FORMULATION OF AGENCY POSITION ON LEGISLATIVE RELIEF FROM FOIA

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000200020038-7
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 23
• Document Creation Date: December 16, 2016
• Document Release Date: March 4, 2005
• Sequence Number: 38
• Publication Date: July 14, 1978
• Content Type: MF

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OLC 78-2635
14 July 1978
MEMORANDUM. FOR:
Chairman, IRC Working Group
Acting Chief, Coordination ancu xeview ozaii.-
Office of Legislative Counsel
SUBJECT Formulation of Agency Position on Legislative
Relief From FOIA
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1. This is a follow-up to the discussion at our last
meeting at which time the Working Group agreed to address the
issues surrounding the Agency's need for legislative relief
from the FOI Act. Attached are comments from CIA components
on the impact of the Act which were prepared in response to
an OLC inquiry several months ago and which are still valid.
2. OLC is principally responsible for formulating Agency
legislative positions for presentation to 0MB and to the
Congress. Our inquiry with Agency components identified
problem areas to assist in determining necessary legislative
relief. I know that from your experience, you will agree
that,. the concerns vary within the Agency. The IRC Working
Group can provide invaluable assistance to OLC by facilitating
the coordination needed to formulate sound Agency positions
on critical questions. For example, does the Agency wish to
seek remedial amendments, a full exemption, or a partial
exemption.
3. The Agency has consistently presented its problems
with FOIA in its annual FOIA reports to the Congress in
Congressional testimony, and in response to inquiries from
individual Members. We have the open support of Representative
Samuel L. Devine (R. , Ohio) and a few other Members of Congress.
Chairman Bill D. Burlison (D., Mo.), House Permanent Select
Committee on Intelligence, Budget Subcommittee, recently
focused on the increasingly heavy administrative costs which
the Agency is being required to absorb.
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4. The House Government Operations Subcommittee on
Government Information and Individual Rights, the principal
Congressional body overseeing the FOI Act, is aware of the
problems and plans hearings, early in the next Congress,
with Executive Agencies to consider remedial legislation.
The Agency must have a firm position for legislative relief
cleared with the Administration before we are called upon
to testify. CIA played a major role in the veto of the FOIA
amendments by President Ford. The present Administration is
still reviewing the problems within the Executive Branch but
it is doubtful, based on the limited reactions that OLC is
able to assess, that President Carter will. take the same
strong position as did President Ford. Therefore, our
arguments for legislative relief must be solidly supported
and defendable both to 0MB and the Congress.
S. It would be appreciated if you would circulate this
memorandum and the attachment to the members of the Working
Group for discussion as an item of business at the next
meeting scheduled for Thursday,()27 July.,
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Attachment:.
As Stated
Distribution:
Orig & 12 w/atts - Addressee
1 - OLC Subject w/att
1 - O.LC Chron w/o/att
OLC:PLC:jms (14 July 1978)
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I? JAN 1978
MEMORANDUM FOR: Office of Legislative Counsel
FROM Michael J. Malanick
Acting Deputy Director for Administration
SUBJECT . Amendments to the Freedom of Information Act
REFERENCE OLC 775748, Same Subject, dtd 30 Dec 77
1. In addition to the suggested legislative modifications
(Tab A) that were considered in preparation for the Administra-
tive Practices and Procedures Subcommittee of the Senate
Judiciary Committee hearing in September, one major exemption
for the Intelligence Community should be considered. It is
requested that Congress consider revisions to the Freedom of
Information Act that would exempt intelligence organizations
from a review and release of documents involved in the
collection of intelligence and other covert operations and
place the effort on search, review and release of the analysis
product. It was the intent of Congress that the Freedom of
Information Act would provide enlightenment of the public
regarding the activities of the federal government. However,
experience to date has shown that most worthwhile documents
involve sources and methods, are sensitive or classified
and must be denied or sanitized in a manner which may result
in a very incomplete or distorted release of information
to the public. Further, raw intelligence reports do not
necessarily represent an accurate evaluation of the subject.
The CIA product from a FOIA request often only provides
the requester with a few pieces to a puzzle or information
that is misleading or may not reflect the true CIA evaluation
of the material. Because of the nature of FOIA, as a matter
of policy, we have avoided editorializing on the value of
the information released through this channel.
