MEMO TO IRA GLASSER AND BURT NEUBORNE FROM MARK LYNCH

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000200220013-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 31
• Document Creation Date: December 22, 2016
• Document Release Date: December 8, 2008
• Sequence Number: 13
• Publication Date: September 7, 1984
• Content Type: MEMO

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? 40-"'
, 7. ? .
AMERICAN CIVIL UBERTIES UNION FOUNDATION.
. . ?., .
NATIONAL SECURITY PRQJECT
TO: Ira Glasser and Burt Neuborne
FROM: Mark Lynch
September 7, 1984
122 Maryland Ave..
Washington DC 2
[phone]
Morton H. Halperin
cnnaoll
Mark H. Lynch
Susan W. Shatter
STAFF COUNSEL
National Headquarters
132 West 43 Street
New York. NY 10036
(212)9449800
Norman Dorsen
mmmw
Ira Glasser
ExEcummnuoR
This memo responds to the portions of Meir Westreich's
memos of July 31 and August 31 1984, concerning the judicial
review provisions of H.R. 5164. For ease of reference, the
judicial review provisions, section 701(f), and the corresponding
portion of the House Intelligence Committee's report are attached.
Indeed, a careful reading of these materials answers many of
Mr. Westreich's concerns.
-
Before discusssing the specific jildcial review provisions
of H.R. 5164, it is important to address one of Mr. Westreich's
fundamental points that this bill establishes dangerous precedents
that threaten judicial review in litigation involving constitutional
rights. The problem with this point is that it assumes that
the scope of judicial review and the amount of discovery are
uniform in all types of litigation. Particularly with respect
to review of agency administrative action, not involving constitu-
tional rights, judicial review is often deferential and discovery
is correspondingly limited. H.R. 5164, like the FOIA, provides
for unusally searching judicial scrutiny of administrative
action, as demonstrated below. But even judicial review and
discovery under the bill it were as circumscribed as Mr. Westreich
suggests, the adoption of special procedures for very limited
and specialized issues concerning the CIA's filing system simply
has no relevance to other types of litigation. Thus, to suggest
that H.R. 5164 will be a precedent in cases involving constitutional
rights confuses apples and oranges. I certainly agree that
Harlow v. Fitzgerald has created serious problems in constitutional
tort litigation, but the judicial review provisions of H.R.
5164 are simply irrelevant to those problems.
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Also before addressing Mr-. Westreich's specific comments
on the judicial reivew provisions, it may be useful to review
how they evolved. The bill which was originally introduced in
the Senate by Senator Goldwater contained no mention at all of
judicial review, andl we assumed that the judicial review provisions
of the FOIA would govern. Therefore, we were startled when the
CIA announced at the first public hearing on the bill before
the Senate Intelligence Committee in June 1983 that in the
Agency's 'view the bill did not authorize any judicial review.
We immediately denounced this position and made clear that
without de novo judicial review the bill was unacceptable. In
response to our position, the Senate Intelligence Committee
modified the bill to provide for some judicial review. Although
we won the principle that judicial review was imperative, the
hastily drafted provision in the Committee's bill was ambiguous
and still unacceptable.
When the House Intelligence Committee held hearings on the
bill in February 1984, judicial review was a central issue. At
that point, the CIA, having already agreed to the Senate provision,
had accepted judicial review in principle but had not yet agreed
to any details beyond those in the Senate bill. In response to
our detailed criticism of the Senate provision, the House
Committee instructed its staff to negotiate a judicial review
provision that would-bean improvement.over the Senate provision
and acceptable to both the ACLU and the During the intensive
discussions that followed, the precise nature of the issues
that could arise under the bill became clearer, and problems
were identified that would be unique to this legislation. This
bill, of course, does not involve disclosure of documents but
access to files, and much information about the Agency's filing
system is itself exempt from disclosure under exemptions 1 and
3 to the FOIA and two separate statutes regarding CIA information.
50 U.S.C. ?? 403(d)(3) and 403g.
Our guidelines for agreeing to the various provisions were
that we would accept no provisions that restricted current
litigation practices for existing issues and would accept new
procedures for dealing with novel issues only if they were
reasonable and consistent with the bill's purposes. As bargaining
chips in this negotiation we were willing to codify certain
practices, discussed below, that have become so well established
by the courts in FOIA litigation with the CIA that there is no
reasonable possibility that they will be changed in future
litigation or through legislative amendment. It should be
evident to anyone who considers our position on this bill that
we, as the most active litigants with the CIA, would not agree
to any provisions that would undermine our present position.
As *demonstrated below, section 701(f) of H.R. 5164 meets the
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standards we set for ourselves.
Mr. Weistreich's first memo makes numerous assertions
about H.R. 5164 without reference to any specific portions of
the bill, and the memo also reflects a large degree of misunder-
standing about the provisions of the bill. Therefore, rather
than attempt to address his points seriatim, this response can
be best presented by going through each one of the judicial
review provisions, explaining why they are acceptable, and
where relevant responding to Mr. Westreich's comments.
Section 1f) begins by stating that "Mhenever any person
who has requested agency records under [the FOIA] alleges that
the Central Intelligence Agency has improperly withheld records
because of failure to comply with any provision of this section,
judicial review shall be available under the terms set forth in
section 552(a)(4)(B) of title 5, United States Code, except
that -- [paragraphs (1) - (7)]." Section 552(a)(4)(B) is the
section of the FOIA that provides for de novo review and places
the burden of proof on the agency.
Thus, section (f) states the general rule that issues
arising under H.R. 5164 will be reviewed as any other FOIA
issue, subject only to the limitations set forth in the following
seven paragraphs. Mr. Weistreich argues that this general rule
is meaningless because-paragraphs (3) and.. (4), cited and discussed
below, "cover the entire gamut of issues' tHat can arise under
H.R. 5164. This assertion is mistaken because paragraph (3)
deals only with improper placement of a document solely in an
operational file (as, for example, where an intelligence report
is stored solely in an operational file and not in a non-operational
file where it should be) and paragraph (4) deals only with the
improper exemption of a file as operational. The most common
and important issues that will arise under this bill are whether
specific documents meet one of the exceptions set forth in
section 701(c) that require a search of operationial files
whether records responsive to first person requests are
located in operational files, and whether requested records
concern the subject matter of an investigation or a covert
action the existence of which is not properly classified. These
issues are not encompassed by paragraphs (3) and (4), and therefore
they are not subject to any of the restrictions imposed on
litigation of issues arising under those two paragraphs.
The House Intelligence Committee Report also reinforces
the point which is evident from the structure of section (f)
that paragraphs (3) and (4) do not include all the issues which
can arise under H.R. 5164: "Matters not addressed by paragraphs
701(f)(1) through (7) will continue to be decided in accordance
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with subparagraph 552(a)(4)(B) of title 5 and case law thereunder
which the courts have developed and may in the future develop
in light of reason and experience." This statement would be
meaningless if paragraphs (3) and (4) subsumed all the issues,
such as those arising under section 701(c), that will arise
under the bill.
Paragraph (1) provides that "in any case in which information
specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or
foreign relations is filed with, or produced for, the court by
the Central Intelligence Agency, such information shall be
examined ex parte, in camera by the court." This means that
counsel for plaintiff will not have access to any classified
information which may be filed in support of the agency's position.
Courts routinely permit the CIA to file classified affidavits,
and sometimes the revested documents, when necessary to carry
its burden of proof.1 No court has ever permitted counsel for
plaintiff to examine such information, despite our repeated
efforts to permit such participation in in camera proceedings.
Indeed, Judge Harry Edwards, joined by Judge Luther Swygert,
recently held "[i]t is well settled that a trial judge called
upon to assess the legitimacy of a state secrets privilege
claim should not permit the requesters' counsel to participate
in an in camera examination of putatively privileged material."
Ellsberg v. Mitchell, 709 F.2d 51, 61 1983). Although
this ruling came in a dispute over discovery rather than under
the FOIA, we believe that this ruling from two liberal judges,
combined with our previous lack of success, forecloses any
realistic chance to obtain the participation of plaintiff's
*/E.g., Allen v. CIA, 636 F.2d 1287 (D.C. Cir. 1980); Ray v.
Turner, 587 F.2d 1187 (D.C. Cir. 1978); Phillippi v. CIA, 546
F.2d 1009 (D.C. Cir. 1976).
**/E.g., Salisbury v. U.S., 690 F.2d 966, 973 (D.C. Cir. 1982);
Weberman v. NSA, 668 F.2d 676, 678 (2d Cir. 1982); Colby v.
