PERSONAL LIABILITY OF DECLASSIFICATION REVIEWERS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85B00236R000200070020-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 30
• Document Creation Date: December 12, 2016
• Document Release Date: October 9, 2001
• Sequence Number: 20
• Publication Date: September 14, 1979
• Content Type: MF

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MEMORANDUM FOR: Chief, Information Services Staff/DDA
STATINTL FROM i
ice o General Counsel
SUBJECT Personal Liability of Declassification
Reviewers
?FERENCE Request for Ruling, dated 31 May 1978,
same subject
1. Your request presented four questions regarding the
potential civil liability of Agency employees who negligently,
but not maliciously, declassified and released documents
which should have remained properly classified, or although
unclassified, should not have been disseminated to members
of the general public. Generally speaking, your employees
have little cause for apprehension, insofar as potential
civil liability is concerned, although a civil suit is a
theoretical possibility. A more complete answer to your
four questions is given below.
2. In response to that portion of your request which
involved civil actions brought by members of the general
public who were adversely affected by the improper dl.eclas-
sification or release of information, it is my opinion that:
A declassifier who improperly declassifies
a document, but who does not disseminate it
to a member of the general public, may not be
subject to civil liability although the
declassifier may be subject to administrative
sanctions at the Agency level.
An Agency employee who improperly releases
information in contravention of the Freedom
of Information Act or the Privacy Act is, in
all likelihood, not subject to civil suit on
the basis that either of those federal
statutes establishes an implied cause of
action which may be brought by a member of
the general public adversely affected by such
improper release.
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--- An Agency employee who improperly releases
information in contravention of the Freedom
of Information Act or the Privacy Act theoretically
may be susceptible to a state civil suit
cased upon the common law of libel or invasion
of privacy. However, it should be noted that
substantial defenses are available which
should prevent an actual award of damages
against the employee. In effect, it is
theoretically possible such a suit could be
brought, although it is likely to fail on the
merits.
3. If such a civil suit was brought in state court
against an employee of this Agency on the ground of negligent
conduct occurring within the scope of his or her employment,
counsel would be provided by the Department of Justice.
Although the government's provision of legal counsel is
subject to certain limitations, these limitations are not
applicable here, and it is my opinion such counsel would be
made available by the Department of Justice.
4. Your request also sought a definition of the term
"immediate jeopardy" for the purposes of declassification
review. Attorneys from this Office are currently developing
a workable definition of the term "immediate jeopardy", in
conjunction with representatives from the National Archives
and employees from the Classification Review Division of
this Agency. The definition of the term which results from
this collaboration will be used on a government-wide basis
during the systematic review for declassification of intelligence
information provided by foreign governments. It is my
recommendation this definition, once established, also be
considered for use during the systematic or mandatory
review of Agency materials.
5. Also attached is a comprehensive legal memorandum
I drafted on the subject of the potential personal liability
of declassification reviewers. While this memorandum may be
too "legalistic" for your purposes, it does set forth the
background and rationales which underlie my opinions and
conclusions.
6. I would be happy to discuss these issues with you
or with your employees, either formally or informally. if
you have any questions regarding this memorandum or the
attached longer memorandum, please do not hesitate,,,Up call
on me.
cc: DC/ISS/DDA
STATINTL C/FOI&PLD/OGC
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STATINTL
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13 September 1979
MEMORANDUM FOR: Chief, General Law Division
STATINTL FROM
SUBJECT Personal Liability of Classification
Reviewers
REFERENCE . 31 May 1978 Request for Ruling,
same subject
1. The above-referenced request presented four questions
concerning the potential civil liability of an Agency employee
who negligently declassified and released a document to the
detriment of a member of the general public. These four
questions may be restated as follows:
May an Agency employee be held personally liable
for the negligent declassification of classified
information in a suit for damages brought by a
member of the general public?
--- May an Agency employee be held personally liable
for the negligent declassification of a document
when that document is subsequently released by the
National Archives and Records Service?
--- will the federal government provide legal representation
for an Agency employee who is sued in a civil
proceeding for the negligent declassification and
release of information by a member of the general
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--- How should the term "immediate jeopardy" be
defined for the purposes of continuing the
classification of a document? (The term "immediate
jeopardy" is used in DDA Declassification Review
Guideline, paragraph 9, p. 2.)