2. Two very clear examples of this are reflected in
the information released regarding the Israeli attack on
the USS Liberty and the alleged nuclear accident in the
Southern Urals. Analysis of this problem was provided in
Section 4b of the 2 December 1977 Information and Privacy
Staff Weekly Report (Tab B).
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3. It is believed that an unnecessary exercise can
be eliminated and the true purpose of FOIA achieved by
exempting operational reports and documents originated
in the collection process and limit the application of
FOIA to those finished intelligence and estimative
documents that can be released to the public. The shift
of manpower to the review and release to the public of the
Agency's finished product could fulfill the desired spirit
of the Act and better utilize the resources now being
expended by the Agency in administering the FOIA. All
information collected about U.S. citizens would still be
accessible through the provisions of the Privacy Act.
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Suggestions for Changes or Modification in the FOIA
Response Deadlines
a. Change the mandatory response time on initial processing.
of requests from present 10 working days to 30 calendar days,
plus an additional week for every 100 pages of material requiring
a review.
b. Change the mandatory response time on appeals from
present 20 working days to 30 calendar days,.plus two additional
weeks for every 100 pages of material requiring a second review.
Fees
Permit agencies to charge requesters for review time in.
addition to search time.
Scope of Requests
Limit requests to one. specific subject of manageable
proportions, rather than permitting blanket, omnibuses-type
requests which cover a variety of topics, e.g., Morton
Halperin?s 75-104 with its 44 categories of requested records.
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16 JAN 1978
MEMORANDUM FOR: Legislative Counsel
FROM: John N. McMahon
Deputy Director for Operations
SUBJECT: Amendments to the Freedom of Information
Act.
REFERENCE: OLC Memorandum # 77-5748, dated
30 December 1977.
1. (C) This responds to referent request for
comments and suggestions on possible amendments to the
Freedom of Information Act.
2. (C) The Directorate has in the past contributed
to a number of Agency memoranda concerning the impact of
the Freedom of Information Act on Directorate activity.
Additional experience in coping with the provisions of
the Act has confirmed the observations in those earlier
memoranda, among which we note particularly from last
year 0GC 77-2225 and 0GC 77-2759.
3. (C) We further note the nearly 65 percent
increase in Freedom of Information requests in 1977 as
compared with 1976. Much of the work which is responsive
to FOIA requests falls to this Directorate, which has
observed that most requests now originate with readily
discernible categories of persons. Among them are members
of the media. The selective publicity given to portions
of material released under the Act has, we know from field
station commentary, begun to erode confidence in the
Directorate's ability to protect both operational and
intelligence information.
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4. (C) Some misconceptions are associated with.
the loss of confidence, of course, We cannot hope to
dispel all of them. However, a successful legislative
achievement of ~ddatsanal~.pra.hctasn?,_
activity would tend to reassure both actual and
po---enl a`T clandestine assets and foreign liaison services.
A form of reassurance becomes especially necessary now
that we face the first instance of judicial review- of
exemptions asserted under the Act by this Directorate in
order to protect classified material and sources and
methods (Morton H. Halperin v. Central Intelligence
AAgency, et al. As you now, t xetzar in the case of
judicial review is that the court may substitute its own
decisions for those of the Agency concerning the pro-
priety of classification or other asserted exemptions.
Insofar as intelligence. activity of the United States is
concerned, it does not seem likely that the legislative
intent was that inexperience be substituted for experience
in making determinations of this nature. Accompanying
this memorandum at Tab A is a summary of recent instances,
appropriately sanitized, of the loss of confidence that
gives us concern.
5. (C) Previous suggestions regarding procedural
clauses of the Act continue to merit consideration for
amendatory action. We think, however, that a broader
approach may provide more effective relief with respect
to protection of sources and methods and classified
information. You will recall that, in contrast to the
Freedom of Information Act, the Privacy Act, with its
laudable goals, authorizes the Director to exempt systems
of records maintained by CIA from certain provisions of
the Act. Director Colby exempted CIA records systems
from some but not all of those provisions. The Privacy
and Freedom of Information Acts should be consistent. To
achieve consistency, the DCI should be given the same
authority under the Freedom of Information Act that he
has under the Privacy Act. We suggest that this avenue
toward amendment of the FOIA be explored. To that end, I
have instructed experienced personnel of the Directorate
to provide whatever additional supportive commentary you
may find useful.
