TITLE 32-NATIONAL DEFENSE

Chapter XIX-Central Intelligence Agency

PART 1900-PUBLIC ACCESS TO DOCUMENTS AND RECORDS AND DECLASSIFICA❤ TION REQUESTS

FREEDOM OF INFORMATION

AGENCY: Central Intelligence Agency.

ACTION: Final rule.

Summary: This rule amends CIA regulations governing access to records under the Freedom of Information Act by clarifying and updating the term "records" so that it includes machine readable materials and those documents and records furnished by other agencies, foreign governments or international organizations and held by the CIA. Also, under this rule a request under the Act for documents or records originated by CIA, which is referred to CIA by another agency shall be considered a Freedom of Information request to the CIA. It will be processed in accordance with CIA regulations, as of the time that it is received by CIA, and CIA will respond directly to the requester, making it unnecessary for a requester to submit requests to both agencies. Similarly, a request directed to CIA that concerns documents or records orignated by another agency will be transferred by CIA to the originating agency or their determination and direct response to the requester.

Effective Date: May 12, 1977.

For further information contact: Gene F. Wilson, Information and Privacy Coordinator, Central Intelligence Agency, Washington, D.C. 20505, 703-351-7486. Supplementary information: Interested persons have been afforded an opportunity to participate in the making of these amendments by a notice of proposed rulemaking issued February 3, 1977 and published in the Federal Register, Vol. 42, No. 28, on February 10, 1977. No comments were received in response to the notice. These amendments are the same as those published in the notice. Accordingly 32 CFR Part 1900 is amended as follows:

§ 1900.3 [Amended]

1. In § 1900.3 paragraph (g) is amended by inserting the words "machine readable materials" between the word "photographs" and the words "and other documentary materials" and by deleting paragraphs (4) and (5).

2. Section 1900.11 is amended by revising paragraph (d) to read as follows: § 1900.11 Freedom of information communications; requirements as to form.

(d) Any request or communication to an agency other than the Central Intelligence Agency which requests or concerns documents or records originated by the CIA, and which is transferred by that agency to the CIA, shall be considered a Freedom of Information request to the CIA for that referred document as of date of receipt by the CIA of the referral and shall be processed pursuant to regulations. CIA will respond directly to the requester.

3. In § 1900.43 a new paragraph (c) is added to read as follows:

$1900.43 Reviewing records.

(c) In the event located records are determined to have originated with another government agency, the Coordinator shall notify the requester of such fact and shall expeditiously forward such records or a description thereof to the originating agency for their determination and direct response to the requester. Dated: April 30, 1977.

JOHN F. BLAKE,

Deputy Director for Administration, Central Intelligence Agency.

[FR Doc. 77-13513 Filed 5-11-77; 8:45 am]

Sec.

6.1

6.2

6.3

6.4

6.5

6.6

6.7

6.8

3.9

[Exhibit 61]

STATE DEPARTMENT INFORMATION REGULATIONS

(22 CFR 6, 9)

PART 6-FREEDOM OF INFORMATION POLICY AND PROCEDURES

Definitions.

Availability of records.

Executive Order 11652.

Records which may be exempt from disclosure.

Classified records and information from other agencies.

Authority to release and certify; authority to withhold records.

Time limits.

Appeals.

Public reading room.

6.10 Manner of requesting records.

6.11

Requests addressed to Foreign Service posts.

6.12 Closing requests.

6.13 Subsequent requests for same records.

6.14 Schedule of fees and method of payment for services rendered. 6.15 Opening of records for nonofficial research.

6.16 Activities of advisory committees.

AUTHORITY: Sec. 4 of the Act of May 26, 1949, as amended (63 Stat. 111) (22 U.S.C. 2658); E.O. 11652, 37 FR 5209 (5 U.S.C. 552) (Pub L. 93-502). SOURCE: Dept. Reg. 108.711, 40 FR 7256, Feb. 19, 1975, unless otherwise noted.

§ 6.1 Definitions.

As used in this part, the following definitions shall apply:

(a) The term "identifiable" means, in the context of a request for a record, a description which reasonably identifies a particular record sought. Such a description, if possible, should include date, format, subject matter, country concerned, office or mission originating or receiving the record, and the name of any person to whom the record is known to relate.

(b) The term "record" includes all books, papers, maps, photographs, or other documentary material, or copies thereof, regardless of physical form or characteristics, made in or received by the Department of State (including Foreign Service posts abroad) and preserved as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Department or the Foreign Service. It does not include copies of the records of other Government agencies (except those which have been expressly placed under the control of the Department of State upon termination of another agency), foreign governments, international organizations, or non-governmental entities unless they evidence organization, functions, policies, decisions, procedures, operations, or activities of the Department of State. It does not include records in the Berlin Document Center.

§6.2 Availability of records.