2. At the present time, members of the CIA's Classification
Review Group, Information Systems Analysis Staff ("ISAS")
exercise declassification and downgrading authority for
Agency information. ISAS reviews classified information for
declassification purposes in two distinct contexts. First,
ISAS systematically reviews classified information constituting
permanently valuable records of the United-States Government.
This classified information is reviewed when it becomes twenty
years old. This review process is referred to as "Systematic
Review." Information of potential historical significance
which is declassified through the systematic review process
mEa then be placed in the custody of the National Archives
and Records Service ("NARS"), a division of the General
Services Administration. The second declassification review
process is known as "Mandatory Review." Classified information
is subject to mandatory review for declassification and
release upon request by another government agency or upon
request by an individual member of the general public for
such information. The CIA component of record for all
requests involving the mandatory review, declassification
and release of information pursuant to Executive Order 12065,
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the Freedom of Information Act or the Privacy Act is the
Information and Privacy Staff ("IPS").
3. Research has been conducted in response to the four
questions recited in paragraph one. This research failed to
identify any reported case which imposed civil liability
upon an employee of the federal government for the negligent
declassification and release of information. Neither the
Privacy Act nor the Freedom of Information Act expressly
establish a civil cause of action which may be brought
against a federal employee for violation of the rights and
privileges granted to members of the general public by those
statutes. Under the Freedom of Information Act, only suits
for injunctive relief may be brought against the United States--
that is, suits to require a federal agency to disclose or
not to disclose particular information. 5 U.S.C. ?552(a)(4)(A)
(1970). The negligent release of information is not actionable
under the Freedom of Information Act, at least as far as the
imposition of personal liability upon a federal employee is
concerned.!/ Similarly, no right of action against a
federal employee is expressly established by the Privacy
Act.
1/ Agency employees are, however, subject to administrative
sanctions for the negligent disclosure of information which
is required to be protected by statute or Executive Order. Executive
Order 12065 indicates that the negligent compromise of
classified information can expose a federal employee to
disciplinary sanctions at the Agency level.
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Sections 552(g) and (h) of the Privacy Act indicate that
damages may be assessed against the United States for
intentional and willful violations of the provisions of
the Act. The Privacy Act also indicates that a federal
employee who discloses protected information regarding an
individual with the knowledge such disclosure is prohibited
is subject to criminal penalties. The penalty for an unauthorized
and willful disclosure is a fine of not more than five
4. Executive order 12065, the Privacy Act and the
Freedom of Information Act indicate collectively that an
employee who negligently declassifies and releases information
may be subject to administrative sanctions and may have
jeopardized his or her employment with the federal government.
However, these authorities do not expressly make available
a personal cause of action to members of the general public
who may have been adversely affected by such negligence.
However, due to the absence of applicable case law on this
subject, this office is not prepared to state that no
possibility exists that an action could be brought successfully
against an individual employee by a member of the general
public who was damaged by the employee's failure to abide
by the mandate of these statutes. I can note
only that no right of private action is expressly created
by either statute and that my research has failed to reveal
any reported decision which recognized an implied right of
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private action for violations of the Privacy Act or for
violations of the Freedom of Information Act.
5. The fact neither the Privacy Act nor the Freedom
of Information Act establish an explicit civil cause of
action which may be brought against a federal employee who
negligently declassifies and releases properly classified
information, does not necessarily indicate that federal
employees are not amendable to suit for negligence in a
state court. A possibility exists that a civil cause of
action could be brought under the general law of negligence.
Such an action would be brought in accordance with state
common law. The action would not be based upon the fact
the Agency employee failed to conform his or her conduct to
the requirements of the Privacy Act or the Freedom of
Information Act; instead, the action would be based upon the
law of negligence of the state where the act or omission
complained of occurred. In order to be successful, an
action for the negligent disclosure of information would
have to exist under state law. Such an action probably
would allege the negligent declassification and release
of information constituted either libel or an invasion of
the privacy of the individual about whom the information
pertained.? Although relatively substantial defenses could
2 Under the Federal Tort Claims Act, 28 U.S.C. ?2671,
et se. (1970) ("FTCA"), liability may be imposed upon the
United States for the actions of its officers and employees
which occur within the scope of their employment and which
constitute an invasion of the plaintiff's privacy. However,
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be raised against such actions, the possibility of an employee's
personal civil liability cannot be dismissed. The remainder
of this memorandum will describe those aspects of the law of
negligence which might apply to the negligent declassification
and release of properly classified information. As the
following discussion indicates, the law of negligence admits
no hard and fast answers. However, it is my opinion that
the probability of a civil suit for damages brought by a
member of the general public against a federal employee for
the negligent declassification and release of information is
low. Further, it is my opinion that if such an action was
brought, its chances of success---that is, the actual award
of damages against the employee----are also low.
