to rummage around in other persons' personnel files. Subject to the remainder of this memo, these same general rules also apply to the protection of 7(C) privacy material contained in records the existence of which is known or must be admitted.

The most difficult area to apply privacy tests is in the context of investigative records. By their very nature, these are records about more than one person. Mr. Flatherty feels that we have been excising and withholding too much material in those instances where the requester is one of the persons whose activities are chronicled in the file. If the F.B.I. has a file on John Doe-our requester-and information has been deliberately placed in that file which pertains to Richard Roe, that Roe information is presumptively information about Doe as well and should not ordinarily be withheld from him on 7(C) grounds. If it does not pertain to Doe, one may will ask why it is in the Doe file at all? If the information is intimate or very personal, and does not actually involve Doe, it may be appropriate for continued denial of access on privacy grounds. These cases should be carefully reviewed by you, however, and the routine excising/denial of all "third party information" is to cease. The test under the statute is unwarranted invasion of personal privacy, not simply invasion of privacy. The burden under the statute and our regulations is on the one who would deny access. These concepts are to be applied strictly in reviewing cases on administrative appeal. I realize that I have given you little specific guidance. As before, privacy will continue to be a vexatious and difficult area of our operations. Mr. Flaherty does anticipate that the overall effect of his guidance will be the release of a good deal of information to requesters who are the subjects of files that might hitherto have been withheld solely on the basis of 7(C). It will change nothing if some other exemption (e.g., 7(A) or 7(D)) protects the same material. Furthermore, even if it is determined under this guidance that the information about someone else is also information about the requester, you must still continue to apply the "balancing test," as well as your best judgment and common sense, to make the right calls in the myriad of individual fact situations with which we are faced in the privacy area. Multisubject files, as well as those on organizations, will warrant your particular attention in this regard. The bottom line, however, is that access to requested material about a requester will not be denied on privacy grounds unless it is legally correct and logically appropriate to do so. Approved:

PETER F. FLAHERTY.

[Exhibit 78]

SHEA MEMO ON ADMINISTRATIVE MARKINGS

Memorandum to: Professional Staff.

From: Quinlan J. Shea, Jr., Director, Office of Privacy and Information Appeals. Date: May 25, 1977.

Subject: Administrative markings.

As you already know, Deputy Attorney General Flaherty has directed me to apply as rigorously as possible a "harm test" before recommending to him the affirmance of a denial of access to any requested record or portion thereof. He has particularly indicated that what we usually term "low 2" materials— administrative markings, routine instructions, etc.-will not be withheld. If such markings were excised from released records, or materials were denied in their entireties on the basis that they are purely internal and/or administrative, the proposed letter for Mr. Flaherty's signature should address the point. If the supplemental release has already been made by the component, the decision letter should indicate the availability on specific request of substitute pages, without cost, to replace those from which such excisions were made. Pages withheld in their entireties on this basis will be provided, upon specified request and agreement to pay the reproduction charge of ten cents per page. If the supplemental release has not been made (or there would have been no supplemental release), the materials within the scope of the request that have already been released will be reprocessed by the component and released with nothing withheld on the basis of "low 2." If there is any question whether the scope of a request extends to purely administrative pages, containing no substantive information on the subject of the request, it is probably better at both the initial

request and appeal stages not to send (and charge for) such materials. Instead, simply indicate their availability, just as if a supplemental release had already been made.

What if administrative markings or materials are believed to be appropriate for withholding under the "harm test?" In that event, exemption 2 should be cited as a basis for continued denial of access. I expect, however, that there will ordinarily be another exemption [e.g., 7(A) or, particularly 7(D)] applying to it as well. There may, of course, be cases in which another exemption cannot or should not be cited in addition to exemption 2. An obvious example would be where the excised/withheld material has "high 2" implications.

Lastly, if a page contains substantive material within the scope of a request, all of which will continue to be withheld on a basis not involving "low 2," the page should not be released with nothing but "low 2" markings, and charged for, unless it is certain that the requester desires it. Again, the better procedure is to advise the requester of the availability of such material, if he wants and is willing to pay for it.

Approved :

PETER F. FLAHERTY.

(b) (7) EXEMPTION-INVESTIGATORY RECORDS

Additional Material Submitted for the Record

[Exhibit 79]

JUSTICE DEPARTMENT GUIDELINES ON RELEASE OF THIRD PARTY INFORMATION IN FILES OF HISTORICAL INTEREST

OFFICE OF THE DEPUTY ATTORNEY GENERAL,

Washington, D.C., August 5, 1975.

