(a) Oversight office.-(1) The Administrator of General Services, subject to the direction of the President and the National Security Council, shall be responsible for the implementation and monitoring of the program established pursuant to this Order. Such responsibility shall be performed through a Security Information Oversight Office headed by a full-time Director authorized to maintain a permanent staff. The Oversight Office shall: (i) In accordance with procedures to be established by its Director, oversee agency actions to ensure compliance with the provisions of this Order and implementing directives. (ii) Consider and take action on complaints and suggestions from persons within and without the Government with respect to the general administration of the Order, including appeals from agency denials of requests for declassification of those classified records defined in Section 4 (e) (4) which are ten or more years old. (iii) Develop, in consultation with affected agencies, directives required for the effective implementation of this Order. (iv) Report annually to the President through the National Security Council on Executive Branch implementation of the Executive order. (v) Have the authority to require of each agency with original classification authority such reports, information, and other cooperation as necessary to fulfill the above responsibilities. (2) There is also established an Interagency Security Information Advisory Committee which shall be chaired by the Director of the Oversight Office and shall be comprised of representatives of the Departments of State, Defense, Justice, and Energy, the Director of Central Intelligence, the National Security Council staff, and the National Archives and Records Service. The Interdepartmental Committee shall meet at the call of the Chairman and shall act in an advisory capacity to him in all matters related to effective implementation of this Order and implementing directives. (b) Agencies. To promote the basic purposes of this Order, the head of each agency originating or handling classified information shall: (1) Prior to the effective date of this Order, submit to the Security Information Oversight Office for approval a copy of the regulations it proposes to adopt pursuant to this Order and implementing directives. Subsequent changes to agency regulations shall also be forwarded to the Oversight Office for approval. (2) Publish in the Federal Register those regulations or changes thereto which are approved by the Director of the Security Information Oversight Office and which are issued in implementation of this Order to the extent that they affect the general public. (3) Designate a senior member of the agency staff who shall conduct an active oversight program and shall ensure effective compliance with and implementation of this Order. (4) Designate a subordinate who shall chair an agency committee which shall have authority to act on all suggestions and complaints with respect to the agency's administration of this Order. This committee also may be authorized to act upon appeals from denials of declassification requests made pursuant to subsection 4(e). (5) Establish a continuing program to familiarize agency personnel and others authorized access to classified information with the provisions of this Order and implementing directives. There shall also be established and maintained an active security orientation and education program for such personnel in order to impress upon each individual his or her responsibility for exercising vigilance and care in complying with the provisions of this Order. (6) Ensure the preparation and promulgation of security classification guidance adequate to facilitate the identification and uniform classification of information requiring protection under the provisions of this Order. (7) Develop and promulgate declassification guidelines in accordance with Section 4(a) hereof. (8) Take necessary action to ensure that: (i) a demonstrable need for access to classified information is established prior to the initiation of administrative clearance procedures, and (ii) the number of people granted access to classified information is reduced to and maintained at the minimum, consistent with operational requirements and needs. (9) Cause a continuing review of safeguarding practices and procedures; and, eliminate those which are found to be duplicative and unnecessary. (10) Submit to the Security Information Oversight Office such information or reports as the Director of the Security Information Oversight Office may find necessary to carry out the Oversight Office's responsibilities. SECTION 8. ADMINISTRATIVE SANCTIONS (a) Any officer or employee of the United States who knowingly and willfully classifies or continues the classification of information in violation of this Order or any implementing directive; or knowingly and willfully and without authorization, discloses classified information; or compromises classified information through gross negligence; or knowingly and willfully violates any other provision of this Order or implementing directive which the head of an agency determines to be a serious violation, shall be subject to appropriate administrative sanctions. In any case in which the Oversight Office finds that unnecessary classification or overclassification has occurred it shall make a report to the head of the agency concerned so that corrective steps may be taken. (b) Sanctions may include, but are