[Federal Register Volume 62, Number 115 (Monday, June 16, 1997)]
[Rules and Regulations]
[Pages 32479-32500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14883]
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CENTRAL INTELLIGENCE AGENCY
32 CFR Parts 1900, 1901, 1907, 1908, and 1909
Freedom of Information Act; Privacy Act; and Executive Order
12958; Implementation
AGENCY: Central Intelligence Agency.
ACTION: Interim Rule.
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SUMMARY: The Central Intelligence Agency is hereby promulgating interim
rules and soliciting comments prior to adoption of final rules to
implement its obligations under the Freedom of Information Act, the
Privacy Act, and Executive Order 12958 (or successor Orders) provisions
relating to classification challenges by authorized holders, requests
for mandatory
[[Page 32480]]
declassification review, and access by historical researchers.
DATES: The interim rules are effective May 29, 1997. Public comments
are solicited for the interim rules on or before July 28, 1997.
ADDRESSES: Comments may be submitted to the Information and Privacy
Coordinator, Central Intelligence Agency, Washington, DC 20505.
FOR FURTHER INFORMATION CONTACT: Lee S. Strickland, Information and
Privacy Coordinator, Central Intelligence Agency, Washington, DC 20505;
telephone (703) 613-1287; facsimile (703) 613-3007.
SUPPLEMENTARY INFORMATION: On December 8, 1987, the CIA published in
the Federal Register the most recent regulations governing public
access to its documents and records and its handling of
declassification requests. See 32 Code of Federal Regulations (CFR)
Chapter XIX parts 1900 and 1901.
This document promulgates interim rules and seeks public comment
prior to adoption of a final rule. These rules do not alter
substantially any existing rights of members of the public. Rather,
certain changes were required, in light of changes in the applicable
laws or judicial decisions, in order to clarify provisions that have
proven confusing to requesters and to improve the processing of
requests. In addition, the Agency is pleased to announce that all
sections of the regulations have been rewritten in standard,
conversational English. These revisions should greatly enhance the
public's understanding of the regulations. The more significant changes
are summarized below and the rules in their entirety are set forth in
the following sections.
In the Part 1900 Regulations Implementing the Freedom of Information
Act
(a) All provisions relating to requests under the Executive Order
on classification are removed from part 1900 and codified together in
new parts 1907, 1908, and 1909 for greater clarity;
(b) The section entitled ``Definitions'' is amended to include
additional terms common to the processing of FOIA requests and to
expand the definition of news media to include foreign media having a
substantial impact on the American public's understanding of the
operations or activities of the United States Government; see Southam
News v. Immigration and Naturalization Service, 674 F. Supp. 881, 882
(D.D.C. 1987) and 32 CFR 1900.02;
(c) The section now entitled ``Contact for general information and
requests'' is amended to indicate that the Agency will accept facsimile
requests and inquiries; see 32 CFR 1900.03;
(d) The subsections relating to fee waivers are amended to broaden
the time a requester may seek a fee waiver or appeal an initial denial
of a fee waiver and to permit the processing of a request during the
pendancy of a request or appeal, provided that the requester commits to
payment of fees in the event of an adverse decision; see 32 CFR
1900.13(b)-(d);
(e) The subsection relating to our schedule of fees is amended in
part to reflect current costs and to be more consistent with other
federal agencies; personnel costs reflect current average grades and
salaries, reproduction costs reflect equipment and personnel costs, and
computer costs are unchanged since improvements in capability have
generally negated increases in costs; see 32 CFR 1900.13(g);
(f) A new section entitled ``Procedures for information concerning
other persons'' is added to reflect the established guidelines utilized
by the Agency in the past to address such information and to reflect
judicial determinations in this regard; see, e.g., Beck v. Department
of Justice, 997 F.2d 1489, 1492-94 (D.C. Cir. 1993), The Nation
Magazine v. Department of State, Civ. No. 92-2303 (D.D.C. 18 August
1995), and 32 CFR 1900.32;
(g) A new section relating to expedited processing is added; the
first subsection concerning requests for expedited processing prior to
October 2, 1997 reflects the established guidelines adopted and
utilized by the Agency in the past to consider such requests; see 32
CFR 1900.34(b); the second subsection concerning requests for expedited
processing on or after October 2, 1997 reflects new statutory
provisions set forth in the Electronic Freedom of Information Act
Amendments of 1996; see 32 CFR 1900.34(c);
(h) All sections relating to administrative appeals and the CIA
Information Review Committee (IRC) are amended to reflect a change of
name to the Historical Records Policy Board (HRPB) and a change of
membership by inclusion of the Executive Director, the General Counsel,
the Director of Congressional Affairs, the Director of the Public
Affairs Staff, the Director, Center for the Study of Intelligence, and
the Associate Deputy Director for Administration/Information Services,
or their designees, and a corresponding deletion of the Inspector
General; see 32 CFR 1900.41;
(i) Those sections relating to administrative appeals are also
amended to reflect the creation of a new administrative review body,
the Agency Release Panel (ARP), subordinate to the HRPB, in order to
provide an Agency-wide perspective to the information review and
release process and to reduce the time required for the processing of
appeals; ee 32 CFR 1900.41 and 32 CFR 1900.44; and
(j) The section now entitled ``Right of appeal and appeal
procedures'' is amended to provide that appeals are accepted from
requesters who have received a determination that no records were
located; see Oglesby v. Department of the Army, 920 F.2d 57, 67 (D.C.
Cir. 1990) and 32 CFR 1900.42(a).
In the Part 1901 Regulations Implementing the Privacy Act
(a) the section entitled ``Definitions'' is amended to include
additional terms common to the processing of Privacy Act requests and
to reflect a redesignation under the Freedom of Information Reform Act
of 1986, Pub. L. 99-570 section 1802(b); see 32 CFR 1901.02;
(b) The section now entitled ``Contact for general information and
requests'' is amended to reflect that Privacy Act requests with the
required identification statement must be filed in original form by
mail, but that subsequent communications and inquiries will be accepted
by facsimile; ee 32 CFR 1901.03;
(c) The section now entitled ``Requirements as to form'' is
clarified so that it applies clearly to both requests for copies of
records and requests to amend records; see 32 CFR 1901.12;
(d) The section now entitled ``Requirements as to identification of
requester'' is clarified for requests concerning children, broadened to
address requests by attorneys on behalf of clients, and further amended
to permit any request to be made under a penalty of perjury declaration
pursuant to 28 U.S.C. 1746 in addition to the more familiar
notarization procedure; see Summers v. Department of Justice, 999 F.2d
570, 572-73 (D.C. Cir. 1993) and 32 CFR 1901.13;
(e) The section now entitled ``Special procedures for medical and
psychological records'' is amended to conform the release of these
types of records to the requester's designated physician who has agreed
to (1) Review the records with the requesting individual, (2) explain
the meaning of the records, and (3) offer counseling designed to temper
any adverse reaction; see Benavides v. Bureau of Prisons, 995 F. 2d
269, 272 (D.C. Cir. 1993) and 32 CFR 1901.31;
(f) A new section entitled ``Requests for expedited processing'' is
added to
[[Page 32481]]
reflect the established guidelines adopted and utilized by the Agency
in the past to consider such requests; see 32 CFR 1901.32;
(g) All sections relating to administrative appeals and the CIA
Information Review Committee (IRC) are amended to reflect a change of
name to the Historical Records Policy Board (HRPB) and a change of
membership by inclusion of the Executive Director, the General Counsel,
the Director of Congressional Affairs, the Director of the Public
Affairs Staff, the Director, Center for the Study of Intelligence, and
the Associate Deputy Director for Administration/Information Services,
or their designees, and a corresponding deletion of the Inspector
General; see 32 CFR 1901.41 through 32 CFR 1901.45;
(h) Those sections relating to administrative appeals are also
amended to reflect the creation of a new administrative review body,
the Agency Release Panel (ARP), subordinate to the HRPB, in order to
provide an Agency-wide perspective to the information review and
release process and to reduce the time required for the processing of
appeals; see 32 CFR 1901.41 through 32 CFR 1901.45;
(i) The section now entitled ``Limitations on disclosure'' is
amended to regulate disclosures not only to another person but also to
another federal agency or other authorized entity; see 32 CFR 1901.51;
(j) The section entitled ``Criminal penalties'' is amended to
authorize the Coordinator and the Inspector General to conduct surveys
to ensure that no records or file systems are maintained in
contravention of the Privacy Act; see 32 CFR 1901.52;
(k) The sections entitled ``Purpose and authority'' and ``General
exemptions'' are amended to add new subsections to implement section 17
of the CIA Act of 1949, as amended, 50 U.S.C. 403q(e)(3) which provides
a general exemption for the identity of individuals providing
information to the Inspector General of the CIA; see 32 CFR 1901.61(d)
and 32 CFR 1901.62(d)(3); and
(l) All sections relating to exemptions are now grouped together
for convenience and clarity; see 32 CFR 1901.62.
In the New Part 1907 Regulations Implementing the Sec. 1.9
``Classification Challenges'' Provisions of Executive Order 12958
This new part is intended to implement the provisions of Sec. 1.9
of Executive Order (E.O.) 12958 which permits authorized holders of
classified information to challenge the classified status of that
information. This provision and these regulations confer no rights upon
members of the general public who shall continue to request reviews of
classification under the Mandatory Declassification Review provisions
set forth at Sec. 3.6 of E.O. 12958 and at 32 CFR part 1908.
In the New Part 1908 Regulations Implementing the Sec. 3.6 ``Mandatory
Declassification Review'' Provisions of Executive Order 12958
This new Part is intended to implement the provisions of Sec. 3.6
of Executive Order (E.O.) 12958 which permits members of the public to
request a declassification review of any information classified under
this or predecessor orders. While substantially similar to the
regulations implementing this provision in prior Orders, it does
include new sections addressing the right of appeal to the new
Interagency Security Classification Appeals Panel which was established
pursuant to Sec. 5.4 of E.O. 12958. This Executive Order provision and
these regulations do not create any right or benefit, substantive or
procedural, enforceable at law by a party against the United States,
its agencies, officers, or employees.
Lastly, in the New Part 1909 Regulations Implementing the Sec. 4.5
``Access by Historical Researchers and Former Presidential Appointees''
Provision of Executive Order 12958
This new part is intended to implement the provisions of Sec. 4.5
of Executive Order (E.O.) 12958 which provides a waiver of the need-to-
know principle in limited circumstances for historical researchers and
former Presidential appointees. These rules are substantially similar
to those implementing this provision in prior Orders. These rules do
not create any right or benefit, substantive or procedural, enforceable
at law by a party against the United States, its agencies, officers, or
employees. The decision of the Agency in this regard is final.
List of Subjects in 32 CFR Parts 1900, 1901, 1907, 1908, and 1909
Central Intelligence Agency, Executive Order on Classification,
Freedom of Information Act, Privacy Act.
Dated: May 29, 1997.
Richard D. Calder,
Deputy Director for Administration.
For the reasons set forth herein, the CIA hereby revises Parts
1900, 1901, 1907 and adds Parts 1908 and 1909 as follows:
PART 1900--PUBLIC ACCESS TO CIA RECORDS UNDER THE FREEDOM OF
INFORMATION ACT (FOIA)
General
Sec.
1900.01 Authority and purpose.
1900.02 Definitions.
1900.03 Contact for general information and requests.
1900.04 Suggestions and complaints.
Filing of FOIA Requests
1900.11 Preliminary information.
1900.12 Requirements as to form and content.
1900.13 Fees for record services.
1900.14 Fee estimates (pre-request option).
CIA Action on FOIA Requests
1900.21 Processing of requests for records.
1900.22 Action and determination(s) by originator(s) or any
interested party.
1900.23 Payment of fees, notification of decision, and right of
appeal.
Additional Administrative Matters
1900.31 Procedures for business information.
1900.32 Procedures for information concerning other persons.
1900.33 Allocation of resources; agreed extensions of time.
1900.34 Requests for expedited processing.
CIA Action on FOIA Administrative Appeals
1900.41 Establishment of appeals structure.
1900.42 Right of appeal and appeal procedures.
1900.43 Determination(s) by Deputy Director(s).
1900.44 Action by appeals authority.
1900.45 Notification of decision and right of judicial review.
Authority: National Security Act of 1947, as amended; Central
Intelligence Agency Act of 1949, as amended; Freedom of Information
Act, as amended; CIA Information Act of 1984; and Executive Order
12958 , 60 FR 19825, 3 CFR 1996 Comp., p. 333-356 (or successor
Orders).
General
Sec. 1900.01 Authority and purpose.
This part is issued under the authority of and in order to
implement the Freedom of Information Act (FOIA), as amended (5 U.S.C.
552); the CIA Information Act of 1984 (50 U.S.C. 431); sec. 102 of the
National Security Act of 1947, as amended (50 U.S.C. 403); and sec. 6
of the Central Intelligence Agency Act of 1949, as amended (50 U.S.C.
403g). It prescribes procedures for:
(a) Requesting information on available CIA records, or the CIA
administration of the FOIA, or estimates of fees that may become due as
a result of a request;
(b) Requesting records pursuant to the FOIA; and
[[Page 32482]]
(c) Filing an administrative appeal of an initial adverse decision
under the FOIA.
Sec. 1900.02 Definitions.
For purposes of this part, the following terms have the meanings
indicated:
(a) Agency or CIA means the United States Central Intelligence
Agency acting through the CIA Information and Privacy Coordinator;
(b) Days means calendar days when the Agency is operating and
specifically excludes Saturdays, Sundays, and legal public holidays.