it should be noted that a judgment against the United States
under the FTCA constitutes a complete bar to any action
against the employee whose act or omission gave rise to the
claim. 28 U.S.C. ??1346(b),. 2676 (1970). The usual effect
of this provision of the FTCA is to provide practical
protection to a federal employee, since a judgment against
the United States serves as a complete bar to any action
against the employee. However, no legal impediment exists
to the filing of a suit against the federal employee instead
of the government in the first instance. In such a case,
the FTCA does not prevent a recovery against the employee.
The FTCA only provides a statutory bar if the plaintiff
first obtains a judgment against the United States and then
files suit against the federal employee. It is unlikely a
plaintiff would first sue the federal employee without also
naming the United States as a defendant for the simple
reason that the federal employee may be judgment proof---
that is, lack the resources with which to satisfy any
judgment. This protection, which arises from the FTCA, is
not available in the case of libel. Under the FTCA, the
federal government is not amenable to suit on the ground of
libel. Accordingly, the only possible defendant in a libel
action is the federal employee.
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5. The first two questions raised in the request for
ruling require a prefatory comment. An employee may be
potentially liable for negligent conduct which results in the
improper declassification of a document if three general
tests are satisfied. These three factors constitute the
broad analytical framework within which the law considers
and resolves questions concerning individual liability for
negligent conduct. This body of law is known as tort law.
In general, before any individual can be liable in tort for
civil damages due to his or her negligent conduct, these
three elements must be present: the existence of a duty,
a breach of that duty, and an injury which results as the
legal consequence of the breach of that duty. With reference
to decisions made by declassifiers during systematic review,
these three elements can be stated as follows:
--- Does the declassifier owe a duty of care to a
member of the general public?
--- Has the declassifier breached this duty bf
care by improperly declassifying a document?;
and
--- Is the breach of this duty the legal cause of
damages to the individual to whom the duty
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6. Although no case law or other persuasive legal
precedent could be found to this effect, it is arguable
an employee whose duties include the review and declassification
of documents, but not their release, owes no legally
enforceable duty to members of the public at large. This
argument is supported by the nature of the classification
process. Information is classified in order to protect the
interests of the government. Normally, this governmental
interest is described under the rubric of "national security."
For example, Paragraph 1-3 of Executive Order 12065, "National
Security Information," (July 3, 1978), specifies six
categories of information that may be eligible for classification.
These categories include:
--- military plans;
foreign government information;
--- intelligence activities, sources and methods;
--- foreign relations;
--- scientific, technological or economic matters
relating to the national security; and
--- programs for the safeguarding of nuclear facilities
and materials.
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A final category cited in the Executive order includes other
categories of information "... which are related to national
security...."
7. As a recitation of the categories of information
susceptible to classification makes clear, the classification
program is designed to protect governmental interests and
not individual-interests. Moreover, information which falls
within one of the categories enumerated above may not be
classified unless its unauthorized disclosure "... could be
expected to cause at least identifiable damage to the
national security." Executive order 12065, paragraph 1-302
(emphasis added). Accordingly, it is arguable a declassifier
is under a duty, not to any particular individual, but to
the federal government to ensure that no document is improperly
declassified. Executive Order 12065 suggests this is the
case since paragraph 3-3 of that Order clearly indicates
only the interests of the government are to be considered in
a determination of whether any particular information merits
continued classification. According to the Executive order,
any information which continues to satisfy the classification
requirements should not, in the usual case, be declassified.
In effect, the test for declassification is the information's
relation to "national security" interests and not the
information's relation to the interests of any identifiable
individual.