not limited to, reprimand, suspension without pay, removal, or other sanction in accordance with applicable law and agency regulations. (c) The head of each agency shall ensure that appropriate and prompt corrective administrative action is taken whenever a violation under paragraph (a) occurs. Additionally, heads of agencies shall immediately inform the Department of Justice of any case in which a violation of the criminal law may be involved. SECTION 9. ATOMIC ENERGY MATERIAL Nothing in this Order shall supersede any requirements related to "Restricted Data" and material designated as "Formerly Restricted Data" pursuant to the Atomic Energy Act of August 30, 1954, as amended, or the regulations of the Department of Energy. SECTION 10. REVOCATION OF PRIOR ORDERS Executive Order No. 11652 of March 8, 1972, as amended by Executive Orders No. 11714 of April 24, 1973 and No. 11862 of June 11, 1975, and all implementing directives issued pursuant to Executive Order No. 11652, including the Directive of May 17, 1972 (3 C.F.R. 1085(1971-75 Comp.)) are revoked. SECTION 11. EFFECTIVE DATE This Order shall become effective on March 1, 1978, except that the functions of the Security Information Oversight Office shall be effective immediately and shall be performed in the interim by the Interagency Classification Review Committee. 1 Statistics available through COB Sept. 8, 1977. 3,266 14,480 2 Miscellaneous category includes-no record available and no CIA record available; responses; canceled and withdrawn requests; requests referred to other agencies, etc. [Exhibit 52] DECIDED FOIA CASES INVOLVING b(1) EXEMPTION 1 (Asterisks denote cases involving the CIA) Associated Dry Goods Corp. v. EEOC, 419 F. Bell v. United States Department of Defense, 71 *Church of Scientology of California v. Bush, Civ. Church of Scientology of California v. United Epstein v. Resor, 296 F. Supp. 214 (N.D. Cal. 1969), aff'd 421 F.2d 930 (9th Cir. 1970), cert. denied 398 U.S. 965 (1970). Florence v. United States Department of Defense, 415 F. Supp. 156 (D.D.C. 1976). *Fonda v. CIA, Civ. No. 76–0285 (D.D.C. July 8, 1977).. *Goland v. CIA, Civ. Act. No. 76-0166 (D.D.C. May 26, 1976). *Halperin v. Colby, Civ. Act. No. 75-676 (D.D.C. June 4, 1976). *Hayden v. CÍA, No. 76-284 (D.D.C. Oct. 18, 1976.) *Klaus v. Blake, 428 F. Supp. 37 (D.D.C. 1976). Klaus v. NSC, Civ. No. 75–1093 (D.D.C. Oct. 22, 1976). Parties (a) (4) (B), X1-9, discretionary release X1, (by implication), X5, (a) (6) (C), "prompt disclosure" X1, in camera inspection X1, 3, 5 X1 X1, tardy classification, in camera inspection X1, 3, 7(E), in camera inspection X1, 6, 7 (C), (D), in camera inspection X1, 2, 5, 7 (A), (D), (F) X1 X1, (a) (4) (E) attorney's fees X1, 2, 3 (50 U.S.C. §403), X5, 6, 7(F), duty of agency to search, description by requester of records sought, in camera inspection discovery, work product X1, "agency records" X1 X1, 3, 6, 7(D), (E), (F), in X1, in camera inspection X1 In camera inspection, X1, 3 Kruh v. GSA, 61 F.R.D. 1 (E.D.N. Y. 1974). Moss v. Laird, Civ. No. 1254-71 (D.D.C. Dec. X1 *National Commission on Law Enforcement and X1, 3 Nixon v. Sampson, 389 F. Supp. 107 (D.D.C. *Phillippi v. CIA, 546 F. 2d 1009 (D.C. Cir. 1976). X1, 3 (44 U.S.C. §§ 2101, on *Ray v. CIA, Civ. No. 76-0903 (D.D.C. Jan. 25, X1, 3, in camera inspection, 1977). "agency records" (by implication) 1 Case list is taken from the Justice Department, Freedom of Information Committee's case list, July 1977. *Woolbright v. CIA, Civ. No. CV 76-2448 LEW X1, 3, refusal to disclose (C.D. Cal. Jan. 12, 1977). whether records exist. [Exhibit 54] COMMENT ON PROPOSED EXECUTIVE ORDER ON CLASSIFICATION Hand Delivery RON KIENLEN, Esq., General Counsel's Office, Office of Management and Budget, OCTOBER 14, 1977. DEAR MR. KIENLEN: We write to comment upon the draft Executive Order on national security classification. We commend the President for his decision to seek public reaction prior to its final issuance. We hope this decision reflects a readiness to amend the Order, for we believe that substantial revisions are required if the Order is to cut back the secrecy system appreciably. President Carter often has addressed the need to attack the problem of excessive secrecy in government. He has committed himself and his Administration to a policy of greater openness. He has indicated a keen awareness that this goal cannot be achieved without a major overhaul of our present security classification system. For these reasons we are particularly disappointed with this effort to design new classification guidelines to replace the system implemented by President Nixon's Executive Order No. 11652 issued on March 8, 1972. The draft Executive Order does not take the necessary steps required to cause a major reduction in government secrecy. The draft Order does not: 1. Substantially reduce the categories of information that may be classified or set forth those that may not be kept secret except in times of declared war or national emergency; 2. Articulate a narrow standard of harm to national security to guide officials authorized to classify documents; 3. Require that in all cases officials always weigh the value and importance of the information to the public (or a member of the public) against the possible risks of disclosure; 4. Reduce absolutely the number of agencies and officials permitted to classify documents; 5. Mandate shorter and more definite time limits for automatic declassification or review; and 6. Create