Three (3) days may be added to any time limit imposed on a requester by
this part if responding by U.S. domestic mail; ten (10) days may be
added if responding by international mail;
(c) Control means ownership or the authority of the CIA pursuant to
federal statute or privilege to regulate official or public access to
records;
(d) Coordinator means the CIA Information and Privacy Coordinator
who serves as the Agency manager of the information review and release
program instituted under the Freedom of Information Act;
(e) Direct costs means those expenditures which an agency actually
incurs in the processing of a FOIA request; it does not include
overhead factors such as space; it does include:
(1) Pages means paper copies of standard office size or the dollar
value equivalent in other media;
(2) Reproduction means generation of a copy of a requested record
in a form appropriate for release;
(3) Review means all time expended in examining a record to
determine whether any portion must be withheld pursuant to law and in
effecting any required deletions but excludes personnel hours expended
in resolving general legal or policy issues; it also means personnel
hours of professional time;
(4) Search means all time expended in looking for and retrieving
material that may be responsive to a request utilizing available paper
and electronic indices and finding aids; it also means personnel hours
of professional time or the dollar value equivalent in computer
searches;
(f) Expression of interest means a written communication submitted
by a member of the public requesting information on or concerning the
FOIA program and/or the availability of documents from the CIA;
(g) Federal agency means any executive department, military
department, or other establishment or entity included in the definition
of agency in 5 U.S.C. 552(f);
(h) Fees means those direct costs which may be assessed a requester
considering the categories established by the FOIA; requesters should
submit information to assist the Agency in determining the proper fee
category and the Agency may draw reasonable inferences from the
identity and activities of the requester in making such determinations;
the fee categories include:
(1) Commercial means a request in which the disclosure sought is
primarily in the commercial interest of the requester and which
furthers such commercial, trade, income or profit interests;
(2) Non-commercial educational or scientific institution means a
request from an accredited United States educational institution at any
academic level or institution engaged in research concerning the
social, biological, or physical sciences or an instructor or researcher
or member of such institutions; it also means that the information will
be used in a specific scholarly or analytical work, will contribute to
the advancement of public knowledge, and will be disseminated to the
general public;
(3) Representative of the news media means a request from an
individual actively gathering news for an entity that is organized and
operated to publish and broadcast news to the American public and
pursuant to their news dissemination function and not their commercial
interests; the term news means information which concerns current
events, would be of current interest to the general public, would
enhance the public understanding of the operations or activities of the
U.S. Government, and is in fact disseminated to a significant element
of the public at minimal cost; freelance journalists are included in
this definition if they can demonstrate a solid basis for expecting
publication through such an organization, even though not actually
employed by it; a publication contract or prior publication record is
relevant to such status;
(4) All other means a request from an individual not within
paragraph (h)(1), (2), or (3) of this section;
(i) Freedom of Information Act or ``FOIA'' means the statutes as
codified at 5 U.S.C. 552;
(j) Interested party means any official in the executive, military,
congressional, or judicial branches of government, United States or
foreign, or U.S. Government contractor who, in the sole discretion of
the CIA, has a subject matter or physical interest in the documents or
information at issue;
(k) Originator means the U.S. Government official who originated
the document at issue or successor in office or such official who has
been delegated release or declassification authority pursuant to law;
(l) Potential requester means a person, organization, or other
entity who submits an expression of interest;
(m) Reasonably described records means a description of a document
(record) by unique identification number or descriptive terms which
permit an Agency employee to locate documents with reasonable effort
given existing indices and finding aids;
(n) Records or agency records means all documents, irrespective of
physical or electronic form, made or received by the CIA in pursuance
of federal law or in connection with the transaction of public business
and appropriate for preservation by the CIA as evidence of the
organization, functions, policies, decisions, procedures, operations,
or other activities of the CIA or because of the informational value of
the data contained therein; it does not include:
(1) Books, newspapers, magazines, journals, magnetic or printed
transcripts of electronic broadcasts, or similar public sector
materials acquired generally and/or maintained for library or reference
purposes; to the extent that such materials are incorporated into any
form of analysis or otherwise distributed or published by the Agency,
they are fully subject to the disclosure provisions of the FOIA;
(2) Index, filing, or museum documents made or acquired and
preserved solely for reference, indexing, filing, or exhibition
purposes; and
(3) Routing and transmittal sheets and notes and filing or
destruction notes which do not also include information, comment, or
statements of substance;
(o) Responsive records means those documents (i.e., records) which
the Agency has determined to be within the scope of a FOIA request.
Sec. 1900.03 Contact for general information and requests.
For general information on this part, to inquire about the FOIA
program at CIA, or to file a FOIA request (or expression of interest),
please direct your communication in writing to the Information and
Privacy Coordinator, Central Intelligence Agency, Washington, DC 20505.
Such inquiries will also be accepted by facsimile at (703) 613-3007.
For general information or status information on pending cases only,
the telephone number is (703)
[[Page 32483]]
613-1287. Collect calls cannot be accepted.
Sec. 1900.04 Suggestions and complaints.
The Agency welcomes suggestions or complaints with regard to its
administration of the Freedom of Information Act. Many requesters will
receive pre-paid, customer satisfaction survey cards. Letters of
suggestion or complaint should identify the specific purpose and the
issues for consideration. The Agency will respond to all substantive
communications and take such actions as determined feasible and
appropriate.
Filing of FOIA Requests
Sec. 1900.11 Preliminary Information.
Members of the public shall address all communications to the CIA
Coordinator as specified at 32 CFR 1900.03 and clearly delineate the
communication as a request under the Freedom of Information Act and
this regulation. CIA employees receiving a communication in the nature
of a FOIA request shall expeditiously forward same to the Coordinator.
Requests and appeals on requests, referrals, or coordinations received
from members of the public who owe outstanding fees for information
services at this or other federal agencies will not be accepted and
action on all pending requests shall be terminated in such
circumstances.
Sec. 1900.12 Requirements as to form and content.
(a) Required information. No particular form is required. A request
need only reasonably describe the records of interest. This means that
documents must be described sufficiently to enable a professional
employee familiar with the subject to locate the documents with a
reasonable effort. Commonly this equates to a requirement that the
documents must be locatable through the indexing of our various
systems. Extremely broad or vague requests or requests requiring
research do not satisfy this requirement.
(b) Additional information for fee determination. In addition, a
requester should provide sufficient personal identifying information to
allow us to determine the appropriate fee category. A requester should
also provide an agreement to pay all applicable fees or fees not to
exceed a certain amount or request a fee waiver.
(c) Otherwise. Communications which do not meet these requirements
will be considered an expression of interest and the Agency will work
with, and offer suggestions to, the potential requester in order to
define a request properly.
Sec. 1900.13 Fees for record services.
(a) In general. Search, review, and reproduction fees will be
charged in accordance with the provisions below relating to schedule,
limitations, and category of requester. Applicable fees will be due
even if our search locates no responsive records or some or all of the
responsive records must be denied under one or more of the exemptions
of the Freedom of Information Act.
(b) Fee waiver requests. Records will be furnished without charge
or at a reduced rate whenever the Agency determines:
(1) That, as a matter of administrative discretion, the interest of
the United States Government would be served, or
(2) That it is in the public interest because it is likely to
contribute significantly to the public understanding of the operations
or activities of the United States Government and is not primarily in
the commercial interest of the requester; the Agency shall consider the
following factors when making this determination:
(i) Whether the subject of the request concerns the operations or
activities of the United States Government; and, if so,
(ii) Whether the disclosure of the requested documents is likely to
contribute to an understanding of United States Government operations
or activities; and, if so,
(iii) Whether the disclosure of the requested documents will
contribute to public understanding of United States Government
operations or activities; and, if so,
(iv) Whether the disclosure of the requested documents is likely to
contribute significantly to public understanding of United States
Government operations and activities; and
(v) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and, if so,
(vi) Whether the disclosure is primarily in the commercial interest
of the requester.
(c) Fee waiver appeals. Denials of requests for fee waivers or
reductions may be appealed to the Chair of the Agency Release Panel via
the Coordinator. A requester is encouraged to provide any explanation
or argument as to how his or her request satisfies the statutory
requirement set forth above.
(d) Time for fee waiver requests and appeals. It is suggested that
such requests and appeals be made and resolved prior to the initiation
of processing and the incurring of costs. However, fee waiver requests
will be accepted at any time prior to the release of documents or the
completion of a case, and fee waiver appeals within forty-five (45)
days of our initial decision subject to the following condition: If
processing has been initiated, then the requester must agree to be
responsible for costs in the event of an adverse administrative or
judicial decision.
(e) Agreement to pay fees. In order to protect requesters from
large and/or unanticipated charges, the Agency will request specific
commitment when it estimates that fees will exceed $100.00. The Agency
will hold in abeyance for forty-five (45) days requests requiring such
agreement and will thereafter deem the request closed. This action, of
course, would not prevent an individual from refiling his or her FOIA
request with a fee commitment at a subsequent date.
(f) Deposits. The Agency may require an advance deposit of up to
100 percent of the estimated fees when fees may exceed $250.00 and the
requester has no history of payment, or when, for fees of any amount,
there is evidence that the requester may not pay the fees which would
be accrued by processing the request. The Agency will hold in abeyance
for forty-five (45) days those requests where deposits have been
requested.
(g) Schedule of fees--(1) In general. The schedule of fees for
services performed in responding to requests for records is established
as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
Personnel Search and Review
------------------------------------------------------------------------
Clerical/Technical................... Quarter hour........... $5.00
Professional/Supervisory............. Quarter hour........... 10.00
Manager/Senior Professional.......... Quarter hour........... 18.00
------------------------------------------------------------------------
Computer Search and Production
------------------------------------------------------------------------
Search (on-line)..................... Flat rate.............. 10.00
Search (off-line).................... Flat rate.............. 30.00
Other activity....................... Per minute............. 10.00
Tapes (mainframe cassette)........... Each................... 9.00
Tapes (mainframe cartridge).......... Each................... 9.00
Tapes (mainframe reel)............... Each................... 20.00
Tapes (PC 9mm)....................... Each................... 25.00
Diskette (3.5'')..................... Each................... 4.00
CD (bulk recorded)................... Each................... 10.00
CD (recordable)...................... Each................... 20.00
Telecommunications................... Per minute............. .50
Paper (mainframe printer)............ Per page............... .10
Paper (PC b&w laser printer)......... Per page............... .10
Paper (PC color printer)............. Per page............... 1.00
------------------------------------------------------------------------
[[Page 32484]]
Paper Production
------------------------------------------------------------------------
Photocopy (standard or legal)........ Per page............... .10
Microfiche........................... Per frame.............. .20
Pre-printed (if available)........... Per 100 pages.......... 5.00
Published (if available)............. Per item............... NTIS
------------------------------------------------------------------------
(2) Application of schedule. Personnel search time includes time
expended in either manual paper records searches, indices searches,
review of computer search results for relevance, personal computer
system searches, and various reproduction services. In any event where
the actual cost to the Agency of a particular item is less than the
above schedule (e.g., a large production run of a document resulted in
a cost less than $5.00 per hundred pages), then the actual lesser cost
will be charged. Items published and available at the National
Technical Information Service (NTIS) are also available from CIA
pursuant to this part at the NTIS price as authorized by statute.
(3) Other services. For all other types of output, production, or
reproduction (e.g., photographs, maps, or published reports), actual
cost or amounts authorized by statute. Determinations of actual cost
shall include the commercial cost of the media, the personnel time
expended in making the item to be released, and an allocated cost of
the equipment used in making the item, or, if the production is
effected by a commercial service, then that charge shall be deemed the
actual cost for purposes of this part.
(h) Limitations on collection of fees.--(1) In general. No fees
will be charged if the cost of collecting the fee is equal to or
greater than the fee itself. That cost includes the administrative
costs to the Agency of billing, receiving, recording, and processing
the fee for deposit to the Treasury Department and, as of the date of
these regulations, is deemed to be $10.00.
(2) Requests for personal information. No fees will be charged for
requesters seeking records about themselves under the FOIA; such
requests are processed in accordance with both the FOIA and the Privacy
Act in order to ensure the maximum disclosure without charge.
(i) Fee categories. There are four categories of FOIA requesters
for fee purposes: ``Commercial use'' requesters, ``educational and non-
commercial scientific institution'' requesters, ``representatives of
the news media'' requesters, and ``all other'' requesters. The
categories are defined in Sec. 1900.02, and applicable fees, which are
the same in two of the categories, will be assessed as follows:
(1) ``Commercial use'' requesters: Charges which recover the full
direct costs of searching for, reviewing, and duplicating responsive
records (if any);
(2) ``Educational and non-commercial scientific institution''
requesters as well as ``representatives of the news media'' requesters:
Only charges for reproduction beyond the first 100 pages;
(3) ``All other'' requesters: Charges which recover the full direct
cost of searching for and reproducing responsive records (if any)
beyond the first 100 pages of reproduction and the first two hours of
search time which will be furnished without charge.
(j) Associated requests. A requester or associated requesters may
not file a series of multiple requests, which are merely discrete
subdivisions of the information actually sought for the purpose of
avoiding or reducing applicable fees. In such instances, the Agency may
aggregate the requests and charge the applicable fees.
Sec. 1900.14 Fee estimates (pre-request option).
In order to avoid unanticipated or potentially large fees, a
requester may submit a request for a fee estimate. The Agency will
endeavor within ten (10) days to provide an accurate estimate, and, if
a request is thereafter submitted, the Agency will not accrue or charge
fees in excess of our estimate without the specific permission of the
requester. Effective October 2, 1997, the ten (10) day provision is
modified to twenty (20) days pursuant to the Electronic Freedom of
Information Act Amendments of 1996.
CIA Action on FOIA Requests
Sec. 1900.21 Processing of requests for records.
(a) In general. Requests meeting the requirements of Secs. 1900.11
through 1900.13 shall be accepted as formal requests and processed
under the Freedom of Information Act, 5 U.S.C. 552, and these
regulations. Upon receipt, the Agency shall within ten (10) days record
each request, acknowledge receipt to the requester in writing, and
thereafter effect the necessary taskings to the CIA components
reasonably believed to hold responsive records. Effective October 2,
1997, the ten (10) day provision is modified to twenty (20) days
pursuant to the Electronic Freedom of Information Act Amendments of
1996.
(b) Database of ``officially released information.'' As an
alternative to extensive tasking and as an accommodation to many
requesters, the Agency maintains a database of ``officially released
information'' which contains copies of documents released by this
Agency. Searches of this database, containing currently in excess of
500,000 pages, can be accomplished expeditiously. Moreover, requests
that are specific and well-focused will often incur minimal, if any,
costs. Requesters interested in this means of access should so indicate
in their correspondence. Effective November 1, 1997 and consistent with
the mandate of the Electronic Freedom of Information Act Amendments of
1996, on-the public. Detailed information regarding such access will
line electronic access to these records will be available to be
available at that time from the point of contact specified in
Sec. 1900.03.
