(UNTITLED)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP59-00882R000300240148-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 9, 2016
• Document Release Date: March 26, 2001
• Sequence Number: 148
• Publication Date: April 15, 1948
• Content Type: MEMO

OGC HAS
REVIEWED.
TO: U 11
FROM: L - Ernest A. Gross
April 15, 1948
For purposes of consideration of requests by Con-
gressional Committees, either through subpoenas duces
tecum or otherwise, for the production of records, reports
and files of the Department, I believe that the Department's
records, reports and files may be divided into the follow-
ing categories -
(1) those which you are obligated not to produce;
(2) those which you may in your discretion produce or
decline to produce; and
(3) those which you are obligated to produce.
The classes of material embraced in each of these
three categories are discussed below:
(1) Reco ds reports and files which there is an ob-
ligation not o produce.
(a) The President's Directive of March 13, 1948 re-
quires that requests from unauthorized sources for re-
ports, records and files relative to the Employee Loyalty
Program be declined and referred to the Office of the
President for such response as the President may deem to
be in the public interest in the particular case. This
Directive places an obligation on the heads of all Executive
Departments to decline any request by a Congressional Com-
mittee for records, reports and files relating to the Ezp-
ployee Loyalty Program.
(b) The Security Regulations of the Department and
Section 161 of the Revised Statutes (5 U.S.C. 22) require
that reproduced material originating in another Department
or Agency not be produced without the specific authorization
by the originating Agency. Under Section 161, heads of
Departments
State Dept. declassification & release instructions on file
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Departments have authority to prescribe regulations
governing the use and disposition of their files and
records.
(c) The production of material loaned to the Depart-
ment by other Departments or Agencies would also, in the
absence of authorization from those Departments or Agencies,
be in violation of the right given them by Congress to
prescribe rules and regulations for the use and custody
of their records and files.
(d) The same principle applies in cases of joint in-
ter-agency documents, such as policy directives of SANACC.
The concurrence of all the Departments or Agencies respon.
sible for their issuance would be required for their re-
lease.
(2) ds reports and files. the oduction of which
is discretionary.
Where the material requested relates to the negotiation
of treaties, communications with foreign governments, or
other matters over which the Executive has exclusive power
under the Constitution, its production may be declined, either
on the ground that it would not be compatible with the public
interest to release it, or that it related to matters falling
exclusively within the jurisdiction of the executive.
The discretionary power of the Secretary of State, or
ultimately of the President in performing his foreign af-
fairs functions to refuse a Congressional request for
documents is extremely broad. Information has generally
been withheld (1) in order to protect confidential sources
of information and to insure the effective functioning of
investigative or intelligence agencies of the Government,
(2) where disclosure would obstruct or prejudice pending
international negotiations, (3) where the conduct of for-
eign relations would be embarrassed by divulging information
to subversive elements or to governments hostile to the
purposes of United States foreign policy; or in similar
circumstances.
In cases of doubt of course the question would gen-
erally be resolved in favor of maintaining amicable re-
lations between the executive and legislative branches of
the Government.
(3) Records
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(3) iRegordsl reports and files which there is an ob-
ligation to produce.
If the subject matter of the request is not one which
the Constitution has vested exclusively in the Executive
but has a relationship to something which may be an ap-
propriate subject of legislation by Congress, there would
be no sound reason for declining the request. Such Depart-
mental material as visa and passport files and personnel
records might reasonably be placed in this category, unless
they contain material which would warrant their classification
in categories (1) and (2).
L/SsJMKeegan:fje
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April 15, 1946
RgsDonsibilitZ of the Dee m t with Aks
P ;obi m:
The question has been raised as to what classes of its
records, reports and files the Department is obligated to pro-
duce in response to requests from Congressional Co3imbittees$
what classes it may in its discretion produce or decline to
produces and what classes it is obligated not to produce.
Discussions
to indicated in the memorandum of January 14, 1941, pre-
pared with Vt. Gray, the Courts have never passed squarely
on the unsettled question of how far Congress can go in ob-
taining information from the executive branch of the Govern-
ments although there are numerous cases upholding its eneral
power to investigate in aid of a legislative purpose,f
Several writers have attributed the absence of judicial de-
cisions on the question of Congress' power to investigate
the Executive to the fact that so few conflicts have arisen
between the legislative and executive branches of the Gov-
ernment and when they did arise they were,generelly resolved
by the retreat of one of the Depertments, / While it ap-
pe'rs that executive departments have generally seceded to
requests for infor ation by Congressional Committees there
are numerous instances, the details of several of which are
set forth in the memorandum of January 14, 1948 of refusals
by the Department to furnish information requested by Com-
mittees of Congress, usually on the ground that the dis-
closure of the information would not be in the public
Interests.
'(1927) 273 U.S. 135, l6l ln_m
661; ns , v? ?' 9 -F-731 362.
