conducted) must submit JF-11, Notice of a Security Violation, identifying ap parent violations to the next higher level in the chain of security operations. Reports of security violations are prepared on JF-12, Record of Violation, and should include, at a minimum, the information required to respond to the instructions printed on the reverse side.

(2) If any violation of the security regulations results in the loss, theft, or unauthorized viewing of cryptographic material or the transmission of an unencrypted classified telegram by an exposed communication channel, a report must also be made immediately by telegram to the Office of Communications, Department of State. (See § 9.44 for reporting missing or compromised material.) It is mandatory that the JF-12 be unclassified. If material is considered compromised, or if for other reasons a classified report is advisable, the report should be submitted in a separate memorandum and be referred to in the JF-12.

(c) Violations by employees of other agencies.-Violations are reported and processed for employees of other Federal agencies in the same manner as above. (d) Evaluation of security violations.-(1) All reports of infractions of the security regulations will be evaluated initially by the post or unit security officer (except communications security violations) to determine whether or not a violation may have occurred. If a violation has occurred, appropriate remarks will be included on the JF-12, Record of Violation, and it will be forwarded to the Office of Security through the unit security officer or the regional security officer. While the presumption of responsibility for a violation will be guided by the principle of primary and individual responsibility as defined in § 9.2 (a) and (b), supervisors may be held responsible for failure to provide effective organizational security procedures, particularly when other than normal conditions cause the interruption of routine security procedures or controls that are not normally the sole responsibility of any individual. Substantive conflicting disclaimer or statement of mitigation in section 2 of the JF-12 must be resolved or responded to by the investigating officer before the form is forwarded for adjudication.

(2) Violation reports in all cases will be made a matter of record pending final adjudication and, at posts, a copy of the report will be placed in the employee's personnel file. If, after adjudication, it is determined that a security violation should not be charged to the employee, the Office of Security will so notify the employee and instruct the unit, post, or regional security officers concerned to amend their records accordingly, after the foregoing period. The Office of Security will determine whether first violations should be submitted with recommendations to the responsible personnel office. All subsequent violations will be forwarded with recommendations for appropriate action to the personnel office unless 2 years have elapsed or in AID and USIA, unless 1 year has elapsed. The Office of Security may, in its discretion, treat a subsequent violation as a first violation.

§ 9.63 Disciplinary action for security violations.

(a) For State and AID.-After an affirmative adjudication of a violation one of the following actions may be taken under applicable personnel rules and regulations:

(1) Letter of warning;

(2) Letter of reprimand;

(3) Administrative action less than dismissal; or

(4) Dismissal.

As the occasions demand, reports of charged security violations may be placed in the employee's permanent personnel and security files. The Office of Security will recommend to the responsible personnel office that disciplinary action be taken when such action is indicated. The responsible personnel office has final authority and responsibility to take disciplinary action with respect to security violations. However, should circumstances warrant, the department may take action under the provisions of section 13 of Executive Order 11652 and Executive Order 10450.

(b) U.S. Information Agency.—(1) After an affirmative adjudication of a violation the following actions may be taken under applicable personnel rules and regulations:

(i) First violation-Letter of Warning:

(ii) Second violation-Letter of Reprimand:

(iii) Third violation-Suspension without pay for 1 day.

The above progression of penalties is normally followed for a succession of violations that result from unintentional errors of omission. Where particularly serious violations result from errors of commission, more severe penalties may be recommended, including more than 1 day's suspension without pay, reassignment to a nonsensitive position, or dismissal.

(2) Report of a first violation is filed in the employee's permanent security file, but is not forwarded for inclusion in the employee's permanent personnel file unless it is to be considered along with a subsequent violation for disciplinary action of a letter of reprimand or greater penalty. Reports of violation that result in disciplinary action greater than a letter of warning are forwarded for inclusion in the employee's permanent personnel file as well as the security file. The Office of Personnel has final authority and responsibility to take disciplinary action with respect to security violations. However, should circumstances warrant, the Office of Security may initiate action under the provisions of Executive Order 10450 and section 13 of Executive Order 11652.

§9.64 Abuse of classification and declassification policies.

The Council on Classification Policy is responsible for recommending appropriate administrative action against any officer or employee who unnecessarily classifies or overclassifies information or material, including warning letter, formal reprimand, and to the extent permitted by law suspension without pay, and removal.

§ 9.65 Applicable criminal laws.

Penalties of fine and imprisonment are established by statute for the unauthorized disclosure, dissemination, communication, furnishing, transmission, or other unlawful release of classified information, and for making false or fraudulent statements to an agency of the Government.

APPENDIX A DEFINITIONS

The following definitions are applicable to this part:

Access. The ability and opportunity to obtain knowledge of classified or administratively controlled information..