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13 JAN 1978
MEMORANDUM FOR: George L. Cary
Legislative Counsel
Sayre Stevens
Deputy Director, National Foreign
Assessment Center
SUBJECT NFAC Comments Concerning Amendments
to the Freedom of Information Act
REFERENCE . Your Memorandum, dated 30 December
1977, Same Subject (OL 77-5748)
1. in general, NFAC is supportive of the concepts
of the Freedom of information Act. To date the manhours
devoted to servicing FOIA and related requests have not
been of a scale to disrupt significantly the intelligence
production activities of any NFAC component. Nevertheless,
no resources have been provided for FOIA and related
activities and all such efforts detract from the basic
tasks. Statistics for the year 1977 reflect a significant
upward swing over the previous year in the number of FOIA
and related requests -- more than 60 percent increase in
1977 compared with 1976 --- being levied on the Agency.
This trend holds the distinct probability that NFAC assets
will be increasingly diverted from intelligence production
activities to handling requests from the public.
2. Having wrestled with FOIA requests for the past
several years, NFAC components have surfaced a number of
problem areas that can only be resolved by amending or
clarifying the existing act. Of particular concern is the
matter addressed in a memorandum from the Chief, NFAC
Coordination Staff whichcan be found at Tab A. To be sure,
the problem of trust of foreign governments in US secrecy
agreements stems more from the climate of the times than it
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does from the act itself. Nevertheless, it is a matter of
considerable concern to the Center and steps should be
taken to alleviate the fears and apprehensions of the
foreign intelligence services on whom we depend for
information not readily available from other sources and.
at relatively small cost.
3. The existing climate has also had a negative effect
on the ability of CIA to negotiate mutually beneficial
contracts with academia. At Tab B is a summary of specifics
documenting the impact of FOIA disclosures on our office of
Scientific Intelligence.
4. Other problem areas where relief is sought include:
a No Nationality Restriction
Adding to the request burden are an
increasing number of requests from foreign
individuals including students and members
of the press. Likewise, requests from
foreign companies, corporations and
institutions seem to be increasing. The US
taxpayer bears the cost of such inquiries.
a Definition of Reasonable Request
The present law is too loose on what
constitutes ?a reasonable request. Many
requesters want information and research,
not documents. Students (as well as the
press) use the law to avoid basic research
that ought to be a part of their educational
process. The burden of matching the
relevant document(s) to the request for
information falls on the component handling
the search. Corporations, in particular,
use the law to fish for possibilities of
legal actions against other corporations
or the federal government itself.
The existing schedule of fees that can
be charged for search and reproduction
should be revised. To charge only. $8 for
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an hour of professional time is ridiculous.
Also, the Agency should be allowed to take
a more strigent approach in deciding when
to charge. A revised FOIA law should more
clearly define "Public Interest." In any
case, the major part of the costs of FOIA
actions are in the review of the security
classifications rather than in finding and
duplicating a specific document. The
Congress should at least realize this fact
even if the law remains unchanged.
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Sayre Stevens
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t? LC - /'Y-0`r'='~
OGG 78--0566
20 January 1978
MEMORANDUM FOR:
FROM
SUBJECT
George L. Cary
Legislative Counsel
Proposed Comments to the Senate
Select Committee on Intelligence re
the Impact of the FOIA on Agency
Activities
1. ' This memorandum concerns the impact of the Freedom of Information
Act on Agency activities and describes some problems faced as a result of
the implementation of this law,
2. It will detail the administrative burden faced by the CIA in complying
with the Freedom of Information Act, details of the problems encountered in
conducting searches., the effect of judicial holdings on CIA's interpretations of
the law, and proposed amendments to exemption 7. Additionally, there is a
discussion of difficulties encountered in CIA liaison relationships caused
by abidance with the FOIA.