ILLEGIB
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8. Under the "no duty" approach described above, the
negligent declassification of a document, without more,
could not serve as a basis for a civil action against the
declassifier. This result would obtain for the simple
reason the declassifier owed no duty of care to individual
members of the general public. Since the declassifier
owed only a duty to the government not to declassify
improperly a particular document, the breach of this duty
could not serve as the basis of a civil action brought
against the classifier by a member of the general public.
However, this same negligent conduct could serve as the basis
for administrative action taken against the declassifier
by the government.3,
9. The major shortcoming of the "no duty" theory described
above, is that no court has considered this argument. Accordingly,
although the possibility of a "no duty" defense should be
identified, it should also be noted that no assurances whatsoever
can be given regarding its ultimate validity.
37 Paragraph 5-503 of Executive order 12065 indicates
sanctions may be imposed upon employees who "... compromise
properly classified information through negligence."
Arguably, this provision also encompasses the improper
declassification of information which should have remained
classified.
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10. If it is assumed a declassifier owes a duty
recognized by law to conform to a certain standard of conduct
in order to protect members of the general public from
unreasonable risks of harm due to the negligent declassification
of classified materials, then a failure to conform to this
standard could serve as a potential basis for the imposition
of civil liability. The failure to conform to a standard
established by law for the protection of others is usually
referred to in tort law as negligence. Although the concept
of negligence is amorphous, it has been generally defined
as conduct "... which falls below the standard established by
law for the protection of others against unreasonably great
risk of harm." Restatement of Torts, ?282.
11. It should always be kept in mind that negligence
refers to conduct and not to the consequences of that conduct.
Because of this concept, a classifier's conduct would be
judged in light of the possibilities apparent to him at the
time the decision to declassify a document was made. A
declassifier's conduct would not be evaluated in light of
the subsequent damage caused by his improper declassification.
Another characteristic of the concept of negligence that
should be noted is that before liability may be imposed,
the challenged conduct must be shown to have exposed another
to an unreasonable risk of harm. It is not sufficient to
show merely that another has been injured as a direct result
of a decision made by a declassifier to declassify a document.
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It must also appear that the declassifier's conduct was
unreasonable in light of some recognizable risk. Liability
will not be imposed for declassification decisions which are
merely questionable or otherwise subject to dispute.
Liability can only be imposed for negligent conduct. Negligent
conduct, in this context, would involve a decision made by
a declassifier which exposed a member of the general public to
an unreasonable risk of harm. It is not sufficient to show
that every decision made by a declassifier carries some
recognizable but remote possibility of harm to another.
Nor is it sufficient to show that differences of judgment
might exist between declassifiers with regard to the classifica-
tion or declassification of a particular document. Individuals
may have differences of judgment and, yet, from a legal
point of view, both judgments may be reasonable.
12. Whether a declassifier's conduct is unreasonable
in a legal sense, so as to constitute negligence, is difficult
to predict in the abstract. However, a general legal standard
for determining whether an individual's conduct is unreasonable
involves the application of what is called the "reasonable
man" standard. This standard is based upon the conduct
of a fictitious person---a "reasonable man"---who represents
a model of the proper human attributes with only those human
shortcomings and weaknesses which the community at large
finds tolerable. This "reasonable man" is not an ordinary
individual. who may occasionally do unreasonable things.
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The "reasonable man" is a personification of a prudent and
careful individual whose conduct is always up to standard-
that-is, an ideal of reasonable behavior. In the context
of an employee charged with the responsibility of declassifying
documents or continuing their classification, the "reasonable
man" standard would require an employee to be reasonable,
prudent, and careful in his or her duties, and faithful
to the applicable rules and regulations which govern his
or her conduct. in a novel context such as this, it is impossible
to predict with certainty whether a decision of a declassifier,
if challenged, would pass muster under the "reasonable man"
standard. However, it should be remembered that the "reasonable
man" standard is, in reality, a form of legal shorthand for
conduct which a jury finds to be reasonable in light of all
the circumstances.
13. If it assumed that declassifiers owe a legal duty
to members of the general public and if it is further assumed
that a declassifier negligently---that is, fails to conform
to the "reasonable man" standard---declassifies a document,
no liability can result unless the declassifier's negligence
was the legal cause of an injury. The act of improperly
declassifying a document, without more, cannot serve as a
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basis for civil liability. Since documents, once declassified,
do not automatically fall into the public domain, the act of
negligent declassification cannot serve as a basis for civil
liability.