(a) All identifiable records of the Department of State shall be made available to the public upon compliance with the procedures established in this part, except to the extent that a determination is made to withhold a record exemptable under 5 U.S.C. 552(b). That determination shall be made in accordance with § 6.6(b). (b) Unclassified information, documents, and forms which have previously been provided to the public as part of the normal services of the Department of State will continue to be made available on the same basis as before. Any Departmental officer who receives a request for records through normal channels of contact with the public, media, or the Congress which would not normally be made available shall advise the requester that, if the requester so wishes, the request will be referred to the Director, Freedom of Information Staff, Bureau of Public Affairs (hereinafter the FOI Director). If the Departmental officer has reason to believe that the request is intended to be one under the Freedom of Information Act (see 6.10), the officer shall refer it immediately to the FOI Director and so advise the requester.

§6.3 Executive Order 11652.

A request for classification review under Executive Order 11652 (37 FR 5209) which is identified as specifically and exclusively so intended will be processed in accordance with that Order and the implementing National Security Council Directive (37 FR 10053).

§ 6.4 Records which may be exempt from disclosure.

(a) The following categories of records maintained by the Department of State may be exempted from disclosure:

(1) Records specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and in fact properly classified pursuant to such executive order

(2) Records related solely to the internal personnel rules and practices of an agency.

(3) Records specifically exempted from disclosure by statute. Included in this category are records relating to the officers and employees of the Foreign Service, including efficiency records (§ 612 of the Foreign Service Act of 1946, as amended, 22 U.S.Č. 986), the records of the Department of State or of diplomatic and consular officers of the United States pertaining to the issuance or refusal of visas of permits to enter the United States (§ 222(f) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 1202(f)), "Restricted Data" under section 224 of the Atomic Energy Act (42 U.S.C. 2274), and records subject to section 102(d) of the National Security Act of 1947 (61 Stat. 498).

(4) Records of trade secrets and commercial or financial information obtained from a person and privileged or confidential.

(5) Records which are inter-agency or intra-agency memorandums, letters, telegrams, or airgrams which would not be available by law to a party other than an agency in litigation with the agency.

(6) Records such as personnel and medical files and similar files the public disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

(7) Investigatory records compile for law enforcement purposes, but only to the extent that the production of such records would: (i) Interfere with enforcement proceedings; (ii) deprive a person of a right to a fair trial or an impartial adjudication; (iii) constitute an unwarranted invasion of personal privacy; (iv) disclose the identity of a confidential source and, in the case of a record. compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence' investigation, confidential information furnished only by the confidential source; (v) disclose investigative techniques and procedures; or (vi) endanger the life or physical safety of law enforcement personnel.

(8) Records contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.

(9) Geological or geophysical information and data, including maps, concerning wells.

(b) Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under paragraph (a) of this section. Normally a portion of a record shall be considered reasonably segregable when segregation can produce an intelligible record which is not distorted out of context and does not contradict the record being withheld. § 6.5 Classified records and information from other agencies.

(a) The applicability of the exemption for classified information (§ 6.4(a) (1)) requires a determination that the record in question is specifically authorized under the criteria established by Executive Order 11652 to be kept classified and is in fact. properly classified pursuant to that order. This determination shall be made whenever possible before the initial denial under § 6.6(b). It must, in any case, be made prior to the decision of an appeal under § 6.8. No denial should be based solely on the existence of a classification marking on the record, and there shall be a substantive review of the validity of the classification to the maximum extent feasible. within the time limits for a denial under § 6.7.

(b) When a request for a Departmental record encompasses classified information originated by another department or agency, the request for that information shall be referred to the originator. The requester should be advised of the date

and the addressee of the referral. Classified information involving intelligence sources and methods is subject to the control of the Director, Central Intelligence Agency; FBI information (whether or not classified) is subject to the control of the FBI; "Restricted Data" is subject to the control of the Energy Research and Development Administration or the Nuclear Regulatory Commission, as the case may be; and National Security Council documents are subject to the control of the Council. The Bureau of Intelligence and Research shall be consulted on records which appear to be in the first category; the Office of Security shall be consulted on records which appear to be in the second category; and the Executive Secretariat of the Department shall be consulted on records which appear to be in the last category.

(c) Requests for documents of other departments or agencies in the files of the Department of State which are not records of the Department (such as FBI reports) shall be referred to the appropriate department or agency whether or not classified. The requester shall be advised of the date and the addressee of the referral.

§ 6.6 Authority to release and certify; authority to withhold records.

(a) Except as provided in § 6.15, the FOI Director is authorized to furnish copies of any record requested under these regulations which is not the subject of a denial letter under paragraph (b) of this section, and this authority shal include the authority to declassify any such record. The FOI Director is also authorized upon request to provide certified copies of any such record in accordance with Part 131 of this chapter. In order to determine whether a record requested under this Part may be furnished, the FOI Director shall refer the request to the bureau, office, or other unit of the Department of State which he believes has primary responsibility, normally the originating office, or, in the case of documents originated elsewhere, the office with action responsibility for that document. If the office to which the request is referred does not accept responsibility, it shall immediately inform the FOI Director which Departmental office should have responsibility. The office which recommends referral to another office is required to send the request by hand, if possible, to that office. Whichever office accepts responsibility shall examine the requested record and, in consultation with the Assistant Legal Adviser designated to provide legal advice to the responsible office, determine which, if any, of the exemptions in § 6.4(a) are applicable and determine whether to claim an applicable exemption. If there is no applicable exemption or it is determined not to exercise an exemption, the responsible office shall advise the FOI Director, who will, in turn, so advise the requester of the record and be responsible for collection of any fees and release of the record.

