No. 98-1904
In the Supreme Court of the United States
UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF JUSTICE; AND UNITED
STATES DEPARTMENT OF STATE, PETITIONERS
v.
LESLIE R. WEATHERHEAD
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
General
LEONARD SCHAITMAN
JOHN P. SCHNITKER
Attorneys
DAVID R. ANDREWS Department of Justice
Legal Adviser Washington, D.C. 20530-0001
Department of State (202) 514-2217
Washington, D.C. 20520
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 96-36260
D.C. No. CV-95-00519-FVS
LES WEATHERHEAD, PLAINTIFF-APPELLANT
v.
UNITED STATES OF AMERICA;
DEPARTMENT OF JUSTICE; UNITED
STATES DEPARTMENT OF STATE,
DEFENDANTS-APPELLEES
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, District Judge, Presiding
Argued and Submitted
April 8, 1998-Seattle, Washington
Filed October 6, 1998
OPINION
Before: PROCTER HUG, JR., Chief Judge, STEPHEN REINHARDT and BARRY G. SILVERMAN,
Circuit Judges.
Opinion by Chief Judge HUG; Dissent by Judge SILVERMAN
HUG, Chief Judge:
Appellant Leslie R. Weatherhead ("Weatherhead") appeals under
the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552.
The request sought a letter from the British Foreign Office to the United
States Department of Justice ("Justice") related to the extradition
of Sally Croft and Susan Hagan. The United States Department of State ("State
Department") withheld the letter under FOIA Exemption 1, which protects
classified information from disclosure. 5 U.S.C. § 552(b)(1). The district
court initially ordered the letter's disclosure. The government sought reconsideration
of that decision, which the district court granted after conducting in camera
review and concluding that the letter contained "highly sensitive and
injurious material." We have jurisdiction under 28 U.S.C. § 1291,
and we reverse.
BACKGROUND
On November 29, 1994, Weatherhead sent identical requests under FOIA to
Justice and the State Department seeking a letter dated July 28, 1994 from
the British Foreign Office to George Proctor, Director of the Office of
International Affairs, Criminal Division, Justice. The letter was related
to the extradition of two women, Sally Croft and Susan Hagan, from the United
Kingdom to the United States to stand trial for conspiracy to murder the
United States Attorney for Oregon. Croft and Hagan were members of the controversial
Rajneeshpuram commune in Central Oregon in the 1980's. Believing that the
letter contained an official British request that Justice take measures
to avoid prejudice to Croft and Hagan in the district where the Croft case
was pending, Weatherhead, the lawyer who represented Croft, intended to
provide the letter to the district judge presiding over the Croft case.
On May 4, 1995, the State Department wrote to say that it had been unable
to locate the letter. Two weeks later, Justice reported that it had found
the letter, but since it had been created by a foreign government, the letter
was forwarded to the State Department's FOIA office for review and response.
Weatherhead administratively appealed Justice's failure to produce the letter
to Justice's Office of Information and Privacy, which remanded the matter
so that the Criminal Division, in consultation with the State Department,
could determine if the letter should be released. On August 4, 1995, the
State Department sent a letter to the British government which stated that
it had received a request for the letter, but "[b]efore complying with
this request, [it] would appreciate the concurrence of [the British] government
in the release of the document" and to know if it wanted any portions
of the letter withheld.
On October 18, 1995, the British government responded that it was "unable
to agree" to the letter's release because "the normal line in
cases like this is that all correspondence between Governments is confidential
unless papers have been formally requisitioned by the defence." It
continued, "In this particular case, requests from representatives
of the defendants for sight of the letter have already been refused on grounds
of confidentiality." The State Department classified the letter on
October 27, 1995. On December 11, 1995, the State Department advised Weatherhead
that it had concluded that the letter contained confidential information
that was properly classified in the interest of foreign relations and therefore
would be withheld under FOIA Exemption 1.
PROCEDURAL HISTORY
Weatherhead initiated a suit to compel production of the letter on November
17, 1995 and moved for summary judgment on February 16, 1996. The district
court granted Weatherhead's motion for summary judgment, holding that the
government failed to demonstrate that the letter was properly classified
under Executive Order 12958. The government moved to set aside the judgment
under Fed. R. Civ. P. 59(e). Even though it rejected most of the government's
arguments for withholding the letter, the district court granted the government's
motion for reconsideration.
