This document was declassified in March of 1976.

So, a number of files-all the MKULTRA files, branch files and those retrieved from the archives-were destroyed.

The irony of this whole thing is that here is an agency whose purpose is essentially the gathering of information and the analysis of it. Apparently, the director of the MKULTRA project, who was ordered by the Agency to destroy all files, could not find all the files to destroy.

Mr. BLAKE. That is a true statement, sir.

Senator ABOUREZK. That's right. And that's why the subcommittee finally wound up with them today.

I am curious to know, first of all, have new procedures been instituted to insure that all files can be located?

Mr. BLAKE. Sir, we are trying to do as much as we possibly can. I think it stands in the record; I do not have to admit it. The filing systems of the organization were not the best designed, from an overall efficiency point of view, when the organization first commenced.

But we have another problem. That is the problem of the business we are in. In the nature of the intelligence business, there is something called "compartmentation." There is something called "need to know." Certain types of information are made available only to those individuals who have a need professionally to work on it.

So, we do not have the same kind of a consolidated filing system that one would logically look for and find somewhere else.

Again, sir, I stand on the previous statement made. I do not believe it can be sustained whatsoever-if there is an endeavor to sustainthat there is anything nefarious because in 1975 certain documents, MKULTRA, were not located but they have been located in 1977. The proof of the pudding is: Our people located them, our people had the knowledge of it, and we were the ones who said, "You know, embarrassing as it is, we couldn't find it 2 years ago, we found it now, and here, sir, it is."

It is an inefficiency, if you will, sir, and mislaying of the files. But, if there is an inference of nefariousness.

Senator ABOUREZK. How long will it take you to provide the information that we requested that you did not have with you? Can we have an estimate?

Mr. BLAKE. Could I possibly try to give you an answer to that this afternoon? Frankly, I do not know.

Senator ABOUREZK. Would you just call?

Mr. BLAKE. We will endeavor to have a call placed this afternoon. Senator ABOUREZK. Thank you.1

[The prepared statement of Mr. Blake follows:]

PREPARED STATEMENT OF JOHN BLAKE

Mr. Chairman, the procedures followed by the Central Intelligence Agency in processing freedom of information requests are not unique to the agency. However, I would like to briefly recount them for the purpose of demonstrating some of the practical problems which we have encountered.

As distinct from the privacy act which provides for access to individually identifiable records by U.S. citizens and permanent resident aliens, the Freedom of Information Act provides that records which are reasonably described shall

1 See pp. 525-532 of the appendix for additional material supplied by CIA.

be made promptly available to any person who requests them. The intent of the Freedom of Information Act was that, in the interest of having an informed citizenry, the public has a right to know what its Government is doing and that there should be no unnecessary secrecy in Government. At the outset, let me emphasize that I wholeheartedly endorse that objective.

However, having said all that, I must also say at the outset that it bothers me that the act requires that Government agencies, including U.S. intelligence agencies, must respond to requests for records from any person.

For example, non-U.S. persons have no standing under the Privacy Act to request access to Government records pertaining to them. However, such persons may request access to those records, or any other records, under the Freedom of Information Act. And, of course, there is no foreign government which provides any reciprocal service to Americans. Perhaps as on official of an intelligence agency I am overreacting to this. But I don't understand how providing access to U.S. Government records to any person, regardless of citizenship or residence, necessarily accomplishes the purpose of providing for an informed citizenry.

Let me point out some of the particular problems encountered by the Central Intelligence Agency as a result of the act.

Within the Agency, there is no single centralized records system. For reasons of security, there are a number of records systems designed to accomplish the information retrieval needs of the various Agency components and the Agency's clients. The CIA's principal business is the collection and production of intelligence. The Agency's files are set up to accomplish this purpose. And, since much of the Agency's business is by necessity secret, an FOI requester seeking CIA records on a certain subject usually cannot describe these records with precision. Thus, the very first step in processing an FOI request-that of searching for and identifying records-is often very complicated and difficult. When records are located, each record must carefully be screened by the responsible Agency components to determine if the record may be released. And there is no charge to the requester for this document review, regardless of the scope of the request. In most Federal agencies, I would assume that the basic premise is that documents are releasable and it's only an unusual case in which a document should be withheld. If that premise obtained in the Central Intelligence Agency, the job of reviewing documents for release would be considerably simplified. But, as you gentlemen well know, there is an inherent tension between the needs of an open society and the requirements of a secret intelligence organization. And, I feel very strongly that these two opposing needs must be reconciled.

Let me be frank. The 1974 amendments to the FOIA and the ensuing public interest constituted a somewhat traumatic experience for the professional intelligence officer who had been trained and indoctrinated to conduct his work in secrecy. These amendments required a considerable adjustment in attitude and practice. As chairman of the Agency Information Review Committee. I am responsible for the implementation of the act in the Agency. I am proud to say that my colleagues have worked very hard during these past 30 months to make the work, according to both the letter and the spirit. We have been able to make the necessary adjustment and I am pleased to report that in fact, I think the Agency is better off for it.