Ehrman Duty of Disclosure in Parliamentary Investigations,
1I U. of Chi. Law Rev., 1942; Landis Constitutional Limita-
tions on the Congressional Power of Investigation,'40 Merv,
L. Rev. 153.
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interests. In every instance, the information requested
related to such exclusively foreign affairs functions as
negotiations ~of treaties or co unicetions with foreign
governments.2f The conclusion was reached in the earlier
memorandum that the Department would not be warranted in
refusing to produce visa files in response to a request to
a Committee of Congress, since the entry of aliens was not a
matter falling exclusively within the jurisdiction of the
Deportment under the Constitution
While the question of the extent to which Congress might
properly go in obtaining information from the Fxeci ai.ve h's
never been squarely passed upon by the court`s, the Attorney
General did, as recently as April 30, 1941 have occasion to
consider the question whether he should comply with a request
from the Chairren House Committee on Navel Affairs, for cer-
tain reports of t?eFederal Bureau of Investigation. In de-
clining the request, the Attorney General gave the following
reasons, among otherss
"It is the position of this Department restated now
with the aprroval of and at the direction of the President,
that all investigative reports are confidential documents
of the executive department of the Government, to aid in
the duty laid on the President by the Constitution to
'take care that the laws be faithfully executed' and
that congressional or public access to then wos;ld not be
in the public interest,
'}Disclosure of the reports could not do otherwise
than seriously prejudice law enforcement. Counsel for
a defendant or prospective defendant,} could have no
greater help than to knew how much or how little infor-
mation the Government has, and what witnesses or sources
of informtion it can rely.on. This is ex_etly why-t
these reports are intended to contain.
Nli ctoM're
George ""a g ington, however in 1796 based his refusal. to
urnish the House of Represen atives with certain papers re-
lating to the negotiation of the treaty with the King of Great
Britain, on the ground that the assent of the House wa not
necessary to the validity of a treaty and that the treaty ex-
hibited in itself all the objects requiring legisietive pro-
vision.
Al See Letter from Library of Congress, March 10, 1948 to Mon.
Clara Y. Hoffman, in House Report No. 1535, pd Session, up-
holding right of executive to decline to furnish this type of
information.
J See United States v. Curtiss-Wright Export Corp., 299 U.f7
/04, 319-322. for comprehensive discussion nr pirtAnt of
executive foreign relations powers. _
f 40 C p, !.tty. Gen. No. 8.
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"Disclosure of the reports at this particular
time would also prejudice the national defense and
be of aid and confort to the very subversive elements
against which you wish to protect the country. For
this reason we have made extraordinary efforts to
see that the results of counterespionage activities
and intelligence activities of this Department in-
volving those elements are kept within the fewest
possible hands, A catalogue of persons under in-
vestigation or suspicion, and what we know about them,
would be of inestimable service to foreign agencies;
and information which could be so used cannot be too
closely guarded,
"Moreover disclosure of the reports would be of
serious prejudice to the future usefulness of the
Federal Bureau of Investigation. As you probably
know, much of this information is given in confidence
and can only be obtained upon pledge not to disclose
its sources, A disclosure of the sources would em-
barrass informants - sometimes in their employment,
sometimes in their' social relhytions, and in extreme
cases might even endanger their lives, We regard the
keeping of faith with confidential informants ar en
indispensable condition of future efficiency,"
After citing several instances in which the executive
had declined to Congress and the courts information which
it had acquired and the disclosure of which it felt would
be incompatible with the public interests the httorney Gen-
eral referred to several court decisions to support the
contention th't the courts cannot require the executive to
produce papers when in the opinion of the executive their
production is contrary to the piblio interests and thpt the
question whether the production of the pa,-ers would be
against the public is one for the executive and not for the
courts to determine. Most of these cases however, involved
court proceedings, and none of them raised the precise
question of the extent of the authority of Committees of
Congress to obtain information from the executive. Never-
theless, it is believed that in the absence of a court
decision on the question, the opinion of the Attorney Gen-
eral who is the principal law officer of the Government,.
should be followed. Moreover, the considerations mentioned
in the excerpt quoted above from the opinion of the Attorney
General would seem to be applicable to other intelligence
agencies
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agencies besides the Federal Bureau of Investigation per-
ticulerly those having to do with matters directly al-
fecting our foreign relations. In his opinion Attorney
General Jackson also referred t an opinion of the "ttorney
General, dated January 51 19O5.h in which f erence' Was
made to section 161 of the Revised Statutes2 end the fol-
lowing conclusion drawn therefrom:
"It thus appears that the head of a Departs:}ent has
full charge and control of all the records and papers
belonging to the Department. His authority to pre-
scribe whatever rules and regulations he may deem
proper regarding their use and custody is unlimited,
,no long as 'not inconsistent with law.' Such broad
discretion would necessarily include the right to
determine whether certain documents should or should
not be taken from the files of the Department for any
purpose except for use in connection with departmental
business, and in accordance with his determinption
so to instruct the chiefs of bureaus or other officers
concerned."
The considerations mentioned in the preceding opinions
of the Attorney General would seem to be also applicable to
requests for copies of records and reports which the De-
partment has received from other agencies and dep&rtuants
of the Government. In addition Feetion 241.1(V) (4) (b)
of the Security Re-ulatione of the Department provides s
"Distribution outside the reproducing Division
of reproduced material originE ting in another Depr rt-
ment or Agency must be specifically authorized in
each instr=nce by a responsible officer of the originet-
Ing agency."
Aside from this regulation the furnishing to Conc`res-
sionel Committees of copies of such records and rePorts
in Its possession, regardless of the nature of the material
contained therein, would appear to be in violation of-the
statutory right grunted to heads of other D ep~-rtments to
deter-,,-Pine the use to be made of the records of their Depart-
ments. Thus, the State Department would have no right to
' p a . At y. Gen, 26
E 5 U.S.C. 22
Section 201.3(VI) (A) for bids declassification of m=; terisl
originating in other dep