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Part 2101

CHAPTER XXI-NATIONAL SECURITY

COUNCIL

Freedom of Information Act requests for classi-
fied documents-processing, fees, reports, appli-
cable material, declassification criteria, partial
release

Page

304

2102

Rules and Regulations to implement the Privacy
Act of 1974...........

310

2103

Regulations to implement E.O. 12065-including
procedures for public access to documents that
may be declassified ......

314

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Subpart A-Introduction

§ 2101.1 The amended Freedom of Information Act.

The amended Freedom of Information Act, Pub. L. 93-502 (5 U.S.C. 552), provided, and to the extent, it is applicable to the National Security Council Staff, provides expanded opportunities for the public to secure the release of classified material under the control of, or of primary interest to, the NSC Staff. The amended Act sets more restrictive time periods within which requests must be processed, modifies the criteria upon which denials of such requests can be based, and permits appeals to district courts of denials of requests. As a result of these changes, modified procedures are required from those followed in the case of requests for the release of classified material over ten years old made under Executive Order 11652. These regulations are intended to guide the NSC Staff response to requests for classified material under the amended Freedom of Information Act, insofar as it is applicable.

§ 2101.2 Purpose of amended Act.

The underlying purpose of the amended Freedom of Information Act is to insure that the public is informed to the fullest extent possible about governmental policies and actions, consistent with the requirement to protect certain categories of sensitive information. In the case of classified material, the Act is intended to protect the public against the improper classification of information, particularly to conceal inefficiency or administrative error or to prevent embarrassment to a person or department. These goals are fully consistent with the provisions of Executive Order 11652 and the implementing NSC Directive of May 17, 1972, which regulate and control the protection and management of national security information. The provisions of these documents relating to the criteria, authority and procedures for classifying and safeguarding national security material remain unaffected by the amended Act.

Subpart B-Processing Requests for Classified Material

§ 2101.11 Receipt of requests.

(a) Request for classified documents under the FOI Act should be addressed to:

National Security Council
ATTN: Staff Secretary

Old Executive Office Building
Washington, D.C. 20506

Oral requests received by the Staff Secretary or other members of the NSC Staff will be rejected and the requester informed that his request should be made in writing and directed to the Staff Secretary.

(b) All time limits are based on the date of receipt by the NSC Staff of a request. Consequently, this "key date" must in all cases be accurately recorded.

(c) If a request is misdirected to the NSC Staff, the requestor will be promptly notified in writing.

(d) Requests for declassification of material forwarded by the National Archives and Records Service (or other Agencies) should be submitted with three copies of the requested material attached.

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§ 2101.13 Requests for time extensions.

(a) Requestors will be promptly notified by the Staff Secretary of a time extension (indicating the new date by which a determination will be dispatched) due to the following three "unusual circumstances":

(1) Need to search for or collect records from field facilities or other establishments separate from the office of request;

(2) Need to search for, collect and examine voluminous amounts of records;

(3) Need to consult with other agencies because of their having substantial subject-matter interests.

(b) Time extensions will not exceed ten working days in the aggregate, either solely in the initial or the review stage, or divided between them. (c) The Staff Secretary will authorize all time extensions.

(d) Prior to requesting a court authorized time extension, requestors will be contacted by the Staff Secretary in an attempt to arrange informal agreement on a time extension (any verbal agreement will be quickly formalized in writing).

(e) The Staff Secretary will authorize all requests to courts for time extensions based on "exceptional circumstances" and "due diligence". Formal approaches to courts for time extensions will be conducted by the Department of Justice.

§ 2101.14 Initial review period.

(a) A total of ten working days is available for submitting an initial response to requests.

(1) Time period allowed reviewing officers will be the maximum period consistent with time required for administrative processing and final review of recommendations and preparation of reply by Staff Secretary.

(2) Reviewing officers will be periodically reminded of approaching due dates in order to insure recommendations are received in a timely manner. (b) Primary reviewing officers will delegate reviewing authority in the event they are unavailable to conduct reviews.

§ 2101.15 Initial reply to request.

(a) The Staff Secretary will review the recommendations of primary reviewing officers and approve initial replies.

(b) An initial response will always be made even if processing has not been completed.

(c) If processing has not been completed but an interim negative reply has been dispatched, processing will continue.

(d) Accurate record of replies will be maintained by Secretariat.

(e) If a negative or partial denial response is dispatched, requester will be notified of his right to appeal.

(f) If some or all material is approved for release, the Staff Secretary will insure it is expeditiously dispatched to the requestor or grant authority to NARS or other Agency to release the material.

§ 2101.16 Processing of appeals to "Head of Agency".

