triplicate, on Standard Forms 242 and 243, no later than 30 calendar days after the end of each calendar year quarter. No classified information may be included on these forms. $2000.14 Annual review lists. (a) An annual Review List of classified material not scheduled for automatic declassification must be submitted for review by the ICRC by April 1st of each year. (b) The list must cover all documents which are (1) Exempt and over 10 years old; (2) Specify an event for declassification; and (3) In the Data Index System on or before December 31 of the previous calendar year. (c) Sorting shall be in the following order: classifier in alphabetical sequence by last name and first name or initial; and classification category in descending order, "T," "S," then "C." The list shall be printed in the following sequence across the page: origin, classifier, classification category title or description, document date, subject, area code, declassification schedule, exemption category (if any), and declassification date. If any titles or descriptions are classified, such list shall carry the highest classification indicated. § 2000.15 Annual declassification list. (a) The Annual Declassification List is a two-part listing of documents declassified on or before December 31 of the previous calendar year, and documents listed in the Annual Review List which, after review, have been determined should be declassified. The Annual Declassification List must be printed by subject and then by area code and must be submitted to the ICRC on September 1st of each year. (b) The subject list must be printed across the page in the following sequence: subject, originating office, document date, area in unabbreviated form, title or description, and classification category. The area list must be printed in the same sequence across the page except area in abbreviated form shall appear in place of subject as the first item. § 2000.16 Quarterly summary. (a) A quarterly summary must be submitted by each Department, Agency or organizational unit that creates classified records. The report must cover data related to the (1) Volume of documents being classified: (2) Use of declassification schedules; (3) Efforts to increase public access to declassified information; and (4) Efforts to improve management of classified material. (b) Reports must (1) Be submitted on Standard Form 324 in triplicate; (2) Submitted no later than 30 calendar days after the end of each calendar year quarter; and (3) Not contain any classified information. § 2000.17 Listing of national security classified material requiring protection beyond 30 years. If records need to be exempt from the automatic declassification process and protected beyond 30 years, use Standard Form 325. Submit SF 325 to the Archivist of the United States with a letter substantiating protection beyond 30 years. SUBPART C-APPEALS PROCEDURES § 2000.20 Notice of an appeal. (a) Hereinafter the terms "Departmental Committee" and "Department" include the Archivist, where appropriate. (b) An appeal from a Departmental Committee's denial of a declassification request involving classified documents which are 10 or more years old must be submitted to the Executive Director, Interagency Classification Review Committee, National Archives and Records Service, Washington, D.C. 20408, within 60 days of the date the Departmental Committee's denial of a declassification request is received. The appeal shall include an identification or description of the document or documents for which declassification was requested, and a statement of the Department's action denying the request. Whenever possible, copies of all correspondence to and from the department concerned and a statement of the reasons why the requester's appeal should be granted should also be included. § 2000.21 Exhaustion of other remedies. No appeal will be considered until the requester has exhausted all administrative remedies afforded him by the regulations of the department concerned. However, if the Departmental Committee has not acted at the expiration of 30 days of the date the request is appealed to the Departmental Committee, the requester may apply within 60 days thereafter to the Committee for appropriate relief. § 2000.22 Acceptance of appeal. (a) An appeal of a determination denying a declassification request involving classified documents which are 10 or more years old, shall be accepted for review by the Committee if, in the discretion of the Committee, the appeal raises substantive issues. The following indicate, but do not limit, the character of reasons for accepting an application for review (1) The nature of the documents whose declassification is sought; (2) The relationship of the documents to other classified documents; (3) The likelihood of an early public release as a result of declassification; and (4) Disagreement between departments as to the proper classification of the information involved. (b) To the extent required for this determination, the Chairman may request the department concerned to furnish copies of the documents, and a summary of their contents or other pertinent information. Requests for declassification which have been denied because the document has not been described with sufficient particularity to enable it to be identified, or because the record cannot be obtained with a reasonable amount of effort, will not be accepted by the Committee, as the denial is based on reasons other than its continuing classification. (c) The Committee shall have no jurisdiction of appeals involving information classified pursuant to the Atomic Energy Act of 1954, as