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The second area for reform may involve a situation in which either (1) the Government has publicly acknowledged the information with or without intention or authorization to do so, or (2) the Government has failed to take necessary positive steps to conceal the information. One approach would be simply to amend the

definition of Restricted Data to read, in part:

The term "Restricted Data" means all data which has not been
officially and publicly acknowledged concerning (1)...

Unofficial acts or "leaks" would not affect classification status nor would official revelation to a limited and select audience alter continued application of Restricted Data safeguards.

A defense to prosecution under 42 U.S.C. 2274 ("Communication of Restricted Data") might also be considered. That section now reads:

Whoever, lawfully or unlawfully, having possession of, access to, control over, or being entrusted with any document, writing, sketch, photograph, plan, model, instrument, appliance, note, or information involving or incorporating Restricted Data-

(a)

(b)

communicates, transmits, or discloses the same
to any individual or person, or attempts or
conspires to do any of the foregoing, with in-
tent to injure the United States or with intent
to secure an advantage to any foreign nation,
upon conviction thereof, shall be punished by
imprisonment for life, or by imprisonment for
any term of years or a fine of not more than
$20,000 or both;

communicates, transmits, or discloses the same
to any individual or person, or attempts or
conspires to do any of the foregoing, with
reason to believe such data will be utilized
to injure the United States or to secure an
advantage to any foreign nation, shall upon
conviction, be punished by a fine of not more
than $10,000 or imprisonment for not more
than ten years, or both.

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An additional paragraph might be added to the following effect:

It shall be a defense to prosecution under subsections (a) and (b) of this section that before the commission of the offense with which the defendant is charged, the United States had publicly acknowledged or officially revealed the information the disclosure of which is the basis for the prosecution.

Alternatively, application of criminal sanctions to revelation of atomic energy information might be limited to instances where it can be shown that "the United States is taking affirmative measures to conceal such information."

While the

specific intent requirements for successful prosecution under section 2274(a) may obviate much of the need for such an amendment, the less clear standard under subparagraph (b) of that section suggests such a course.*

Caveats

Finally, a few cautions should be noted. The mere fact that information has been "leaked" to the public may not be cause to consider it as having "entered the public domain" for the purposes of determining the wisdom of continued classification. The extent to which revelations from new sources constitute po

The potential

That is,

tential confirmation of the information should be considered. overlap of atomic energy research areas should also not be overlooked. the most innocuous seeming area of nuclear application may involve information of potential application to less innocuous fields of endeavor.

While amendment of the three definitional categories of Restricted Data included in 42 U.S.C. 2014(y) to restrict the ambit of coverage may be suggested

*

Note that for consistency in the application of sanctions amendment may also be required for offenses such as receipt of Restricted Data (42 U.S.C. 2275) and disclosure by federal employees and contractors (42 U.S.C. 2277).

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by some, such fundamental alteration of the statutory scheme must take into full account both technical ramifications as well as policy analysis. For while the "born classified" concept is unique among classification systems in this country, it must be remembered that it was devised in order to contain information considered unique in the magnitude of the threat posed by its disclosure. Whether the subject matter of the atomic energy field and its applications have changed sufficiently over time to allow for modification of restrictions generally is a question whose meaningful answer requires both appropriate scientific expertise and understanding of current national security needs.

Kearny Rmurde

Kent M. Ronhovde

Legislative Attorney

Washington, DC 20540

Congressional Research Service

The Library of Congress

August 6, 1980

House Government Information and Individual Rights Subcommittee
Attention: Tim Ingram

Judicial Review of Restricted Data Under the Freedom of Information
Act

This memorandum is in response to your question whether, in deciding Freedom of Information Act cases, a court is empowered under the Act "to look behind a Restricted Data marking to determine for itself whether the information meets the substantive and procedural classification standards of the Atomic Energy Act."

The provisions of the Atomic Energy Act dealing with the protection of Restricted Data, as defined in 42 U.S.c. 2014(y) (1976), qualify as exempting statutes under Exemption 3 of the FOIA. 42 U.S.C. 2162 (1976); H. Rept. No. 880, pt. 1, 94th Cong., 2d Sess. 23 (1976); Id., pt. 2 at 7; H. Rept. No. 931380, 93d Cong., 2d Sess. 10 (1974); American Jewish Congress v. Kreps, 574 F.2d 624, 629 (D.C. Cir. 1978). Standards of judicial review in cases involving Exemption 1 claims (classified information) and claims under Exemption 3 "when the statute providing criteria for withholding is in furtherance of national security interests" have been developed. Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). Exemption 3 statutes such as those protecting certain CIA information and NSA data have been the subject of court review under these standards and it would seem likely that agency withholding of information under the Atomic Energy Act would be subjected to comparable judicial review.

See,

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Founding Church of Scientology, Etc. v. Nat. Sec. Agcy, 610 F.2d 824 (D.C. Cir. 1979); Hayden v. National Sec. Agcy./Cent. Sec. Serv., 608 F.2d 1381 (D.C. Cir. 1979), cert. denied, 48 USLW 3733 (May 13, 1980); Kanter v. Department of State, 479 F. Supp. 921 (D.D.C. 1979); Sims v. Central Intelligence Agency, 479 F. Supp. 84 (D.D.C. 1979).

The court in Ray v. Turner, supra, set out the characteristics of review in the national security context: (1) the court must make a de novo determination with the burden on the government to establish exemption. See, 5 U.S.c. 552(a)(4)(B)(1976); (2) it is to accord "substantial weight" to an agency's affidavit; and, (3) in camera examination of documents is available to the court "in national security cases as in all other cases.' Ray, 587 F.2d at The agency must create as full a public record as possible as to the nature of the documents and the justification for nondisclosure. Affidavits,

1194.

as well as the disputed documents themselves, may be accepted in camera and the agency may be asked to make an in camera presentation and/or be prepared to respond to the court's probing concerning the bases for withholding information. Finally, the requirement that reasonably segregable portions of documents that are not exempt be released (5 U.S.C. 552(b)(1976)) is applicable in national security cases as in other FOIA cases. Hayden, supra; Founding Church of Scientology, Etc. v. Bell, 603 F.2d 945 (D.C. Cir. 1979); Kanter, supra; Sims, supra While "substantial weight" is to be given an agency's affidavit in national security cases, conclusory affidavits and "[b]arren assertions that an exempting statute has been met cannot suffice to establish" that the requested document contains information embraced within the terms of an exempting statute.