(c) Effect of certain exemptions. In processing a request, the
Agency shall decline to confirm or deny the existence or nonexistence
of any responsive records whenever the fact of their existence or
nonexistence is itself classified under Executive Order 12958 or
revealing of intelligence sources and methods protected pursuant to
section 103(c)(5) of the National Security Act of 1947. In such
circumstances, the Agency, in the form of a final written response,
shall so inform the requester and advise of his or her right to an
administrative appeal.
(d) Time for response. The Agency will utilize every effort to
determine within the statutory guideline of ten (10) days after receipt
of an initial request whether to comply with such a request. However,
the current volume of requests require that the Agency seek additional
time from a requester pursuant to 32 CFR 1900.33. In such event, the
Agency will inform the requester in writing and further advise of his
or her right to file an administrative appeal of any adverse
determination. Effective October 2, 1997, the ten (10) day provision is
modified to twenty (20) days pursuant to the Electronic Freedom of
Information Act Amendments of 1996.
Sec. 1900.22 Action and determination(s) by originator(s) or any
interested party.
(a) Initial action for access. CIA components tasked pursuant to a
FOIA request shall search all relevant record systems within their
cognizance which have not been excepted from search by the provisions
of the CIA Information Act of 1984. They shall:
(1) Determine whether a record exists;
(2) Determine whether and to what extent any FOIA exemptions apply;
(3) Approve the disclosure of all non-exempt records or portions of
records for which they are the originator; and
(4) Forward to the Coordinator all records approved for release or
necessary for coordination with or
[[Page 32485]]
referral to another originator or interested party. In making these
decisions, the CIA component officers shall be guided by the applicable
law as well as the procedures specified at 32 CFR 1900.31 and 32 CFR
1900.32 regarding confidential commercial information and personal
information (about persons other than the requester).
(b) Referrals and coordinations. As applicable and within ten (10)
days of receipt by the Coordinator, any CIA records containing
information originated by other CIA components shall be forwarded to
those entities for action in accordance with paragraph (a) of this
section and return. Records originated by other federal agencies or CIA
records containing other federal agency information shall be forwarded
to such agencies within ten (10) days of our completion of initial
action in the case for action under their regulations and direct
response to the requester (for other agency records) or return to the
CIA (for CIA records). Effective October 2, 1997, the ten (10) day
provision is modified to twenty (20) days pursuant to the Electronic
Freedom of Information Act Amendments of 1996.
Sec. 1900.23 Payment of fees, notification of decision, and right of
appeal.
(a) Fees in general. Fees collected under this part do not accrue
to the Central Intelligence Agency and shall be deposited immediately
to the general account of the United States Treasury.
(b) Notification of decision. Upon completion of all required
review and the receipt of accrued fees (or promise to pay such fees),
the Agency will promptly inform the requester in writing of those
records or portions of records which may be released and which must be
denied. With respect to the former, the Agency will provide copies;
with respect to the latter, the Agency shall explain the reasons for
the denial, identify the person(s) responsible for such decisions by
name and title, and give notice of a right of administrative appeal.
(c) Availability of reading room. As an alternative to receiving
records by mail, a requester may arrange to inspect the records deemed
releasable at a CIA ``reading room'' in the metropolitan Washington, DC
area. Access will be granted after applicable and accrued fees have
been paid. Requests to review or browse documents in our database of
``officially released records'' will also be honored in this manner to
the extent that paper copies or electronic copies in unclassified
computer systems exist. All such requests shall be in writing and
addressed pursuant to 32 CFR 1900.03. The records will be available at
such times as mutually agreed but not less than three (3) days from our
receipt of a request. The requester will be responsible for
reproduction charges for any copies of records desired.
Additional Administrative Matters
Sec. 1900.31 Procedures for business information.
(a) In general. Business information obtained by the Central
Intelligence Agency by a submitter shall not be disclosed pursuant to a
Freedom of Information Act request except in accordance with this
section. For purposes of this section, the following definitions apply:
(1) Business information means commercial or financial information
in which a legal entity has a recognized property interest;
(2) Confidential commercial information means such business
information provided to the United States Government by a submitter
which is reasonably believed to contain information exempt from release
under exemption (b)(4) of the Freedom of Information Act, 5 U.S.C. 552,
because disclosure could reasonably be expected to cause substantial
competitive harm;
(3) Submitter means any person or entity who provides confidential
commercial information to the United States Government; it includes,
but is not limited to, corporations, businesses (however organized),
state governments, and foreign governments; and
(b) Designation of confidential commercial information. A submitter
of business information will use good-faith efforts to designate, by
appropriate markings, either at the time of submission or at a
reasonable time thereafter, any portions of its submission that it
considers to be confidential commercial information and hence protected
from required disclosure pursuant to exemption (b)(4). Such
designations shall expire ten (10) years after the date of the
submission unless the submitter requests, and provides justification
for, a longer designation period.
(c) Process in event of FOIA request.--(1) Notice to submitters.
The Agency shall provide a submitter with prompt written notice of
receipt of a Freedom of Information Act request encompassing business
information whenever:
(i) The submitter has in good faith designated the information as
confidential commercial information, or
(ii) The Agency believes that disclosure of the information could
reasonably be expected to cause substantial competitive harm, and
(iii) The information was submitted within the last ten (10) years
unless the submitter requested and provided acceptable justification
for a specific notice period of greater duration.
(2) Form of notice. This notice shall either describe the exact
nature of the confidential commercial information at issue or provide
copies of the responsive records containing such information.
(3) Response by submitter. (i) Within seven (7) days of the above
notice, all claims of confidentiality by a submitter must be supported
by a detailed statement of any objection to disclosure. Such statement
shall:
(A) Specify that the information has not been disclosed to the
public;
(B) Explain why the information is contended to be a trade secret
or confidential commercial information;
(C) Explain how the information is capable of competitive damage if
disclosed;
(D) State that the submitter will provide the Agency and the
Department of Justice with such litigation defense as requested; and
(E) Be certified by an officer authorized to legally bind the
corporation or similar entity.
(ii) It should be noted that information provided by a submitter
pursuant to this provision may itself be subject to disclosure under
the FOIA.
(4) Decision and notice of intent to disclose. (i) The Agency shall
consider carefully a submitter's objections and specific grounds for
nondisclosure prior to its final determination. If the Agency decides
to disclose a document over the objection of a submitter, the Agency
shall provide the submitter a written notice which shall include:
(A) A statement of the reasons for which the submitter's disclosure
objections were not sustained;
(B) A description of the information to be disclosed; and
(C) A specified disclosure date which is seven (7) days after the
date of the instant notice.
(ii) When notice is given to a submitter under this section, the
Agency shall also notify the requester and, if the Agency notifies a
submitter that it intends to disclose information, then the requester
shall be notified also and given the proposed date for disclosure.
(5) Notice of FOIA lawsuit. If a requester initiates a civil action
seeking to compel disclosure of information asserted to be within the
scope of this section, the Agency shall promptly notify the submitter.
The submitter, as specified above, shall provide such litigation
assistance as required by the Agency and the Department of Justice.
(6) Exceptions to notice requirement. The notice requirements of
this section
[[Page 32486]]
shall not apply if the Agency determines that:
(i) The information should not be disclosed in light of other FOIA
exemptions;
(ii) The information has been published lawfully or has been
officially made available to the public;
(iii) The disclosure of the information is otherwise required by
law or federal regulation; or
(iv) The designation made by the submitter under this section
appears frivolous, except that, in such a case, the Agency will, within
a reasonable time prior to the specified disclosure date, give the
submitter written notice of any final decision to disclose the
information.
Sec. 1900.32 Procedures for information concerning other persons.
(a) In general. Personal information concerning individuals other
than the requester shall not be disclosed under the Freedom of
Information Act if the proposed release would constitute a clearly
unwarranted invasion of personal privacy. See 5 U.S.C. 552(b)(6). For
purposes of this section, the following definitions apply:
(1) personal information means any information about an individual
that is not a matter of public record, or easily discernible to the
public, or protected from disclosure because of the implications that
arise from Government possession of such information.
(2) public interest means the public interest in understanding the
operations and activities of the United States Government and not
simply any matter which might be of general interest to the requester
or members of the public.
(b) Determination to be made. In making the required determination
under this section and pursuant to exemption (b)(6) of the FOIA, the
Agency will balance the privacy interests that would be compromised by
disclosure against the public interest in release of the requested
information.
(c) Otherwise. A requester seeking information on a third person is
encouraged to provide a signed affidavit or declaration from the third
person waiving all or some of their privacy rights. However, all such
waivers shall be narrowly construed and the Coordinator, in the
exercise of his discretion and administrative authority, may seek
clarification from the third party prior to any or all releases.
Sec. 1900.33 Allocation of resources; agreed extensions of time.
(a) In general. Agency components shall devote such personnel and
other resources to the responsibilities imposed by the Freedom of
Information Act as may be appropriate and reasonable considering:
(1) The totality of resources available to the component,
(2) The business demands imposed on the component by the Director
of Central Intelligence or otherwise by law,
(3) The information review and release demands imposed by the
Congress or other governmental authority, and
(4) The rights of all members of the public under the various
information review and disclosure laws.
(b) Discharge of FOIA responsibilities. Components shall exercise
due diligence in their responsibilities under the FOIA and must
allocate a reasonable level of resources to requests under the Act in a
strictly ``first-in, first-out'' basis and utilizing two or more
processing queues to ensure that smaller as well as larger (i.e.,
project) cases receive equitable attention. The Information and Privacy
Coordinator is responsible for management of the Agency-wide program
defined by this part and for establishing priorities for cases
consistent with established law. The Director, Information Management
through the Agency Release Panel shall provide policy and resource
direction as necessary and render decisions on administrative appeals.
(c) Requests for extension of time. When the Agency is unable to
meet the statutory time requirements of the FOIA, it will inform the
requester that the request cannot be processed within the statutory
time limits, provide an opportunity for the requester to limit the
scope of the request so that it can be processed within the statutory
time limits, or arrange with the requester an agreed upon time frame
for processing the request, or determine that exceptional circumstances
mandate additional time. In such instances the Agency will, however,
inform a requester of his or her right to decline our request and
proceed with an administrative appeal or judicial review as
appropriate. Effective October 2 1997, the definition of exceptional
circumstances is modified per section 552(a)(6)(C) of the Freedom of
Information Act, as amended.
Sec. 1900.34 Requests for expedited processing.
(a) In general. All requests will be handled in the order received
on a strictly ``first-in, first-out'' basis. Exceptions to this rule
will only be made in accordance with the following procedures. In all
circumstances, however, and consistent with established judicial
precedent, requests more properly the scope of requests under the
Federal Rules of Civil or Criminal Procedure (or other federal, state,
or foreign judicial or quasi-judicial rules) will not be granted
expedited processing under this or related (e.g., Privacy Act)
provisions unless expressly ordered by a federal court of competent
jurisdiction.
(b) Procedure prior to October 2, 1997. Requests for expedited
processing shall be granted only in circumstances that the Agency deems
to be exceptional. In making this determination, the Agency shall
consider and must decide in the affirmative on all of the following
factors:
(i) That there is a genuine need for the specific requested
records; and
(ii) That the personal need is exceptional; and
(iii) That there are no alternative forums for the records or
information sought; and
(iv) That it is reasonably believed that substantive records
relevant to the stated needs may exist and be deemed releasable.
(2) In sum, requests shall be considered for expedited processing
only when health, humanitarian, or due process considerations involving
possible deprivation of life or liberty create circumstances of
exceptional urgency and extraordinary need.
(c) Procedure on or after October 2, 1997. Requests for expedited
processing will be approved only when a compelling need is established
to the satisfaction of the Agency. A requester may make such a request
with a certification of ``compelling need'' and, within ten (10) days
of receipt, the Agency will decide whether to grant expedited
processing and will notify the requester of its decision. The
certification shall set forth with specificity the relevant facts upon
which the requester relies and it appears to the Agency that
substantive records relevant to the stated needs may exist and be
deemed releasable. A ``compelling need'' is deemed to exist:
(1) When the matter involves an imminent threat to the life or
physical safety of an individual; or
(2) When the request is made by a person primarily engaged in
disseminating information and the information is relevant to a subject
of public urgency concerning an actual or alleged Federal government
activity.
CIA Action on FOIA Administrative Appeals
Sec. 1900.41 Establishment of appeals structure.
(a) In general. Two administrative entities have been established
by the
[[Page 32487]]
Director of Central Intelligence to facilitate the processing of
administrative appeals under the Freedom of Information Act. Their
membership, authority, and rules of procedure are as follows.
(b) Historical Records Policy Board (``HRPB'' or ``Board''). This
Board, the successor to the CIA Information Review Committee, acts as
the senior corporate board in the CIA on all matters of information
review and release.
(1) Membership. The HRPB is composed of the Executive Director, who
serves as its Chair, the Deputy Director for Administration, the Deputy
Director for Intelligence, the Deputy Director for Operations, the
Deputy Director for Science and Technology, the General Counsel, the
Director of Congressional Affairs, the Director of the Public Affairs
Staff, the Director, Center for the Study of Intelligence, and the
Associate Deputy Director for Administration/Information Services, or
their designees.
(2) Authorities and activities. The HRPB, by majority vote, may
delegate to one or more of its members the authority to act on any
appeal or other matter or authorize the Chair to delegate such
authority, as long as such delegation is not to the same individual or
body who made the initial denial. The Executive Secretary of the HRPB
is the Director, Information Management. The Chair may request
interested parties to participate when special equities or expertise
are involved.
(c) Agency Release Panel (``ARP'' or ``Panel''). The HRPB, pursuant
to its delegation of authority, has established a subordinate Agency
Release Panel.
(1) Membership. The ARP is composed of the Director, Information
Management, who serves as its Chair; the Information Review Officers
from the Directorates of Administration, Intelligence, Operations,
Science and Technology, and the Director of Central Intelligence Area;
the CIA Information and Privacy Coordinator; the Chief, Historical
Review Group; the Chair, Publications Review Board; the Chief, Records
Declassification Program; and representatives from the Office of
General Counsel, the Office of Congressional Affairs, and the Public
Affairs Staff.
