JOURNAL OFFICE OF LEGISLATIVE COUNSEL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000300100034-4
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 4
• Document Creation Date: December 20, 2016
• Document Release Date: October 24, 2006
• Sequence Number: 34
• Publication Date: May 1, 1975
• Content Type: NOTES

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1 T p p s t ~ b ?,'I I I I
j~
JOURNAL
Thursday - 1 May 1975
CIA INTERNAL USE ONJ3
land I rnet with Gary Clary,
Legislative Assistant to senator Strom I'hurmond (R. , S. G. ), regarding
three bills (S. 1210, S. 1289, and S. 743); at least two of these bills,
S. 1210 and S. 1289 are before the " Subcommittee on
Administrative Practice and Procedure, of which Senator Thurmond is
a member. Clary seemed to share our views on these three bills, and
pledged the Senator's active support for our position, but with the caveat
that there was no way Senator Thurmond could carry the vote in this
Subcommittee. He added that prospects were somewhat better in the full
committee.
25X1A
3. I land I met with J. C. Argetsinge.r.,
aide to Senator Roman L. Hruska (R., Nebr. ), regarding S. 1210, S. 1289,
and S. 743. Argetsinger seemed quite concerned about the impact of these
bills on the Agency as we outlined it for him. He indicated that the ideological
line-up of the ful diciaarr Comm" , of which Senator Hruska is a member,
was 8-7 against Senator Hruska s viewpoint, but that two members of the
majority were flexible and sometimes voted with the ideological minority.
He checked on the status of S. 743 and reported that despite the indications
we .had that the bill was referred to the Subcommittee on Administrative
Practice and Procedure, he was positive the bill would be referred to
Senator John L. McClellan's (D., Ark.) Subcommittee on Criminal Laws
and Procedures. A. good rapport was established with Argetsinger and
be assured us that he would watch these bills closely.
CIA INTERN ,L USE ONLY ~ i.ii-DET CL
j 1. ,., .
OGC Has Reviewed
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MEMORANDUM
SUBJECT: S. 1289 - "Open Communications Act of 1975"
1. S. 1289 would require that employees of executive agencies
who are compensated under the Executive Schedule of Title 5 U. S. C.
or at grade 15 or above under the General Schedule maintain records
of oral or written communications initiated by persons outside the
agency. The records would be maintained in categories for full
summary and internal disclosure. Records of communications
maintained for full and summary disclosure would be kept in public
files "located in the public reading room of the agency, " to he
maintained for a period of five years and to be available for public
inspection and copying. In addition, the "prospective and retrospec-
tive calendars" of agency officials compensated under the Executive
Schedule of Title 5 would be maintained for public inspection in the
public reading room.
2. The scope and impact of the bill is clear and certain in one
regard: Section 2(d) would require the Director and Deputy Director of
the Central Intelligence Agency to maintain their prospective and retro-
spective calendars for inspection in a public reading roam.
3. It appears that the other provisions of S. 1289 are aimed at
Federal regulatory agencies and lend themselves to arguments that they
do not apply to CIA or its employees. However, the issue cannot be
said to beyond all doubt based solely on the language of the bill. itself.
The language of Section 2(b)(1) in particular, is ambiguous and elastic
enough to warrant clarification.
4. The bill defines "agency official" (those who must maintain
records under Section 2(b)(1)) as "those employees of the executive branch
who are compensated in grade 15 and above under the General Schedule
under section 5332 of title 5 (emphasis added). " Section 5332 establishes
the basic pay schedule for positions to which Subchapter III, Chapter 53
of Title 5 applies. Section 5331 provides that "agency" and "employee, "
for purposes of Subchapter III, have the meanings given them by Section
5102. Section 5102 specifically provides that "agency, " for purposes of
Chapter 53, does not include the Central Intelligence Agency. Thus, it
would seem that this portion of the definition of agency officials who must
maintain records of communications would not apply to CIA. However,
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"agency official" is further defined to include those compensated
under the Executive Schedule. This portion of the bill seems clearly
to encompass the Director and Deputy Director of CIA.
