LETTER TO WILLIAM F. DONNELLY FROM STEVEN GARFINKEL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89G00643R000900170010-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 23, 2016
• Document Release Date: December 20, 2011
• Sequence Number: 10
• Publication Date: August 21, 1987
• Content Type: LETTER

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DDA SUBJECT FE D
STAT
JI/AI
ROUTING AND TRANSMITTAL SUP
T0: (Kama, ofllce s)mbol, room number,
building. Agency/Post1
'DIRECTOR OF SECURITY"
Initials
Date
2.
3.
4.
Action
File
Note and Return
Approval
For Clearance
Per Conversation
As Requested
For Correction
Prepare Rep
Circulate
For Your Information
See Me
Comment
Investigate
Signature
Coordination
Justify
REMARKS
#1 - FOR ACTION, AS APPROPRIATE.
cc: C/IPMD/OIT
C/IPD/DA
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions
EXA/DDD
OPTIONAL FORM 41 (Nov. 7-76)
hac?N" asn
FPMR (41 CFR)101-11.20a
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1~1~U-av
Information Security Oversight Office
Washington, DC 20405
August 21, 1987
Dear Mr. Donnelly:
On August 17, 1987, the National Federation of Federal
Employees brought suit in the United States District Court for
the District of Columbia* challenging the constitutionality and
legality of the Standard Form 189, "Classified Information
Nondisclosure Agreement." While we are confident that the
Government will prevail in this litigation, until further notice
agencies should follow these instructions with respect to the
execution and implementation of the SF 189 pending some
resolution of the matters in litigation.
1. As of this date, do not withdraw a person's clearance
nor deny his or her access to classified information solely as a
consequence of his or her refusal to sign the SF 189. However,
no one should be left with the impression that this is anything
more than a temporary accommodation to the lawsuit. Upon an
inquiry, persons should be advised only that clearances are
temporarily not being withdrawn at the direction of the
Information Security Oversight Office (ISOO) pending some
resolution of the lawsuit challenging the legality of the SF 189.
However, any person who refuses to sign the SF 189 but continues
to have access to classified information under these temporary
instructions should be briefed individually on his or her
responsibility to protect the information from unauthorized
disclosure and the consequences that may follow from his or her
failure to meet this responsibility.
2. Agencies should continue to process the SF 189 for those
employees who have not yet executed it. Only those conditions
discussed in paragraph 1, above, should be amended pending these
temporary instructions.
*National Federation of Federal Employees v. United States of
America, et al., Civil Action No. 87-2284-OG, United States
District Court for the District of Columbia.
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3. Because the Standard Form 189-A, "Classified Information
Nondisclosure Agreement (Industrial/Commercial/Non-Government),"
is not the subject of the current litigation, agencies that are
involved in the implementation of these forms should continue
with their prompt execution as before.
Because of the immediacy of these instructions, we urge you
to transmit them to all affected components of your agency by the
most expeditious means. We are enclosing with this letter a copy
of ISOO's recent regulatory change to the definition of
"classifiable" as it appears in the SF 189. This definition,
which appeared in the August 11, 1987 edition of the Federal
Register, slightly amends the regulation published on August 3,
1987, which ISOO transmitted to you by letter of August 4.
Please direct your questions to ISOO at (202) 535-7251.
Sincerely,
Steven Garfinke
Director
Mr. William F. Donnelly
Deputy Director for Administration
Central Intelligence Agency
Washington, DC 2050.5
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Tuesday
August 11, 1987
Part III
Information Security
Oversight Office
32 CFR Part 2003
National Security Information Standard
Forms; Final Rule
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Federal Register / Vol. 52. No. 154 / Tuesday, August 11, 1987 / Rules and Regulations
2979
3
INFORMATION SECURITY OVERSIGHT
OFFICE
32 CFR Part 2003
National Security Information
Standard Forms
AGENCY: Information Security Oversight
Office ([SOO).
ACTION: Final rule.
SUMMARY: This is an amendment to 32
CFR 2003.20. The purpose of this
amendment is to add at the end of
paragraph (h)(1) a sentence to clarify
further the definition of "classifiable" as
used in the Standard Form 189,
"Classified Information Nondisclosure
Agreement."