MEMORANDUM FOR THE DEPUTY ATTORNEY GENERAL RE REQUEST FOR
GUIDANCE BY DIRECTOR KELLEY

Background

ACTION MEMORADUM

By memorandum [Tab A] date July 28, 1975, Director Kelley initially refers to three pending Freedom of Information Act suits against the Department in which plaintiffs [the Meeropols, Allen Weinstein and Alvin Goldstein, respectively] seek extensive materials pertaining to the case of Alger Hiss and Julius and Ethel Rosenberg. The Meeropol suit is also an open F.O.I.A. administrative appeal already considered by Attorney General Levi after receiving your advice, while various other pending administrative appeals and judicial actions seek much of the same information as do these three cases. Director Kelley's specific stated purpose is to focus attention on a problem involving a considerable quantity of records in the Rosenberg file. In view of a letter he has received from David and Ruth Greenglass, requesting that no material pertaining to them be released by the Department, Director Kelley seeks "particular guidance" as to the release of 244 pages which relate to them, the major portion of which consists of interviews with them. A copy of the letter from the Greenglasses is attached [Tab B], as is a copy of a second letter from Mr. Louis Abel, a relatively minor figure in the Rosenberg case [and brotherin-law of David Greenglass], containing a similar request [Tab C]. These letters were transmitted by a letter from Attorney Stanley Tsapis [Tab D], who states that his "clients are extremely concerned over the possibility of any disclosure involving them" [emphasis added] and suggests that "there should be as much resistance [presumably by the Department, in opposition to such disclosure] as can be exerted."

Departmental Positions

After referring to two administrative precedents under the "old" Freedom of Information Act, in which his actions in denying access to reports of interviews with principal witnesses in the Rosenberg case and to Greenglass data were affirmed by Attorney General Saxbe and Acting Attorney General Bork. respectively, Director Kelley states the position of the Bureau on third party releases as follows:

"We prefer to adhere to the policy adopted by us restricting release of information concerning subjects of our files, in this case the Greenglasses and other principals of the Rosenberg case, to only those instances where the subject, or his authorized representative, has consented to release."1

1 In a recent letter to F.O.I. requester Peter Irons. Director Kelley sought to extend this requirement to encompass consent from the heirs of Whittaker Chambers. The same posttion was previously asserted by Director Kelley on behalf of the heirs of Erich Gimpel. convicted German WWII spy, but was overruled in Attorney General Levi's actions on the appeals of Rudolpho Scognamiglio and David Kahn.

I disagree most emphatically with the position of the Bureau and recommend the immediate release of the Greenglass data, subjct only to possible other exemptions which there is a compelling reason to assert. Furthermore, I believeon the basis of numerous unsatisfactory discussions with personnel of the Bureau's Freedom of Information Section on this very point-that there is a compelling need for definitive guidance in this area, in order that the heretofore inordinate delays in processing these materials can be avoided in the future. Accordingly, I propose that the guidance furnished on this occasion extend generally to at least all of the principal personages in the Rosenberg and Hiss cases, as well as to the principal matter of evidentiary controversy therein.

Significant Issues

What is the proper "privacy test" to be applied to investigatory records obtained or derived from or pertaining to [regardless of source] the principal personages in cases of historical interest; what is the proper "privacy test" to be applied to the sources of other information contained in investigatory records pertaining to the principal matters of evidentiary controversy in such cases?

Discussion

Director Kelley correctly summarized the result of the two principal Departmental precedents tending to support the Bureau's position. Both of these decisions were under the "old" Act, however, when exemption 7 protected "investigatory files compiled for law enforcement purposes [emphasis added].

In each case, the requested records were unquestionably exempt from mandatory release under the Act. The issue on appeal in each instance was whether to direct a discretionary release over the objection of Director Kelley. As of February 19, 1975, the investigatory files exemption was replaced by a new exemption 7 which protects investigatory records, but only if they fall within one of six enumerated categories. For purposes of this discussion, the clause under consideration is 7(C), which exempts from mandatory release those investigatory records compiled for law enforcement purposes the release of which would constitute an unwarranted invasion of personal privacy.

There have been four appeals under the amended Act which, in my opinion, require and properly require that the general rule desired by Director Kelley be determined to be inapplicable to the principal persons and issues in the kind of cases under discussion. The four precedents are Scognamiglio, Meeropol I [F.B.I. records], Meeropol II [records of the Office of the United States Attorney for the Southern District of New York] and Kahn. In your memorandum on the Scognamiglio appeal, you stated that:

"With a possible exception for any intimate personal information unrelated to their crimes that may be contained in our files, I am of the opinion that there is no privacy interest on behalf of either Gimpel or Colepaugh which is not outweighed by the legitimate interest in this case on the part of historians or even by curiosity on the part of other members of the public."

The letter from Attorney General Levi granted access to the Gimpel file, "notwithstanding possible privacy considerations as to either Mr. Gimpel or his American confederate, William C. Colepaugh." The only exception was to be for "intimate or other purely personal matters" that are "wholly unrelated" to the espionage activities for which they were convicted.