(a) Replies to appeals will be approved by the Assistant to the President for National Security Affairs, or the Deputy Assistant acting in the name of the Assistant to the President.

(b) The Staff Secretary will be responsible for preparing material required by the above appeal review officer in making a final determination.

(1) Views of primary reviewing officers will again be solicited.

(2) Opinion of Office of the White House Counsel and/or Department of Justice on legal ramifications will be solicited.

(c) Staff Secretary will insure replies to appeals are dispatched within 20 working days of receipt or before exhaustion of time of an authorized time extension.

§ 2101.17 Appeals to Federal District Courts.

(a) Staff Secretary will coordinate the NSC Staff's support (to include background data, affidavits, etc.) to USG lawyers defending against court appeals for denied NSC classified documents.

(b) If court judgment is against USG, Staff Secretary will arrange release of documents to litigant.

Subpart C-Schedule of Fees and Method of Payment for Services Rendered

§ 2101.21 Fees schedule.

(a) Fees schedule for the search and reproduction of information available under the Freedom of Information Act (5 U.S.C. 552), as amended:

(1) Search for records. $5.00 per hour when the search is conducted by a clerical employee. $8.00 per hour when the search is conducted by a professional employee. No charge for searches of less than 1 hour.

(2) Duplication of records. Records will be duplicated at a rate of $.25 per page for all copying of 4 pages or more. There is no charge for duplicating documents of 3 or less pages or the first three pages of documents of greater length.

(3) Other. When no specific fee has been established for a service, or the request for a service does not fall under one of the above categories due to the amount or type thereof, the Staff Secretary is authorized to establish an appropriate fee based on "direct costs" as provided in the Freedom of Information Act. Examples of services covered by this provision include searches involving computer time or special travel, transportation, or communications costs.

(b) If records requested under the Act are stored elsewhere than the headquarters of the National Security Council Staff at Washington, D.C., the special costs of returning such records to the headquarters for review will be added to the search costs. Search costs are due and payable even if the record which was requested cannot be located after all reasonable efforts have been made, or if the NSC Staff determines that a record which has been requested, but which is exempt from disclosure under the Act, is to be withheld. Processing of a request for records will not be undertaken until a requestor has paid in full for search and duplication charges for any previous document request under the Act.

(c) Where it is anticipated that the fees chargeable under this section will amount to more than $25, and the requestor has not indicated in advance

his willingness to pay fees as high as are anticipated, the requestor shall be promptly notified of the amount of the anticipated fee or such portion thereof as can readily be estimated. In instances where the estimated fees will greatly exceed $25, an advance deposit may be required. The notice or request for an advance deposit shall extend an offer to the requestor to consult with knowledgeable NSC Staff personnel-designated by the Staff Secretary-in an attempt to reformulate the request in a manner which will reduce the fees and meet the needs of the requestor. Dispatch of such a notice or request shall suspend the running of the period for response by the NSC Staff until a reply is received from the requestor.

(d) Fees must be paid in full prior to issuance of requested copies.

§ 2101.22 Fee payments.

(a) Remittances shall be in the form either of a personal check or bank draft drawn on a bank in the United States, or a postal money order. Remittances shall be made payable to the Treasury of the United States and mailed to the Staff Secretary, National Security Council, Washington, D.C. 20506.

(b) A receipt for fees paid will be given only upon request. Refund of fees paid for services actually rendered will not be made.

(c) The Staff Secretary, National Security Council, may in accordance with the Freedom of Information Act, as amended, waive all or part of any fee provided for in this section when it is deemed to be in either the interest of the NSC Staff or of the general public.

Subpart D-Reports

§ 2101.31 Quarterly Index of Publications. (a) The NSC Staff is required to publish and distribute to the public on a quarterly basis an index of the following material promulgated after July 4, 1967:

(1) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

.

(2) Those statements of policy and interpretations which have been adopted and are not published in the FEDERAL REGISTER; and

(3) Administrative staff manuals and instructions to staff that affect a member of the public.

(b) A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent against a party other than an agency only if:

(1) It has been indexed and either made available or published as provided by the Act; or

(2) The party has actual and timely notice of the terms thereof.

(c) The legislative history of this requirement indicated that only material having "precedential significance" are to be included in the Index.

(d) Matters specifically excluded from release under the Freedom of Information Act are not required to be included in the Index. In the case of the NSC Staff, this particularly includes matters that are:

(1) Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive Order (see paragraph (d)(5) of this section);

(2) Related solely to the internal personnel rules and practices of an agency;

(3) Specifically exempted from disclosure by statute (see Part VII);

(4) Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(5) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

(e) Because of the considerations outlined under paragraph (c) and (d) of this section, it is anticipated that the NSC Staff will normally have little or nothing to report in its quarterly index.

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