The court chose to review the letter in camera out of concern that "highly
sensitive and injurious material might be released only because defendants
were unable to articulate a factual basis for their concerns without giving
away the information itself." The court went on:
That proved to be the case. When the Court read the letter, it knew without
hesitation or reservation that the letter could not be released. The Court
is unable to say why for the same reason defendants were unable to say why.
The letter is two pages long, tightly written, and there is no portion of
it which could be disclosed without simultaneously disclosing injurious
materials.
Thus, the district court concluded that the letter should be withheld and
that Weatherhead would have to be satisfied with "the solace of knowing
that not only do two high ranking [Department of State] officers believe
disclosure of the subject material injurious to the national interest, but
so does an independent federal judge."
On October 16, 1996, Weatherhead filed a motion to set aside the September
9, 1996 decision under Fed. R. Civ. P. 60(b)(6). With this motion, he submitted
an affidavit in which he claimed an acquaintance had spoken to a person
"employed by the English government" who had disclosed the letter's
contents to the acquaintance over the phone. Weatherhead included the information
he learned from the acquaintance about the letter's contents in his affidavit.
Plaintiff then claimed that the contents of the letter were in the public
domain and must be disclosed. The district court denied Weatherhead's 60(b)
motion and he did not file an appeal from that ruling to this court. Instead,
he directly appeals the district court's grant of the government's motion
for reconsideration.
STANDARD OF REVIEW
We apply a two-step standard of review in an appeal from the grant of summary
judgment in a FOIA case. See Schiffer v. FBI, 78 F.3d 1405, 1409 (9th Cir.
1996). We first determine whether the district court had an adequate factual
basis for its decision. See id. Where the parties do not dispute that the
court had an adequate factual basis for its decision, as is the case here
since the district court had the actual letter, we review the district court's
factual findings underlying its decision for clear error. See id. We review
de novo the district court's determination that a requested document is
exempt from disclosure under FOIA. See id.
DISCUSSION
"The Freedom of Information Act, 5 U.S.C. § 552, mandates a policy
of broad disclosure of government documents." Maricopa Audubon Soc.
v. United States Forest Serv., 108 F.3d 1082, 1085 (9th Cir. 1997) (quoting
Church of Scientology v. Department of the Army, 611 F.2d 738, 741 (9th
Cir. 1980)). When a request is made, an agency may withhold a document,
or portions thereof, only if the information at issue falls within one of
the nine statutory exemptions contained in § 552(b). Maricopa Audubon
Soc., 108 F.3d at 1085; Kamman v. IRS, 56 F.3d 46, 48 (9th Cir. 1995). These
exemptions are to be narrowly construed. Id. The burden is on the government
to prove that a particular document is exempt from disclosure. John Doe
Agency v. John Doe Corp., 493 U.S. 146, 152 (1989); Maricopa Audubon Soc.,
108 F.3d at 1085; Kamman, 56 F.3d at 48.
The government relies on Exemption 1, 5 U.S.C. § 552(b)(1), which exempts
from FOIA disclosure "matters that are . . . (1)(A) specifically authorized
under criteria established by an Executive order to be kept secret in the
interest of national defense or foreign policy and (B) are in fact properly
classified pursuant to such Executive order."
Executive Order No. 12958 ("EO 12958"), 60 Fed. Reg. 19825 (April
20, 1995), is at issue in this case. EO 12958 requires four conditions for
classification: (1) the information must be classified by an "original
classification authority"; (2) the information must be "under
the control of" the government; (3) the information must fall within
one of the authorized withholding categories under this order; and (4) the
original classification authority must "determine[ ] that the unauthorized
disclosure of the information reasonably could be expected to result in
damage to the national security" and must be "able to identify
or describe the damage." § 1.2(a).
The first three conditions for classification are not at issue here. Weatherhead
never contested that the State Department is an "original classification
authority" or that the requested letter is "under the control"
of the government. Weatherhead initially contested the third condition,
whether the letter fell within an authorized withholding category, but on
appeal has not challenged the district court's conclusion that the letter
is information concerning "foreign relations or foreign activities
of the United States," § 1.5(d).1
Weatherhead does argue that the government has not shown that the withheld
letter satisfies the fourth condition required for classification. Pursuant
to EO 12958, § 1.2(a)(4), the original classification authority must
"determine[ ] that the unauthorized disclosure of the information reasonably
could be expected to result in damage to the national security" and
must be "able to identify or describe the damage."2 "[D]amage
to the national security" is "harm to the national defense or
foreign relations of the United States from the unauthorized disclosure
of information, to include the sensitivity, value, and utility of that information."