14. As stated above, the negligent declassification of
a document, standing alone, cannot serve as a basis for the
imposition of civil liability upon an Agency employee--an
injury or other legally cognizable detriment must also be
shown to have resulted from this same act of negligence.
Accordingly, employees whose duties include only the systematic
"review for declassification" of classified information,
within the meaning of paragraph 3-4 of-Executive Order
12065, are not susceptible to tort liability for negligently
declassifying a document.
15. Before a negligently declassified document can be
the legal cause of an injury, it must be released by the
federal government. However, both the Freedom of Information
Act and the Privacy Act impose restrictions upon the release
of unclassified information which govern the conduct of the
ISAS and the IPS. Under the Freedom of Information Act,
5 U.S.C. ?552(b)(6), federal agencies are not to provide
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records "... the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy." Moreover,
the Privacy Act provides that no record which is contained
in a "system of records" shall be disclosed to another
person "... without the prior written consent of the individual
to whom the record pertains...." Accordingly, even if a
classified document was negligently declassified, these two
statutes would usually come into play prior to the government's
release of any information regarding an identifiable individual.
16. If a negligently declassified document was released
in contravention of either statute---that is, its release
constituted an unwarranted intrusion into the personal privacy
of an individual under the Freedom of Information Act or if
its release violated the consent requirement of the Privacy
Act, then it is doubtful that the negligent declassification
of that document was the legal cause of an injury to a
member of the general public. It is more likely the legal
cause of such injury would be found to be the improper
releaseof the document subsequent to its negligent declas-
sification. In such a case, any potential liability would
be most likely to fall upon the government employee who
violated either the mandate of the Privacy Act or the Freedom
of Information Act, or both, by improperly disclosing the
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 information.:/ This result is known in the law of tort as
the doct l ?Y FQJM"S:Pf~/0 /g?s& ?:-RDP$WW2NOW( O Q@07AQgq-4ates
that an act of a third person may prevent a person who was
initially negligent from being liable for harm to another,
provided that the third person's subsequent negligence was a.
"substantial factor" in causing the injury. Restatement of Torts
?440. With regard to those employees engaged in the systematic
review and declassification of Agency documents, the doctrine
of "superseding causes" may provide a substantial defense
against civil liabiity. An employee who negligently declassifies
a document but does not release it can contend that his or
her negligence---the act of negligent declassification----
failed to cause any identifiable injury, and can further
contend that any legally cognizable injury stemmed from the
improper or negligent release of the document by another
employee or agency. In effect, a release of information in
violation of the Privacy Act or in violation of the Freedom
of Information Act could be viewed as the legal cause of the
injury. In this context, the initial negligence of the
declassifier would not provide a basis for civil liability;
instead, the employee who was subsequently negligent would
be exposed to liability.
4/ As stated in paragraphs 3-5 of this memorandum, no
implied right of private action has been found to date in
either the Privacy Act or in the Freedom of Information Act.
Accordingly, the negligent disclosure of confidential or
classified information which occurred after the negligent
declassification of the same information would be evaluated
in light of state tort law. If such disclosure constituted
tortious conduct, then the act of disclosure and not the act
of declassification is likely to be viewed as the legal
cause of any injury to a member of the general public,
thereby relieving from liability the employee who negligently
declassified the document but did not release it.
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17. As this discussion indicates, the likelihood is
slight that any civil liability could be imposed upon a
decl:assifier for negligent declassification. It is also
apparent that liability is most likely to be imposed, if
at all, upon those employees who ultimately release documents
or otherwise disclose information contained therein. The
improper release of a document or information could support
a recovery in tort under one of two possible theories. These
theories are libel and invasion of privacy. Under either tort
theory a significant factor could prove to be the manner
in which the disputed document was released and to whom
the disputed document was released.
18. If an Agency document is negligently declassified,
but is properly transferred to the National Archives of the
United States, and subsequently released by the National Archives
and Records Service, it is likely no personal liability could
be imposed upon the CIA employee who negligently declassified
the document. The employees of the National ARchives and
Records Service are subject to the provisions of the Privacy
Act and the Freedom of Information Act. Subpart 105-61.5302-18
of Title 41 of the Code of Federal Regulations imposes restrictions
upon the release of unclassified materials by MARS employees.