EFFECTIVE DATE: August 11, 1987.
FOR FURTHER INFORMATION CONTACT:
Steven Garfinkel. Director, ISOO.
Telephone: [phone].
SUPPLEMENTARY INFORMATION: This
amendment to 32 CFR Part 2003 is
issued pursuant to ? 5.2(b)(7) of
Executive Order 12356.
List of Subjects in 32 CFR Part 2003
Classified information, Executive
orders, Information, National. security
information, Security information.
32 CFR Part 2003 is amended as
follows:
PART 2003-NATIONAL SECURITY
INFORMATION-STANDARD FORMS
1. The authority citation for 32 CFR
Part 2003 continues to read:
Authority: Sec. 5.2(b)(7) of E.O. 12358.
Subpart B-Prescribed Forms
2. Section 2003.20(h)(1) is revised to
read as follows:
? 2003.20 [AmendedI
(h) * * *
(1) As used in paragraph 1 of SF 189,
the term, "classifiable information"
refers to information that meets all the
requirements for classification under
Executive Order 12358, or under any
other Executive order or statute that
prohibits the unauthorized disclosure of
information in the interest of national
security, but which, as a result of
negligence, time constraints, error, lack
of opportunity or oversight, has not been
marked as classified information. A
party to SF 189 would violate its
nondisclosure provisions only if he or
she disclosed without authorization
classified information or information
that he or she knew, or reasonably
should have known, was classified,
although it did not yet include required
classification markings. The term
"classifiable" does not include any
information that is not otherwise
required by statute or Executive order to
be protected from unauthorized
disclosure in the interest of national
security.
Dated: August 6, 1987.
Steven Garfinkel,
Director. Information Security Oversight
Office.
[FR Doc. 87-18210 Filed 8-10-87: 8:45 am)
BILLING COOS 6820-KC-M
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Information Security Oversight Office
Washington, DC 20405
NOTICE
In order to help clear up some of the confusion that has resulted
from the recent controversy over the Standard Form 189,
"Classified Information Nondisclosure Agreement," the Information
Security Oversight Office will sponsor a short briefing and a
question and answer session on Thursday, September 3, 1987, at
10:00 a.m. This unclassified briefing will be held in the
auditorium of the General Services Administration Building at
Eighteenth and F Streets, Northwest. The auditorium is located
off the first floor lobby. Your agency's questions, either
submitted in writing before the briefing or asked at that time,
are most welcome.
Steven Garfinkel
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ROUTING AND RECORD SHEET
SUBJECT: (Optional)
Advance Copy of Information Security Oversight Office Advisory
STATFROM:
Agency Security Classification Offilcer
STAT 826 Ames Building
TO: (Officer designation, room number, and
building)
STAT 4?
Executive Assis ant
to the Deputy Director sfQ G dmmin
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OFFICER'S
INITIALS
DATE
26 August 1987
COMMENTS (Number each comment to show from whom
to whom. Draw a tine across column after each comment.)
1. For information.
As ISOO liaison, I received
the attached advance copy
of a letter from the
Director, ISOO to Federal
j agencies concerning a suit
filed by the National
Federation of Federal
Employees challenging the
constitutionality and
legality of Standard Form
(SF) 189, the Classified
Information Nondisclosure
Agreement. The Director,
ISOO will brief Federal
agency representatives on
3 September in the GSA
auditorium.
2. With the exception of
CIA and NSA, SF 189 is used
throughout the Government.
Even thXough the Agency does
not use SF 189, the interim
procedures proposed by ISOO
pending resolution of the
suit and the ramifications
of the challenge to its
constitutionality and
legality could impact on the
Agency.
3. , Office
of Security's Executive
Officer, and the Associate
Deputy General Counsel for
Litigation and Community
Affairs have been advised.
I have suggested OS send a
representative to the
briefing.
4. Since the DDA will be
receiving a formal copy of
the attached within the next
few days, this is to alert
you to actions taken thus
far.
