TABLE OF CONTENTS Part I. Amendments pertaining to the scope and application of the A. Changes in exemption 1 (classified national defense and foreign policy records) and the provision concerning in camera inspec- B. Changes in exemption 7 (investigatory law enforcement records). C. The provision on the availability of "reasonably segregable" A. Legislative history chronology and citations. B. Attorney General's December 11, 1974 "Preliminary Guidance" Memorandum, including attachments thereto (attachment C of the December 11th memorandum is the text of the Freedom of Informa- (V) PART I. AMENDMENTS PERTAINING TO THE SCOPE AND APPLICATION OF THE EXEMPTIONS I-A. CHANGES IN EXEMPTION 1 (CLASSIFIED NATIONAL DEFENSE AND FOREIGN POLICY RECORDS) AND THE PROVISION CONCERNING IN CAMERA INSPECTIONS The 1974 Amendments modify the national defense and foreign policy exemption of the Act, 5 U.S.C. 552(b) (1), and add an express provision concerning in camera judicial inspection of records sought to be withheld under any exemption, including exemption 1. The change in exemption 1 primarily affects the procedures and standards applicable to an agency's processing of requests for classified records. The provision concerning in camera judicial inspection affects the manner in which a court may treat classified records which an agency seeks to withhold. AMENDMENT OF EXEMPTION 1 Exemption 1 of the 1966 Act authorized the withholding of information "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." As amended, exemption 1 will permit the withholding of matters that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." The previous language established a standard which essentially was met whenever a record was marked "Top Secret," "Secret," or "Confidential" pursuant to authority in an Executive order such as No. 10501 or its successor, No. 11652. The more detailed standard of the amended exemption limits its applicability to information which, as noted in the Conference Report, "is 'in fact, properly classified' pursuant to both procedural and substantive criteria contained in such Executive order." (Conf. Rept. p. 12.) Consequently, a Freedom of Information request which encompasses classified records will require, at both the initial and appellate stages, an administrative determination that the records warrant continued classification under the criteria of Executive Order 11652 or any subsequent Executive order governing the protection of national security information. This determination must be based upon 1 substantive classification review of the records, regardless of their age. The records should also be reviewed for conformity with the procedural requirements of the Order, and any irregularities should be corrected. When it is not possible to make the necessary determination within the time limits established by 1974 Amendments, because of the volume, the complexity, or the inaccessibility of the records encompassed by the request, it will frequently be desirable to negotiate a time arrangement for processing the request mutually acceptable to the requester and the agency. (See Appendix III-B for discussion of time limits.) If in such circumstances a requester is unwilling to enter into an arrangement of this nature, an agency will be compelled to rely upon the original classification marking until classification review can be accomplished. Such review must proceed as rapidly as possible. The primary substantive criteria presently incorporated by the amended exemption appear to be section 1, 4(C) and 5(A), (B), (C), (D), and (E) of Executive Order 11652. The remaining provisions of the Executive Order constitute the procedural criteria. The mandatory review provisions of the Order are not directly affected by the amendment to exemption 1 and should continue to be applied when a member of the public specifically requests classification review under those provisions. However, absent such specific request, the provisions of the Freedom of Information Act, rather than the mandatory review provisions of the Executive Order, will govern the processing of the request. Under Executive Order 11652, information originally classified by an agency ordinarily can be declassified only by the same agency. There is nothing in the amendments or their legislative history which displays any intent that this disposition be reversed-resulting in a requirement that HEW, for example, make the decision as to whether a document classified by the State Department is "properly" classified. To the contrary, the legislative history recognizes the primacy in this area of those agencies "responsible" for national defense and foreign policy matters. (Conf. Rept. p. 12.) In order to reserve the decision to the classifying agency, it is necessary to consider documentary material contained in one agency's files which has been classified by another agency as being an "agency record" of the latter rather than the former. This seems a permissible construction, since the phrase is nowhere defined and it is unrealistic to regard classified documentary material as "belonging" to one agency for the purposes here relevant when primary control over dissemination of its contents, even within the Government, rests with another agency. Thus, when records requested from one agency contain documentary material classified by another agency it would appear appropriate to refer those portions of the request to the originating agency for determination (as to all matters) under the Act. When such referral is made, |