Administrative Control Designation. The label "Limited Official Use" is used to safeguard certain privileged and other nonclassified information from indisériminate disclosure.

Airgram.-A message form used by State and AID for written communications on matters of policy, economic, and political reporting and other subjects requiring multiple distribution. An airgram is not encrypted. (See also Field Message.)

Chief of Mission.—The principal diplomatic representative of the United States in charge of a U.S. mission, who is an ambassador, minister, minister resident, charge d'affaires, commissioner, or diplomatic agent. Reporting directly to the Secretary of State, the Chief of Mission directs all programs and operations of the entire U.S. mission within the country to which accredited, including those of other U.S. agencies except the military commands.

Classification.-The determination that official information requires, in the interest of national security, a specific degree of protection against unauthorized disclosure, coupled with the designation of the appropriate category: Top Secret. Secret, or Confidential.

Classified Information.—Official information which has been determined to require. in the interest of national security, protection against unauthorized disclosure and to which the appropriate category: Top Secret, Secret, or Confidential has been applied.

Code Room.-The designated area in which crytographic operations are conducted.

Communications Security (COMSEC). Measures designated to protect information during electrical transmission or associated processing.

Communications Security (COMSEC) Material.-All material associated with the security of telecommunications. Term used to cover both cryptographic and noncryptographic items.

Compromise.-Loss of security enabling unauthorized access to classified or administratively controlled information. Affected material is not automatically declassified. Possible Compromise means unauthorized access physically possible

but it cannot be established that an unauthorized person took advantage of the opportunity. Considered Compromise means circumstances indicate a strong likelihood that unauthorized access was attained. Countermeasures or special precautions may be appropriate to minimize effects of the security loss.

Courier.-A U.S.-citizen employee of the Department of State whose chief function is to transport diplomatic pouches across international frontiers between the Department and posts and between posts.

Cryptographic material.-All COMSEC material bearing the marking "Crypto" or otherwise designated as incorporating cryptographic information. Declassification.-The determination that particular classified information no longer requires protection against unauthorized disclosure in the interest of national security. Such determination shall be by specific action or automatically after the lapse of a requisite period of time or the occurrence of a specified event. If such determination is by specific action, the material shall be so marked with the new designation.

Decontrol. The authorized removal of an assigned administrative control designation.

Department.-The term also includes any agency or other Government unit and their contractors, unless the text indicates otherwise.

Document.-Any recorded information regardless of its physical form or characteristics, including, but not limited to, the following:

(a) Written material, whether handwritten, printed, or typed.

(b) Painted, drawn, or engraved material

(c) Sound or voice recordings.

(d) Printed photographs and exposed or printed film, still or motion picture. (e) Reproductions of the foregoing, by whatever process reproduced. Downgrading.-The determination that particular classified information requires a lesser degree of protection against unauthorized disclosure than currently provided. Such determination shall be by specific action or automatically after lapse of the requisite period of time or the occurrence of a specified event. If such determination is by specific action, the material shall be so marked with the new designation.

Field Message.-A nonencrypted, multiple copy message from a USIS post abroad to USIA headquarters, Washington, D.C. (See also Airgram.)

Formerly Restricted Data.-Information removed from the Restricted Data category upon determination jointly by the Atomic Energy Commission and Department of Defense that such information relates primarily to the military utilization of atomic weapons and that such information can be adequately safeguarded as classified defense information subject to the restrictions on transmission to other countries and regional defense organizations that apply to Restricted Data.

Information. Knowledge which can be communicated by any means.

Material.-Any document, product, substance, equipment, supplies, ог

apparatus.

National Security.-Refers to national defense or foreign relations matters of the United States.

Nonrecord Material.-Extra and/or duplicate copies that are only of temporary value, including shorthand notes, used carbon paper, preliminary drafts, and other material of similar nature.

Office of Security.-The Offices which have been designated in State, AID, and USIA to administer their respective security programs.

Official Information.-Information which is owned, produced, or subject to the control of the U.S. Government.

Original Classifier.--An authorized individual in the executive branch who initially determines that particular official information requires a specific degree of protection against unauthorized disclosure in the interest of national security and applies the appropriate category, Top Secret. Secret, or Confidential.

Paraphrasing.-A restatement of text in different phraseology without alteration of its meaning.

Post Security Officer.-A U.S.-citizen employee of the Foreign Service who is a non-professional security officer designated to perform security functions. Pouch Message.-A nonencrypted, multiple copy message from headquarters to a USIS post.