EO 12958 § 1.1(1).
The government bears the burden of showing that the withheld letter meets
the exemption requirements of EO 12958 § 1.2(a)(4). 5 U.S.C. §
552(a)(4)(B); John Doe Agency, 493 U.S. at 152. The government must give
a "particularized explanation of how disclosure of the particular document
would damage the interest protected by the claimed exemption." Wiener
v. FBI, 943 F.2d 972, 977 (9th Cir. 1991). To meet its burden, the government
must offer oral testimony or affidavits that are "detailed enough for
the district court to make a de novo assessment of the government's claim
of exemption." Maricopa Audubon Soc. v. United States Forest Serv.,
108 F.3d 1089, 1092 (9th Cir. 1997) (quoting Doyle v. FBI, 722 F.2d 554,
555-56 (9th Cir. 1983)). The purposes of requiring this showing are to "restore
the adversary process to some extent, and to permit more effective judicial
review of the agency's decision." Id. at 977-78. The first purpose
is still subject to serious obstacles. A plaintiff seeking production of
a document under FOIA is handicapped in this endeavor by the fact that only
the agency truly knows the content of the withheld material. "Effective
advocacy is possible only if the requester knows the precise basis for the
nondisclosure." Id. at 979. The second purpose is, however, easier
to accomplish- through in camera review. In camera review by the district
court is appropriate in certain cases, where the government's public description
of a document may reveal the very information that the government claims
is exempt from disclosure. Doyle, 722 F.2d at 556. Ex parte in camera review
is, of course, a last resort, given that it furthers judicial review but
abrogates the adversary process to a significant extent.3 See National Wildlife
Fed'n v. United States Forest Serv., 861 F.2d 1114, 1116 (9th Cir. 1988)
(in camera review, as a last resort, can also provide an adequate basis
for decision). Still, in certain FOIA cases that form of inquiry may be
essential if the courts are to fulfill their proper role. See Pollard v.
F.B.I., 705 F.2d 1151, 1153-54 (9th Cir. 1983) ("[I]n camera, ex parte
review remains appropriate in certain FOIA cases, provided the preferred
alternative to in camera review-government testimony and detailed affidavits-has
first failed to provide a sufficient basis for decision.").
Weatherhead argues that the government never met its burden of identifying
or describing any damage to national security that will result from release
of the letter. We agree. In support of its decision to classify the withheld
letter, the government submitted three declarations: that of Marshall R.
Williams, which we will not discuss here, as it simply outlined the classification
process; that of Peter M. Sheils, Acting Director of the State Department's
Office of Freedom of Information, Privacy, and Classification Review; and
that of Patrick Kennedy, Assistant Secretary for the Administration of the
State Department. Mr. Sheils and Mr. Kennedy focus on two potential causes
of damage to the national security: damage caused by the act of disclosing
a letter between foreign governments, regardless of its particular contents,
and damage caused because the letter concerns international extradition
proceedings.
In his declaration, Mr. Sheils states, in pertinent part:
Disclosure of foreign government information in violation of an understood
or, as in this case, clearly stated expectation of confidentiality would
cause foreign officials, not only of the government providing the information,
but of other governments as well, to conclude that U.S. officials are unable
and/or unwilling to preserve the confidentiality expected in exchanges between
governments; thus foreign governments and their representatives would be
less willing in the future to furnish information important to the conduct
of U.S. foreign relations and other governmental functions, and in general
less disposed to cooperate in foreign relations matters of common interest.
Disclosure of the document at issue in the circumstances of this case would
clearly result in damage to relations between the United States and the
United Kingdom and, therefore, to the national security in a clearly identifiable
way.
. . . .
The one document withheld in this case clearly concerns the foreign relations
or activities of the United States inasmuch as it is a communication from
a British Home Office official to an official of the U.S. Department of
Justice concerning the extradition from the U.K. to the U.S. of two individuals,
apparently British nationals, to stand trial in the United States in a highly
publicized case. Disclosure of the document by the Government of the United
States, particularly in light of the refusal of the British Government to
agree to its release, would inevitably result in damage to relations between
the U.K. and the U.S.
The withheld document is a two-page letter dated July 28, 1994 from an official
of the British Home Office to an official of the U.S. Department of Jus-tice.
Originally unclassified. Classified on October 27, 1995. Withheld in full.
Exemption (b)(1).