4 U.S. Government Printing Oftlee: lft8--4/4-g4pNlf4
"' 01 U " eoittorls
I 79
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Information Security Oversight Office
Washington, DC 20405
TM j Mr M~4 at logo
August 21, 1987
On August 17, 1987, the National Federation of Federal
Employees brought suit in the United States District Court for
the District of Columbia* challenging the constitutionality and
legality of the Standard Form 189, "Classified Information
Nondisclosure Agreement." While we are confident that the
Government will prevail in this litigation, until further notice
agencies should follow these instructions with respect to the
execution and implementation of the SF 189 pending some
resolution of the matters in litigation.
1. As of this date, do not withdraw a person's clearance
nor deny his or her access to classified information solely as a
consequence of his or her refusal to sign the SF 189. However,
no one should be left with the impression that this is anything
more than a temporary accommodation to the lawsuit. Upon an
inquiry, persons should be advised only that clearances are
temporarily not being withdrawn at the direction of the
Information Security Oversight Office (ISOO) pending some
resolution of the lawsuit challenging the legality of the SF 189.
However, any person who refuses to sign the SF 189 but continues
to have access to classified information under these temporary
instructions should be briefed individually on his or her
responsibility to protect the information from unauthorized
disclosure and the consequences that may follow from his or her
failure to meet this responsibility.
2. Agencies should continue to process the SF 189 for those
employees who have not yet executed it. Only those conditions
discussed in paragraph 1, above, should be amended pending these
temporary instructions.
*National Federation of Federal Employees v. United States of
America, et al., Civil Action No. 87-2284-OG, United States
District Court for the District of Columbia.
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3. Because the Standard Form 189-A, "Classified Information
Nondisclosure Agreement (Industrial/Commercial/Non-Government),"
is not the subject of the current litigation, agencies that are
involved in the implementation of these forms should continue
with their prompt execution as before.
Because of the immediacy of these instructions, we urge you
to transmit them to all affected components of your agency by the
most expeditious means. We are enclosing with this letter a copy
of IS00's recent regulatory change to the definition of
"classifiable" as it appears in the SF 189. This definition,
which appeared in the August 11, 1987 edition of the Federal
Register, slightly amends the regulation published on August 3,
1987, which ISOO transmitted to you by letter of August 4.
Please direct your questions to ISOO at (202) 53.5-7251.
Sincerely,
'(Signed) Steven Garfinkel
Steven Garfinkel
Director
ONameg
OTitleO
MAgencyO
OAddressO
?City?
?State?
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Information Security Oversight Office
Washington, DC 20405
NOTICE
In order to help clear up some of the confusion that has resulted
from the recent controversy over the Standard Form 189,
"Classified Information Nondisclosure Agreement," the Information
Security Oversight Office will sponsor a short briefing and a
question and answer session on Thursday, September 3, 1987, at
10:00 a.m. This unclassified briefing will be held in the
auditorium of the General Services Administration Building at
Eighteenth and F Streets, Northwest. The auditorium is located
off the first floor lobby. Your agency's questions, either
submitted in writing before the briefing or asked at that time,
are most welcome. _
Steven Garfinkel
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CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT
An Agreement Between and the United States (Name ? Printed or Typed)
1. Intending to be legally bound, I hereby accept the obligations contained in this Agreement in consideration of my being granted access to classified
Information. As used in this Agreement, classified information is information that is either classified or classifiable under the standards of Executive Order
12356, or under any other Executive order or statute that prohibits the unauthorized disclosure of information in the interest of national security, I
understand and accept that by being granted access to classified information, special confidence and trust shall be placed in me by the United States
Government.
2. I hereby acknowledge that I have received a security indoctrination concerning the nature and protection of classified information, including the pro-
cedures to be followed in ascertaining whether other persons to whom I contemplate disclosing this information have been approved for access to it, and
that I understand these procedures.
3. 1 have been advised and am aware that direct or indirect unauthorized disclosure, unauthorized retention, or negligent handling of classified informa-
tion by me could cause irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby agree that I will never divulge
such information unless I have officially verified that the recipient has been properly authorized by the United States Government to receive it or I have
been given prior written notice of authorization from the United States Government Department or Agency (hereinafter Department or Agency) last
granting me a security clearance that such disclosure is permitted. I further understand that I am obligated to comply with laws and regulations that
prohibit the unauthorized disclosure of classified information.