(2) Authorities and activities. The Panel shall meet on a regular
schedule and may take action when a simple majority of the total
membership is present. The Panel shall advise and assist the HRPB on
all information release issues, monitor the adequacy and timeliness of
Agency releases, set component search and review priorities, review
adequacy of resources available to and planning for all Agency release
programs, and perform such other functions as deemed necessary by the
Board. The Information and Privacy Coordinator also serves as Executive
Secretary of the Panel. The Chair may request interested parties to
participate when special equities or expertise are involved. The Panel,
functioning as a committee of the whole or through individual members,
will make final Agency decisions from appeals of initial adverse
decisions under the Freedom of Information Act and such other
information release decisions made under 32 CFR parts 1901, 1907, and
1908. Issues shall be decided by a majority of members present; in all
cases of a divided vote, any member of the ARP then present may refer
such matter to the HRPB by written memorandum to the Executive
Secretary of the HRPB. Matters decided by the Panel or Board will be
deemed a final decision by the Agency.
Sec. 1900.42 Right of appeal and appeal procedures.
(a) Right of Appeal. A right of administrative appeal exists
whenever access to any requested record or any portion thereof is
denied, no records are located in response to a request, or a request
for a fee waiver is denied. The Agency will apprise all requesters in
writing of their right to appeal such decisions to the CIA Agency
Release Panel through the Coordinator.
(b) Requirements as to time and form. Appeals of decisions must be
received by the Coordinator within forty-five (45) days of the date of
the Agency's initial decision. The Agency may, for good cause and as a
matter of administrative discretion, permit an additional thirty (30)
days for the submission of an appeal. All appeals shall be in writing
and addressed as specified in 32 CFR 1900.03. All appeals must identify
the documents or portions of documents at issue with specificity and
may present such information, data, and argument in support as the
requester may desire.
(c) Exceptions. No appeal shall be accepted if the requester has
outstanding fees for information services at this or another federal
agency. In addition, no appeal shall be accepted if the information in
question has been the subject of a review within the previous two (2)
years or is the subject of pending litigation in the federal courts.
(d) Receipt, recording, and tasking. The Agency shall promptly
record each request received under this part, acknowledge receipt to
the requester in writing, and thereafter effect the necessary taskings
to the Deputy Director(s) in charge of the directorate(s) which
originated or has an interest in the record(s) subject to the appeal.
As used herein, the term Deputy Director includes an equivalent senior
official in the DCI-area as well as a designee known as the Information
Review Officer for a directorate or area.
(e) Time for response. The Agency shall attempt to complete action
on an appeal within twenty (20) days of the date of receipt. The
current volume of requests, however, often requires that the Agency
request additional time from the requester pursuant to 32 CFR 1900.33.
In such event, the Agency will inform the requester of the right to
judicial review.
Sec. 1900.43 Determination(s) by Deputy Director(s).
Each Deputy Director in charge of a directorate which originated or
has an interest in any of the records subject to the appeal, or
designee, is a required party to any appeal; other interested parties
may become involved through the request of the Coordinator when it is
determined that some or all of the information is also within their
official cognizance. These parties shall respond in writing to the
Coordinator with a finding as to the exempt status of the information.
This response shall be provided expeditiously on a ``first-in, first-
out'' basis taking into account the business requirements of the
parties and consistent with the information rights of members of the
general public under the various information review and release laws.
Sec. 1900.44 Action by appeals authority.
(a) Preparation of docket. The Coordinator, acting in the capacity
of Executive Secretary of the Agency Release Panel, shall place
administrative appeals of FOIA requests ready for adjudication on the
agenda at the next occurring meeting of that Panel. The Executive
Secretary shall provide a summation memorandum for consideration of the
members; the complete record of the request consisting of the request,
the document(s) (sanitized and full text) at issue, and the findings of
the concerned Deputy Director(s) or designee(s).
(b) Decision by the Agency Release Panel. The Agency Release Panel
shall meet and decide requests sitting as a committee of the whole.
Decisions are by majority vote of those present at a meeting and shall
be based on the written record and their deliberations; no personal
appearances shall be permitted without the express permission of the
Panel.
[[Page 32488]]
(c) Decision by the Historical Records Policy Board. In any cases
of divided vote by the ARP, any member of that body is authorized to
refer the request to the CIA Historical Records Policy Board which acts
as the senior corporate board for the Agency. The record compiled (the
request, the memoranda filed by the originator and interested parties,
and the previous decision(s)) as well as any memorandum of law or
policy the referent desires to be considered, shall be certified by the
Executive Secretary of the Agency Release Panel and shall constitute
the official record of the proceedings and must be included in any
subsequent filings.
Sec. 1900.45 Notification of decision and right of judicial review.
The Executive Secretary of the Agency Release Panel shall promptly
prepare and communicate the decision of the Panel or Board to the
requester. With respect to any decision to deny information, that
correspondence shall state the reasons for the decision, identify the
officer responsible, and include a notice of a right to judicial
review.
PART 1901--PUBLIC RIGHTS UNDER THE PRIVACY ACT OF 1974
General
Sec.
1901.01 Authority and purpose.
1901.02 Definitions.
1901.03 Contact for general information and requests.
1901.04 Suggestions and complaints.
Filing of Privacy Act Requests
1901.11 Preliminary information.
1901.12 Requirements as to form.
1901.13 Requirements as to identification of requester.
1901.14 Fees.
Action on Privacy Act Requests
1901.21 Processing requests for access to or amendment of records.
1901.22 Action and determination(s) by originator(s) or any
interested party.
1901.23 Notification of decision and right of appeal.
Additional Administrative Matters
1901.31 Special procedures for medical and psychological records.
1901.32 Requests for expedited processing.
1901.33 Allocation of resources; agreed extensions of time.
Action on Privacy Act Administrative Appeals
1901.41 Establishment of appeals structure.
1901.42 Right of appeal and appeal procedures.
1901.43 Determination(s) by Deputy Director(s).
1901.44 Action by appeals authority.
1901.45 Notification of decision and right of judicial review.
Prohibitions
1901.51 Limitations on disclosure.
1901.52 Criminal penalties.
Exemptions
1901.61 Purpose and authority.
1901.62 General exemptions.
1901.63 Specific exemptions.
Authority: National Security Act of 1947, as amended; Central
Intelligence Agency Act of 1949, as amended; Privacy Act, as
amended; and Executive Order 12958 (or successor Orders).
General
Sec. 1901.01 Authority and purpose.
(a) Authority. This part is issued under the authority of and in
order to implement the Privacy Act of 1974 (5 U.S.C. 552a); sec. 102 of
the National Security Act of 1947, as amended (50 U.S.C. 403); and sec.
6 of the Central Intelligence Agency Act of 1949, as amended (50 U.S.C.
403g).
(b) Purpose in general. This part prescribes procedures for a
requester, as defined herein:
(1) To request notification of whether the Central Intelligence
Agency maintains a record concerning them in any non-exempt portion of
a system of records or any non-exempt system of records;
(2) To request a copy of all non-exempt records or portions of
records;
(3) To request that any such record be amended or augmented; and
(4) To file an administrative appeal to any initial adverse
determination to deny access to or amend a record.
(c) Other purposes. This part also sets forth detailed limitations
on how and to whom the Agency may disclose personal information and
gives notice that certain actions by officers or employees of the
United States Government or members of the public could constitute
criminal offenses.
Sec. 1901.02 Definitions.
For purposes of this part, the following terms have the meanings
indicated:
(a) Agency or CIA means the United States Central Intelligence
Agency acting through the CIA Information and Privacy Coordinator;
(b) Days means calendar days when the Agency is operating and
specifically excludes Saturdays, Sundays, and legal public holidays.
Three (3) days may be added to any time limit imposed on a requester by
this part if responding by U.S. domestic mail; ten (10) days may be
added if responding by international mail;
(c) Control means ownership or the authority of the CIA pursuant to
federal statute or privilege to regulate official or public access to
records;
(d) Coordinator means the CIA Information and Privacy Coordinator
who serves as the Agency manager of the information review and release
program instituted under the Privacy Act;
(e) Federal agency means any executive department, military
department, or other establishment or entity included in the definition
of agency in 5 U.S.C. 552(f);
(f) Interested party means any official in the executive, military,
congressional, or judicial branches of government, United States or
foreign, or U.S. Government contractor who, in the sole discretion of
the CIA, has a subject matter or physical interest in the documents or
information at issue;
(g) Maintain means maintain, collect, use, or disseminate;
(h) Originator means the U.S. Government official who originated
the document at issue or successor in office or such official who has
been delegated release or declassification authority pursuant to law;
(i) Privacy Act or PA means the statute as codified at 5 U.S.C.
552a;
(j) Record means an item, collection, or grouping of information
about an individual that is maintained by the Central Intelligence
Agency in a system of records;
(k) Requester or individual means a citizen of the United States or
an alien lawfully admitted for permanent residence who is a living
being and to whom a record might pertain;
(l) responsive record means those documents (records) which the
Agency has determined to be within the scope of a Privacy Act request;
(m) Routine use means, with respect to the disclosure of a record,
the use of such record for a purpose which is compatible with the
purpose for which the record is maintained;
(n) system of records means a group of any records under the
control of the Central Intelligence Agency from which records are
retrieved by the name of an individual or by some identifying number,
symbol, or other identifying particular assigned to that individual.
Sec. 1901.03 Contact for general information and requests.
For general information on this part, to inquire about the Privacy
Act program at CIA, or to file a Privacy Act request, please direct
your communication in writing to the Information and Privacy
Coordinator, Central Intelligence Agency, Washington, DC. 20505.
Requests with the required identification statement
[[Page 32489]]
pursuant to 32 CFR 1901.13 must be filed in original form by mail.
Subsequent communications and any inquiries will be accepted by mail or
facsimile at (703) 613-3007 or by telephone at (703) 613-1287. Collect
calls cannot be accepted.
Sec. 1901.04 Suggestions and complaints.
The Agency welcomes suggestions or complaints with regard to its
administration of the Privacy Act. Many requesters will receive pre-
paid, customer satisfaction survey cards. Letters of suggestion or
complaint should identify the specific purpose and the issues for
consideration. The Agency will respond to all substantive
communications and take such actions as determined feasible and
appropriate.
Filing of Privacy Act Requests
Sec. 1901.11 Preliminary information.
Members of the public shall address all communications to the
contact specified at Sec. 1901.03 and clearly delineate the
communication as a request under the Privacy Act and this regulation.
Requests and administrative appeals on requests, referrals, and
coordinations received from members of the public who owe outstanding
fees for information services at this or other federal agencies will
not be accepted and action on existing requests and appeals will be
terminated in such circumstances.
Sec. 1901.12 Requirements as to form.
(a) In general. No particular form is required. All requests must
contain the identification information required at Sec. 1901.13.
(b) For access. For requests seeking access, a requester should, to
the extent possible, describe the nature of the record sought and the
record system(s) in which it is thought to be included. Requesters may
find assistance from information described in the Privacy Act Issuances
Compilation which is published biannually by the Federal Register. In
lieu of this, a requester may simply describe why and under what
circumstances it is believed that this Agency maintains responsive
records; the Agency will undertake the appropriate searches.
(c) For amendment. For requests seeking amendment, a requester
should identify the particular record or portion subject to the
request, state a justification for such amendment, and provide the
desired amending language.
Sec. 1901.13 Requirements as to identification of requester.
(a) In general. Individuals seeking access to or amendment of
records concerning themselves shall provide their full (legal) name,
address, date and place of birth, and current citizenship status
together with a statement that such information is true under penalty
of perjury or a notarized statement swearing to or affirming identity.
If the Agency determines that this information is not sufficient, the
Agency may request additional or clarifying information.
(b) Requirement for aliens. Only aliens lawfully admitted for
permanent residence (PRAs) may file a request pursuant to the Privacy
Act and this part. Such individuals shall provide, in addition to the
information required under paragraph (a) of this section, their Alien
Registration Number and the date that status was acquired.
(c) Requirement for representatives. The parent or guardian of a
minor individual, the guardian of an individual under judicial
disability, or an attorney retained to represent an individual shall
provide, in addition to establishing the identity of the minor or
individual represented as required in paragraph (a) or (b) of this
section, evidence of such representation by submission of a certified
copy of the minor's birth certificate, court order, or representational
agreement which establishes the relationship and the requester's
identity.
(d) Procedure otherwise. If a requester or representative fails to
provide the information in paragraph (a), (b), or (c) of this section
within forty-five (45) days of the date of our request, the Agency will
deem the request closed. This action, of course, would not prevent an
individual from refiling his or her Privacy Act request at a subsequent
date with the required information.
Sec. 1901.14 Fees.
No fees will be charged for any action under the authority of the
Privacy Act, 5 U.S.C. 552a, irrespective of the fact that a request is
or may be processed under the authority of both the Privacy Act and the
Freedom of Information Act.
Action on Privacy Act Requests
Sec. 1901.21 Processing requests for access to or amendment of
records.
(a) In general. Requests meeting the requirements of 32 CFR 1901.11
through 1901.13 shall be processed under both the Freedom of
Information Act, 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a, and
the applicable regulations, unless the requester demands otherwise in
writing. Such requests will be processed under both Acts regardless of
whether the requester cites one Act in the request, both, or neither.
This action is taken in order to ensure the maximum possible disclosure
to the requester.
(b) Receipt, recording and tasking. Upon receipt of a request
meeting the requirements of Secs. 1901.11 through 1901.13, the Agency
shall within ten (10) days record each request, acknowledge receipt to
the requester, and thereafter effect the necessary taskings to the
components reasonably believed to hold responsive records.
(c) Effect of certain exemptions. In processing a request, the
Agency shall decline to confirm or deny the existence or nonexistence
of any responsive records whenever the fact of their existence or
nonexistence is itself classified under Executive Order 12958 or
revealing of intelligence sources and methods protected pursuant to
section 103(c)(5) of the National Security Act of 1947. In such
circumstances, the Agency, in the form of a final written response,
shall so inform the requester and advise of his or her right to an
administrative appeal.
(d) Time for response. Although the Privacy Act does not mandate a
time for response, our joint treatment of requests under both the
Privacy Act and the FOIA means that the Agency should provide a
response within the FOIA statutory guideline of ten (10) days on
initial requests and twenty (20) days on administrative appeals.