3, A significant portion of Agency resources, particularly in terms
of the energies of senior management, has been devoted to the administration
of the FOIA, while very little information of interest to the public has; in
fact, been released through the mechanism of the Act. - Unless legislative
relief is obtained it can be anticipated that the continued diversion of CIA
resources might well impair the Agency's ability to carry out its functions,
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C/ /~flr
11.10.1
MEMORANDUM FOR: Legislative Counsel
FROM , John H. Waller
Inspector General
SUBJECT Amendments to FOIA
REFERENCE : OLC 77-5748, 30 December 1977
1. In our study last year of the public release of informa-
tion, we came to two conclusions which bear directly on your
question of whether or not FOIA has had a negative or harmful
impact on Agency activities and operations. These are:
a. "The Agency has released massive amounts of informa-
tion into the public domain during the past two years. These
releases have resulted in concern and loss of confidence by
in the
Agency's ability to protect the con a en-ia i y o relation-
ships with the Agency."
b. "There is a basic anomaly in making information about
a nation's clandestine intelligence organization public. No
other nation does this and it is inherently destructive to the
long term maintenance of this country's foreign intelligence
effort."
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2. I believe that the public interest in preventing abuses
or illegalities that may be committed by U.S. intelligence
organizations is adequately served by the elaborate oversight
mechanisms that have been established in the Agency, the Intelli-
gence Community, the White House, and in Congress; by the ability
of the courts and Congressional investigating committees to have
access to any and all information they require; by the restrictions
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on intelligence activities that have been issued; and by the
sensitivity of all concerned to the need to guard against illegal
or improper activities. There is not, therefore, a compelling
need for FOIA to serve an oversight function. The disadvantages
to the national security of applying the FOIA to intelligence
agencies, for the reasons cited above, clearly outweigh'any merit
that may be claimed for public release of information of the
kind now required. by the FOIA.
3. While I would prefer to see CIA entirely exempted from
the FOIA, I believe that there is room within the scope of the
present law for the Agency to tighten its practices on information
releases relating to intelligence sources and methods and
classified information under the provisions of FOIA Exemptions
(b)(1) and (b)(3). I recommend, therefore, that amendatory
language be drafted which will expand and further clarify these
exemptions as.they apply to the Intelligence Community.
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John a er
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DCI/IC 78--0603
7? 0/3.s
13 JAN 1978
MEMORANDUM FOR: George Cary
Legislative Counsel
1 1.
Acting Deputy to e the
Intelligence Community
SUBJECT: IC Staff Experience with FOIA
REFERENCE: Your Memorandum for Morning Meeting participants,
dated 30 December 1977, Subject: Amendments to
the Freedom of Information Act
1. Reference reported that as a result of recent discussions between
the Director and the Chairman of the Senate Select Committee on Intelligence,
the Office of Legislative Counsel is currently assessing the impact of
FOIA and working on possible amendatory language. You asked for comments
to assist you in this task, in particular, our position on whether FOIA
has had a negative or harmful impact on Agency activities and operations.
2. The IC Staff has not had a large number of FOIA requests, although
some have run to many pages of text. In 1976, for example, we handled an
FOIA request for copies of all DCIDs ever published -- more than 200 separate-.'
documents. In 1976, the total number of FOIA requests processed by the
IC Staff was 21; in 1977 we handled only eight.
3. Many of the FOIA requests referred to the IC Staff have involved
documents of historical interest which were eligible for declassification
review under E.O. 11652. Other requests for more recent material on the
organization and management of the Intelligence Community were prompted
by the Congressional investigations and the publication of E.O. 11905. In
response to these requests, a considerable body of material has been declas-
sified and released. We believe that release of .this type of information
has helped to increase public awareness of the role of intelligence in our
government.
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SUBJECT: IC Staff Experience with FOIA
been appealed.
4. In our experience to date, the exemption criteria of the Freedom
of Information Act have been sufficient to enable us to withhold material
we determine warrants continued protection, and our denials have rarely
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16 January 1978
MEMORANDUM FOR: George Cary, OLC
FROM : Herbert E. Hetu
Assistant for Public Affairs
SUBJECT : Amendments to the Freedom of Information Act
REFERENCE : Memo of 30 December 1977, same subject
1. In addition to the concerns raised by the Director in the
referenced memorandum, I believe the Agency's image has suffered
unnecessary damage and the public has been mislead because of the
FOIA requirement to release bits and pieces of information.
Three good examples are:
a. MKULTRA and related programs -_. It is impossible to
convince the public that these programs had their
origins in the Fifties and were terminated in the
early Seventies.
c. Israeli firing on the Liberty -e Because of the partial
and unevaluated disclosures, the public has reached a
conclusion that is contrary to the one arrived at if all the
material is taken into account.
2. The Berlin Tunnel operation, MUMEC and the Kennedy
assassination are just three FOIA requests and appeals that have
potential for similar damage.
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