4. I have been advised and am aware that any breach of this Agreement may result in the termination of any security clearances I hold; removal from any
position of Special confidence and trust requiring such clearances; and the termination of my employment or other relationships with the Departments or
Agencies that granted my security clearance or clearances. In addition, I have been advised and am aware that any unauthorized disclosure of classified
Information by me may constitute a violation or violations of United States criminal laws, including the provisions of Sections 641, 793, 794, 798, and
952, Title 18, United States Code, the provisions of Section 783(b), Title 50, United States Code, and the provisions of the Intelligence Identities Protec-
tion Act of 1982. 1 recognize that nothing in this Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory
violation.
5. I hereby assign to the United States Government all royalties, remunerations, and emoluments that have resulted, will result or may result from any
disclosure, publication, or revelation not consistent with the terms of this Agreement.
6. 1 understand that the United States Government may seek any remedy available to it to enforce this Agreement including, but not limited to, applica-
tion for a court order prohibiting disclosure of information in breach of this Agreement.
7. I understand that all information to which I may obtain access by signing this Agreement is now and will forever remain the property of the United
States Government. I do not now, nor will I ever, possess any right, interest, title, or claim whatsoever to such information. I agree that I shall return all
materials which have, or may have, come into my possession or for which I am responsible because of such access, upon demand by an authorized repre-
sentative of the United States Government or upon the conclusion of my employment or other relationship with the Department or Agency that last
granted me a security clearance. If I do not return such materials upon request. I understand that this may be a violation of Section 793, Title 18, United
States Code, a United States criminal law.
8. Unless and until I am released in writing by an authorized representative of the United States Government, I understand that all conditions and obliga-
tions imposed upon me by this Agreement apply during the time I am granted access to classified information, and at all times thereafter,
9. Each provision of this Agreement is severable. If a court should find any provision of this Agreement to be unenforceable, all other provisions of this
Agreement shall remain in full force and effect.
10. I have read this Agreement carefully and my questions, if any, have been answered to my satisfaction. I acknowledge that the briefing officer has
made available to me Sections 641, 793, 794, 798, and 952 of Title 18, United States Code, Section 783(b) of Title 50, United States Code, the Intelli-
gence Identities Protection Act of 1982, and Executive Order 12356, so that I may read them at this time, if I so choose.
11. I make this Agreement without mental reservation or purpose of evasion.
SOCIAL SECURITY NO. (See
notice below)
The execution of this Agreement was witnessed by the undersigned, who, on behalf of the United States Govern-
ment, agreed to its terms and accepted it as a prior condition of authorizing access to classified information.
WITNESS AND ACCEPTANCE:
NOTICE: The Privacy Act, 5 U.S.C. 552a, reQuIres that federal agencies Inform Individuals, at the time Information Is solicited from them, whether the
disclosure Is mandatory or voluntary, by what authority such Information Is solicited, and what uses will be made of the Information. You are hereby
advised that authority for soliciting your Social Security Account Number (SSN) Is Executive Order 9397. Your SSN will be used to Identify you pre-
cisely when It Is necessary to 1) certify that you have access to the Information Indicated above or 2) determine that your access to the Information
Indicated has terminated. Although disclosure of your SSN Is not mandatory, your failure to do so may Impede the processing of such certifications or
determinations.
STANDARD FORM 189 (e-e3)
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Federal Register f Vol. 48, No. 176 / Friday, September 9. 1983 / Rifles and Regulations
INFORMATION SECURITY OVERSIGHT
OFFICE .
32 CFR Part 2003
National Security Information;
Standard Forms
AGENCY: Information Security Oversight
Office (ISOO).
ACTION: Final rule.
SUMMARY: This rule provides for the use
within the executive branch of standard
forms that pertain to national security
information. These forms are issued in
accordance with the provisions of
Section 5.2(b)(7) of Executive Order
12356.
EFFECTIVE DATE: September 9, 1983.