However, the current volume of requests require that the Agency often
seek additional time from a requester pursuant to 32 CFR 1901.33. In
such event, the Agency will inform the requester in writing and further
advise of his or her right to file an administrative appeal.
Sec. 1901.22 Action and determination(s) by originator(s) or any
interested party.
(a) Initial action for access. CIA components tasked pursuant to a
Privacy Act access request shall search all relevant record systems
within their cognizance. They shall:
(1) Determine whether responsive records exist;
(2) Determine whether access must be denied in whole or part and on
what legal basis under both Acts in each such case;
(3) Approve the disclosure of records for which they are the
originator; and
(4) Forward to the Coordinator all records approved for release or
necessary for coordination with or referral to another originator or
interested party as well as the specific determinations with respect to
denials (if any).
(b) Initial action for amendment. CIA components tasked pursuant to
a
[[Page 32490]]
Privacy Act amendment request shall review the official records alleged
to be inaccurate and the proposed amendment submitted by the requester.
If they determine that the Agency's records are not accurate, relevant,
timely or complete, they shall promptly:
(1) Make the amendment as requested;
(2) Write to all other identified persons or agencies to whom the
record has been disclosed (if an accounting of the disclosure was made)
and inform of the amendment; and
(3) Inform the Coordinator of such decisions.
(c) Action otherwise on amendment request. If the CIA component
records manager declines to make the requested amendment or declines to
make the requested amendment but agrees to augment the official
records, that manager shall promptly:
(1) Set forth the reasons for refusal; and
(2) Inform the Coordinator of such decision and the reasons
therefore.
(d) Referrals and coordinations. As applicable and within ten (10)
days of receipt by the Coordinator, any CIA records containing
information originated by other CIA components shall be forwarded to
those entities for action in accordance with paragraphs (a), (b), or
(c) of this section and return. Records originated by other federal
agencies or CIA records containing other federal agency information
shall be forwarded to such agencies within ten (10) days of our
completion of initial action in the case for action under their
regulations and direct response to the requester (for other agency
records) or return to the CIA (for CIA records).
(e) Effect of certain exemptions. This section shall not be
construed to allow access to systems of records exempted by the
Director of Central Intelligence pursuant to subsections (j) and (k) of
the Privacy Act or where those exemptions require that the CIA can
neither confirm nor deny the existence or nonexistence of responsive
records.
Sec. 1901.23 Notification of decision and right of appeal.
Within ten (10) days of receipt of responses to all initial
taskings and subsequent coordinations (if any), and dispatch of
referrals (if any), the Agency will provide disclosable records to the
requester. If a determination has been made not to provide access to
requested records (in light of specific exemptions) or that no records
are found, the Agency shall so inform the requester, identify the
denying official, and advise of the right to administrative appeal.
Additional Administrative Matters
Sec. 1901.31 Special procedures for medical and psychological records.
(a) In general. When a request for access or amendment involves
medical or psychological records and when the originator determines
that such records are not exempt from disclosure, the Agency will,
after consultation with the Director of Medical Services, determine:
(1) Which records may be sent directly to the requester and
(2) Which records should not be sent directly to the requester
because of possible medical or psychological harm to the requester or
another person.
(b) Procedure for records to be sent to physician. In the event
that the Agency determines, in accordance with paragraph (a)(2) of this
section, that records should not be sent directly to the requester, the
Agency will notify the requester in writing and advise that the records
at issue can be made available only to a physician of the requester's
designation. Upon receipt of such designation, verification of the
identity of the physician, and agreement by the physician:
(1) To review the documents with the requesting individual,
(2) To explain the meaning of the documents, and
(3) To offer counseling designed to temper any adverse reaction,
the Agency will forward such records to the designated physician.
(c) Procedure if physician option not available. If within sixty
(60) days of the paragraph (a)(2) of this section, the requester has
failed to respond or designate a physician, or the physician fails to
agree to the release conditions, the Agency will hold the documents in
abeyance and advise the requester that this action may be construed as
a technical denial. The Agency will also advise the requester of the
responsible official and of his or her rights to administrative appeal
and thereafter judicial review.
Sec. 1901.32 Requests for expedited processing.
(a) All requests will be handled in the order received on a
strictly ``first-in, first-out'' basis. Exceptions to this rule will
only be made in circumstances that the Agency deems to be exceptional.
In making this determination, the Agency shall consider and must decide
in the affirmative on all of the following factors:
(1) That there is a genuine need for the records; and
(2) That the personal need is exceptional; and
(3) That there are no alternative forums for the records sought;
and
(4) That it is reasonably believed that substantive records
relevant to the stated needs may exist and be deemed releasable.
(b) In sum, requests shall be considered for expedited processing
only when health, humanitarian, or due process considerations involving
possible deprivation of life or liberty create circumstances of
exceptional urgency and extraordinary need. In accordance with
established judicial precedent, requests more properly the scope of
requests under the Federal Rules of Civil or Criminal Procedure (or
equivalent state rules) will not be granted expedited processing under
this or related (e.g., Freedom of Information Act) provisions unless
expressly ordered by a federal court of competent jurisdiction.
Sec. 1901.33 Allocation of resources; agreed extensions of time.
(a) In general. Agency components shall devote such personnel and
other resources to the responsibilities imposed by the Privacy Act as
may be appropriate and reasonable considering:
(1) The totality of resources available to the component,
(2) The business demands imposed on the component by the Director
of Central Intelligence or otherwise by law,
(3) The information review and release demands imposed by the
Congress or other governmental authority, and
(4) The rights of all members of the public under the various
information review and disclosure laws.
(b) Discharge of Privacy Act responsibilities. Components shall
exercise due diligence in their responsibilities under the Privacy Act
and must allocate a reasonable level of resources to requests under the
Act in a strictly ``first-in, first-out'' basis and utilizing two or
more processing queues to ensure that smaller as well as larger (i.e.,
project) cases receive equitable attention. The Information and Privacy
Coordinator is responsible for management of the Agency-wide program
defined by this Part and for establishing priorities for cases
consistent with established law. The Director, Information Management
through the Agency Release Panel shall provide policy and resource
direction as necessary and shall make determinations on administrative
appeals.
(c) Requests for extension of time. While the Privacy Act does not
specify time requirements, our joint treatment of requests under the
FOIA means that when the Agency is unable to meet the statutory time
requirements of the FOIA,
[[Page 32491]]
the Agency may request additional time from a requester. In such
instances the Agency will inform a requester of his or her right to
decline our request and proceed with an administrative appeal or
judicial review as appropriate.
Action on Privacy Act Administrative Appeals
Sec. 1901.41 Establishment of appeals structure.
(a) In general. Two administrative entities have been established
by the Director of Central Intelligence to facilitate the processing of
administrative appeals under the Freedom of Information Act. Their
membership, authority, and rules of procedure are as follows.
(b) Historical Records Policy Board (``HRPB'' or ``Board''). This
Board, the successor to the CIA Information Review Committee, acts as
the senior corporate board in the CIA on all matters of information
review and release.
(1) Membership. The HRPB is composed of the Executive Director, who
serves as its Chair, the Deputy Director for Administration, the Deputy
Director for Intelligence, the Deputy Director for Operations, the
Deputy Director for Science and Technology, the General Counsel, the
Director of Congressional Affairs, the Director of the Public Affairs
Staff, the Director, Center for the Study of Intelligence, and the
Associate Deputy Director for Administration/Information Services, or
their designees.
(2) Authorities and activities. The HRPB, by majority vote, may
delegate to one or more of its members the authority to act on any
appeal or other matter or authorize the Chair to delegate such
authority, as long as such delegation is not to the same individual or
body who made the initial denial. The Executive Secretary of the HRPB
is the Director, Information Management. The Chair may request
interested parties to participate when special equities or expertise
are involved.
(c) Agency Release Panel (``ARP'' or ``Panel''). The HRPB, pursuant
to its delegation of authority, has established a subordinate Agency
Release Panel.
(1) Membership. The ARP is composed of the Director, Information
Management, who serves as its Chair; the Information Review Officers
from the Directorates of Administration, Intelligence, Operations,
Science and Technology, and the Director of Central Intelligence Area;
the CIA Information and Privacy Coordinator; the Chief, Historical
Review Group; the Chair, Publications Review Board; the Chief, Records
Declassification Program; and representatives from the Office of
General Counsel, the Office of Congressional Affairs, and the Public
Affairs Staff.
(2) Authorities and activities. The Panel shall meet on a regular
schedule and may take action when a simple majority of the total
membership is present. The Panel shall advise and assist the HRPB on
all information release issues, monitor the adequacy and timeliness of
Agency releases, set component search and review priorities, review
adequacy of resources available to and planning for all Agency release
programs, and perform such other functions as deemed necessary by the
Board. The Information and Privacy Coordinator also serves as Executive
Secretary of the Panel. The Chair may request interested parties to
participate when special equities or expertise are involved. The Panel,
functioning as a committee of the whole or through individual members,
will make final Agency decisions from appeals of initial adverse
decisions under the Freedom of Information Act and such other
information release decisions made under 32 CFR parts 1901, 1907, and
1908. Issues shall be decided by a majority of members present; in all
cases of a divided vote, any member of the ARP then present may refer
such matter to the HRPB by written memorandum to the Executive
Secretary of the HRPB. Matters decided by the Panel or Board will be
deemed a final decision by the Agency.
Sec. 1901.42 Right of appeal and appeal procedures.
(a) Right of Appeal. A right of administrative appeal exists
whenever access to any requested record or any portion thereof is
denied, no records are located in response to a request, or a request
for amendment is denied. The Agency will apprise all requesters in
writing of their right to appeal such decisions to the CIA Agency
Release Panel through the Coordinator.
(b) Requirements as to time and form. Appeals of decisions must be
received by the Coordinator within forty-five (45) days of the date of
the Agency's initial decision. The Agency may, for good cause and as a
matter of administrative discretion, permit an additional thirty (30)
days for the submission of an appeal. All appeals to the Panel shall be
in writing and addressed as specified in 32 CFR 1901.03. All appeals
must identify the documents or portions of documents at issue with
specificity, provide the desired amending language (if applicable), and
may present such information, data, and argument in support as the
requester may desire.
(c) Exceptions. No appeal shall be accepted if the requester has
outstanding fees for information services at this or another federal
agency. In addition, no appeal shall be accepted if the information in
question has been the subject of an administrative review within the
previous two (2) years or is the subject of pending litigation in the
federal courts.
(d) Receipt, recording, and tasking. The Agency shall promptly
record each administrative appeal, acknowledge receipt to the requester
in writing, and thereafter effect the necessary taskings to the Deputy
Director(s) in charge of the directorate(s) which originated or has an
interest in the record(s) subject to the appeal. As used herein, the
term Deputy Director includes an equivalent senior official within the
DCI-area as well as a designee known as the Information Review Officer
for a directorate or area.
Sec. 1901.43 Determination(s) by Deputy Director(s).
Each Deputy Director in charge of a directorate which originated or
has an interest in any of the records subject to the appeal, or
designee, is a required party to any appeal; other interested parties
may become involved through the request of the Coordinator when it is
determined that some or all of the information is also within their
official cognizance. These parties shall respond in writing to the
Coordinator with a finding as to the exempt or non-exempt status of the
information including citations to the applicable exemption and/or
their agreement or disagreement as to the requested amendment and the
reasons therefore. Each response shall be provided expeditiously on a
``first-in, first-out'' basis taking into account the business
requirements of the parties and consistent with the information rights
of members of the general public under the various information review
and release laws.
Sec. 1901.44 Action by appeals authority.
(a) Preparation of docket. The Coordinator, acting as the Executive
Secretary of the Agency Release Panel, shall place administrative
appeals of Privacy Act requests ready for adjudication on the agenda at
the next occurring meeting of that Panel. The Executive Secretary shall
provide a summation memorandum for consideration of the members; the
complete record of the request consisting of the request, the
document(s) (sanitized and full text) at
[[Page 32492]]
issue, and the findings of the concerned Deputy Director(s) or
designee(s).
(b) Decision by the Agency Release Panel. The Agency Release Panel
shall meet and decide requests sitting as a committee of the whole.
Decisions are by majority vote of those present at a meeting and shall
be based on the written record and their deliberations; no personal
appearances shall be permitted without the express permission of the
Panel.
(c) Decision by the Historical Records Policy Board. In any cases
of divided vote by the ARP, any member of that body is authorized to
refer the request to the CIA Historical Records Policy Board which acts
as the senior corporate board for the Agency. The record compiled (the
request, the memoranda filed by the originator and interested parties,
and the previous decision(s)) as well as any memorandum of law or
policy the referent desires to be considered, shall be certified by the
Executive Secretary of the Agency Release Panel and shall constitute
the official record of the proceedings and must be included in any
subsequent filings.
Sec. 1901.45 Notification of decision and right of judicial review.
(a) In general. The Executive Secretary of the Agency Release Panel
shall promptly prepare and communicate the decision of the Panel or
Board to the requester. With respect to any decision to deny
information or deny amendment, that correspondence shall state the
reasons for the decision, identify the officer responsible, and include
a notice of the right to judicial review.
(b) For amendment requests. With further respect to any decision to
deny an amendment, that correspondence shall also inform the requester
of the right to submit within forty-five (45) days a statement of his
or her choice which shall be included in the official records of the
CIA. In such cases, the applicable record system manager shall clearly
note any portion of the official record which is disputed, append the
requester's statement, and provide copies of the statement to previous
recipients (if any are known) and to any future recipients when and if
the disputed information is disseminated in accordance with a routine
use.
Prohibitions
Sec. 1901.51 Limitations on disclosure.