With regard to records that have been transferred to the
National Archives and Records Service in accordance with
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44 U.S.C. ??2103, 3103 (1970),W these regulations indicate
that public access shall be restricted to records containing
information that has not been previously made known to the
public. These restrictions are designed to protect the
privacy interests of members of the general public. As
stated in the Code of Federal Regulations, the NARS is not
to disclose records which:
... contain information about a living individual
which reveal details of a highly personal nature which
the individual could reasonably assert a claim to
withhold from the public to avoid a clearly unwarranted
invasion of privacy....
41 CFR ?105-61.5302-18. Information contained in a document
that was negligently declassified by a CIA employee and then
7Sect-ion 2103 of Title 44 United States-Code, indicates
that the Administrator of the General Services Administration
may accept, for deposit with the National Archives, the
records of a federal agency which have .. sufficient
historical or other value to warrant their continued preservation
by the United States Government." Section 3103 of Title 44
governs records held in a federal records center operated by
the General Services Administration. Section 2104 of the
same Title indicates the Administratorlof General Services
shall be responsible for the custody, use and withdrawal
of records transferred to him." Similarly, the Archivist of
the United States is subject to all the statutory limitations
with respect to the "... examination and use of records"
transferred to him that were applicable to the head of the
agency from which the records originated.
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transferred to the National Archives should not be disclosed
except in accordance with the Freedom of Information Act,
the Privacy Act and applicable NARS regulations.Y The
effect of these statutes and NARS regulations is that, in
all likelihood, potential liability is shifted from the CIA
employee who negligently declassified the document to the
NARS employee who negligently released it. Under this
theory, the legal cause of any damages is not the negligent
declassification of the document but its improper release by
the National Archives and Records Service.
19. As this discussion indicates, the only Agency
employees who are potential defendants-in a civil action
based upon the ground of libel or the ground of invasion of
privacy, are IPS employees who negligently release an Agency
document concerning a third person to a member of the
general public. Insofar as 'the tort of libel is concerned,
it is my opinion that a successful claim would be difficult
to establish.
61 41 CFR 105-61.103-1 governs requests for access to
unclassified archives under the Freedom of Information Act.
Since NARS is responsible for the implementation of the
Freedom of Information Act with regard to any records deposited
in the National Archives or deposited in a federal records
center, it is under a statutory obligation not to disclose
any information about an individual which would constitute a
clearly unwarranted invasion of personal privacy. Accordingly,
under the doctrine of "superseding causes" it is arguable
that employees of the NARS and not employees of the CIA
would be potentially liable for the release of information
which invaded the privacy of a member of the general public,
even priortt~u4he FQeco ras ent
Service.
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 20. The tort libel requires the publi-motion, to a
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third person, of information about the plaintiff which tends
to injure his reputation or otherwise excite adverse, derogatory
or unpleasant feelings about him. The release of derogatory
information about a third person, to a requestor, by a
member of the IPS could constitute libel provided that the
defamatory statement was untrue. It is significant to note
that truth is a complete defense to libel. Accordingly,
even if an Agency employee negligently released information
about another person to a third party, if that information
was true, no cause of action for libel would lie. 7/
21. The second basis of potential tort liability for
the negligent disclosure of information about a member of
the general public involves an individual's right of privacy.
This area of tort law establishes a cause-of action in
publicity---that is, the publicity given to private information
of an objectionable kind about the plaintiff. This cause of
action---public disclosure of private facts---can arise even
though the information disclosed is true and, thus, no
action would lie for libel. However, in the usual case, it
is unlikely that an action could be brought successfully
against a member of the IPS staff on the ground of invasion
of privacy. It is generally established that the disclosure
of private facts must be a public one accompanied by publicity.
The disclosure of private information to a single individual
or to a few individuals is not actionable. As stated by one
authoritative legal commentator:
7/ It is significant to note that truth is not a
defense to a suit which alleges an invasion of,rprivacy.