For reasons which I will go into in a moment, however, the job of reviewing documents is exacting and time-consuming. The act requires that a determination must be made within ten days whether documents may be released. In general, the Agency has not been able to comply with that requirement, despite efforts to do so. New requests are being received at the rate of ninety per week. The act does not distinguish between requests which may involve the review of five or ten documents, and requests that may encompass hundreds or thousands of documents. We as an agency are not in a position to establish priorities between requests or make a judgment that one request is more important than another. But perhaps there should be some balance between allowable processing time and the number of documents involved.

Inder the act, a requester who is not satisfied that the Agency has made available to him all releasable information, or who has not received a final response from the Agency within the statutory ten-day limit, may appeal his case. This escalates the document review process within the Agency and involves senior Agency officials, including the four deputy directors responsible for the operating components which conducted the initial review. Again, the review process must

involve a careful review of each document to make certain that no sensitive information is being released. The act provides that a determination with respect to any appeal must be made within twenty days. The Agency has not been able to comply with that requirement. At the present time, the Agency has a backlog of approximately 230 appeals under consideration.

The act provides for nine exemptions under which information may be withheld from disclosure. The FOIA guidelines, recently issued by Attorney General Bell,' state: "The government should not withhold documents unless it is important to the public interest to do so, even if there is some arguable legal basis for the withholding." Thus, in order to withhold material, it is not enough to show merely that it may be withheld under any of the stated exemptions. An agency must determine there is a sufficient prospect that the information sought will cause actual harm if it is released. Let me assure you, Mr. Chairman, that we adhere to these guidelines. As you no doubt know, the Department of Justice Civil Division has reviewed all pending FOI litigation, including, of course, litigation in which the CIA is defendant in light of the Attorney General's guidelines. On the basis of that review, Justice has not perceived the need to recommend that any pending FOIA litigation involving the CIA should be dropped by the government.

A major concern of the Agency is information which must be withheld under exemption (b) (1), which provides that information which is currently classified under criteria established by an Executive order and is, in fact, properly classified may be withheld. It is no longer sufficient to simply determine whether a document bears classification markings or is contained in a file marked secret. Each document must be examined in light of the criteria set forth in Executive Order 11652. The intent of the Executive order is set forth in the first paragraph which reads as follows: "The interests of the United States and its citizens are best preserved by making information regarding the affairs of government readily available to the public. This concept of an informed citizenry is reflected in the Freedom of Information Act and the current public information policies of the executive branch."

The basic standard to be applied is whether or not the disclosure of information could reasonably be expected to cause damage to the national security. The order directs that unnecessary classification and overclassification of documents shall be avoided. In no case may information be classified to conceal inefficiency or administrative error, to prevent embarrassment to a person or department or any other reason unrelated to national security. It has been our experience that the courts will require a government agency to rigorously adhere to the requirements to the order.

Both at the initial stage or during an appeal review each document, whether it consists of a single page or hundreds of pages, must be reviewed to determine whether it is properly classified. A document entitled "Soviet Military Intention" dated 1977 may appear to be properly classified. Upon examination, however, it may be determined that the document deals with purely speculative newspaper accounts of Soviet military intentions of no intelligence value, and that the docu ment should be released in its entirety. A document entitled "Weather Forecasting in the Bering Straits" dated 1960 may appear to be completely innocuous and releasable. Upon examination, however, it may be determined that the document deals substantively with Asian nuclear capabilities and explicitly details U.S. ability to detect and monitor nuclear testing. Therefore, a determination would be made that the document warrants classification and should be withheld.

I don't believe that it is necessary to argue before this subcommittee that certain information must be withheld in the interest of national security. Prior to the enactment of Executive Order 11652 in 1972, it was the practice to classify too much, to err on the side of overclassification rather than run the risk of not properly protecting sensitive information. This is no longer the practice in reviewing documents which were classified years ago, the substantive criteria of the current Executive order must be applied.

It must be determined whether the documents warrant continued classification and at what level. In some cases, the answer may be fairly simple. In other cases, however, it may not be so clear. Is the information, per se, classified? Are there more subtle matters that must be considered? Would release of the information reveal or jeopardize an intelligence source, damage foreign relations, or imperil

1 See D. 217 of the appendix. * See p. 433 of the appendix.

foreign intelligence operations? In some cases, the act has had a predictably chilling effect upon sensitive intelligence sources abroad. Despite assurances, concern has been expressed over the ability of the Agency to protect sensitive intelligence sources. These types of considerations explain why the document review process is so time-consuming. A mistake due to carelessness or time pressures can potentially be severely damaging to the national security. And it is precisely for this reason that the most senior officials of the Agency are personally involved in the review of the documents containing classified information.

The act also provides that any reasonably segregable portion of a document must be released after the deletion of portions that are exempt under the act. Thus, the document review process is further complicated by the fact that a determination must be made whether any portions of a document which is properly classified may be released.

Following a final determination with respect to an appeal or if no determination has been made in the required twenty days, a requester may seek judicial review in a United States District Court. To date, 86 Freedom of Information or Privacy Act suits have been brought against the CIA. Final decisions have been rendered in 22 of these cases. None of the decisions resulted in adverse rulings on Agency claims of exemption based on classification. There are currently 64 cases pending resolution in the District or Appeal Courts. Some of the cases involve thousands of pages of documents and may take years to resolve. Such litigation is extremely costly in terms of Agency time and manpower, and costly in terms of taxpayer dollars.

