 1976 (90 Stat. 1996), is amended by strik- pheric Administration to carry out its non-
LIFE REFUGES Ing out '$6,000,000 for the period beginning living marine resource duties under law,
October 1, 1977, and ending September 30, $800,000 for fiscal year 1984. Moneys appro-
Mr. BAKER. Mr. President, if the 1986' and inserting in lieu thereof priated pursuant to this authorization shall
minority leader does not object, I ask '$9.000,000, to remain available until ex- be used to fund those duties relating to non.
unanimous consent that the Senate pended'." living marine resources specified by the Act
turn to consideration of Calendar ,Amendments to section 3. San Francisco entitled 'An Act to define the functions and
Order No. 148 H.R. 1723.
Mr. BYRD. Mr. President, there is
no objection.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The Senate proceeded to' consider
the bill, H.R. 1723, to authorize appro-
priations through fiscal year 1986 for
the Great Dismal Swamp, Minnesota
Valley, and San Francisco Bay Nation-
al Wildlife Refuges.
AMENDMENT NO. 26416 -
(Purpose: To make authorized funds availa-
ble until expended and to expand boun-
daries of Minnesota Valley National Wild-
lifie Refuge)
Mr.. BAKER. Mr. President, I send
an amendment to the desk .on 'behalf
of Senator CHAFEE for himself.' Mr.
DURENBERGER, and Mr. STAFFORD, and
ask for its-immediate consideration.
The PRESIDING OFFICER. The
amendment will be stated.
The legislative clerk read as follows:
The Senator from Tennessee (Mr. BAKER),
for Mr. CHAFEE, Mr. DURENBERGER, and Mr.-
STAFFORD, proposes an amendment num-
bered 2646-?
Mr. BAKER. I ask unanimous con-
sent that further reading be dispensed
with.
The PRESIDING OFFICER. With-
out objection, it is so ordered. i -
The amendment is as follows:
Amendments- to Section I. Great Dismal
Swamp National Wildlife Refuge.
ay National Wildlife Refuge. duties of the Coast and Geodetic Survey,
On page 3, line 1, insert "as amended," im- and for other purposes' approved Au
ust 6
g
,
mediately before ' Is" and insert "the close 1947, as amended (33 U.S.C. 883a), and any
of" immediately after the quotation mark other law involving such duties. Such duties
following "out". include, but are not limited to, polymetallic
On Page 3, line 2, strike "September 30, . sulfide analyses and research; - -
1986"
d i
"
"
an
nsert in lieu thereat
expended
.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
TITLE II-NATIONAL SEA' GRANT
COLLEGE PROGRAM
meat. AV'I?HORIZAYION
The amendment (No. 2646) was Sac. 201. (a) Section 212 of the National
agreed to. Sea Grant Program Act (33 U.S.G. 1131) is
The PRESIDING OFFICER. If amended' by- inserting immediately after
paragraph (3
Missal
there be no further amendment to be ?1N) Not the following new paragraph:
"/4/ Not to exceed 542,000,00 000 for fiscal
proposed, the question is on the en- year 1984 and not to exceed $46,000,000 for
.grossment of the amendment and the fiscal year 1985.":
third reading of the bill. (b! Section 3(c) of the Sea Grant Program
The amendment was ordered to be Improvement Act of 1976 733 U.S.C.
engrossed and the- bill to be read a 1124a(c)) is amended by inserting immedi-
third time. The bill was read the third ately after paragraph (3) the following new
Mr. BAKER. I move. to reconsider "(4) For fiscal years 1984 and 1985, not to
the vote by which the bill was passed. exceed $1,000,000 to each fiscal year appro-
Mr. BYRD. I move to lay that pnated pursuant to section 2I2 of the Na-
tional Sea Grant Program Act may be avail-
motion on the table. h7.' I , n?t Mi. Qa,.#:,... "
-- v - ? r .......~ onvac w a~ TITLE III-OCEAN THERMAL ENERGY
agreed to, CONVERSION ACT'
AEnWORJZAT/ON -
BILL HELD AT DESK-HIL 4336 Sec 301. Section.406 of the Ocean Thermal
Mr. BAKER. Mr. President, I ask Energy Conversion Act of 1980. (Public Law
unanimous consent that once the 96-320/ is amended-
Senate receives from the House, H.R. 12, by striking out "and".
4336, a bill to. make certain miscelia- 12) by striking out -"1983.' and inserting
nevus changes in laws relating to the o lieu thereof "7983, not tb exceed $620,000
civil service,..it be held at the desk for the fiscal year ending September 30,
1984, and. not to exceed $800,000 for the
pending further dspositiD=L, _ -fiscal year ending September 39 1985. --
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