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Some limits of this branch of the right of privacy
appear to be fairly well marked out. The disclosure of
the private facts must be a pubic one; there must be,
in other words, publicity. It is an invasion of [the
plaintiff's] ... rights'to publish a newspaper that the
plaintiff does not pay his debts, or to post a notice
to that effect in a window on the public street, or to
cry it aloud ... but not to communicate the fact to the
plaintiff's employer, or to any other individual, or
even to a small group.
Prosser, The Law of Torts, ?112, p. 835.8/
The requirement of publicity---that is, the widespread dis-
semination of private facts---appears to be absent in the
activities of the IPS staff. Since the tort of invasion of
privacy, at least in this context, usually requires a wide
distribution of private facts about an individu 1, even a
negligent disclosure of private facts to a single individual
who requested such information does not appear to be actionable.
$ Of course, the disclosure of untrue, derogatory
information to a single individual could be libelous although
not an invasion of the plaintiff's right to privacy.
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22. As this discussion indicates, members of the IPS
and the ISAS staff appear to be theoretically susceptible to
suits for common law torts in a few discrete instances.-/
Assuming the negligent disclosure of information about a
member of the general public it does not appear to be likely
that an action alleging an invasion of privacy could be
brought as long as the improper disclosure was Trade only to
one person or to a few persons. A potential action on the
ground of libel is available only if the information disclosed
is both derogatory and untrue. However, even if the elements
of a cause of action in tort are present, a substantial
defense is available to an Agency employee.
23. The Supreme Court has indicated that federal
employees may enjoy an absolute immunity from liability for
common law torts which result from their discretionary
action. In Barr v. Matteo, 360. U.S. 564, 573-574 (1959),
the Supreme Court held that a high level federal official
was absolutely immune from suit for defamation due to
statements made by that official in a. press release. In a
more recent decision, the Supreme Court affirmed Barr v. Matteo
and concluded that federal officials and employees may enjoy
9/ These instances include the following: (1) the
written disclosure of derogatory and untrue statements about
an individual to a third person; and (2) the public disclosure
of private facts about an individual to more than a few
persons. A negligent disclosure of information may also be
actionable on other, common law tort grounds, depending upon
the tort law of the state where the act or omission complained
of occurred.
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an absolute immunity from suit for common law torts provided that
(1) the conduct complained of occurred while these officials
or employees were acting within the "... outer perimeter
of (the officer's or employee's) line of duty ..." and
that .(2) the action complained of was "... an appropriate
exercise of the discretion which an officer of that rank
must possess if the public service is to function effectively."
Butz v. Economou, U.S. , 57 L.Ed 895, 904 (June 29,
1978), quoting, Barr v. Matteo supra at 575. The absolute
immunity granted federal employees making discretionary
decisions within the scope of their duties extends to lower
level federal employees. Davis, Administrative Law, ?26.02
p. 486.
24. In its discussion of the immunity accorded federal
officials in Butz v. Economou, the Supreme Court indicated
that this immunity accrues even if the federal official or
employee mistakenly made a decision which they were authorized
to make. For example, Court cited a number of prior decisions
involving common law tort actions that had been brought against
high-level federal employees for the proposition that a good-faith,
error of judgment does not automatically deprive a federal
employee or official of his or her absolute immunity from
suit for common law torts. For example, in the case of
Kendall v. Stokes, 44 U.S. 87 (1845), the Court noted the
Postmaster General could not be held liable for errors of
judgment: '"... a public officer, acting to the best of his
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judgment ... is not liable in an action for an error or
judgment...." Butz v. Economou supra at 906. More significantly,
the Supreme Court'also affirmed its 1959 decision in Barr v. Matteo
which extended absolute immunity to a federal official who
acted maliciously and not merely negligently within the
scope of his duties:
... Barr also appears ... to have extended absolute
immunity to an officer who was authorized to issue
press releases, who was assumed to know that the press
release he issued was false and who therefore was
deliberately misusing his authority. [Ile accept) this
extension of immunity with respect to state tort
claims...."
Butz v. Economou supra at 908. Accordingly, it is possible
that IPS employees would be absolutely immune from suits
predicated upon common law tort claims as long as they were
acting within the outer limits of their duties and exercising
discretionary judgments with regard to the review for declassification
of classified documents.
25. This conclusion is supported by the decisions of
the U.S. Circuit Courts of Appeal that have considered
common law tort claims brought against federal employees
since the Supreme Court's landmark decision in Butz v. Economou.