Halperin, 656 F.2d 70 (4th Cir. 1981); Hayden v. NSA, 608 F.2d
1381, 1385-86 (D.C. Cir. 1979), cert. denied, 446 U.S. 937
(1980).
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counsel in-in camera proceedings under the FOIA. Accordingly,
we do not believe that paragraph (1) detracts from any right we
now have or reasonably might expect to have in the future.
Paragraph (2) provides the "the court shall, to the fullest
extent practicable, determine issues of fact based on sworn
written submissions of the parties." Mr. Westreich makes a
great deal of the fact that in "normal federal litigation,"
courts decide cases on the basis of evidentiary hearings. While
that is true, there has never been an adversarial evidentiary
hearing in any FOIA case involving national security information!.'
and relatively few such hearings in other FOIA cases.!!./ After
ten years of extensive experience under the Act as it was amended
in 1974, the judicial preference for deciding factual issues in
FOIA cases on written submissions is well-established ***/ If
anything, paragraph (2) gives us ammunition to argue for evidentiary
hearings since it contemplates that in some situations a decision
on written submissions is not practicable. Indeed, the House
Intelligence Committee Report states:
[C]ases will arise in which a court will find it
impracticable to decide such issues based on sworn
written submissions. Paragraph 701(f)(2) does not
place obstacles in the path of the court in obtaining
information it needs to decide these issues. Thus,
when necessary to. decision, the court may go beyond
sworn written submission to requirethe Agency to
produce additional information, such as live testimony,
or the court may examine the contents of operational
files.
*/In a few cases, courts have heard agency officials ex parte
in camera.
/Most of the few trials that have been conducted in FOIA
cases have involved exemption (b)(4) where the issue is whether
commercial or financial information submitted to the government
would cause competitive harm to the submitter if released under
the FOIA.
/It should be noted that paragraph (2) is limited to decisions
on issues of fact and therefore will not change the practice of
hearing oral argument on legal issues presented on motions for
summary judgment.
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Mr. Westreich also mistakenly contends that paragraph (2)
abolishes the right to discovery. The only limitation on discovery
is in paragraph (5) which is limited to the specific issues
arising under paragraphs (3) and (4). The House Intelligence
Committee Report is quite clear that the limitation in paragraph
(5) has no effect on discovery with respect to issues other
than those raised under paragraphs (3) and (4):
The specific provision concerning the issue of dis-
covery in the context of the issues of improper place-
ment of records and improper exemption of files is
not intended to carry a negative implication that
discovery on other issues is to be either especially
encouraged or discouraged in any manner by this sub-
section. The question of discovery with respect to
other issues shall continue to be governed by the
practices developed by the courts under the judicial
review provision of the Freedom of Information Act
(5 U.S.C. 552(a)(4)).*/
As noted above, paragraphs (3), (4), and (5) deal only
with two issues that will arise under H.R. 5164 -- i.e., whether
documents are withheld because they have been improperly placed
solely in exempt operational files and whether files have been
improperly exempted as operational. Although these paragraphs
alter the procedures that are followed with respect to existing
issues, they are consi-Stent with the over-,all_purpose of H.R.
5164 and do not, contrary to Mr. Westreich's assertions, render
the provisions of the bill unenforceable.
Paragraph (3) provides "when a complainant alleges that
requested records were improperly withheld because of improper
placement solely in exempted operational files, the complainant
shall support such allegation with a sworn written submission,
based upon personal knowledge or otherwise admissible evidence."
If a plaintiff could make a bare allegation that a record has
been improperly placed in an exempt operational file, the CIA
would be required to search the entire file in order to respond
*Mr. Westreich is mistaken when he asserts that discovery is
"perfunctory" in FOIA cases with the CIA. In response to a
complaint, the Agency files a motion for summary judgment
supported by affidavits to carry its burden of proof under the
FOIA. In nearly every case where a plaintiff attempts to take
discovery, the Agency files a motion for a protective order
arguing that its affidavits are sufficient for the court to
rule. Thus, in practice, because the CIA routinely responds to
discovery requests with motions for a protective order, the
plaintiff must convince the court that discovery is necessary.
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to the all-e?ation. If file searches could routinely be required
on the basis of bare allegations, one of the purposes of the
bill -- to relieve the CIA of searching operational files --
would be defeated. Thus, paragraph (3) requires something more
than a bare allegation; the allegation must be supported by a
sworn written submission or otherwise admissible evidence in
order to trigger the search.
In practice this means that a plaintiff cannot allege
improper placement on the basis of a hunch or generalized suspicion;
he must be able to point to some evidence of improper placement.
This requirement is no different from current practice, for
courts do not require the CIA to expand its search for documents
on the bare allegation that some are being hidden from the
scope of a routine search. E.g., Goland v. CIA, 607 F.2d 339
(D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980). Although
a sworn written submission based on personal knowledge would be
the strongest support for such an allegation of improper placement,
paragraph (3) does not require a verified complaint. Any admissible
evidence will do. For example, if the Agency releases documents
from non-operational files which refer to other documents which
have not released, that would be evidence that the documents
yet to be released are improperly located in operational files.
This provision does not, as Mr. Westreich asserts, require a
plaintiff to prove his case conclusively before filing it, but
only requires that he have solid support for his case.
Paragraph 4 provides:
(A) when a complainant alleges that requested
records were improperly withheld because of improper
exemption of operational files, the Central Intelli-
gence Agency shall meet its burden under section
552(a)(4)(B) of title 5, United States Code, by
demonstrating to the court by sworn written submission
that exempted operational files likely to contain
responsive records currently perform the functions
set forth in subsection (b) of this section; and
(B) the court may not order the Central Intelli-
gence Agency to review the content of any exempted
operational file or files in order to make the
demonstration required under subparagraph (A) of this
paragraph, unless the complainant disputes the Central
Intelligence Agency's showing with a sworn written
submission based on personal knowledge or otherwise
admissible evidence.
This paragraph establishes a procedure for dealing with
allegations that a file which has been exempted as operational
does not in fact meet the definitions for operational files.
It does not deal with the requirements for a plaintiff to support
an allegation, as does paragraph (3), but rather deals with
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the showing required by the CIA to respond to an allegation
that a file has been improperly exempted as operational. Subparagraph
(A) provides that in the first instance, the CIA does not have
to file a document-by-document description of a file in order
to demonstrate that a file is operational within the meaning of
section 701(b), but can meet its burden by filing affidavits
that files likely to contain records responsive to an FOIA
request currently fit the definition of operational. This
provision insures that the Agency cannot meet its burden by
demonstrating that the file at sometime in the past was designated
operational, as the CIA wanted, but must demonstrate on the
basis of a current review made in the context of the litigation
that the file meets the definition. Since these sworn submissions
will be submitted in support of motions for summary judgment
that a file is properly exempt, they will have to meet the
personal knowledge requirement of Rule 56(e), and there is no
basis for Mr. Westreich's assertion that the Agency is relieved
of this requirement or that the bill creates a double standard
between the Agency and plaintiffs.
Subparagraph (B) provides that after the Agency has made
its initial showing under subparagraph (A), the court can order
the Agency to perform a document-by-document review of the file
if the plaintiff controverts the Agency's initial showing through
an affidavit or other admissible evidence. This provision
merely codifies existing practice under he FOIA: if a plaintiff
draws a genuine issue with an agency's affidavits, courts generally
require the agency to file more specific affidavits to attempt
to resolve the issue. As noted above, courts are extremely
reluctant to take FOIA cases beyond summary procedures and have
never done so in national security cases. Of course, as the
House Intelligence Committee Report makes clear, if the Agency
fails to carry its initial burden of proof under subparagraph
(A), the court can order a search forthwith without moving on
to the subparagraph (B) procedures.
Paragraph (5) provides: "in proceedings under paragraphs
(3) and (4) of this subsection, the parties shall not obtain
discovery pursuant to rules 26 through 36 of the Federal Rules
of Civil Procedure except that requests for admission may be
made pursuant to rules 26 and 36." As already noted, this
limits the use of discovery only with respect to issues arising
under paragraphs (3) and (4). Thus, Mr. Westreich's repeated
assertions that plaintiffs are deprived of discovery to enforce
any of the bill's provisions is a mistaken exaggeration.
The House Intelligence Committee Report states that paragraph
(5) "does not address access by the court to information" and
"does not prevent the complainant from proposing to the court
matters on which the complainant believes the court should
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_
itself seek information from the CIA to decide issues in the
lawsuit." As a practical matter, detailed information concerning
the function and content of the CIA's files will itself be
classified, and therefore plaintiffs will not have access to
such information and will have to rely on the court's in camera
evaluation of the CIA's submissions. Thus, this restriction on
discovery does not deprive plaintiffs of information they can
realistically obtain.