The letter comments on certain aspects of the extradition of two women,
apparently British citizens, to face charges in the United States. The letter
conveys certain concerns of the U.K. Government regarding the case which
apparently was the subject of considerable attention in the British Parliament
and otherwise in the U.K. with particular reference to the U.S.-U.K. extradition
agreement.
The district court concluded that Mr. Sheils' statements were of a general
and conclusory nature and that his declaration failed to provide a particularized
explanation of how disclosure of the letter would damage the relations between
the United States and the United Kingdom and therefore harm national security.
We agree with the district court. Mr. Sheils merely confirms that the letter
concerns extradition matters; he does not address how or why the letter's
disclosure of extradition matters in particular will damage United States-United
Kingdom relations. Mr. Sheils instead focuses on how disclosing a letter
containing foreign government information will damage foreign relations,
and, thus, national security, regardless of the letter's specific contents.
We conclude that Mr. Sheils' explanation lacks the particularity "to
afford the requester an opportunity to intelligently advocate release of
the withheld documents and to afford the court an opportunity to intelligently
judge the contest." Wiener, 943 F.2d at 977.
Although Mr. Kennedy's declaration is slightly more informative than Mr.
Sheils' declaration, he still fails to explain how disclosure of the material
in the withheld letter will harm national security:
[i]t is a longstanding custom and accepted practice in international relations
to treat as confidential and not subject to public disclosure information
and documents exchanged between governments and their officials. . . . Diplomatic
confidentiality obtains . . . even with respect to information that may
appear to be innocuous.
. . . .
Disclosure by the U.S. of information furnished by another government in
violation of the confidentiality normally accorded such information may
also make other governments hesitant to cooperate in matters of interest
to the U.S. This includes U.S. law enforcement interests such as those involved
in the extradition case that is the subject of the document at issue in
this litigation. Cooperation between the U.S. and the U.K. in international
extradition of fugitives is a matter of substantial national interest to
both governments. It can also be a matter of political sensitivity in the
extraditing country, as has been the case with regard to fugitives extradited
by the U.S. to the U.K. charged with crimes in Northern Ireland and extradition
of the two women by the U.K. to the U.S. in the case discussed in the British
document at issue here. Because of the sensitivity I cannot be more specific
on the contents of the document and urge the court to conduct an in camera
review.
Mr. Kennedy also points out that the British embassy stated that "U.K.
authorities had already refused, 'on grounds of confidentiality,' to disclose
the contents of the document." He concludes that:
In view of the expectation of the confidentiality of foreign government
information and the explicit confirmation of that expectation by the British
Embassy letter . . . , I have no doubt disclosure of the document by the
U.S. government would harm the U.S. foreign relations and thereby damage
national security.
Like Sheils, Kennedy focuses on how disclosure by the U.S. of foreign government
information causes harm to U.S. foreign relations, and, thus, to national
security even if the content "appear[s] to be innocuous." According
to Kennedy, this harm occurs because all information exchanged between the
U.S. and foreign governments is confidential. Mr. Kennedy also implies that
disclosure would reduce international cooperation because of the sensitivity
of the category of information within which this letter belongs, namely
"international extradition of fugitives."
In this appeal, the government presses the argument that Sheils and Kennedy
primarily rely on in their declarations, that even if the letter's contents
are not injurious, damage resulting solely from disclosing foreign government
information meets the standards of the Executive Order. However, it is clear
that all information exchanged between foreign governments is not exempt
from FOIA disclosure, not even all information that another government prefers
to keep confidential-otherwise the inquiry would end after the first three
conditions for classification are satisfied. Congress could have exempted
all information exchanged between the U.S. and foreign governments from
FOIA requests, but chose instead to defer to the Executive Branch. Likewise,
the Executive Branch could have shielded all documents involving foreign
governments from FOIA disclosure in EO 12958. Instead, when it enacted EO
12958 in 1995, it chose to make it easier for the public to view materials
from foreign governments by eliminating the presumption of harm found in
the prior Executive Order, EO 12356 § 1.3(c), and requiring the U.S.
government to identify the particular damage that would result from releasing
the information.