(b) If the responsible office believes that one or more exemptions is applicable and should be exercised, it shall so advise the FOI Director immediately. The responsible office shall also complete whatever coordination within the Department or with other departments or agencies is required under normal Departmental practice. After informing the FOI Director of its intention to recommend denial of a requested record, the responsible office shall send its recommendation, in writing, to the designated Freedom of Information officers of the bureau with supervisory responsibility over the responsible office. (The designated Freedom of Information Officer shall be at the Deputy Assistant Secretary level or equivalent rank.) The designated Freedom of Information Officer shall consult with the FOI Director before making his decision on the recommendation to deny a record. If the Freedom of Information Officer decides to deny a record requested under this Part, he shall directly advise the requester in writing. This shall be considered the initial denial by the Department of State, and the initial denial letter must be sent within 10 working days from the date actually received by the FOI Director, unless the FOI Director grants an extension of time under § 6.7(b). The denial letter shall state that the denial may be appealed to the Council on Classification Policy, the exemption or exemptions claimed, and the reason for doing so; it shall also enclose a copy of the regulation on appeals (§ 6.8). If a request is denied in whole or part but the responsible office is prepared to give further consideration to release of the requested record, the letter shall also state this fact and indicate the date by which this further consideration is expected to be completed. Whenever it is not possible to complete substantive review of the classification of classified records within the time allocated by the FOI Director, the letter should so state and indicate that this review is continuing and when it will be completed. If the designated Freedom of Information Officer decides that the requested record will not be denied, he shall so inform the FOI Director; this decision must be made also within the time allocated by the FOI Director.

§ 6.7 Time limits.

(a) An initial denial under § 6.6(b) shall be made within 10 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of a request for a record under this part by the FOI Director. An appeal under § 6.8 shall be decided within 20 days (excepting Saturdays, Sundays and legal public holidays) after the receipt of such an appeal by the Assistant Secretary of State for Public Affairs. (b) In unusual circumstances as specified in this paragraph, the FOI Director may extend the time limits in paragraph (a) of this section by written notice to the person requesting a record under this part, which notice shall set forth the reasons for such extension and the date on which a determination or appeal decision is expected to be dispatched. No such notice shall specify a date which would result in an extension of either the initial determination period, or the appeal period, or both, for a total of more than 10 working days. As used in this paragraph "unusual circumstances" means, but only to the extent reasonably necessary to the proper processing of the particular request

(1) The need to search for and collect the requested records from overseas posts or other establishments that are separate from the office processing the request; (2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the Department of State having substantial subject matter interest therein.

(c) Where the responsible office believes that further consideration of a request may result in the release of additional records or portions thereof, the expiration of the time period allocated by the FOI Director does not require the termination of that consideration, and it should be continued with a view to maximum disclosure of requested records within a reasonable period of time.

§ 6.8 Appeals.

(a) Review of an initial denial under § 6.6(b) may be requested by the person who submitted the original request for a record. The review (hereinafter the appeal) must be requested in writing within 60 days of the date that the requester is informed either: (1) That the request is denied completely, or (2) that all records which are being furnished in response to his request have been released and he has been so informed.

(b) The appeal must be sent by certified mail to the Assistant Secretary of State for Public Affairs, Chairman, Council on Classification Policy, Department of State, Washington, D.C. 20520. The time for decision on appeal begins on the date the appeal is actually received in the Office of the Assistant Secretary. The request shall include a statement of the circumstances, reasons, or arguments advanced for insistence upon disclosure of the originally requested record and a copy of the initial denial letter.

(c) The Council on Classification Policy shall decide the appeal; there shall be a written record of the reasons for the decision and the views of each member. The decision shall be communicated in writing to the requester by a letter from the Assistant Secretary for Public Affairs. If the decision is to withhold, the letter shall identify the exemption or exemptions exercised under § 6.4, the reason, and, if the Council is prepared to give further consideration not withstanding expiration of the time allocated for decision, the letter shall so state and indicate when that consideration is expected to be completed.

§ 6.9 Public reading room.

A public reading room or area where records may be made available is located in the Department of State, 2201 C Street, NW., Washington, D.C. 20520. The receptionist will refer the applicant to the proper room. Fees will not be charged for access by the public to this room or the records contained therein, but fees, in accordance with § 6.14, will be charged for furnishing copies thereof. The Assistant Secretary of State for Public Affairs, in his or her discretion, may authorize persons to utilize their own portable copying equipment. Any arrangements for the use of such equipment must be consistent with security regulations of the Department of State and are subject to the availability of personnel to monitor such copying.

§ 6.10 Manner of requesting records.

(a) Identifiable records may be requested by the public in person from 10 a.m. to 4 p.m., Department of State, 2201 C Street, N. W, Washington, D.C., where the