Paragraph (6) provides: "if the court finds under this
subsection that the Central Intelligence Agency has improperly
withheld requested records because of failure to comply with
any provision on this section, the court shall order the Central
Intelligence Agency to search and review the appropriate exempted
operational file or files for the requested records and make
such records, or portions thereof, available in accordance with
the provisions of section 552 of title 5, United States Code
(Freedom of Information Act), and such order shall be the exclusive
remedy for failure to comply with this section." This provision
is intended to insure that if a court finds that the CIA has
violated any provision of H.R. 5164, the court can only order
the search and review of responsive records and the release of
records which do not fall within the FOIA's exemptions. under
this provision, the court cannot order the CIA to reorganize
its file system, as the CIA paranoically feared might happen.
Mr. Westreich contends-that this provision prohibits a court
from imposing sanctions for the CIA's mAconduct in litigation
The House Intelligence Committee Report squarely contradicts
this assertion by stating that "[t]his provision, of course,
does not affect the court's authority under the Freedom of
Information Act to assess reasonable attorneys fees, to punish
for contempt, or to handle other, similar ancillary matters."
Paragraph (7) provides "if at any time following the filing
of a complaint pursuant to this subsection the Central Intelligence
Agency agrees to search the appropriate exempted operational
file or files for the requested records, the court shall dismiss
the claim based upon such complaint." This provision merely
enables the CIA to moot challenges of noncompliance with H.R.
5164 by agreeing to process an FOIA request without regard to
the exemption for operational files. In some cases this is
likely to be an attractive alternative to litigation, and Mr.
Westreich has not objected to this paragraph.
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Pose
Subsection 7111(1) : Judicial Review 32
jilts 0)2: lie e.seilitl IIPV1PW of Exempted ttperational rile._ ? 30
Si.i?I jun :1 11.1t. 51111: Report to Congress' 87
s..i?tiiiii .1 of 11.11. 5104 : Limited Retroactive Effect 88
0,1111110 lee hoitifon
ovei?sight Findings
Budget Act
I 'iiisg lis( situ Budget Office Estimate
iteeiiiiimenditt ion of the Committee on Government Operations
iiitiothin impact Statement
Five 3 r I 'ost Project ion
1?:\ectitive Wench Estimates
Chalices lit Exisling Law Made by the Mit as Reported
The amendment is as follows:
Si ril:e out all after the enacting clause and insert in lieu thereof the
folhiwing:
Thal this Act niny be cited as the "Central Intelligence Agency Information Act":
Sec. 2. ) The National Security Act of 1I/47 is amended by adding at the end
I hereof the following new title:
ss
as
so
39
39
so
39
89
39
"TITLE I'll?PROTECTION OF OPERATIONAL FILES OF THE CENTRAL
INTELLIGENCE AGENCY
"EN EM PTION OF CERTAIN OPERATIONAL MEN truout SEARCH. ILITTIEW, PUBLICATION, OR
utectosuaz
"Sec. 7(11. (a) Operational tiles of the Central Intelligence Agency may be
exviiipi the Director of Central intelligence from the provielons of section
552 of title 5, Putted States Code (Freedom of Information Act) which re-
quire pisbileation or disclosure, or search or review In connection therewith.
"(is) For the porposes of this title, the tern) 'operational files' means?
"(1) tiles of the Directorate of Operations which document the conduct
of foreign intelligence or counterintelligence operations or intelligence or
security liaison arrangements or Information exchanges with foreign gov-
ernments or their intelligence or security services:
"i 21 files of the Directorate for Science and Technology which document
the menus by which foreign intelligence or counteriutelligence is collected
through scientilic and technical systems; and ?
-0) tiles of the ?nice of Security which document investigations con-
dueled to determine the suitability of potential foreign intelligence or
c?ointerlidellIgence sources;
except that tiles which are the sole repository of disseminated intelligence are
not operational tiles.
" I.) Not wit lista tiding subsection (a) of this section, eteutpted operational
tiles shali continue to be subject to search and review for Information con-
cerning ?
-I I) United Stales citizens or aliens lawfully admitted for permanent
resliii?tice who have requested information on themselves pursuant to the
lulu khan' 4.f section 1152 of title 5. United Stales Code (Freedom of In-
formation Ay() or section 552a of title 5, United Mates Code (Privacy Act
of 1971) ;
'(21 nny specinl activity the existence of which hi not exempt froardis-
closure smiler the provisions of section 552 of title 5, United States Code
(Freedom sir Informstion Act) ; or
-13, the specific subject matter of an investigation by the intelligence
committees of tin. Congress, the Intelligence Oversight Board, the Depart-
ment of instill.. the Office of General Counsel of the Central Intelligence
Agellry, Ike Olnip sit inspector General of the Central Intelligence Agency,
or the ()Mee of the Itireetor of Central Intelligence for any impropriety, or
of law, Executive order, or Presidential directive, In the conduct
of iiitlidelligenrenetivily.
1) Hie,' that are no( exempted under subsection (a) of this section
which contain infernintion derived or disseminated from exempted operational
Illes II he stihjeet to search and revicis,
"(2) The inclusion of information from exempted operational files in files
that are not exempted under subsection (a) of this seetion shall not affect. the
exetuntion under subsection (a) of this section of the originating operidmial
files front search, review, publication, or disclosure.
"(3) Records from exempted operational flies which have been disseminated
to and referenced ht tiles that are not exempted under subsection (a) of this
section and which have been returned to exempted opetutioual tiles for sole
retention shall be subject to search and review.
"(e) The provisions of subsection (u) of this section shall not be superseded
except by a provision of law which is enacted after the date of enactment of.
subsection (a), and which specills?ally cites and repeals sir moilities its provisions.
"(I) :Whenever any person who has requested agency recorshi, under sect lists
552 of title 5, United States Code (Freedom of Information Ac() alleges !hut
the Central Intelligence Agency has improperly withheld recoftls because of
failure to comply with any provision of this section, judicial review shall be
available under the terms set forth In section 5.12(a) (4) (11) of title 5, United
States Code, except that?
"(1) in any case its which information specifically authorized under cri-
teria established hy an Executive order to lie kept secret in the interest
national defense or foreign relations is filed with, or produced for, the
by the Central Intelligence Agency, such information shall be examined
parte, in camera by the court;
"(2) the court shall, to the fullest extent practicable, determine issues of
fact based on sworn written submissions of the parties;
"(3) when a complainant alleges that requested records were improperly
withheld because of improper placement solely in exempted operat Ionia tiles,
the complainant shall support such allegation Willi n sworn written submis-
sion, based upon personal knowledge or otherwise admissible evidence;
"(4) (A) when is complainant alleges that requested records were improp-
erly withheld because of improper exemption of operational flips, the Central
Intelligence Agency shall meet its burden under section 552(a) (4) (11) of
title 5, United Stales Code, by demonstrating to floe eotirt by sworn written
submission that exempted operational file likely to contain responsive rec-
ords currently perforin the functions set forth in subsection (b) of this sec-
tion; and
"(13) the court may not order the Central Intelligence Agency to review
the content of any exempted operational tile or tiles in order to make the
demonstration required under suliparngraph (A) of this parograph, %IDIOM
the complainant disputes the Central Intelligence Agency's showing with a
sworn written submission based on personal knowledge or otherwise admis-
sible evidence;
"(5) in proceedings under paragraphs (3) and (4) of this subsection.
the parties shall not obtain discovery pursuant to rules 26 through 3
the Federal Rules of Civil Procedure, except that requests for admission
be made pursuant to rules 20 and 30;
"((t) if the court finds tinder lids subsection that the Central Intelligence
? Agency has improperly withheld requested records because of failure to com-
ply with any provision of this section, the court shall order the Central Intel-
ligence Agency to seareli and review the appropriate exempted operational
file or files for the requested records and make such records, or portions
thereof, available in accordance with the provisions of section 552 of title 5,
United States Code (Freedom of Information Aet), and such order shall be
the exclusive remedy for failure to comply with this section ; and
"(7) if at any time following the filing of a complaint pursuant to this
subsection the Central Intelligence Agency agrees to search the appropriate
exempted operational lite or tiles for the requested records, the cOurt shall
dismiss the claim based upon such complaint.
"DECENNIAL REVIEW OF EXEMPTED OPERATIONAL FILES
"Sm. 702. (a) Not less thou once every ten years, hue Director of Central
Intelligence shall review the exemptions in force under subsection (a) of
section 701 of this Act to determine whether such exemptions may be removed
from any category of exempted operational files or any portion thereof.