incentives for the release of information which can counterbalance the natural tendency of officials to view their work as important enough to be kept secret. In its overall effect, the draft Executive Order is not appreciably different from its seriously flawed predecessor. More distressing, a careful analysis indicates that the draft is even worse than Executive Order 11652 in several respects. First, the draft, unlike the directive implementing the Nixon Administration Order, does not specify that documents must be classified upon origination. Second, although reducing the period for automatic declassification from 10 years to 6, the draft apparently gives officials power to exempt entire classes of information from this rule and continue their classification for 20 years. Even the Nixon Order requires document-by-document review for an extension longer than 10 years. Third, and worst of all, the draft Order adopts the Central Intelligence Agency's employee "secrecy agreements" as a model for the entire national security bureaucracy. As you know, the CIA used its secrecy agreement to obtain an injunction and thereby censor the writing of former employee Victor Marchetti. The use of such agreements can only be interpreted as an effort to expand the secrecy system beyond present dimensions. Millions of documents now bear unnecessary classification stamps. Without substantial revision, this order will have virtually no positive impact on the practice of over-classification. We believe that basic alterations are in order: 1. A clear statement of intent to reduce Government secrecy The only reason for a new Executive Order on classification is to reduce secrecy and to recognize the principle that "the interests of the United States and its citizens are best served by making information regarding the affairs of Government readily available to the public." This intent must be stated in a Preamble and we commend the language quoted from the current Executive Order. We note with approval that the draft Preamble does acknowledge the need to "balance the public interest in access to official information with the legitimate need to protect information which should be kept secret in the interest of national security." However, the substance of the draft Order does not implement this policy. If the new Órder is to be distinguished from the present one, significant substantive changes are necessary. 2. Narrower categories of information classifiable In a departure from Executive Order 11652, Section 2(b) of the draft lists thirteen categories of information which are classifiable. Although this section may have been intended to limit the universe of classifiable information, we submit that it will have the opposite effect. First, the categories are so broad and inclusive that it is hard to imagine any government information pertaining to national defense and foreign relations that could not fit within one of the categories. Second, a government classifier, required to work with such overbroad categories of information, may interpret them as establishing a presumption that all material conceivably covered ought to be classified. The thirteen categories should either be omitted from the draft or narrowed in significant measure. On the other hand, the Order should specify categories of information relating to the national security which may not be classified except in times of declared war or national emergency. 3. Articulated strict standards for classification Under the draft Order, information must now be "reasonably expected to cause significant damage to the national security" before it can be classified. The addition of the term "significant" is the only apparent change in the government standard for classification and presumably is designed to reduce secrecy. If this is the case, it is necessary to define the meaning of "significant" in the new Order. Of more use would be for the new Order to provide examples of the kinds of information now classified that would no longer be subject to classification under this higher standard. 4. Balance the public's right to know The public's right to know will often outweigh any "significant damage" to national security that might occur if information is disclosed. If we interpret the draft Order's statement of intent correctly, it is the position of the Administration that in such cases the information must be disclosed. To implement this policy a balancing test should be applied by those authorized to classify documents. We strongly urge such a test. We recommend that a third section (3) be added to Section 2(a) to provide the following: "(3) the damage to national security posed by the disclosure of the information is of such gravity that it outweighs any public interest in the disclosure." We note that this test has been adopted by both the House and Senate Intelligence Committees to guide their decisions to make public classified information. 5. Require officials to explain decisions to classify Whether the categories listed in Section 2(b) are narrowed or eliminated classifying officials should be required to explain on the face of every document why they have decided to keep information secret under any category or test. This would require officials to indicate the specific type of "significant damage to the national security" that would occur if the information were disclosed and why such damage outweighs the value of the information to the public. Such a require |