No record which is within a system of records shall be disclosed by
any means of communication to any individual or to another agency,
except pursuant to a written request by, or with the prior written
consent of, the individual to whom the record pertains, unless
disclosure of the record would be:
(a) To those officers and employees of this Agency which maintains
the record who have a need for the record in the performance of their
duties;
(b) Required under the Freedom of Information Act, 5 U.S.C. 552;
(c) For a routine use as defined in Sec. 1901.02(m), as contained
in the Privacy Act Issuances Compilation which is published biennially
in the Federal Register, and as described in Secs. (a)(7) and (e)(4)(D)
of the Act;
(d) To the Bureau of the Census for purposes of planning or
carrying out a census or survey or related activity pursuant to the
provisions of U.S.C. Title 13;
(e) To a recipient who has provided the Agency with advance
adequate written assurance that the record will be used solely as a
statistical research or reporting record, and the record is to be
transferred in a form that is not individually identifiable;
(f) To the National Archives and Records Administration as a record
which has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Archivist of the United States or designee to determine whether the
record has such value;
(g) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is
authorized by law, and if the head of that agency or instrumentality
has made a written request to the CIA specifying the particular
information desired and the law enforcement activity for which the
record is sought;
(h) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(i) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(j) To the Comptroller General or any of his authorized
representatives in the course of the performance of the duties of the
General Accounting Office; or
(k) To any agency, government instrumentality, or other person or
entity pursuant to the order of a court of competent jurisdiction of
the United States or constituent states.
Sec. 1901.52 Criminal penalties.
(a) Unauthorized disclosure. Criminal penalties may be imposed
against any officer or employee of the CIA who, by virtue of
employment, has possession of or access to Agency records which contain
information identifiable with an individual, the disclosure of which is
prohibited by the Privacy Act or by these rules, and who, knowing that
disclosure of the specific material is so prohibited, willfully
discloses the material in any manner to any person or agency not
entitled to receive same.
(b) Unauthorized maintenance. Criminal penalties may be imposed
against any officer or employee of the CIA who willfully maintains a
system of records without meeting the requirements of section (e)(4) of
the Privacy Act, 5 U.S.C.552a. The Coordinator and the Inspector
General are authorized independently to conduct such surveys and
inspect such records as necessary from time to time to ensure that
these requirements are met.
(c) Unauthorized requests. Criminal penalties may be imposed upon
any person who knowingly and willfully requests or obtains any record
concerning an individual from the CIA under false pretenses.
Exemptions
Sec. 1901.61 Purpose and authority.
Purpose of exemptions. This Part sets forth those systems of
records or portions of systems of records which the Director of Central
Intelligence has determined to exempt from the procedures established
by this regulation and from certain provisions of the Privacy Act:
(a) The purpose of the following specified general exemption of
polygraph records is to prevent access and review of records which
intimately reveal CIA operational methods. The purpose of the general
exemption from the provisions of sections (c)(3) and (e)(3) (A)-(D) of
the Privacy Act is to avoid disclosures that may adversely affect
ongoing operational relationships with other intelligence and related
organizations and thus reveal or jeopardize intelligence sources and
methods or risk exposure of intelligence sources and methods in the
processing of covert employment applications.
(b) The purpose of the general exemption from sections (d),
(e)(4)(G), (f)(1), and (g) of the Privacy Act is to protect only those
portions of systems of records which if revealed would risk exposure of
intelligence sources and methods or hamper the ability of the CIA to
effectively use information
[[Page 32493]]
received from other agencies or foreign governments.
(c) It should be noted that by subjecting information which would
consist of, reveal, or pertain to intelligence sources and methods to
separate determinations by the Director of Central Intelligence under
the provision entitled ``General exemptions,'' 32 CFR 1901.62 regarding
access and notice, an intent is established to apply the exemption from
access and notice only in those cases where notice in itself would
constitute a revelation of intelligence sources and methods; in all
cases where only access to information would reveal such source or
method, notice will be given upon request.
(d) The purpose of the general exemption for records that consist
of, pertain to, or would otherwise reveal the identities of employees
who provide information to the Office of the Inspector General is to
implement section 17 of the CIA Act of 1949, as amended, 50 U.S.C.
403q(e)(3), and to ensure that no action constituting a reprisal or
threat of reprisal is taken because an employee has cooperated with the
Office of Inspector General.
(e) The purpose of the specific exemptions provided for under
section (k) of the Privacy Act is to exempt only those portions of
systems of records which would consist of, reveal, or pertain to that
information which is enumerated in that section of the Act.
(f) In each case, the Director of Central Intelligence currently or
then in office has determined that the enumerated classes of
information should be exempt in order to comply with dealing with the
proper classification of national defense or foreign policy
information; protect the identification of persons who provide
information to the CIA Inspector General; protect the privacy of other
persons who supplied information under an implied or express grant of
confidentiality in the case of law enforcement or employment and
security suitability investigations (or promotion material in the case
of the armed services); protect information used in connection with
protective services under 18 U.S.C. 3056; protect the efficacy of
testing materials; and protect information which is required by statute
to be maintained and used solely as statistical records.
Sec. 1901.62 General exemptions.
(a) Pursuant to authority granted in section (j) of the Privacy
Act, the Director of Central Intelligence has determined to exempt from
all sections of the Act--except sections 552a(b); (c) (1) and (2); (e)
(1), (4) (A)-(F), (5), (6), (7), (9), (10), and (11); and (i)--the
following systems of records or portions of records in a system of
record:
(1) Polygraph records.
(b) Pursuant to authority granted in section (j) of the Privacy
Act, the Director of Central Intelligence has determined to exempt from
sections (c)(3) and (e)(3) (A)-(D) of the Act all systems of records
maintained by this Agency.
(c) Pursuant to authority granted in section (j) of the Privacy
Act, the Director of Central Intelligence has determined to exempt from
notification under sections (e)(4)(G) and (f)(1) those portions of each
and all systems of records which have been exempted from individual
access under section (j) in those cases where the Coordinator
determines after advice by the responsible components that confirmation
of the existence of a record may jeopardize intelligence sources and
methods. In such cases the Agency must neither confirm nor deny the
existence of the record and will advise a requester that there is no
record which is available pursuant to the Privacy Act of 1974.
(d) Pursuant to authority granted in section (j) of the Privacy
Act, the Director of Central Intelligence has determined to exempt from
access by individuals under section (d) of the Act those portions and
only those portions of all systems of records maintained by the CIA
that:
(1) Consist of, pertain to, or would otherwise reveal intelligence
sources and methods;
(2) Consist of documents or information provided by any foreign
government entity, international organization, or, any United States
federal, state, or other public agency or authority; and
(3) Consist of information which would reveal the identification of
persons who provide information to the CIA Inspector General.
(e) Pursuant to authority granted in section (j) of the Privacy
Act, the Director of Central Intelligence has determined to exempt from
judicial review under section (g) of the Act all determinations to deny
access under section (d) of the Act and all decisions to deny notice
under sections (e)(4)(G) and (f)(1) of the Act pursuant to
determination made under paragraph (c) of this section when it has been
determined by an appropriate official of the CIA that such access would
disclose information which would:
(1) Consist of, pertain to, or otherwise reveal intelligence
sources and methods;
(2) Consist of documents or information provided by any foreign
government entity, international organization, or, any United States
federal, state, or other public agency or authority; and
(3) Consist of information which would reveal the identification of
persons who provide information to the CIA Inspector General.
Sec. 1901.63 Specific exemptions.
Pursuant to authority granted in section (k) of the Privacy Act,
the Director of Central Intelligence has determined to exempt from
section (d) of the Privacy Act those portions and only those portions
of all systems of records maintained by the CIA that would consist of,
pertain to, or otherwise reveal information that is:
(a) Classified pursuant to Executive Order 12958 (or successor or
prior Order) and thus subject to the provisions of 5 U.S.C. 552(b)(1)
and 5 U.S.C. 552a(k)(1);
(b) Investigatory in nature and compiled for law enforcement
purposes, other than material within the scope of section (j)(2) of the
Act; provided however, that if an individual is denied any right,
privilege, or benefit to which they are otherwise eligible, as a result
of the maintenance of such material, then such material shall be
provided to that individual except to the extent that the disclosure
would reveal the identity of a source who furnished the information to
the United States Government under an express promise of
confidentiality, or, prior to the effective date of this section, under
an implied promise of confidentiality;
(c) Maintained in connection with providing protective services to
the President of the United States or other individuals pursuant to 18
U.S.C. 3056;
(d) Required by statute to be maintained and used solely as
statistical records;
(e) Investigatory in nature and compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information, but only to the extent that the disclosure of
such material would reveal the identity of a source who furnished
information to the United States Government under an express promise of
confidentiality, or, prior to the effective date of this section, under
an implied promise of confidentiality;
(f) Testing or examination material used solely to determine
individual qualifications for appointment or promotion in the federal
service the disclosure of which would compromise
[[Page 32494]]
the objectivity or fairness of the testing or examination process; or
(g) Evaluation material used to determine potential for promotion
in the armed services, but only to the extent that the disclosure of
such material would reveal the identity of a source who furnished
information to the United States Government under an express promise of
confidentiality, or, prior to the effective date of this section, under
an implied promise of confidentiality.
PART 1907--CHALLENGES TO CLASSIFICATION OF DOCUMENTS BY AUTHORIZED
HOLDERS PURSUANT TO Sec. 1.9 OF EXECUTIVE ORDER 12958
General
Sec.
1907.01 Authority and purpose.
1907.02 Definitions.
1907.03 Contact for general information and requests.
1907.04 Suggestions and complaints.
Filing of Challenges
1907.11 Prerequisites.
1907.12 Requirements as to form.
1907.13 Identification of material at issue.
1907.14 Transmission.
Action on Challenges
1907.21 Receipt, recording, and tasking.
1907.22 Challenges barred by res judicata.
1907.23 Response by originator(s) and/or any interested party.
1907.24 Designation of authority to hear challenges.
1907.25 Action on challenge.
1907.26 Notification of decision and prohibition on adverse action.
Right of Appeal
1907.31 Right of appeal.
Authority: Executive Order 12958, 60 FR 19825, 3 CFR 1996 Comp.,
P. 333-356 (or successor orders).
General
Sec. 1907.01 Authority and purpose.
(a) Authority. This Part is issued under the authority of and in
order to implement Sec. 1.9 of Executive Order (E.O.) 12958, sec. 102
of the National Security Act of 1947, and sec. 6 of the CIA Act of
1949.
(b) Purpose. This part prescribes procedures for authorized holders
of information classified under the various provisions of E.O. 12958,
or predecessor Orders, to seek a review or otherwise challenge the
classified status of information to further the interests of the United
States Government. This part and Sec. 1.9 of E.O. 12958 confer no
rights upon members of the general public, or authorized holders acting
in their personal capacity, both of whom shall continue to request
reviews of classification under the mandatory declassification review
provisions set forth at Sec. 3.6 of E.O. 12958.
Sec. 1907.02 Definitions.
For purposes of this part, the following terms have the meanings as
indicated:
(a) Agency or CIA means the United States Central Intelligence
Agency acting through the CIA Information and Privacy Coordinator;
(b) authorized holders means any member of any United States
executive department, military department, the Congress, or the
judiciary (Article III) who holds a security clearance from or has been
specifically authorized by the Central Intelligence Agency to possess
and use on official business classified information, or otherwise has
Constitutional authority pursuant to their office;
(c) days means calendar days when the Agency is operating and
specifically excludes Saturdays, Sundays, and legal public holidays.
Three (3) days may be added to any time limit imposed on a requester by
this CFR Part if responding by U.S. domestic mail; ten (10) days may be
added if responding by international mail;
(d) challenge means a request in the individual's official, not
personal, capacity and in furtherance of the interests of the United
States;
(e) control means ownership or the authority of the CIA pursuant to
federal statute or privilege to regulate official or public access to
records;
(f) Coordinator means the CIA Information and Privacy Coordinator
acting in the capacity of Executive Secretary of the Agency Release
Panel;
(g) Information means any knowledge that can be communicated or
documentary material, regardless of its physical form, that is:
(1) Owned by, produced by or for, or under the control of the
United States Government, and
(2) Lawfully and actually in the possession of an authorized holder
and for which ownership and control has not been relinquished by the
CIA;
(h) Interested party means any official in the executive, military,
congressional, or judicial branches of government, United States or
foreign, or U.S. Government contractor who, in the sole discretion of
the CIA, has a subject matter or physical interest in the documents or
information at issue;
(i) Originator means the CIA officer who originated the information
at issue, or successor in office, or a CIA officer who has been
delegated declassification authority for the information at issue in
accordance with the provisions of this Order;
(j) This Order means Executive Order 12958 of April 17, 1995 and
published at 60 FR 19825-19843 (or successor Orders).
Sec. 1907.03 Contact for general information and requests.
For information on this part or to file a challenge under this
part, please direct your inquiry to the Executive Secretary, Agency
Release Panel, Central Intelligence Agency, Washington, DC 20505. The
commercial (non-secure) telephone is (703) 613-1287; the classified
(secure) telephone for voice and facsimile is (703) 613-3007.
Sec. 1907.04 Suggestions and complaints.
The Agency welcomes suggestions or complaints with regard to its
administration of the Executive Order. Letters of suggestion or
complaint should identify the specific purpose and the issues for
consideration. The Agency will respond to all substantive
communications and take such actions as determined feasible and
appropriate.
Filing of Challenges
Sec. 1907.11 Prerequisites.
The Central Intelligence Agency has established liaison and
procedures with many agencies for declassification issues. Prior to
reliance on this Part, authorized holders are required to first exhaust
such established administrative procedures for the review of classified
information. Further information on these procedures is available from
the point of contact, see 32 CFR 1907.03.
Sec. 1907.12 Requirements as to form.
The challenge shall include identification of the challenger by
full name and title of position, verification of security clearance or
other basis of authority, and an identification of the documents or
portions of documents or information at issue. The challenge shall
also, in detailed and factual terms, identify and describe the reasons
why it is believed that the information is not protected by one or more
of the Sec. 1.5 provisions, that the release of the information would
not cause damage to the national security, or that the information
should be declassified due to the passage of time. The challenge must
be properly classified; in this regard, until the challenge is decided,
the authorized holder must treat the challenge, the information being
challenged, and any related or explanatory information as classified at
the same level as the current classification of the information in
dispute.
[[Page 32495]]
Sec. 1907.13 Identification of material at issue.
Authorized holders shall append the documents at issue and clearly
mark those portions subject to the challenge. If information not in
documentary form is in issue, the challenge shall state so clearly and
present or otherwise refer with specificity to that information in the
body of the challenge.
Sec. 1907.14 Transmission.