"(b) The review required by subsection (a) of this section shall include con-
sideration of the historical value or other public interest in the subject matter
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change : the sending exempted file remains exempted from search and
reviel,. Therefore, under paragraphs 701(d) (1) and ('), the flow of
records and information from it file which is exempted to a file which
is not exempted has no effect on the exempted/nonexempted status of
he t ?vo tiles.
Paragraph 701(d) (3) concerns the CIA practice of using marker
refereitees, referred to as "dummy copies," in the dissemination of par-
ticularly sensitive records front operational files. In this process, the
settit ive record is taken from the operational file to the intended tem-
porn recipient, who reads it and returns it to the operational file for
ve storage. A marker reference (usually it single piece of paper
eomnining a brief description of the subject of the record and indi-
cat ill". %divvy the record is stored) is placed in the file of the temporary
recipient. If not for security .constraints, a copy of the record would
have heen retained in the recipient's files, but because the record is so
niI I vv. only the marker reference from which one could locate the
record wain, :tined in the recipient's file. Paragraph 701(d) (3) is
deF;igned to ensure that marker references are treated as if they were
in fact the records they represent, in the sense that the record would
have been subject to search and review if it were located in the non-
exempted file where the marker reference is located. As a result of this
provision, when CIA is searching a non-exempted file for records re-
spote:ive to an F'( )l A request. and locates it marker reference which
sullst it ut es for it record in an exempted operational file which may be
responsive. the CIA must retrieve the record front the exempted oper-
ational file and process it in response to the FOIA request.
Th, market reference practice is of particular importance given its
te=eill sowe eireimistniwes in the Executive Registry of the CIA, which
serves the Director of Central intelligence, the Deputy Director of Cen-
t rat Intelligence and the CIA Executive Director. Under H.R. 5164
all records contained in the Executive Registry, and all records refer-
enced in the Executive Registry by marker references, will remain
subjeet to FOIA search and review requirements.
Sul.)Nco;on 701(e): Construction against implied repealer or modi-
ira tion
Sill 'section 701(e) provides .that subsection 70100, which grants
authority to exempt operational files (as defined ir the bill) front the
FO I A process, can be superseded only by n subsequent statute which
specifically cites and repeals or modifies it. Although no Congress
and President can enact a statute which a subsequent Congress and
Preident cannot repeal or modify by another statute, subsection 701
(e) makes clear that, absent a clear, express statutory statement, repeal
or modification of subsection 701 (a) shall not be inferred from a subse-
quent st elite :
Subgertion 701(1) : Judicial review
Sulwection 701 (f) provides for a de novo substantive standard of
judicial review of CIA compliance with section 701 within a precisely
defined procedural framework, ensuring both protection for sensitive
CI .1 information and effective judicial review. The Committee con-
eluuilt.s with respect to CIA action under KR. 5164. as did the Congress
in enacting the MIA in 1966 and amending it in 1974 with respect to
col ,-..-f.entiep normies that, de. nay? judicial review is essential to en-
sure effective CIA implementation of the Freedom of Information Act
and to maintain public confidence in the implementation of the Act.
Subsection 701(f) ensures effective judicial review by providing that
allegations that CIA has improperly withheld records because of
failure to comply with section 701 shall be reviewed in accordance with
subparagraph 552(a) (4) (B) of title 5 which is the judicial review
provisions of the FOIA providing for do novo review, subject to seven
procedural exceptions set forth in subsection 701 (f). Thus, by virt ue of
subsection 701(1), CIA action to implement section 701 will be subject
to judicial review in the same manner as CIA action to judicial re-
view currently, except to the extent that paragraphs 701(f) (1)
through (7) provide Specific procedural rules. Matters not addressed
by paragraphs 701(f) (1) through (7) will continue to be decided in
accordance with subparagraph 552 (a) (4) (13) of title 5 and case low
thereunder which the courts have developed and may in the f ire
develop in light of reason and experience. Nothing in H.R. 5
any way affects the law of evidence.
Paragraph 701(f) (1) provides that classified information filed
with, or produced for, the courts by the Central Intelligence Agency
shall be examined ex parte, in camera by the court. The requirement
that only the judge, and not the complainant, the complainant's coun-
sel, or court personnel, may see the classified information is generally
consistent with current practice under the FOIA. However, because
issues arising under H.R. 5164 will be considertd in! the context of
CIA's most sensitive operational files, the Committee believed it ap-
propriate to provide expressly in statute ithat classified information
Involved in judicial review of CIA action. under H.R. 5164 is for the
judge's eyes only. Of course, in some FOIA cases CIA submissions
may not be classified.
Paragraph 701(f) (2) Provides that the courts shall, to the fullest
extent practicable, determine issues of fact based on the sworn writ-
ten submissions of the parties, when dealing with issues arising from
CIA implementation of section 701. This provision also is generally
consistent with current practice under the Freedom of Inform!. ion
Act in handling national security-related issues. However, beca s-
sues arising under section 701 will be considered in the conte of
CIA's most sensitive operational files, the Committee believed it im-
portant to make this rule explicit in statute.
While the Committee believes that a review of the sworn writtun
submissions of the parties will generally be sufficient to enable a court
to determine whether the CIA has improperly withheld records, cases
will arise in which a court will find it impracticable to decide such
issues based on sworn written submissions. Paragraph 701(f) (2) does
not place obstacles in the path of the court in obtaining information
it needs to decide these issues. '171ms, when necessary to decision, the
court may go beyond sworn written submission to require the Agency ?
to produce additional information, such as live testimony, or the court,
may examine the contents of operational files. As an example, if the
propriety of the exemption of an operational file is properly drawn
Into question under paragraph 701(f) (4), and the court concludes
after considering the various sworn written submissions of the parties
that it is necessary to decision that the court examine the contents of
the o )erational file. t le court an do so. n such / MIRO I
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the rourt's examination would be coextensive with what is necessary
to the Ilecision of the issue; it would not necessarily be limit NI to
examination Of the records requested by the FOI A requester, although
it. may be if the court concludes that examination of those records is
all (I in is necessary to decision.
Paragraph 701(0(3) provides that when alleging that requested
records were improperly withheld because of improper placement
solely in exempted operational files, the complainant shall support
such allegation with a sworn written submission based upon personal
knowledge or otherwise admissible evidence. The "personal knowledge
or otherwise admissible evidence" basis for the sworn written submis-
sion is similar to that required for submissions under Buie 56(e) of
the Federal Bides of Civil Procedure. A complainant making an
allegat ion of improper placement of a record argues that if the records
requested were properly filed where they should be filed, they would
be outside exempted operational files and would therefore be subject
to tlw search review tind disclosure requirements of the FOIA. Deter-
mining the eruth of such an allegation for purposes of defending in
litigation may in practice require the CIA to search exempted opera-
tional tiles to see if responsive records are located there and to deter-
mins whether they are properly or improperly filed there. Since one
of ba,:ie purposes of H.R. 5164 is to remove from the CIA precisely
this !mullet' of searching exempted operational files, the Committee
believed that the CIA should not be forced by a mere allegation of
improper tiling into a position of having to search exempted opera-
tional tiles to defend a lawsuit. Accordingly, a complainant alleging
that requested records were impropery withheld because of improper
plaecoeld of records solely in exempted operational files must sup-
port such an allegation with a sworn written submission, based upon
personaI knowledge or otherwise admissible evidence. When such an
allsgai ion of improper placement of records is supported by such .tt
submission based upon personal knowledge or otherwise admissible
evilletire, the CIA. must answer and defend against the allegation. in
respoie hag to the complainant's submission, the CIA may, of course,
challenge its factual basis.
Paragraph 701(f) (4) provides for determination of an allegation
by a complain:nit that. CIA improperly withheld requested records
les:wise of improper exemption of operational tiles. Under subpara-
graph 701(f) (4)(A), when such an allegation is made the CIA must
meet its burden to sustain its action by demonstrating to the court's
satisfaction by sworn written submission that the exempted opera-
tional tiles likely to contain responsive records currently perform the
functioes set forth in subsection 701(b), which defines "operational
tiles" by -function. Subparagreph 701(f) (4) (B) makes clear that if
the complahend thereafter tiles a sworn written submission genuinely
(lisle!' jug (lie CIA's submission concerning the functions of the files,
he court ma v in its discretion order the CIA to review the contents of
operat lona! tiles in connection with determination of tlie issue of im-
proper exemption of the operational files. Of course., if the CIA fails
to sustain its burden to demonstrate the propriety of the exemptions
of the tiles in issue due to the insufficiency of its sworn written simb-
lii is; :110 any Other submitted information, the court will, under
paragraph 71)1(f) (6), order the .ciA to search such files for respon-
CIA-RDP89B00236R000200220013-4 35
sive records, and the reference in subparagraph 701(f) (4)(B) to a
complainant's submission would be inapplicable. By virtue of subsec-
tion 701(f) (4), the CIA will not be forced into the position of searcli-
ing and reviewing the contents of operational files to defend the
lawsuit by a mere allegation of improper exemption of the files, whiCh
would be inconsistent with one of the basic purposes of the bill, which
is to relieve the CIA of an undue burden of searching and. reviewing
operational files. The Committee notes that subparagraph 701
(f) (4)(B) does not diminish the court's authority to review the con?
tents of operational files likely to contain responsive liecords, if the
written submissions are inadequate and such a review is necessary to
decide the issue presented, as described above in (lie explanation of.
paragraph 701 (f ) (2). ?