amended. §2000.23 Consideration of appeal. The requester will be promptly notified whether his appeal has been accepted for review. The Department from whose decision the appeal has been taken and accepted by the Committee, shall furnish to the ICRC members and staff copies of the following: (a) All correspondence to and from the requester; (b) The decision of the Departmental Committee denying the request; and (c) The classified documents in question and written justification for the denial. § 2000.24 ICRC review. Normally, appeals to the Committee will be considered in the order that they are accepted for appeal. The Committee's review of the record will be in closed session in order to facilitate full inquiry into matters that are still classified. The burden of persuasion is on the Department to show that continued classification is required under the provisions of section 5 of Executive Order 11652. Upon the Committee's determination that the requested material no longer warrants classification in whole or in part, the Chairman shall, in consultation with the affected Department or Departments, assure that appropriate action is taken. § 2000.25 Decision. The requester whose appeal has been accepted shall be notified in writing as to the Committee's decision. Should the appeal be denied in whole or in part, the notification shall include a statement, in unclassified form, explaining the reason for the decision. § 2000.30 Scope of subpart. SUBPART D-FORMS This subpart contains the Standard Forms (SF) that are prescribed for mandatory use in connection with the subject matter covered in other parts of Chapter XX. § 2000.31 List of forms. The Standard Forms listed below may be obtained from the nearest General Services Administration (GSA) supply source. SF 242 "Report of Mandatory Review Appeals to Departmental or Agency Committee" SF 243 "Report of Mandatory Declassification Review Actions" SF 244 "Report of Original Classification Authorities" SF 322 "Report of Classification Abuses" SF 323 "Report of Unauthorized Disclosures" SF 324 "Quarterly Summary Report to the ICRC" SF 325 "Listing of National Security Classified Material Requiring Protection Beyond 30 Years" [Exhibit 43] MCGEHEE LETTER ON REPEAL OF (b) (1) EXEMPTION Hon. JAMES ABOUREZK, MILITARY AUDIT PROJECT, Washington, D.C., October 6, 1977. Chairman, Administrative Practice and Procedure Subcommittee, DEAR SENATOR ABOUREZK: In testimony given to your subcommittee on September 16, we urged Congress to repeal Exemption 1 of the Freedom of Information Act. We stated that, absent Exemption 1, agencies would cite other exemptions as authority to withhold classified documents, but that litigation under the other exemptions, most notably Exemption 3, would be much more conducive to debate on the classification issue. Implied, but unstated in our remarks, is our strong belief that court hearings to debate classification procedures and decisions should not be held ex parte. Unless the hearings are open, at least to all parties involved in the litigation, there is, by definition, no opportunity for the party seeking the documents to refute an agency's testimony or to give a second answer to a judge's question. Further, in order to make such a hearing truly an adversary proceeding, the plaintiff should have the same opportunity as the defendants had in cases like MAP v. Turner to offer its own witnesses and affidavits to present its position on classification. Only with this testing process is there the possibility of assembling a factual record. Affidavits give only one side of an issue, and may contain evasions and half-truths; secret affidavits deny the opportunity for argument. Court decisions based upon such secret, one-sided presentations are inherently defective. Because of that, ex parte court proceedings have traditionally been considered abhorrent to American jurisprudence. Moreover, the legislative history of the 1974 amendments to the FOIA suggests that ex parte proceedings are not permitted. The Senate bill to amend the FOIA, as originally reported out by the Judiciary Committee, would have expressly authorized "an ex parte showing by the government." However, when the bill came up on the floor, the Senate struck the provision. It is clear, therefore, that Congress specifically rejected the use of ex parte proceedings in FOIA litigation. We would also like to reiterate a point made by Mark Lynch in his testimony before your subcommittee. As with Mr. Lynch, our experience with the FOIA shows that responses to our requests varies from agency to agency. We find that the Office of Freedom of Information and Security Review in the Defense Department, headed by Charles Hinkle, is much more apt to release requested information than are other agencies, especially the State Department Office of Freedom of Information, directed by Barbara Ennis. In fact, we have found on several occasions in which we've made simultaneous requests for the same information of both State and Defense, that Defense will release the documents, while State will cite Exemption 1, along with three or four other exemptions-the kitchen sink response, we call it-to deny the request. We believe that this illustrates the need for more judicial review of classification procedures and of agency interpretations of Executive Order 11652, rather than a mere acceptance of an agency's blanket classification claim. As mentioned before, only the repeal of Exemption 1 will force the agencies and the courts to make that review. Thank you again for giving us the opportunity to testify before your subcommittee. Sincerely, FIELDING