The government next argues that if all foreign government information is
not shielded from FOIA disclosure, then all foreign government information
relating to international extradition is protected by the exemption, because
its sensitive nature makes its release inherently damaging to the national
security. While we do not preclude the possibility that the government might
be able in some circumstance to establish an inherently damaging category
of information, we need not decide that question now, because the government
did not meet its burden of establishing the justification for such a category
in this case. Rather, it merely bandied about generalized fears of 'political
sensitivity' relating to international extradition. In short, it failed
to show that all documents falling within the category of international
extraditions could reasonably be expected to result in damage to the national
security if released. Compare Armstrong v. Executive Office of the President,
97 F.3d 575, 582 (D.C. Cir. 1996) (invalidating categorical rule forbidding
disclosure of the names of lower-level FBI agents in all activities and
requiring more particularized showing of damage). Furthermore, the government's
conduct- seeking agreement from the British Government to release the letter,
rather than assuming that the letter must be confidential-raises serious
questions regarding the existence of such a category of withholdable information.
Similarly, the response of the British Government to the State Department's
request for concurrence in the release of the letter shows that all international
extradition information is not confidential-the British Embassy in Washington
wrote the State Department that "[t]he Home Office have advised that
the normal line in cases like this is that all correspondence between governments
is confidential unless papers have been formally requisitioned by the defence."
Weatherhead, Croft's defense lawyer, formally "requisitioned"
the letter, in common parlance, by making a formal FOIA request, and thereby
doing exactly what the British Government required in order to overcome
its restrictions regarding disclosure. Moreover, the British Embassy's response
raises further issues. Given that exceptions to the confidentiality of international
extradition information do exist, it cannot be argued that the mere fact
of disclosure of any such information is harmful, but only that (1) a disclosure
of any such information under circumstances that do not qualify as an exception
would cause injury, or (2) the disclosure of specific information would
be injurious in all circumstances. This, in turn, calls into question the
appropriate scope and nature of such exceptions and whether categories subject
to exceptions can ever qualify for blanket exemptions.
Because the government has failed to establish either that the broad category
of all foreign government information or the narrower category of international
extradition information is confidential, we must next look to the individual
document itself. Neither the government's briefs nor the declarations submitted
in support of withholding the letter sufficiently explain the harm to national
security that could result from its disclosure.
The government argues that its decision to classify the document should
be given deference based on its affidavits and memoranda. Classification
decisions are not given deference, however, until the government makes "an
initial showing which would justify deference by the district court."
Rosenfeld v. United States Dept. of Justice, 57 F.3d 803, 807 (9th Cir.
1995). As we have explained above, the government made no such showing in
the documents it initially presented to the district court. Accordingly,
the district court correctly held that the government failed to prove the
withheld letter was exempt from FOIA disclosure prior to conducting its
in camera ex parte review of the document.
Deference was given, however, to the government's perspective of the document
when the district court (and later this court) reviewed the letter in camera.
We recognize that "[i]n certain FOIA cases . . ., the government's
public description of a document and the reasons for exemption may reveal
the very information that the government claims is exempt from disclosure."
Doyle, 722 F.2d at 556. Here, after it found the government failed to provide
a sufficient basis for withholding the document in its briefs and declarations,
the district court properly exercised its discretion to view the withheld
letter in camera. After conducting in camera review of the letter, the district
court stated that:
it knew without hesitation or reservation that the letter could not be released.
The court is unable to say why for the same reason defendants were unable
to say why. . . . [T]here is no portion of it which could be disclosed without
simultaneously disclosing injurious materials.
We disagree with the district court's conclusions. We have reviewed the
letter in camera, and carefully considered its contents, including the "sensitivity,
value, and utility" of the information contained therein. Having done
so, we fail to comprehend how disclosing the letter at this time could cause
"harm to the national defense or foreign relations of the United States."
The letter is, to use Mr. Kennedy's term, "innocuous." Even after
giving the act of classification the deference to which it is entitled,
we are compelled to conclude that disclosure of the letter pursuant to Weatherhead's
FOIA request could not reasonably "be expected to result in damage
to the national security."
For the foregoing reasons, we reverse the district court's September 9,
1996 Order granting the government's motion for reconsideration and we reinstate
its March 29, 1996 grant of summary judgment for Weatherhead.
REVERSED AND REMANDED.
1 The district court assumed that the letter involved foreign relations
and fell within classification category § 1.5(d) because "the
fundamental function of the [State Department] is to oversee foreign relations."
Because Weatherhead did not contest this finding in his appellate briefs,
he has waived this point on appeal. See Hillis Motors, Inc. v. Hawaii Auto.
Dealers' Ass'n, 997 F.2d 581, 584 n.4 (9th Cir. 1993); Taag Linhas Aereas
de Angola v. Transamerica Airlines, Inc., 915 F.2d 1351, 1353 n.1 (9th Cir.