Paragraph 701(f) (5) restricts discovery by the parties in connec-
tion with proceedings to determining allegations of improper pl-
files. The provision prohibits discovery, except oor
of operational i
ment of records solely in operational files or of improper exemp
requests for admission, related to these two issues. The Committee
believed it important to prohibit discovery by a complainant with
respect to these issues because they involve the most sensitive of CIA
operational files and because of the potential damage which could
ensue from CIA errors in responding to discovery requests concerning
these files. Since the Committee believed it necessary to prohibit dis-
covery by a complainant from the CIA, the Colmnittlee imposed a
reciprocal prohibition on discovery by the CIA from a complainant
as a matter of fundamental fairness. The provision permits requests
for admission, unlike other discovery devices such as depositions or
interrogatories, because use of requests for admission presents little
risk of compromise of secrets. The specific provision concerning the
issue of discovery in the context of the issues of improper placement
of records and improper exemption of files is not intended to carry a
negative implication that discovery on other issues is to be either
especially encouraged or discouraged in any manner by this subsec-
tion. The question of discovery with respect to other issues shall wig
tinue to be governed by the practices developed by the courts um,
the judicial review provision of the Freedom of Information Act
(6 U.S.C. 552(a) (4) (B) ). The Committee emphasizes that paragraph
701(f) (5) addresses discovery by the parties in accordance with the
Federal Rules of Civil Procedure; this provision does not address
access by the court to information. Furthermore, the provision does
not prevent the complainant from proposing to the court matters on
which the complainant believes the court should itself seek informa-
tion from the CU to decide issues in the lawsuit.
Paragraph 701 (b) (6) provides the exclusive remedy for CIA fail-
ure to comply with section 701. If the coul;t finds that the CIA has
improperly withheld requested records because of failure to comply
with any provision of section 701, the court shall order the CIA. to
search and review the appropriated exempted operational file or files
for the requested records and to release the records, or portions thereof,
which do not fall within any of the FOIA exemptions contained in
subsection 552(b) of title 3, United States Code. Such an order is the
exclusive remedy for CIA failure to comply with section 701. This
provision, of course. does a or P 0
1 l
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Freedom of Information Act to assess reasonable attorney fees, to
punish for contempt, or to handle other, similar ancillary matters.
Paragraph 101(U) CO provides that, if the CIA agrees at any time
a fter I he tiling of a complaint alleging CIA failure to comply with
section Tot to search the appropriate exempted operational files for
the requested records and process the records under the FOIA, the
court shall dismiss claims based upon failure to comply with section
701. Thins, by agreeing to process an FOIA request for records with-
out, regard to the exemption of operational tiles, the CIA can obtain
dismissal of claims challenging its compliance with section 701.
Nect;?) 70.?: Decennial Review of Exempted Operational Files
Section 10:t provides for a periodic review of the exemptions of
opera( 14 iia I tiles to determine whether the exemptions may be removed
with respect to such files or significant portions thereof.
Subsection 702(a) requires the Director of Central Intelligence to
review the exemptions of operational files in force under subsection
701(0 at least once every ten years to determine whether such exemp-
tions may be removed from exempted files or any portion thereof.
'The phrase "or any portion thereof" provides for potential removal
of exemptions from an individual collection of records which forms
portion of an exempted operational file. The phrase contemplates,
for example, potential removal of an exemption with respect to a coi-
led ion of records concerning a specific intelligence operation, even
though the collection is contained in a larger exempted operational file
which continues to merit exemption. The phrase does not require the
review aml potential removal of exemption with respect to individual
records eontained ill exempted operational files. Those files, or por-
tions thereof, with respect to which exemptions are removed, become
subject once again to the search, review, and disclosure requirements
of the FOIA.
Subsection 702(b) requires that., in conducting the review of exemp-
tions mandated by subsection 702(a), the Director of Central IntClli-
gence shall consider the historical value or other public interest in the
subject matter of the particular files or portions thereof and the poten-
tial for declassifying a significant part of the information contained
therein. In applying the historical value criterion, the Director of Cen-
tral Intelligence should consult with, and take into account, the recom-
mend at ions of the historical staff of the Departments of State and
Defense, the Archivist of the United States, and appropriate histor-
ians from the private sector. In applying the public interest criterion,
t he Director of Central Intelligence should consider the contribution
materials would make to an understanding of intelligence, foreign
poliey. and international developments and should consider interest
in specific topics expressed by the journalistic and academic profes-
sions In applying the potential-for-declassification criterion, the Di-
rector of Central Intelligence should consider factors such as the
sensit i v it y of operations. the possibility of damaging foreign relations
or jeopardizing intelligence sources and methods, and the passage of
time.
Sobject 702(e) provides for limited judicial review of CIA com-
plianee with section 702. Since this review does not arise tinder the
judicial review section of the F044A, subsection 702(c) provides a sep-
arate grant of subject matter jurisdiction to the U.S. district courts
and provides an independent venue provision. A complainant may ob-
tain judicial review upon allegation that the CIA has improperly with-
held records because of failure to comply with sect ion 702. lowevelt,
unlike allegations in a complaint, of improper withholding for failure
to comply with section 701, which will be reviewed under the judiciiil
review provision of the FOIA (5 U.S.C. 552) and the procedures
provided, in section 701(f), the allegation of improper withholding of
records for noncompliance with section 702 will be reviewed in accord-
ance with the more limited judicial review provision contained in sub-.
section 702(c). I he court's review of CIA compliance with section 702
is limited to determining whether the review of exemptions of opera-
tional files required by subsection 702(a) has been conducted within
the time period prescribed by that section and whether the criteria set
forth in subsection 702(b) were in fact considered in the review of
exemptions.
Should the Court find that the review required by subsection 70.
has not been conducted or that the criteria set forth in subsection
702(b) were not considered in the review, the court inay7 as appropri-
ate, order the CIA: (1) to search and review the appropriate exempted
operational file or files for the requested records and to release the
records, or portions thereof, which do not fall within any of the
FOIA exemptions; (2) to conduct the review required by subsection
702(a) ; or (3) to consider the criteria set. forth in subsection 702(b)
when conducting the review of appropriate exempted olierational files
for the requested records. These are the exclusive remedies for failure
to comply with section 702.
SECTION 3 OF H.R. 5104: REPORT TO CAMORESS
Section 3 of the bill requires the Director of Central Intelligence to
report by June 1, 1985 to the intelligence committees of the Congress
on the feasibility of conducting systematic review for declassification
and release of Central Intelligence Agency information of historical
value. In preparing this report, the Director shall consult witlmie
Archivist of the United States, the Librarian of Congress' and a
w
'hite historians selected by the Archivist, of the United States.
The Committee expects the Director's report to explore the full range
of ideas which can contribute to the objective of making available CIA
information of historical value on the diplomatic, military, end intel-
ligence activities of the United States without risking damage to the
security or foreign policy of the Nation. The Committee ronsiders the
Foreign Relations of the United States series published by the De-
partment of State to be an excellent example of a project which con-
tributes to this objective. Because of the especially sensitive nature of
the work of the CIA, this type of large-scale chronological diselosure
of CIA information of historical value may not be possible. However,
the Committee expects the report, of the Director of Central Intelli-
gence to explore this possibility on some appropriate scale, along with
exploring other ideas which can contribute to the objective set forth
above.
Section 3 is intended to require the Director of Central Totelligenee
to study the feasibility of a declassification program which would sup.
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Center for National Security Studies
MEnuRANDUM September 12, 1984
TO: Mort Halperin and Ira Glasser
FROM: Allan Adler
RE: Memorandum By James H. Lesar Regarding H.R. 5164
This memorandum responds to statements made by James Lesar in his
September 6, 1984 memorandum regarding H.R.5164. Insofar as Mr.