As Acting Attorney General, you applied the same rule of "non-privacy" with reference to the Rosenbergs in Meeropol I. That request extended to records pertaining to the principal participants in the case: Yakolev, Fuchs, Gold, the Greenglasses, Max Elitcher, Oscar Vago and Abraham Brothman, as well as to the witnesses called by the prosecution in the Rosenberg and Sobell cases [the Rosenbergs and Morton Sobell were tried together; in my opinion, the Sobell case is part of the Rosenberg case]. Director Kelley's letter to the

2 I have no disagreement with its use as a guideline in ordinary cases, or as to minor sources in these important hsitorical cases. Even in such instances, however, I have serious doubts as to the validity of its use as a rule approximating mechanical or universal application. The effect of such an application is to avoid totally the risk of any invasion of privacy. This goes beyond the permissive scope of the clear language of the Act, which requires the release of a record unless its release would cause an unwarranted invasion of privacy. In my opinion, the Bureau cannot read the word "unwarranted" out of the statute, simply because it may wish that it were not there.

Meeropols invoked privacy considerations as to persons other than the Rosenbergs mentioned in the files. The letter which you sent stated that the action of Director Kelley was modified "as to persons other than the Rosenbergs." Your memorandum of advice on Meeropol II was very similar to the above, as was Attorney General Levi's letter to Mr. Perlin.

Although the three precedents discussed above are clearly relevant in determining the appropriate response to the instant request from Director Kelley for guidance, it is the action of Attorney General Levi [on your recommendation] on the appeal of David Kahn that appears to be squarely on point. Mr. Kahn, author of "The Codebreakers", sought access to the records of the post-arrest interrogations of Messrs. Gimpel and Colepaugh by the F.B.I. Access was recommended on the basis that the two convicted spies do not "have, at this time, a general privacy interest sufficient to support withholding of this data under the Freedom of Information Act." Access was granted by Mr. Levi, subject only to the excision of "references to third persons not involved in the espionage operation whose claims to privacy cannot be disregarded and who should be protected by the assertion of 5 U.S.C. 552 (b) (7) (C)”.

In essence, Director Kelley's memorandum is an expression of disagreement with the direction that has been taken on the privacy issue in cases of historical interest decided under the amended Freedom of Information Act. It amounts to a request for reconsideration and for authority to apply in these third party situations the Bureau's preferred rule of no release without consent. For reasons which I have stated on a number of occasions, it is my opinion that the current law will not permit such a result. It is my judgment that none of the principal personages in either the Hiss case or the Rosenberg case "have, at this time, a general privacy interest sufficient to support withholding under the Freedom of Information Act" of records obtained or derived from them, or pertaining to them, and within the scope of these two historically important cases.

In preparing to write this memorandum, I spent several days reading public domain records and commentaries pertaining to these cases. Suffice to say that none of these principal participants had any privacy interest at the time. The records of the trials, contemporary newspapers and magazine accounts, the reports of numerous proceedings before various Senate and House Subcommittees, books by Whittaker Chambers, Alger Hiss, Alistair Cooke, etc., effectively accomplished that result beyond any doubt. And, in my judgment, the passage of time has permitted none of these individuals to return to obscurityno matter how desperately and understandably they may desire to do so. In the narrow instant context of the requests by David and Ruth Greenglass, and Louis Abel, one need only consult Louis Nizer's book, "The Implosion Conspiracy" [Doubleday, New York, 1973]. The evidence in the Hiss case is the subject of a lengthy article in the current, August 1975 issue of "Commentary" magazine [the author concludes, unequivocally, that Mr. Hiss was guilty]. In his memorandum, Director Kelley comments: "We realize, of course, the Rosenberg case has received widespread renewed attention and is viewed with a certain public interest; . . ." My own recent experiences have convinced me that that is a considerable statement.

Who are the persons I consider have no general privacy interest sufficient to withstand a request under the Act? As a minimum, in the Rosenberg case, I would list both of the Rosenbergs; Morton Sobell; the four persons with whom they allegedly [in the indictment] conspired: Harry Gold, David Greenglass, Ruth Greenglass and Anatoli Yakolev [Gold and Greenglasses testified against the Rosenbergs and Sobell; Yakolev, a Soviet official at the United Nations, returned to Russia and is still technically under indictment]; and the other more important Government witnesses: Max Elitcher, Prof. Walter Koski, Louis Abel, Dorothy Abel [wife of Louis Abel], Dr. George Bernhardt, William Danziger, Elizabeth Bentley, James S. Huggins, Evelyn Cox and Ben Schneider. It appears that corroborative information of considerable import was provided by a couple named Einsohn and by Mrs. Elitcher. The Government's opening statement began with Klaus Fuchs, tried in England and sentenced there to 14 years for his part in this same overall conspiracy aimed at securing the secret of the atomic bomb. Abraham Brothman was Sobell's employer and, if my memory is correct, was also convicted as the result of his activities as a courier for Elizabeth Bentley.

3 I did not encounter the name of Oscar Vago in the course of my reading, although it, too, rings a 25 year old bell.