Insofar as classified documents at issue in litigation are concerned, the burden is on the government to demonstrate by affidavit to the satisfaction of the court that information is classified. Mere assertions or conclusions are not enough. Each document must be described in sufficient detail and with sufficient specificity to show it is classified. Lengthy documents must be described section by section to demonstrate that no portion of the document may be released. In some cases, only a few pages may be at issue. In others, the affidavits themselves may run into hundreds of pages because of the numbers of documents involved. All such affidavits are closely scrutinized by the courts. It is a difficult proposition to sufficiently describe the type of information being withheld without revealing classified information.

The courts have clearly indicated how a claim of classification under exemption (b) (1) of the act will not be upheld if the claim is arbitrary or capricious, does not conform to the criteria of the Executive order, or is made in bad faith. As I've indicated, in no case has a Central Intelligence Agency plan of exemption (b) (1) been disallowed by a court.

Under the act, a court is required to make a de novo détermination whether records or any portion thereof may be withheld. To illustrate, within the past few months, decisions were rendered in two cases involving the Central Intelligence Agency in the District Court of the District of Columbia. One case involved almost 250 documents and classification had been claimed in whole or in part for over 200 of these documents. In each instance. the (b) (1) exemptions were upheld by the court following the submission of detailed affidavits. In the second case, approximately 90 documents were involved which were classified in whole or in part. Again in that case, all (b) (1) claims were upheld. I've mentioned these two cases to illustrate the workload that is imposed both on the Federal agencies and the courts.

In May of this year, the then Deputy Director of Central Intelligence issued instructions to all Agency employees concerning the preparation of documents containing classified material. In compliance with the Executive order. documents will be marked paragraph by paragraph to the extent practicable to indicate which portions are classified, at what level, and which portions are not classified. The implementation of this practice should ease the burden in the future of determining which portions of documents may be released and facilitate the release of information to the public. Moreover, it should induce employees to make more precise judgments about what information actually warrants protection under the Executive order and what information does not.

I recently directed all Agency components to increase their efforts to review all their active and inactive file holdings to determine what documents should be declassified, whether or not the material is the subject of a freedom of information request. This will prove to be quite a task but one which, in the long run. will increase the efficiency and improve the security of the Agency. Thousands of pages of documents have already been located and declassified.

Speaking before a group of private citizens in Los Angeles last month, Admiral Turner, the Director of Central Intelligence, made known his views regarding openness in government and unnecessary classification. He stated: "On the one hand we can declassify every bit of information that we have which need not be kept secret. I have mentioned a number of our efforts in that direction. But such declassification, or restraints on initial classification, we can generate greater respect for the information which must remain secret. On the other hand, we can and must tighten security around truly sensitive information on which much may depend."

I said at the outset that I believe in the public's right to know what its government is doing. At the same time, legitimate secrets relating to national defense and foreign affairs must be protected. We have not solved all the problems inherent in attempting to reconcile these two needs. Perhaps we never will, to everyone's satisfaction. But the CIA is committed to applying good faith and exercising sound judgment to bring these matters into balance.

Senator ABOUREZK. Does the State Department have a statement?

TESTIMONY OF MARK B. FELDMAN, DEPUTY LEGAL ADVISER, DEPARTMENT OF STATE, ACCOMPANIED BY BARBARA ENNIS, DIRECTOR, FREEDOM OF INFORMATION STAFF; AND THOMAS J. RAMSEY, ATTORNEY ADVISER

Mr. FELDMAN. Mr. Chairman, my name is Mark Feldman. I am Deputy Legal Adviser at the Department of State. I am accompanied this morning by Ms. Barbara Ennis, Director of the Freedom of Information Staff in the Bureau of Public Affairs, which is the bureau responsible for the administration of the program. I am also accompanied by Mr. Tom Ramsey, a member of my staff.

We have a statement prepared. It is a very brief one. In view of your suggestion, Mr. Chairman, I will try to abbreviate it even further, if I may.

I would like to begin by observing that the Department of State is deeply aware that the democratic process can function only if adequate information is available to the public. At the same time, the process of diplomatic communication between nations depends upon confidentiality...

Thus, the Department of State has a duty to provide information to the public and a responsibility to preserve diplomatic confidentiality. We are constantly required to balance the public's right to know against the need for confidentiality in the diplomatic process.

The 1974 amendments to the Freedom of Information Act reflected the judgment of the Congress that over the years the executive branch had not struck a proper balance. We agree with that assessment. Experience under the act confirms that, historically, a great deal of information has been overclassified. In recent years great strides toward less classification have occurred, but much more needs to be done. President Carter has now directed a complete reexamination of the classification system with a view toward releasing even more information. That review has resulted in a draft of a new Executive order which is being circulated for comment by the White House. I am confident the administration would welcome the views of Members of Congress concerning the draft order.

1 See p. 458 of the appendix.

1