5. Section 2(b)(.l) requires records to be maintained for summary
disclosure "for each oral or written communication initiated by persons
outside the agency pertaining to a substantive policy matter before the
agency. " This section raises the question of whether the CIA ever has
before it a "substantive policy matter"--defined as "any important agency
action or policy issue as prescribed in regulations promulgated by the
agency. " It seems the language is intended to cover important actions
and policy decisions of Federal regulatory agencies in their enforcement
role. This interpretation is supported by the proviso- -"except that no
such regulation shall apply to agency proceedings as defined in Section
551(12) of this chapter. " Federal agency proceedings as thus defined
include rule making, adjudication and licensing as set out in 5 U. S. C.
551(5), (7) and (9). Apparently, the proviso is intended to except
agency rule making, adjudication and licensing from the requirement
of maintenance of records for summary disclosure although those
proceedings can be considered agency actions and deal with policy
issues. In any event, CIA does not engage in these kinds of agency
proceedings or "agency action" as defined in Section 551(13). However,
the term "policy issue" is not defined in the U. S. Code, and is ambiguous
enough to require clarification. The phrase "prescribed in regulations
promulgated by the agency" may be interpreted in at least two ways. It
could mean that agency regulations can henceforth define which "policy
issues" should be subject to the disclosure requirements; or it could
mean that all important policy issues defined or addressed in agency
regulations constitute a "substantive policy matter. " If this latter
construction holds, it could be argued that CIA has before it, from time
to time, "policy issues" defined by agency regulations.
6. In sum, the calendar provision of S. 1289 (Section 2(d)) would
clearly apply to the Director and Deputy Director of the Central Intelligence
Agency. Moreover, while the other provisions of the bill appear directed at
federal regulatory agencies, clarification should be sought in light of the
ambiguities pertaining to summary disclosure in section 2(b)(1).
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 25X1 I
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Journal - Office of Legislative Counsel
Thursday 1 May 1975
INTERN A1 USE
oNL'CONFIDENTIAL
Page 6
24. Roger Stillwell of Delegate Antonio
Borja Won Pat's (Delegate, Guam) office called to request an Agency
seal for the Delegate's office. I told him I would look into it for him..
25. Called Bill Skidmore at OMB to
determine what the Administration's position is on S. 1210, Senator.
Edward M. Kennedy's (D., Mass.) amendment to the Freedom of
Information Act. He put me in touch with Frank Reader who is handling
the bill in that office. Mr. Reader and I discussed the bill's impact on
the government at large and the Agency in particular. He asked me
what I thought the chances of the bill moving were and I told hire. I
thought they were good considering that it was pending before Senator
Kennedy's subcommittee. Mr. Reader said that he did. not want to act
precipitously, but could not envision the Administration supporting such
a bill; he offered to keep me in touch if there are any developments at.
this end.
26. I IMet with Ms. Davidson, in the office
of Representative Fred Richmond (D. , N. Y. ), concerning a letter
from the Representative to the Agency's FOl Coordinator complaining
that a request of a constituent was taking six months to answer. I
clarified for her that the initial letter of the constituent was dated
10 March 1975 and after an interim reply she received a final response
on 16 April 1975.
27. Left for Pat Yack, in the office of
Representative Alan Steelman (R. , Texas), a report on the grain situation ;Th1cE:
was for the Representative and prepared by F7 , 0C I, 25X1A
28. (Confidential - PLC) Met with J. Sourwine, Chief Counsel, 25X1 C
-Sanite Judiciiaar Subcommittee on Internal Security, and left with him t 'W(>
short blind memoranda on
The latter was also or u e Short o the Subcommittee staff.
also explained to Sourwine that I would be by in a few days with an advance
NA INITERNAI: USE ONLY CONflDENTIAL
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