Lesar's memorandum addresses the provisions in H.R.5164 that
specifically concern judicial review, reference should be made to
Mark Lynch's September 7, 1984 memorandum in response to similar
statements in memoranda by Meir Westreich. Mr. Lesar's other
salient statements regarding H.R.5164 are addressed as follows:
Lesar: "Because H.R.5164 neither limits how long the CIA
may Impose secrecy ori Is'operationalfiles nor guards against
their destruction, scholars may never be allowed access to many
ot the most Important materials documenting CIA activities."
Response: H.R.5164 concerns whether the CIA must search and
review certain "operational" files, not whether the agency must
permit public access to materials within them. The CIA already.
has the authority to "impose secrecy" on its "operational" files
because most of the materials within them invariably fall within
FOIA exemptions that authorize the agency to withhold classified
information and information about intelligence sources and
methods. Neither Executive Order 12356 -- which is the basis tor
classification resulting in withholding pursuant to exemption 1
-- nor section 102(d)(3) of the National Security Act of 1947, 50
U.S.C. Sec.403(d)(3) -- which is the basis for invoking exemption
3 to prevent unauthorized disclosure of intelligence sources and
methods -- prescribes limits on how long such materials can be
kept secret. Indeed, regarding duration of classification,
Section 1.4(a) of the Executive Order simply states that
"[i]nformation shall be classified as long as required by
national security considerations." While it is therefore true
that "scholars may never be allowed access" to such materials,
this would not be attributable to H.R.5164 because its provisions
do not create any additional authority to deny access.
122 Maryland Avenue N.E. ? Washingion,D.C. 20002 ? [phone]
A project of the ACLU Foundation and the Fund for Peace.
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1111.
With respect to destruction of files, the CIA, like other federal
agencies, is already required to comply with provisions in
Chapters 31 and 33 of Title 44 regarding records management and
disposal. Failure to comply with these laws in connection with
destruction of its records led to the FBI being enjoined from
further destruction pending court approval of a program meeting
the statutory requirements. American Friends Service
Committee y. Webster, 485 F.Supp. 222 (D.D.C. 1980). Moreover,
it seems unlikely that the CIA would need to destroy records in
order to deny public access to them; they have been exceedingly
successful in utilizing the withholding authority presently
available to them by law.
Mr. Lesar: "H.R.5164 may set a precedent that will allow
still other agencies to obtain similar exemptions from the
Freedom of Information Act."
Response: It is highly improbable that H.R.5164 would become
a model ror similar legislation to provide FOIA "relief" for any
other federal agency, primarily because it is so specifically
tailored to the administrative problems arising from the CIA's
compartmented filing system. In an exchange with Rep. Kleczka
during the House Government Operations subcommittee hearing on
H.R.5164 in May, the Deputy Director of the CIA's Office of
Legislative Liasion explained that the CIA had discussed FOIA
problems with other-intelligence agencies and "found, after
extensive discussion, examination of their system, that their
problems were different and although they certainly do have
problems with the FOIA, it was not fixable in the way we do it
here." CIA Information Act: Bearing 2n Z.B.5164 Before A
Subcommittee of the Bouse Committee ma Government Operations,
98th Cong., 2d Sess. 33-34 (1984).
Moreover, the CIA itself told the Senate Intelligence Committee
that there was no "hidden agenda" for other intelligence agencies
to seek further FOIA "relief" following enactment of the CIA
legislation. This was reflected in the committee report in the
"Additional Views of Senators Durenberger, Huddleston, Inouye,
and Leahy" -- the four senators who successfully fought for
committee amendments to protect the public's right of access in
the context of this legislation:
"As important as the bill, the report, and related
assurances and commitments is the prospect that
passage of the Intelligence Information Act will
make it unnecessary for the Congress to consider
further requests for broader exemptions from the
FOIA for intelligence records. Deputy Director of
Central Intelligence John N. McMahon testified at
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the hearings on S.1324 that proposals for broader
intelligence exemptions from the FOIA 'would not
be sanctioned' by the Administration. 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 turther legislation in
this area for the foreseeable future." S.Rpt. 98-
305, p.40.
Agencies, such as the FBI, which have long sought FOIA "relief"
from Congress will undoubtedly continue to do so regardless of
the fate ot H.R.5164. Whether Congress will be disposed to
provide requested "relief" will depend upon the merits of the
request, not upon any "precedent" purportedly set by action on
H.R.5164.
Bl. Lesar: "H.R.5164 has sped through Congress on greased
skids... Scant public attention has been given the bill, perhaps
in part due to an assumption that the ACLU's position fully and
adequately represents the interest of all segments of the
public."
Response: There is nothing out of the ordinary with respect
to the legislative progress of H.R.5164. Its predecessor in
concept, 5.1324, was, the subject of two days of hearings in June
1983 before the Senate Intelligence Cftmittee. Z.1324, An
Amendment ID the National Security Act 2f 1947: Hearings Before
the Senate Select Committee an Intelligence, 98th Cong., 1st
Sess. (1983). With substantial modifications, the Committee
approved the bill in October 1983 and filed a detailed report
(H.Rpt. 98-305) explaining its intent. S.1324 was passed by
voice vote in the Senate on November 17, 1983. In February of
this year, the House Intelligence Committee held a hearing to
consider similar legislation which had been introduced in June
1983. Legislation to Modify the Application of the Freedom of
Information Act ID the Central Intelligence Agency: Hearing
Before the Subcomm. Legislation of the Bouse Permanent Select
Committee an Intelligence, 98th Cong., 2d Sess. (1984).
Following extensive modifications, the Committee approved
H.R.5164 as a clean bill in April of this year and filed an
explanatory report (H.Rpt. 98-726, Part 1) in May. The House
Government Operations Subcommittee on Government Information,
Justice and Agriculture -- which had joint jurisdiction over
H.R.5164 with the Intelligence Committee -- held a hearing on the
bill on May 10. (See CIA Information Act: Hearing.
supra). With turther amendment, H.R.5164 was subsequently
approved py the full House Government Operations Committee, which
filed its report (H.Rpt. 98-726, Part 2) last week.
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Numerous-interested parties in addition to the ACLU and the CIA
made their views known during the course of this legislative
process. If, as Mr. Lesar asserts, some parties assumed that the
ACLU's position represented the interests of all segments of the
public, this was an unfortunate assumption which was neither
fostered nor desired by the ACLU. ACLU legislative staff in
Washington both sought and accepted any available opportunity to
discuss the iegislation with interested parties, particularly
those who expressed criticism of our public statements on the
bill. Indeed, ACLU legislative staff met in January of this year
with Mr. Lesar and one of his clients in an FOIA/CIA suit to
discuss upcoming consideration of the legislation by the House
committees.
Several articles tracking the progress of the legislation and the
accompanying debate appeared in The Pew York Times,
The Washington Post, and other major papers. Indeed, a
running debate over the merits of the legislation as viewed by
the ACLU and others played across the pages of several issues of
The Nation magazine. In addition, meetings were held in New
York and Washington to permit representatives of various
organizations to discuss the legislation with ACLU staff.
Documents previously released by the CIA under the FOIA were
solicited by the ACLU to determine what impact the proposed
legislation would have on the same materials.
In short, it is difficult to understand what more Mr. Lesar would
have wanted done to encourage public atention regarding
H.R.5164.
Mr. Lesar: "Each of [the CIA components containing
"operational tiles"] is known to have engaged in illegal and
reprehensible activities."
Response: This, of course, is well-known to the ACLU, which
has litigated many of the FOIA cases that revealed the details of
such activities. However, past illegal conduct by the CIA is not
an argument against enactment of H.R.5164; rather, it is an
argument in support of the ACLU's successful effort to insure
judicial review and Congressional oversight with respect to the
CIA's actions and commitments regarding its FOIA processing if
H.R.5164 is enacted.
Moreover, H.R.5164 would not facilitate any effort on the part of
the CIA to hide records which document illegal activities
because, as the report of the House Intelligence Committee
explains, paragraph 701(c)(3) of the bill "ensures that
operational tiles will remain subject to FOIA search and review
requirements for information concerning the specific subject
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?
matter of an investigation for any impropriety or illegality in
the conduct of an intelligence activity. Thus, such information
will remain fully subject to FOIA search, review, and disclosure
requirements in the same manner as if subsection 701(a)
[exempting certain files from search and review] were never
enacted. H.Rpt. 98-726, Part 1, p.28.
The committee report explains that allegations of impropriety or
illegality in the conduct of an intelligence activity "may
originate either inside or outside" the CIA; allegations which
arise inside the CIA "are never dismissed without some recorded
inquiry." Allegations made by persons outside the Agency "will be
deemed frivolous and closed without any investigation only where
the writer has sent previous letters and the allegation is
preposterous on its face; if CIA's records reflect that the
Agency has had contact with the individual making the allegation
and the individual is not a prior correspondent of known
frivolity, the allegation is never determined to be frivolous."