M. McGEHEE III. [Exhibit 44] MCGEHEE RESPONSE TO SENATOR THURMOND'S REQUEST Hon. JAMES Abourezk, MILITARY AUDIT PROJECT, Washington, D.C., September 30, 1977. Chairman, Administrative Practice and Procedure Subcommittee, DEAR SENATOR ABOUREZK: Responding to two requests made by Sen. Strom Thurmond of your subcommittee, I submit the enclosed correspondence for the record of the September 16 hearing on Exemption 1 of the Freedom of Information Act. At that hearing, Sen. Thurmond asked for information on the Military Audit Project's requests under the FOIA for "four Rockwell International overhead audit reports relating to the B-1 bomber" and for "an overhead audit report relating to that company's Washington office operations." I replied that I was not familiar with the first request and that I was only generally aware of the second. As it turns out, I was mistaken in my answer to Sen. Thurmond's second question; I was thinking of a different request we made under the FOIA. I would like to take this opportunity to correct the record and explain the contents of the enclosures. On May 23, John Markoff, a freelance writer who works through our office on several of his military-related articles, requested that the Defense Contract Audit Agency release the "audit review of Washington D.C. office and operations and other expenses [of] Rockwell International Corporation," and four "advisory reports" of Rockwell's B-1 Division for 1972 through 1975. DCAA's first response, made by Records Administrator Sybil Taylor on June 13, was to split Mr. Markoff's request into two and refer the halves to the Department of the Air Force in Washington, D.C. and the USAF Plant Representative's Office in Los Angeles, respectively. In other words, Sen. Thurmond's two questions related to one MAP request which was divided by the processing agency. The two forks of the initial request were later re-united, and on July 14, the Air Force Systems Command of the Department of the Air Force responded by granting the request in part and denying it in part. AFSC agreed to release all requested documents, but with some deletions. The decision to deny some portions were based on Exemptions 3, 4, and 5 of the FOIA. Exemption 3 protects matters that are "specifically exempted from disclosure by statute. Exemption 4 protects "trade secrets and commercial or financial information obtained from a person and privileged or confidential." Exemption 5 protects "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." No documents were withheld because the information was classified; Exemption 1, which was the subject of the September 16 hearing, was not cited by AFSC. The status of the request is this: MAP has not appealed the initial denial through administrative channels; nor have we sent a check for $6.10, which we've been informed we must pay before we can actually obtain the documents. Should Mr. Markoff receive the documents at a later date, we would be glad to furnish a copy of them to your subcommittee, if you so desire. I enclose all correspondence received pursuant to our request from DCAA and AFSC. Unfortunately, we are unable to locate a copy of our initial request in our files, but the substance of it is quoted in the AFSC letter of July 14. I thank you for giving me the opportunity to clarify the record and trust this will answer the questions posed by Sen. Thurmond. Sincerely, FIELDING M. MCGEHEE III. DEFENSE CONTRACT AUDIT AGENCY, Mr. JOHN MARKOFF, DEAR MR. MARKOFF: This is in response to your Freedom of Information request of 23 May 1977 for five audit reports concerning Rockwell International. Item 1 of your request, Audit Review of Washington DC Office . . . was prepared for and submitted to the U.S. Air Force. Therefore, your request is being referred for direct reply to the General Counsel, Department of the Air Force, The Pentagon, Washington, DC, 20330. The advisory reports (items 2-5) were prepared for and submitted to Mr. Thomas R. Tremper, Chief, Contract Administration Division, USAF Plant Representative's Office (011-CA10), Rockwell International, B-1 Division, Los Angeles International Airport, 5701 West Imperial Highway, Los Angeles, CA 90009. Your request for these reports has been referred for direct reply to that office. Sincerely, SYBIL L. TAYLOR, Records Administrator. DEFENSE CONTRACT AUDIT AGENCY, Memorandum for Chief, Contract Administration Division, USAF plant representative's office, ROCKWELL INTERNATIONAL, B-1 Division. Subject: Freedom of Information Request from Military Audit Project. Forwarded as a matter under your cognizance and for direct reply to the requester is the 23 May 1977 FOIA request from Military Audit Project for copies of advisory reports for 1972-1975 on Rockwell B-1 Division (items 2-5). The portion of the request covered in item 1 has been referred to the General Counsel, Department of the Air Force. Military Audit Project has been advised of this referral. For the Director: SYBIL L. TAYLOR, DEFENSE CONTRACT AUDIt Agency, Memorandum for General Counsel, Department of the Air Force. This request has been referred to the contracting officer for direct reply concerning items 2 through 5. For the Director: SYBIL L. TAYLOR, DEPARTMENT OF THE AIR FORCE, Washington, D.C., June 23, 1977. Mr. JOHN MARKOFF, Washington, D.C. DEAR MR. MARKOFF: Your letter addressed to Mr. Frederick Neuman, Defense Contract Audit Agency, dated May 23, 1977 was received in this office for action on item 1. However, it was misdirected. Your request has been forwarded to: Headquarters, Air Force Systems Command (AFSC/DADF), Andrews Air Force Base, Washington, DC 20334. |