Authorized holders must direct challenge requests to the CIA as
specified in Sec. 1907.03. The classified nature of the challenge, as
well as the appended documents, require that the holder transmit same
in full accordance with established security procedures. In general,
registered U.S. mail is approved for SECRET, non-compartmented
material; higher classifications require use of approved Top Secret
facsimile machines or CIA-approved couriers. Further information is
available from the CIA as well as corporate or other federal agency
security departments.
Action on Challenges
Sec. 1907.21 Receipt, recording, and tasking.
The Executive Secretary of the Agency Release Panel shall within
ten (10) days record each challenge received under this Part,
acknowledge receipt to the authorized holder, and task the originator
and other interested parties. Additional taskings, as required during
the review process, shall be accomplished within five (5) days of
notification.
Sec. 1907.22 Challenges barred by res judicata.
The Executive Secretary of the Agency Release Panel shall respond
on behalf of the Panel and deny any challenge where the information in
question has been the subject of a classification review within the
previous two (2) years or is the subject of pending litigation in the
federal courts.
Sec. 1907.23 Response by originator(s) and/or any interested party.
(a) In general. The originator of the classified information
(document) is a required party to any challenge; other interested
parties may become involved through the request of the Executive
Secretary or the originator when it is determined that some or all of
the information is also within their official cognizance.
(b) Determination. These parties shall respond in writing to the
Executive Secretary of the Agency Release Panel with a mandatory
unclassified finding, to the greatest extent possible, and an optional
classified addendum. This finding shall agree to a declassification or,
in specific and factual terms, explain the basis for continued
classification including identification of the category of information,
the harm to national security which could be expected to result from
disclosure, and, if older than ten (10) years, the basis for the
extension of classification time under Secs. 1.6 and 3.4 of this Order.
These parties shall also provide a statement as to whether or not there
is any other statutory, common law, or Constitutional basis for
withholding as required by Sec. 6.1(c) of this Order.
(c) Time. The determination(s) shall be provided on a ``first-in,
first-out'' basis with respect to all challenges pending under this
section and shall be accomplished expeditiously taking into account the
requirements of the authorized holder as well as the business
requirements of the originator including their responsibilities under
the Freedom of Information Act, the Privacy Act, or the mandatory
declassification review provisions of this Order.
Sec. 1907.24 Designation of authority to hear challenges.
The Deputy Director for Administration has designated the Agency
Release Panel and the Historical Records Policy Board, established
pursuant to 32 CFR 1900.41, as the Agency authority to hear and decide
challenges under these regulations.
Sec. 1907.25 Action on challenge.
(a) Action by Agency Release Panel. The Executive Secretary shall
place challenges ready for adjudication on the agenda at the next
occurring meeting of the Agency Release Panel. The Executive Secretary
shall provide a summation memorandum for consideration of the members;
the complete package consisting of the challenge, the information at
issue, and the findings of the originator and interested parties shall
also be provided. The Agency Release Panel shall meet and decide
challenges sitting as a committee of the whole. Decisions are by
majority vote of those present at a meeting and shall be based on the
written record and their deliberations; no personal appearances shall
be permitted without the express permission of the Panel.
(b) Action by Historical Records Policy Board. In any cases of
divided vote by the ARP, any member of that body is authorized to refer
the request to the CIA Historical Records Policy Board which acts as
the senior corporate board for the Agency. The record compiled (the
request, the memoranda filed by the originator and interested parties,
and the previous decision(s)) as well as any memorandum of law or
policy the referent desires to be considered, shall be certified by the
Executive Secretary of the Agency Release Panel and shall constitute
the official record of the proceedings and must be included in any
subsequent filings.
Sec. 1907.26 Notification of decision and prohibition on adverse
action.
The Executive Secretary of the Agency Release Panel shall
communicate the decision of the Agency to the authorized holder, the
originator, and other interested parties within ten (10) days of the
decision by the Panel or Board. That correspondence shall include a
notice that no adverse action or retribution can be taken in regard to
the challenge and that an appeal of the decision may be made to the
Interagency Security Classification Appeals Panel (ISCAP) established
pursuant to Sec. 5.4 of this Order.
Right of Appeal
Sec. 1907.31 Right of appeal.
A right of appeal is available to the ISCAP established pursuant to
Sec. 5.4 of this Order. Action by that body will be the subject of
rules to be promulgated by the Information Security Oversight Office
(ISOO).
PART 1908--PUBLIC REQUESTS FOR MANDATORY DECLASSIFICATION REVIEW OF
CLASSIFIED INFORMATION PURSUANT TO Sec. 3.6 OF EXECUTIVE ORDER
12958
General
Sec.
1908.01 Authority and purpose.
1908.02 Definitions.
1908.03 Contact for general information and requests.
1908.04 Suggestions and complaints.
Filing of Mandatory Declassification Review (MDR) Requests
1908.11 Preliminary information.
1908.12 Requirements as to form.
1908.13 Fees.
Agency Action on MDR Requests
1908.21 Receipt, recording, and tasking.
1908.22 Requests barred by res judicata.
1908.23 Determination by originator or interested party.
1908.24 Notification of decision and right of appeal.
Agency Action on MDR Appeals
1908.31 Requirements as to time and form.
1908.32 Receipt, recording, and tasking.
1908.33 Determination by Deputy Director(s).
[[Page 32496]]
1908.34 Establishment of appeals structure.
1908.35 Action by appeals authority.
1908.36 Notification of decision and right of further appeal.
Further Appeals
1908.41 Right of further appeal.
Authority: Executive Orders 12958, 60 FR 19825, 3 CFR 1996
Comp., p. 333-356 (or successor Orders).
General
Sec. 1908.01 Authority and Purpose.
(a) Authority. This part is issued under the authority of and in
order to implement Sec. 3.6 of Executive Order (E.O.) 12958 (or
successor Orders); the CIA Information Act of 1984 (50 U.S.C. 431);
sec. 102 of the National Security Act of 1947, as amended (50 U.S.C.
403); and sec. 6 of the CIA Act of 1949, as amended (5 U.S.C. 403g).
(b) Purpose. This part prescribes procedures, subject to
limitations set forth below, for members of the public to request a
declassification review of information classified under the various
provisions of this or predecessor Orders. Section 3.6 of E.O. 12958 and
these regulations do not create any right or benefit, substantive or
procedural, enforceable at law by a party against the United States,
its agencies, officers, or employees.
Sec. 1908.02 Definitions.
For purposes of this part, the following terms have the meanings as
indicated:
(a) Agency or CIA means the United States Central Intelligence
Agency acting through the CIA Information and Privacy Coordinator;
(b) Days means calendar days when the Agency is operating and
specifically excludes Saturdays, Sundays, and legal public holidays.
Three (3) days may be added to any time limit imposed on a requester by
this part if responding by U.S. domestic mail; ten (10) days may be
added if responding by international mail;
(c) Control means ownership or the authority of the CIA pursuant to
Federal statute or privilege to regulate official or public access to
records;
(d) Coordinator means the CIA Information and Privacy Coordinator
who serves as the Agency manager of the information review and release
program instituted under the mandatory declassification review
provisions of Executive Order 12958;
(e) Federal agency means any executive department, military
department, or other establishment or entity included in the definition
of agency in 5 U.S.C. 552(f);
(f) Information means any knowledge that can be communicated or
documentary material, regardless of its physical form that is owned by,
produced by or for, or under the control of the United States
Government; it does not include:
(1) Information within the scope of the CIA Information Act, or
(2) Information originated by the incumbent President, White House
Staff, appointed committees, commissions or boards, or any entities
within the Executive Office that solely advise and assist the incumbent
President;
(g) Interested party means any official in the executive, military,
congressional, or judicial branches of government, United States or
foreign, or U.S. Government contractor who, in the sole discretion of
the CIA, has a subject matter or physical interest in the documents or
information at issue;
(h) NARA means the National Archives and Records Administration;
(i) Originator means the CIA officer who originated the information
at issue, or successor in office, or a CIA officer who has been
delegated declassification authority for the information at issue in
accordance with the provisions of this Order;
(j) Presidential libraries means the libraries or collection
authorities established by statute to house the papers of former
Presidents Hoover, Roosevelt, Truman, Eisenhower, Kennedy, Nixon, Ford,
Carter, Reagan, Bush and similar institutions or authorities as may be
established in the future;
(k) Referral means coordination with or transfer of action to an
interested party;
(l) This Order means Executive Order 12958 of April 17, 1995 and
published at 60 FR 19825-19843 (or successor Orders);
Sec. 1908.03 Contact for general information and requests.
For general information on this Part or to request a
declassification review, please direct your communication to the
Information and Privacy Coordinator, Central Intelligence Agency,
Washington, DC 20505. Such inquiries will also be accepted by facsimile
at (703) 613-3007. For general or status information only, the
telephone number is (703) 613-1287. Collect calls cannot be accepted.
Sec. 1908.04 Suggestions and complaints.
The Agency welcomes suggestions or complaints with regard to its
administration of the mandatory declassification review program
established under Executive Order 12958. Many requesters will receive
pre-paid, customer satisfaction survey cards. Letters of suggestion or
complaint should identify the specific purpose and the issues for
consideration. The Agency will respond to all substantive
communications and take such actions as determined feasible and
appropriate.
Filing of Mandatory Declassification Review (MDR) Requests
Sec. 1908.11 Preliminary information.
Members of the public shall address all communications to the point
of contact specified above and clearly delineate the communication as a
request under this regulation. Requests and appeals on requests
received from members of the public who owe outstanding fees for
information services under this Order or the Freedom of Information Act
at this or another federal agency will not be accepted until such debts
are resolved.
Sec. 1908.12 Requirements as to form.
The request shall identify the document(s) or material(s) with
sufficient specificity (e.g., National Archives and Records
Administration (NARA) Document Accession Number or other applicable,
unique document identifying number) to enable the Agency to locate it
with reasonable effort. Broad or topical requests for records on a
particular subject may not be accepted under this provision. A request
for documents contained in the various Presidential libraries shall be
effected through the staff of such institutions who shall forward the
document(s) in question for Agency review. The requester shall also
provide sufficient personal identifying information when required by
the Agency to satisfy requirements of this part.
Sec. 1908.13 Fees.
Requests submitted via NARA or the various Presidential libraries
shall be responsible for reproduction costs required by statute or
regulation. Requests made directly to this Agency will be liable for
costs in the same amount and under the same conditions as specified in
32 CFR part 1900.
Agency Action on MDR Requests
Sec. 1908.21 Receipt, recording, and tasking.
The Information and Privacy Coordinator shall within ten (10) days
record each mandatory declassification review request received under
this part, acknowledge receipt to the requester in writing (if received
directly from a requester), and shall thereafter task the originator
and other interested parties. Additional taskings, as required during
[[Page 32497]]
the review process, shall be accomplished within ten (10) days of
notification.
Sec. 1908.22 Requests barred by res judicata.
The Coordinator shall respond to the requester and deny any request
where the information in question has been the subject of a
classification review within the previous two (2) years or is the
subject of pending litigation in the federal courts.
Sec. 1908.23 Determination by originator or interested party.
(a) In general. The originator of the classified information
(document) is a required party to any mandatory declassification review
request; other interested parties may become involved through a
referral by the Coordinator when it is determined that some or all of
the information is also within their official cognizance.
(b) Required determinations. These parties shall respond in writing
to the Coordinator with a finding as to the classified status of the
information including the category of protected information as set
forth in Sec. 1.5 of this Order, and, if older than ten (10) years, the
basis for the extension of classification time under Secs. 1.6 and 3.4
of this Order. These parties shall also provide a statement as to
whether or not there is any other statutory, common law, or
Constitutional basis for withholding as required by Sec. 6.1(c) of this
Order.
(c) Time. This response shall be provided expeditiously on a
``first-in, first-out'' basis taking into account the business
requirements of the originator or interested parties and consistent
with the information rights of members of the general public under the
Freedom of Information Act and the Privacy Act.
Sec. 1908.24 Notification of decision and right of appeal.
The Coordinator shall communicate the decision of the Agency to the
requester within ten (10) days of completion of all review action. That
correspondence shall include a notice of a right of administrative
appeal to the Agency Release Panel pursuant to Sec. 3.6(d) of this
Order.
Agency Action on MDR Appeals
Sec. 1908.31 Requirements as to time and form.
Appeals of decisions must be received by the Coordinator within
forty-five (45) days of the date of mailing of the Agency's initial
decision. It shall identify with specificity the documents or
information to be considered on appeal and it may, but need not,
provide a factual or legal basis for the appeal.
Sec. 1908.32 Receipt, recording, and tasking.
The Coordinator shall promptly record each appeal received under
this part, acknowledge receipt to the requester, and task the
originator and other interested parties. Additional taskings, as
required during the review process, shall be accomplished within ten
(10) days of notification.
Sec. 1908.33 Determination by Deputy Director(s).
Each Deputy Director in charge of a directorate which originated or
has an interest in any of the records subject to the appeal, or
designee, is a required party to any appeal; other interested parties
may become involved through the request of the Coordinator when it is
determined that some or all of the information is also within their
official cognizance. These parties shall respond in writing to the
Coordinator with a finding as to the classified status of the
information including the category of protected information as set
forth in Sec. 1.5 of this Order, and, if older than ten (10) years, the
basis for continued classification under Secs. 1.6 and 3.4 of this
Order. These parties shall also provide a statement as to whether or
not there is any other statutory, common law, or Constitutional basis
for withholding as required by Sec. 6.1(c) of this Order. This response
shall be provided expeditiously on a ``first-in, first-out'' basis
taking into account the business requirements of the parties and
consistent with the information rights of members of the general public
under the Freedom of Information Act and the Privacy Act.
Sec. 1908.34 Establishment of appeals structure.
(a) In general. Two administrative entities have been established
by the Director of Central Intelligence to facilitate the processing of
administrative appeals under the mandatory declassification review
provisions of this Order. Their membership, authority, and rules of
procedure are as follows.
(b) Historical Records Policy Board (``HRPB'' or ``Board''). This
Board, the successor to the CIA Information Review Committee, acts as
the senior corporate board in the CIA on all matters of information
review and release. It is composed of the Executive Director, who
serves as its Chair, the Deputy Director for Administration, the Deputy
Director for Intelligence, the Deputy Director for Operations, the
Deputy Director for Science and Technology, the General Counsel, the
Director of Congressional Affairs, the Director of the Public Affairs
Staff, the Director, Center for the Study of Intelligence, and the
Associate Deputy Director for Administration/Information Services, or
their designees. The Board, by majority vote, may delegate to one or
more of its members the authority to act on any appeal or other matter
or authorize the Chair to delegate such authority, as long as such
delegation is not to the same individual or body who made the initial
denial. The Executive Secretary of the HRPB is the Director,
Information Management. The Chair may request interested parties to
participate when special equities or expertise are involved.