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In every reported decision to date, the Federal Circuit
Courts of Appeal have uniformly concluded that federal
officials and employees enjoy an absolute immunity from
common law tort suits brought pursuant to state law, provided
that the act or omission complained of occurred during the
course of their duties. L- It is my opinion, in light of
these recent decisions, that such an immunity may also be
available to IPS employees who negligently declassify and
release information pursuant to Freedom of Information Act
or Privacy Act requests, at least in situations in which the
following factors are present:
10/ Marshall v. Whirlpool Corp.,-593 F.2d 715, 734
n.49 Tth Cir. 1979) (arbitrary action of federal inspector;
inspector immune from common law tort suit); Commodity
Futures Trading'Commission v. Hunt, 591 F.2d 1211, 1224-24
(7th Cir. 1979) (federal employees publish plaintiff's
market position in soybeans; alleged misconduct was within
scope of employees' duties; employees enjoy immunity from
suit); Birnbaum v. U.S., 588 F.2d 319, 332 (2d Cir. 1978)
(CIA emp oyees may be absolutely immune from state tort
claims due to mail opening operation); Ti ue v. Swain, 585
F.2d 909, 913 (8th Cir. 1978) (libel anfalse imprisonment
claims brought against army colonel; absolute immunity
exists for common law torts); Granger v. Marek, 583 F.2d
781, 784 (6th Cir. 1978) (IRS investigators allegedly
interefered with plaintiff's business prospects; agents
immune since alleged misconduct occurred within the scope of
their duties); Evans v. Wright, 582 F.2d 20, 21 (5th Cir.
1978) (HEW investigators sued for interference with plaintiff's
contractual relations; investigators absolutely immune from
suit for torts occurring within the-outer perimeter of their
official duties).
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--- the employee was acting in good faith; that
is, without an malicious intent to injure a member
of the public through the improper release of
information.
--- the employee personally believed that the release
of the information was proper under the applicable
statutory and Agency standards;
--- the declassification and release of information
was within the scope of the employee's duties
and authority.
at least some facially reasonable basis existed
to justify the information's release at the time
the employee decided to disclose the information.
However, even if an absolute immunity is available,
any employee is still susceptible to suit; that is, no
impediment exists to prevent a plaintiff from naming the
employee as a defendant in a suit filed in state court or
in a suit that has been filed in state court and removed
to a federal district court. However,: the availability of
an absolute immunity may result in the prompt rejection
of such a suit by the court. For example, if an Agency
employee was named as a defendant in such a suit, the action
could be dismissed, by the court, upon the government's
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motion for summary judgment, without the necessity of a
trial if it appeared conclusively that the alleged negligence
occurred within the outer limits of the employee's duties.
26. If an action should be brought in state court
against an Agency employee on the ground the employee negligently
disclosed information about a member of the general public,
that employee may be represented by attorneys provided by
the U.S. Department of Justice. The conditions under which
legal counsel will be provided are set forth in 28 CFR
?50.15. In the context of this memorandum, such counsel
is available upon request by the employee provided that:
the act or omission which forms the basis of the
suit occurred while the employee was acting within
the scope of his employment.
the Agency for which the employee works recommends
that representation be provided by the Department
of Justice.
the Department of Justice, upon review of the
circumstances in which the suit arose, concludes
that the employee was, at the time of the allegedly
tortious conduct, within the scope of his or her
employment and further concludes that government
.representation is in the interests of the United
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Accordingly, it is quite likely that legal counsel will be
provided by the Department of Justice in the case of tort
actions brought against an Agency employee for the negligent
declassification and disclosure of information about a
member of the general public.
27. With regard to the final question posed in the
Request for Ruling---that is, provide a definition of the
term "immediate jeopardy,"---no comment is necessary at this
time. An attempt to provide a government-wide definition of
this term is currently underway. Attorneys from the office
of the General Counsel of this Agency are working with
representatives of the National Archives and Records Service
and members of this Agency's Classification and Review
Division to develop a workable definition of the term "immediate
jeopardy" for use in guidelines for the systematic review of
classified intelligence information provided by foreign
governments. It is recommended that the definition of the
term "immediate jeopardy" that results from this collaboration
STATINTL
be used by employees of this Agency.
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