FOR FURTHER INFORMATION CONTACT.
Steven Garfinkel. Director, ISOO.
Telephone: [phone].
SUPPLEMENTARY INFORMATION: Section
5.2(b)(7) of Executive Order 12356
authorizes the Director of ISOO to
prescribe the use of standard forms that
will promote the implementation of the
govern ment-wide information security
program. ISOO has developed these
forms in coordination with those
agencies that will be primarily affected
by them.
List of Subjects in 32 CFR Part 2003
Classified information, Executive
orders, Information, National security
information. Security information.
Title 32 of the Code of Federal
Regulations. Chapter XX, is amended by
adding a new Part 2003 to read as
follows:
PART 2003-NATIONAL SECURITY
INFORMATION-STANDARD FORMS
Sec.
2003.1 Purpose.
2003.2 Scope.
2003.3 Waivers.
2003.4 Availability.
Subpart B- Prescribed Forms
2003.20 Classified Information
Nondisclosure Agreement: SF 189.
Authority: Sec. 5.2(b)(7) of E.O. 12358.
Subpart A-General Provisions
? 2003.1 Purpose.
The purpose of the standard forms
prescribed in Subpart B is to promote
the implementation of the government-
wide information security program.
Standard forms are prescribed when
their use will enhance the protection of
national security information and/or
will reduce the costs associated with its
protection.
? 2003.2 Scope.
The use of the standard forms
prescribed in Subpart B is mandatory for
all departments. and independent
agencies or offices of the executive
branch that create and/or handle
national security information. As
appropriate, these departments, and
independent agencies or offices may
mandate the use of these forms by their
contractors. licensees or grantees who
are authorized access to national
security information.
S 2003.3 Waivers.
Except as specifically provided,
waivers from the mandatory use of the
standard forms prescribed in Subpart B
may he granted only by the Director of
ISOO. The Director of ISOO will be
responsible for ensuring that all waivers
that necessitate changes to a standard
form are cleared with the General
Services Administration's Office of
Information Resources Management
(KLSO) as an exception to the standard
form (41 CFR 101-11.8).
? 2003.4 Availability.
Agencies may obtain copies of the
standard forms prescribed in Subpart B
by ordering through FEDSTRIP/
MILSTRIP or by including the required
quantities on a Standard Form 3146
signed by an agency approving official
for self-service store purchases. The
national stock number of each form is
cited with its description in Subpart B.
Subpart B-Prescribed Forms
? 2003.20 Classified Information
Nondisclosure Agreement SF 189.
(a) SF 189 is a nondisclosure
agreement between the United States
and an individual that is to be executed
as a condition prior to the United Slalrs
Government authorizing that individual
access to classified information.
(b) All employees of execs:i',e branch
departments. and independent agencies
or offices, and the employees of their
contractors, grantees and licensees must
sign SF 189 as a condition prior to being
authorized access to classified
information. This requirement may be
implemented prospectively by an
agency for which the administrative
burden of compliance would be
excessive. Only the National Security
Council may grant an agency's
application for prospective
implementation. To request prospective
implementation, an agency must submit
its justification to the Director of ISOO,
who will forward it with a
recommendation to the National
Security Council.
(c) Agencies may require other
persons. who are not included under
paragraph (b), above, to execute SF 189
as a condition prior to receiving access
to classified information.
(d) Only the National Security Council
may grant an agency's application for a
waiver from the use of SF 189. To apply
for a waiver, an agency must submit its
proposed alternative nondisclosure
agreement to the Director of ISOO,
along with its justification. The Director
of ISOO will request a determination
about the alternative agreement's
enforceability from the Department of
Justice prior to making a
recommendation to the National
Security Council.
(e) Each agency must retain its
executed copies of the SF 189 in file
systems from which the agreements can
be expeditiously retrieved in the event
that the United States must seek their
enforcement.
(f) The national stock number for the
SF 189 is 7540-01-161-1869.
Dated: September B. 1983.
Steven Garfinkel,
Director, Information Security Oversight
Office.
IF It rloc. 63-246M Filed 5-653: 0:45 .ml
a1LUNO COOS U20-AF-M
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