(c) Agency Release Panel (``ARP'' or ``Panel''). The HRPB, pursuant
to its delegation of authority, has established a subordinate Agency
Release Panel. This Panel is composed of the Director, Information
Management, who serves as its Chair; the Information Review Officers
from the Directorates of Administration, Intelligence, Operations,
Science and Technology, and the Director of Central Intelligence Area;
the CIA Information and Privacy Coordinator; the Chief, Historical
Review Group; the Chair, Publications Review Board; the Chief, Records
Declassification Program; and representatives from the Offices of
General Counsel and Congressional Affairs, and the Public Affairs
Staff. The Information and Privacy Coordinator also serves as the
Executive Secretary of the Panel. The Panel advises and assists the
HRPB on all information release issues, monitors the adequacy and
timeliness of Agency releases, sets component search and review
priorities, reviews adequacy of resources available to and planning for
all Agency release programs, and performs such other functions as
deemed necessary by the Board. The Chair may request interested parties
to participate when special equities or expertise are involved. The
Panel, functioning as a committee of the whole or through individual
members, will make final Agency decisions from appeals of initial
denial decisions under E.O. 12958. Issues not resolved by the Panel
will be referred by the Panel to the HRPB. Matters decided by the Panel
or Board will be deemed a final decision by the Agency.
Sec. 1908.35 Action by appeals authority.
(a) Action by Agency Release Panel. The Coordinator, in his or her
capacity as Executive Secretary of the Agency Release Panel, shall
place appeals of mandatory declassification review requests ready for
adjudication on the
[[Page 32498]]
agenda at the next occurring meeting of the Agency Release Panel. The
Executive Secretary shall provide a summation memorandum for
consideration of the members, the complete record of the request
consisting of the request, the document(s) (sanitized and full text) at
issue, and the findings of the originator and interested parties. The
Panel shall meet and decide requests sitting as a committee of the
whole. Decisions are by majority vote of those present at a meeting and
shall be based on the written record and their deliberations; no
personal appearances shall be permitted without the express permission
of the Panel.
(b) Action by Historical Records Policy Board. In any cases of
divided vote by the ARP, any member of that body is authorized to refer
the request to the CIA Historical Records Policy Board which acts as
the senior corporate board for the Agency. The record compiled (the
request, the memoranda filed by the originator and interested parties,
and the previous decision(s)) as well as any memorandum of law or
policy the referent desires to be considered, shall be certified by the
Executive Secretary of the Agency Release Panel and shall constitute
the official record of the proceedings and must be included in any
subsequent filings.
Sec. 1908.36 Notification of decision and right of further appeal.
The Coordinator shall communicate the decision of the Panel or
Board to the requester, NARA, or the particular Presidential Library
within ten (10) days of such decision. That correspondence shall
include a notice that an appeal of the decision may be made to the
Interagency Security Classification Appeals Panel (ISCAP) established
pursuant to Sec. 5.4 of this Order.
Further Appeals
Sec. 1908.41 Right of Further Appeal.
A right of further appeal is available to the ISCAP established
pursuant to Sec. 5.4 of this Order. Action by that Panel will be the
subject of rules to be promulgated by the Information Security
Oversight Office (ISOO).
PART 1909--ACCESS BY HISTORICAL RESEARCHERS AND FORMER PRESIDENTIAL
APPOINTEES PURSUANT TO Sec. 4.5 OF EXECUTIVE ORDER 12958
General
Sec.
1909.01 Authority and purpose.
1909.02 Definitions.
1909.03 Contact for general information and requests.
1909.04 Suggestions and complaints.
Requests for Historical Access
1909.11 Requirements as to who may apply.
1909.12 Designations of authority to hear requests.
1909.13 Receipt, recording, and tasking.
1909.14 Determinations by tasked officials.
1909.15 Action by hearing authority.
1909.16 Action by appeal authority.
1909.17 Notification of decision.
1909.18 Termination of access.
Authority: Executive Order 12958, 60 FR 19825. 3 CFR 1996 Comp.,
p. 333-356 (or successor Orders).
General
Sec. 1909.01 Authority and purpose.
(a) Authority. This part is issued under the authority of and in
order to implement Sec. 4.5 of Executive Order 12958 (or successor
Orders); the CIA Information Act of 1984 (50 U.S.C. 431); sec. 102 of
the National Security Act of 1947, as amended (50 U.S.C. 403); and sec.
6 of the Central Intelligence Agency Act of 1949, as amended (50 U.S.C.
403g).
(b) Purpose. (1) This part prescribes procedures for:
(i) Requesting access to CIA records for purposes of historical
research, or
(ii) Requesting access to CIA records as a former Presidential
appointee.
(2) Section 4.5 of Executive Order 12958 and these regulations do
not create any right or benefit, substantive or procedural, enforceable
at law by a party against the United States, its agencies, officers, or
employees.
Sec. 1909.02 Definitions.
For purposes of this part, the following terms have the meanings
indicated:
(a) Agency or CIA means the United States Central Intelligence
Agency acting through the CIA Information and Privacy Coordinator;
(b) Agency Release Panel or Panel or ARP means the CIA Agency
Release Panel established pursuant to 32 CFR 1900.41;
(c) Days means calendar days when the Agency is operating and
specifically excludes Saturdays, Sundays, and legal public holidays.
Three (3) days may be added to any time limit imposed on a requester by
this part if responding by U.S. domestic mail; ten (10) days may be
added if responding by international mail;
(d) Control means ownership or the authority of the CIA pursuant to
federal statute or privilege to regulate official or public access to
records;
(e) Coordinator means the CIA Information and Privacy Coordinator
who serves as the Agency manager of the historical access program
established pursuant to Sec. 4.5 of this Order;
(f) Director, Center for the Study of Intelligence or ``D/CSI''
means the Agency official responsible for the management of the CIA's
various historical programs including the management of access granted
under this section;
(g) Director of Personnel Security means the Agency official
responsible for making all security and access approvals and for
effecting the necessary non-disclosure and/or pre-publication
agreements as may be required;
(h) Federal agency means any executive department, military
department, or other establishment or entity included in the definition
of agency in 5 U.S.C. 552(f);
(i) Former Presidential appointee means any person who has
previously occupied a policy-making position in the executive branch of
the United States Government to which they were appointed by the
current or former President and confirmed by the United States Senate;
(j) Historian or historical researcher means any individual with
professional training in the academic field of history (or related
fields such as journalism) engaged in a research project leading to
publication (or any similar activity such as academic course
development) reasonably intended to increase the understanding of the
American public into the operations and activities of the United States
government;
(k) Information means any knowledge that can be communicated or
documentary material, regardless of its physical form that is owned by,
produced by or for, or is under the control of the United States
Government;
(l) Interested party means any official in the executive, military,
congressional, or judicial branches of government, United States or
foreign, or U.S. Government contractor who, in the sole discretion of
the CIA, has a subject matter or physical interest in the documents or
information at issue;
(m) Originator means the CIA officer who originated the information
at issue, or successor in office, or a CIA officer who has been
delegated declassification authority for the information at issue in
accordance with the provisions of this Order;
(n) This Order means Executive Order 12958 of April 17 1995 and
published at 60 FR 19825-19843 (or successor Orders).
[[Page 32499]]
Sec. 1909.03 Contact for general information and requests.
For general information on this Part, to inquire about historical
access to CIA records, or to make a formal request for such access,
please direct your communication in writing to the Information and
Privacy Coordinator, Central Intelligence Agency, Washington, DC.
20505. Inquiries will also be accepted by facsimile at (703) 613-3007.
For general information only, the telephone number is (703) 613-1287.
Collect calls cannot be accepted.
Sec. 1909.04 Suggestions and complaints.
The Agency welcomes suggestions or complaints with regard to its
administration of the historical access program established pursuant to
Executive Order 12958. Letters of suggestion or complaint should
identify the specific purpose and the issues for consideration. The
Agency will respond to all substantive communications and take such
actions as determined feasible and appropriate.
Requests for Historical Access
Sec. 1909.11 Requirements as to who may apply.
(a) Historical researchers:--(1) In general. Any historian engaged
in a historical research project as defined above may submit a request
in writing to the Coordinator to be given access to classified
information for purposes of that research. Any such request shall
indicate the nature, purpose, and scope of the research project.
(2) Additional considerations. In light of the very limited
resources for the Agency's various historical programs, it is the
policy of the Agency to consider applications for historical research
privileges only in those instances where the researcher's needs cannot
be satisfied through requests for access to reasonably described
records under the Freedom of Information Act or the mandatory
declassification review provisions of Executive Order 12958 and where
issues of internal resource availability and fairness to all members of
the historical research community militate in favor of a particular
grant.
(b) Former Presidential appointees. Any former Presidential
appointee as defined herein may also submit a request to be given
access to any classified records which they originated, reviewed,
signed, or received while serving in that capacity. Such appointees may
also request approval for a research associate but there is no
entitlement to such enlargement of access and the decision in this
regard shall be in the sole discretion of the Agency. Requests from
appointees shall be in writing to the Coordinator and shall identify
the records of interest.
Sec. 1909.12 Designations of authority to hear requests.
The Deputy Director for Administration has designated the
Coordinator, the Agency Release Panel, and the Historical Records
Policy Board, established pursuant to 32 CFR 1900.41, as the Agency
authorities to decide requests for historical and former Presidential
appointee access under Executive Order 12958 (or successor Orders) and
these regulations.
Sec. 1909.13 Receipt, recording, and tasking.
The Information and Privacy Coordinator shall within ten (10) days
record each request for historical access received under this Part,
acknowledge receipt to the requester in writing and take the following
action:
(a) Compliance with general requirements. The Coordinator shall
review each request under this part and determine whether it meets the
general requirements as set forth in 32 CFR 1909.11; if it does not,
the Coordinator shall so notify the requester and explain the legal
basis for this decision.
(b) Action on requests meeting general requirements. For requests
which meet the requirements of 32 CFR 1909.11, the Coordinator shall
thereafter task the D/CSI, the originator(s) of the materials for which
access is sought, and other interested parties. Additional taskings, as
required during the review process, shall be accomplished within ten
(10) days of notification.
Sec. 1909.14 Determinations by tasked officials.
(a) Required determinations. The tasked parties as specified below
shall respond in writing to the Coordinator with recommended findings
to the following issues:
(1) That a serious professional or scholarly research project by
the requester is contemplated (by D/CSI);
(2) That such access is clearly consistent with the interests of
national security (by originator and interested party, if any);
(3) That a non-disclosure agreement has been or will be executed by
the requester (or research associate, if any) and other appropriate
steps have been taken to assure that classified information will not be
disclosed or otherwise compromised (by Director of Personnel Security
and representative of the Office of General Counsel);
(4) That a pre-publication agreement has been or will be executed
by the requester (or research associate, if any) which provides for a
review of notes and any resulting manuscript (by Director of Personnel
Security and representative of the Office of General Counsel);
(5) That the information requested is reasonably accessible and can
be located and compiled with a reasonable effort (by D/CSI and
originator);
(6) That it is reasonably expected that substantial and substantive
government documents and/or information will be amenable to
declassification and release and/or publication (by D/CSI and
originator);
(7) That sufficient resources are available for the administrative
support of the researcher given current mission requirements (by D/CSI
and originator); and,
(8) That the request cannot be satisfied to the same extent through
requests for access to reasonably described records under the Freedom
of Information Act or the mandatory declassification review provisions
of Executive Order 12958 (by Coordinator, D/CSI and originator).
(b) Time. These responses shall be provided expeditiously on a
``first-in, first-out'' basis taking into account the business
requirements of the tasked offices and consistent with the information
rights of members of the general public under the Freedom of
Information Act and the Privacy Act. The Agency will utilize its best
efforts to complete action on requests under this part within thirty
(30) days of date of receipt.
Sec. 1909.15 Action by hearing authority.
Action by Agency Release Panel. The Coordinator, in his or her
capacity as Executive Secretary of the Agency Release Panel, shall
place historical access requests ready for adjudication on the agenda
at the next occurring meeting of the Agency Release Panel. The
Executive Secretary shall provide a summation memorandum for
consideration of the members, the complete record of the request
consisting of the request and the findings of the tasked parties. The
Panel shall meet and decide requests sitting as a committee of the
whole on the basis of the eight factors enumerated at 32 CFR
1909.14(a). Decisions are by majority vote of those present at a
meeting and shall be based on the written record and their
deliberations; no personal appearances shall be permitted without the
express permission of the Panel.
Sec. 1909.16 Action by appeal authority.
In any cases of divided vote by the ARP, any member of that body is
authorized to refer the request to the
[[Page 32500]]
CIA Historical Records Policy Board which acts as the senior corporate
board for the Agency. The record compiled (the request, the memoranda
filed by the originator and interested parties, and the previous
decision(s)) as well as any memorandum of law or policy the referent
desires to be considered, shall be certified by the Executive Secretary
of the Agency Release Panel and shall constitute the official record of
the proceedings and must be included in any subsequent filings. In such
cases, the factors to be determined as specified in 32 CFR 1909.14(a)
will be considered by the Board de novo and that decision shall be
final.
Sec. 1909.17 Notification of decision.
The Coordinator shall inform the requester of the decision of the
Agency Release Panel or the Historical Records Policy Board within ten
(10) days of the decision and, if favorable, shall manage the access
for such period as deemed required but in no event for more than two
(2) years unless renewed by the Panel or Board in accordance with the
requirements of 32 CFR 1909.14(a).
Sec. 1909.18 Termination of access.
The Coordinator shall cancel any authorization whenever the
Director of Personnel Security cancels the security clearance of a
requester (or research associate, if any) or whenever the Agency
Release Panel determines that continued access would not be in
compliance with one or more of the requirements of 32 CFR 1909.14(a).
[FR Doc. 97-14883 Filed 6-13-97; 8:45 am]
BILLING CODE 6310-02-M