Id. at 28-29.
Mr. Lesar: With regard to the "investigation" exception to
the operational tiles exemption, i.e., paragraph 701(c)(3),
"[t]here is no mention of Presidential commissions, and as it \
pertains to Congress, the list is restricted to 'the intelligence
committees of Congress' only. The investigations of the
Rocketeller Commission and the House Select Committee on
Assassinations do not come within theVurview of this exception.
Nor would the investigation of the Patman Committee into the
laundering of funds in the Watergate scandal be included."
Response: The absence of specific mention of the
investigative bodies cited by Mr. Lesar does not present serious
problems because these bodies, like any other person inside or
outside of the CIA, can trigger an investigation by one of the
listed investigative bodies and thereby still make operational
files concerning the specific subject matter of such
investigation undergo full search and review pursuant to an FOIA
request. See H.Rpt. 98-726, Part 1, p.28-31. Whether such
investigations turn out to be "cover-up type inquiries" as
suggested by Mr. Lesar will not affect the CIA's obligation to
searcn Lor documents which concern the specific subject matter of
an investigation, no matter how shoddy the investigation may be.
Mr. 1,esar: Problems with the meaning of "specific subject
matter of an investigation", "impropriety", and "intelligence
activity".
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Response: These terms and phrases are explained in detail in
the report of the House Intelligence Committee cited immediately
above. Mr. Lesar offers no valid illustration in support of his
contention that the report language is inadequate. Moreover, any
dispute over interpretations can be pursued in court where agency
actions will remain subject to pig novo judicial review
in accordance with current FOIA law. See H.Rpt. 98-726, Part 1,
p.33 ("Matters not addressed by [the bill's seven procedural
exceptions to Ag novo review] will continue to be
decided in accordance with subparagraph 552(a)(4)(B) of title 5
and case law thereunder which the courts have developed and may
in the tuture develop in light of reason and experience.")
Lesar: With respect to section 701(c)(3), "this proviso
fails to provide historians, journalists and scholars with access
to operational files which do not involve illegality or
impropriety, but which nonetheless document activities of
interest to the public."
Response: True, but they do not obtain such access under
current law. As Mr. Lesar himself notes, the "balancing test" of
President Carter's Executive Order 12065 is no longer available
and was unavailing even when it was law. See Afshar 2.
Department DI State, 702 F.2d 1125 (D.C.Cir. 1983). Still, as
noted in both House committee reports, H.R.5164 will not affect
the CIA's obligation, to search and review (1) all intelligence
disseminations, including raw intelliOnce 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 resident 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 investigation for alleged illegality or
impropriety.
Lesar: "Review Every Ten Years, Release Never.., any
public benefit to be gained from [Section 702 on Decennial Review
of Exempted Operational Files"] depends on a profound change in
the CIA's own attitudes and practices..."
Response: H.R.5164 does nothing to diminish the historical
value review that is required pursuant to Title 44, nor does it
weaken the declassification review available pursuant to
Executive Order 12356. Insofar as CIA will perform its
responsibilities to scholars and historians, only dedicated
Congressional oversight can make a true difference. Commitment
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toward that goal is repeated throughout the legislative history
of H.R.516.4. It will be up to the press and the public to see
that Congress lives up to its promise of oversight.
Bs. Lesar: "Recent events do not suggest that the CIA is
worthy or the trust H.R.5164 exudes."
Response: Again, H.R.5164 does not depend upon trusting the
CIA; this is precisely why the ACLU insisted upon judicial review
and Congressional oversight to make H.R. 5164 work.
Bl. Lesar: Is CIA Backlog Self-Created?
Response: It is true, as Mr. Lesar notes, that the CIA has
often employed an "arsenal of obstructionist tactics to delay and
impede access to information." Nevertheless, the congressional
committees that considered this legislation examined the CIA's
filing and FOIA processing systems and found the CIA's
explanation of its backlog credible, as have most of the courts.
Bs. Lesar: Will H.R.5164 result in a loss of meaningful
information?
Response: Mr. Lesar!s suggestion that "fundamental issues
regarding the exemption claims [CIA] Ikimarily relies upon have
yet to be definitively resolved" is wholly untenable. A review of
decisions by the U.S. Court of Appeals for the D.C. Circuit
indicates that the parameters of CIA authority to withhold
intormation requested under the FOIA are well-established indeed.
Bee, Miller y. Casey, 730 F.2d 773 (D.C.Cir.
1984); Gardels y. CIA, 689 F.2d 1100 (D.C.Cir. 1982);
Military Audit Project y. Casey, 656 F.2d 724 (D.C.Cir.
1981); Allen 2. CIA, 636 F.2d 1287 (D.C.Cir. 1980);
Halperin Y. CIA, 629 F.2d 144 (D.C.Cir. 1980); Ray y.
Turner, 587 F.2d 1187 (D.C.Cir. 1978).
Moreover, the notion that the federal courts are soon to favor
FOIA requesters with narrow interpretations of the exemptions
relied upon by the CIA makes no sense in light of Mr. Lesar's
statement that "[tic) anyone familiar with the CIA's Freedom of
Information Act track record and the timidity of federal judges
confronted with the task of evaluating claims that disclosure
will jeopardize national security, it is virtually certain that
[the judicial review provisions of H.R.5164] will ultimately
prove to be meaningless." Indeed, a chronological review of the
decisions of the U.S. Court of Appeals for the D.C. Circuit cited
above indicates that a clear trend toward greater, rather than
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lesser, judicial deference toward CIA claims continues to this
day and-will probably expand-under President Reagan's
conservative judicial appointees. Only the active and willing
involvement of Congress in performing oversight of the CIA's FOIA
operations, pursuant to a thorough understanding of those
operations, offers hope of improved response to FOIA requesters.
This has been made possible for the first time by process leading
to enactment of H.R.5164.
Finally, with reference to David Sobel's example of information
lost in the context of Vaughn indices, it would be disingenuous
to insist that this was not a rare exception to the typical FOIA
requester's experience with "boilerplate" CIA indices that are
virtually indistinguishable on a case-to-case basis. Conceding
that cases like Sobel's can arise, we nevertheless believe that
improved processing of FOIA requests, together with the
commitment for informed Congressional oversight, is much more
important than marginal scraps of information produced as a
byproduct of litigation over such requests.
Mr. Lesar: "The failure to include a provision for
attorney's fees [in H.R.5164] is simply astounding... Without an
attorney's fees provision, this bill is unenforceable."
Response: An attorney fees provision was not included in
H.R.5164 for the simple reason that the attorney fees provision
in the FOIA, Sectiom552(a)(4)(E), ip fully applicable to actions
involving the provisions of H.R.5164.The report of the House
Intelligence Committee makes clear that paragraph 701(f)(6),
providing that a court order to search and review exempted
operational files shall be the exclusive remedy for CIA failure
to comply with the main provisions of H.R.5164, "of course, does
not affect the court's authority under the Freedom of Information
Act to assess reasonable attorney fees, to punish for contempt,
or to handle other, similar ancillary matters." H.Rpt. 98-726,
Part 1, p.35-36.
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STAT
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2
1 That this Act may be cited as the "Central Intelligence
2 Agency Information Act".
3 SEC. 2. (a) The National Security Act of 1947 is amended
4 by adding at the end thereof the following new title:
5 "TITLE VII--PROTECTION OF OPERATIONAL FILES OF THE CENTRAL
6 INTELLIGENCE AGENCY
7 "EXEMPTION OF CERTAIN OPERATIONAL FILES FROM SEARCH,
8 REVIEW, PUBLICATION, OR DISCLOSURE
9 "SEC. 701. (a) Operational files of the Central
'10 Intelligence Agency may be exempted by the Director of
11 Central Intelligence from the provisions of section 552 of
12 title 5, United States Code (Freedom of Information Act),
13 which require publication or disclosure, or search or review
14 in connection therewith.
15 "(b) For the purposes of this title the term
16 'operational files' means--
17 "(1) files of the Directorate of Operations which
18 document the conduct of foreign intelligence or
19 counterintelligence operations or intelligence or
20 security liaison arrangements or information exchanges
21 with foreign governments or their intelligence or
22 security services;
23 "(2) files of the Directorate for Science and
24 Technology which document the means by which foreign
25 intelligence or counterintelligence is collected through
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SA.C10.1
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3
1 scientific and technical systems; and
2 "(3) files of the Office of Security which document
3 investigations conducted to determine the suitability of
4 potential foreign intelligence or counterintelligence
5 sources;
6 except that files which are the sole repository of
7 disseminated intelligence are not operational files.