Principal Officer.-As defined by the Foreign Service Act of 1946, as amended. "the officer in charge of an embassy, legation, or other diplomatic mission or a

consulate general, consulate, or vice consulate of the United States." Principal officers, other than chiefs of missions, are responsible for the effective organization, operation, and supervision of programs within their jurisdiction at subordinate post. (See also Chief of Mission.)

Product and Substance.-Any item of material (other than a document) in all stages of development, processing, or construction and including elements, ingredients, components, accessories, fixtures, dies, models, and mockups associated with such items.

Record Material.-All books, papers, maps, photographs, or other documentary materials, regardless of physical form or characteristics, made or received by the U.S. Government in connection with the transaction of public business and preserved or appropriated by any agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, or other activities of any agency of the Government, or because of the informational data contained therein.

Regional Security Officer.-The officer who has been designated to administer the security program for a specific area or post.

Restricted Area.-A specifically designated and posted area in which classified or administratively controlled information or material is located or in which sensitive functions are performed, access to which is controlled and to which only authorized personnel are admitted.

Restricted Data.-All data (information) concerning: (1) Design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but not to include data declassified or removed from the Restricted Data category pursuant to section 142 of the Atomic Energy Act. (See section 11w, Atomic Energy Act of 1954, as amended; 42 U.S.C. 2014 (y)).

Security Classification Categories.-Refers to Top Secret, Secret, and Confidential designations on classified information or material as defined in section 1 of Executive Order 11652.

Sensitive Intelligence Information.-Such intelligence information, the unauthorized disclosure of which could lead to counteraction: (a) jeopardizing the continued productivity of intelligence sources or methods which provide intelligence vital to the national security, or (b) offsetting the value of intelligence vital to the national security.

Telegraph.-Any document recording information or for transmission by telegraphic, telephone, cable, radio, or other electrical means. An airgram or field message is not transmitted by electrical means.

Unit Security Officer.-A U.S.-citizen employee who is nonprofessional security officer designated within a specific or homogeneous working unit to assist the Office of Security in carrying out functions prescribed in these regulations.

Upgrading. The determination and designation that particular classified information or material falls within a higher security classification category, in the interests of national security, than currently provided.

U.S. AID Director.-The senior officer in charge of the AID program in designated countries.

U.S.I.A. Field Establishment, Head of.-The Senior U.S.I.A. officer at a post, or at an installation or activity located outside Washington, D.C.

LEGISLATIVE HISTORY

[Exhibit 62]

EXCERPT FROM HOUSE REPORT No. 93-876, ON FOIA AMENDMENTS,

1974

COURT REVIEW

Although the present Freedom of Information Act requires de novo determination of agency actions by the Federal courts, the language is ambiguous as to the extent to which courts may engage in in camera inspection of withheld records.

A recent Supreme Court decision held that under the present language of the Act, the content of documents withheld under section 552 (b) (1)—pertaining to national defense or foreign policy information-is not reviewable by the courts under the de novo requirement in section 552(a) (3)." The Court decided that the limit of judicial inquiry is the determination whether or not the information was, in fact, marked with a classification under specific requirements of an Executive order, and that this determination was satisfied by an affidavit from the agency controlling the information. In camera inspection of the documents by the Court to determine if the information actually falls within the criteria of the Executive order was specifically rejected by the Court in its interpretation of section 552 (b) (1) of the Act. However, in his concurring opinion in the Mink case, Mr. Justice Stewart invited Congress to clarify its intent in this regard."

Two amendments to the Act included in this bill are aimed at increasing the authority of the courts to engage in a full review of agency action with respect to information classified by the Department of Defense and other agencies under Executive order authority.

In camera review

The first of these amendments would insert an additional clause in section 552(a)(3) to make it clear that court review may include examination of the contents of any agency records in camera to determine if such records or any part thereof shall be withheld under any of the exemptions set forth in section 552(b). This language authorizes the court to go behind the official notice of classification and examine the contents of the records themselves.

National defense and foreign policy exemption

The second amendment aimed at court review is a rewording of section 552(b) (1) to provide that the exemption for information involving national defense or foreign policy will pertain to records which are "authorized under the criteria established by an Executive order to be kept secret in the interest of the national defense or foreign policy." The change from the language pertaining to information "required" to be classified by Executive order to information which is "authorized" to be classified under the "criteria" of an Executive order means that the court, if it chooses to undertake review of a classification determination, including examination of the records in camera, may look at the reasonableness or propriety of the determination to classify the records under the terms of the Executive order.

Even with the broader language of these amendments as they apply to exemption (b) (1), information may still be protected under the exemption of 552(b) (3): “specifically exempted from disclosure by statute." This would be

11 Environmental Protection Agency et al. v. Patsy T. Mink et al., 410 U.S. 73 (1973). 12 Ibid., at p. 94.