8 "(c) Notwithstanding subsection (a) of this section,
9 exempted operational files shall continue to be subject to
d0 search and review for information concerning--
11 "(1) United States citizens or aliens lawfully
12 admitted for permanent residence who have requested
13 information on themselves pursuant to the provisions of
14 section 552 of title 5, United States Code (Freedom of
15 Information Act), or section 552a of title 5, United
16 States Code (Privacy Act of 1974);
17 "(2) any special activity the existence of which is
18 not exempt from disclosure under the provisions of
19 section 552 of title 5, United States Code (Freedom of
20 Information Act); or
21 "(3) the specific subject matter of an
22 investigation by the intelligence committees of the
23 Congress, the Intelligence Oversight Board, the
24 Department of Justice, the Office of General Counsel of
25 the Central Intelligence Agency, the Office of Inspector
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Sk1 01 2
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4
1 General of the Central Intelligence Agency, or the
2 Office of the Director of Central Intelligence for any
3 impropriety, or violation of law, Executive order, or
4 Presidential directive, in the conduct of an
5 intelligence activity.
6 "(d)(1) Files that are not exempted under subsection
7 (a) of this section which contain information derived or
8 disseminated from exempted operational files shall be
9 subject to search and review.
'10 "(2) The inclusion of information from exempted
11 operational files in files that are not exempted under
12 subsection (a) of this section shall not affect the
13 exemption under subsection (a) of this section of the
14 originating operational files from search, review,
15 publication, or disclosure.
16 "(3) Records from exempted operational files which have
17 been disseminated to and referenced in files that are not
18 exempted under subsection (a) of this section and which have
19 been returned to exempted operational files for sole
20 retention shall be, subject to search and review.
21 "(e) The provisions of subsection (a) of this section
22 shall not be superseded except by a provision of law which
23 is enacted after the date of enactment of subsection (a),
24 and which specifically cites and repeals or modifies its
25 provisions.
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5
1 "(f) Whenever any person who has requested agency
2 records under section 552 of title 5, United States Code
3 (Freedom of Information Act), alleges that the Central
4 Intelligence Agency has improperly withheld ?records because
5 of failure to comply with any provision of this section,
6 judicial review shall be available under the terms set forth
7 in section 552(a)(4)(B) of title 5, United States Code,
8 except that--
9 ? "(1) in any case in which information specifically
'10 authorized under criteria established by an Executive
11 order to be kept secret in the interest of national
12 defense or foreign relations is filed with, or produced
13 for, the court by the Central Intelligence Agency, such
14 information shall be examined ex parte, in camera by the
15 court;
16 "(2) the court shall, to the fullest extent
17 practicable, determine issues of fact based on sworn
18 written submissions of the parties.;
19 "(3) when a complainant alleges that requested
20 records were improperly withheld because of improper
21 placement solely in exempted operational files, the
22 complainant shall support such allegation with a sworn
23 written submission, based upon personal knowledge or
24 otherwise admissible evidence;
25 "(4)(A) when a complainant alleges that requested
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6
1 records were improperly withheld because of improper
2 exemption of operational files, the Central Intelligence
3 Agency shall meet its burden under section 552(a)(4)(B)
4 of title 5, United States Code, by demonstrating to the
5 court by sworn written submission that exempted
6 operational files likely to contain responsive records
7 currently perform the functions set forth in subsection
8 (b) of this section; and
9 "(B) the court may not order the Central
'10 Intelligence Agency to review the content of any
11 exempted operational file or files in order to make the
12 demonstration required under subparagraph (A) of this
13 paragraph, unless the complainant disputes the Central
14 Intelligence' Agency's showing with a sworn written
15 submission based on personal knowledge or otherwise
16 admissible evidence;
17 "(5) in proceedings under paragraphs (3) and (4) of -
18 this subsection, the parties shall not obtain discovery
19 pursuant to rules 26 through 36 of the Federal Rules of
20 Civil Procedure, except that requests for admission may
21 be made pursuant to rules 26 and 36;
22 "(6) if the court finds under this subsection that
23 the Central Intelligence Agency has improperly withheld
24 requested records because of failure to comply with any
25 provision of this section, the court shall order the
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1 Central Intelligence Agency to search and review the
2 appropriate exempted operational file or files for the
3 requested records and make such records, or portions
4 thereof, available in accordance with the provisions of
5 section 552 of title 5, United States Code (Freedom of
6 Information Act), and such order shall be the exclusive
7 remedy for failure to comply with this section; and
8 "(7) if at any time following the filing of a
9 complaint pursuant to this subsection the Central
'10 Intelligence Agency agrees to search the appropriate
11 exempted operational file or files for the requested
12 records, the court shall dismiss the claim based upon
13 such complaint.
14 "DECENNIAL REVIEW OF EXEMPTED OPERATIONAL FILES
15 "SEC. 702. (a) Not less than once every ten years, the
16 Director of Central Intelligence shall review the exemptions
17 in force under subsection (a) of section 701 of this Act to
18 determine whether such exemptions may be removed from any
19 category of exempted operational files or any portion
20 thereof.
21 "(b) The review required by subsection (a) of this
22 section shall include consideration of the historical value
23 or other public interest in the subject matter of the
24 particular category of files or portions thereof and the
25 potential for declassifying a significant part of the
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1 information contained therein.
2 "(c) A complainant who alleges that the Central
3 Intelligence Agency has improperly withheld records because
4 of failure to comply with this section may seek judicial
5 review in the district court of the United States of the
6 district in which any of the parties reside, or in the
7 District of Columbia. In such a proceeding, the court's
8 review shall be limited to determining (1) whether the
Central Intelligence Agency has conducted the review
requited by subsection (a) of this section within ten years
of enactment of this title or within ten years after the
last review, and (2) whether the Central Intelligence
9
ao
11
12
13
14
15
16
17'
Agency, in fact, considered the criteria set
subsection (b) of this section in conducting
review.".
(b) The table of contents at the beginning of
forth in
the required
such Act
is amended by adding at the end thereof the following:
"TITLE VII--PROTECTION OF OPERATIONAL FILES OF THE CENTRAL
INTELLIGENCE AGENCY
"Sec. 701. Exemption of certain operational files from
search, review, publication, or disclosure.
"Sec. 702. Decennial review of exempted operational
files.".
Cs.) Subsection (q) of section 552a of title 5, United
vatl rtcr
Ur 19 States Code, is amended--
Ltx.limexcit 20 (1) by inserting "(1)" after "(q)"; and
21. (2) by adding at the end thereof the following:
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S.A:C1012
9
1 "(2) No agency shall rely on any exemption in this
2 section to withhold from an individual any record which is
3 otherwise accessible to such individual under the provisions
4 of section 552 of this title.".
5 SEC. 3. (a) The Director of Central Intelligence, in
6 consultation with the Archivist of the United States, the
7 Librarian of Congress, and appropriate representatives of
8 the historical discipline selected by the Archivist, shall
9 prepare and submit by June 1, 1985, a report on the
,10 feasibility of conducting systematic review for
11 declassification and release of Central Intelligence Agency
12 information of historical value.
13 (b)(1) The Director shall, once each six months, prepare
WW0ale... 14 and submit an unclassified report which includes--
neui
15 (A) a description of the specific measures
Pepoc
c-424t;iret.,Nelit 16 established by_t_12 Director to improve the processing of
rAty,c1rAellfs17 requests under section 552 of title 5, United States
18
19 (B) the current budgetary and personnel allocations
20 for such_processing;
21 (C) the number of such requests (i) received and
22 processed during the preceding six months, and (ii)
23 pending at the time of issuance of such report; and
24 (D) an estimate of the current average response time
25 for completing the processing of such requests.
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1 (2) The first report required by paragraph (1) shall be
2 submitted a date which is six months after the date of
3 enactment of this Act. The requirements of such paragraph
4 shall cease to apply after the issuance of the fourth such
5 report.
6 (c) Each of the reports required by subsections (a) and
7 (b) shall be submitted to the Permanent Select Committee on
8 Intelligence and the Committee on Government Operations of
9 the House of Representatives and the Select Committee on
'10 Intelligence and the Committee on the Judiciary of the
11 Senate.
12 SEC. 4. The amendments made by subsections (a) and (b)
13 of section 2 shall be effective upon enactment of this Act
14 and shall apply with respect to any requests for records,
15 whether or not such request was made prior to such
16 enactment, and shall apply to all civil actions not
17. commenced prior to February 7, 1984.
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