1990).
2 Under the prior Executive Order, such a showing was not required since
the "[u]nauthorized disclosure of foreign government information is
presumed to cause damage to national security." EO 12356 § 1.3(c).
The district court pointed out that if the government had not delayed for
so long in processing this FOIA request, the request would have been analyzed
under the prior Order. The governing executive order is the one in effect
when the classification decision is made. See Lesar v. United States Dept.
of Justice, 636 F.2d 472, 479-80 (D.C. Cir. 1980). In this case, the letter
was classified on October 27, 1995. Therefore, EO 12958 applies.
3 In camera review may or may not be ex parte. In camera proceedings in
FOIA cases involving classified documents are usually ex parte with even
the counsel for the party seeking the documents denied the opportunity to
be present. Hence courts' hesitancy to conduct in camera review in such
cases. See Pollard v. FBI, 705 F.2d 1151, 1153 (9th Cir. 1983).
SILVERMAN, Circuit Judge, Dissenting:
The uncontradicted evidence before the district court established that the
Home Office letter was sent by the British government to the U.S. Justice
Department with an expectation of confidentiality and that damage to American
national security would result from breaching that expectation. Those facts
were proved by the uncontroverted declarations of two State Department officials,
Patrick F. Kennedy and Peter M. Sheils, both of which were furnished in
connection with the motion for summary judgment. Plaintiff offered no evidence
to the contrary.
The Kennedy declaration is the most significant. Kennedy, an assistant Secretary
of State, attested that it is longstanding custom and accepted practice
in international relations to extend "diplomatic confidentiality"
to information exchanged between governments such as the information involved
here. Kennedy stated that upon receipt of plaintiff's FOIA request, the
American government consulted the British Embassy to seek its views on the
possible disclosure of the letter. The British Embassy responded that its
government did, indeed, expect the letter to remain confidential. In fact,
the Embassy stated that British authorities, on confidentiality grounds,
previously refused a separate request for release of the letter made directly
to the British government. Thus, Kennedy's declaration not only was uncontroverted;
it was corroborated.
Kennedy's declaration also stated that disclosure of the information in
violation of accepted diplomatic confidentiality reasonably could be expected
to damage relations between the U.S. and Britain, and between the U.S. and
other governments, and he explained how: If the letter is released, Britain
and other countries could well conclude that the U.S. cannot be trusted
to protect confidential information. He stated that if diplomatic confidentiality
is violated, it is likely that other nations will be less inclined to provide
sensitive information or to cooperate in the international extradition of
fugitives and in other matters of substantial interest to the United States.
Kennedy attested that extraditions can be the subject of political sensitivity
in the extraditing country. Such, he stated, was the case involving the
two British women whose extraditions were the subject of the very document
in question. Kennedy stated that he had "no doubt" but that disclosure
of the letter would damage our foreign relations and national security.
Plaintiff offered no evidence to rebut any of this. He did not produce an
affidavit from a diplomat, political scientist, academic, student of foreign
relations, lawyer, journalist-anyone-to refute Kennedy's declaration. Nor
am I aware of any other reason to treat Kennedy's sobering assessment with
so little regard. The proper inquiry is not whether Kennedy's declaration
could have contained more, but only whether it contained enough. In my view,
it did.
Having examined the letter in camera and having considered its contents
"including the 'sensitivity, value, and utility' of the information
contained therein," the majority says that it "fail[s] to comprehend
how disclosing the letter at this time could cause harm to the national
defense or foreign relations of the United States." The district judge,
on the other hand, "knew without hesitation or reservation that the
letter could not be released" when he saw it in camera. Either way,
we judges are outside of our area of expertise here. It's one thing to examine
a document in camera for the existence of facts-to see, for example, whether
it deals with attorney-client communications or other privileged matter.
See Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1089 (9th Cir.
1997). It's a whole different kettle of fish to do what the majority has
presumed to do here, to make its own evaluation of both the sensitivity
of a classified document and the damage to national security that might
be caused by disclosure. With all due respect, I suggest that in matters
of national defense and foreign policy, the court should be very leery of
substituting its own geopolitical judgment for that of career diplomats
whose assessments have not been refuted in any way.
There is no basis in the record to conclude otherwise than that the letter
is "foreign government information" as defined by Section 1.1(d)
of the Executive Order, that its release would cause damage to the national
security in the manner described by Kennedy, and that therefore it is exempt
from disclosure. I would affirm the district court's grant of summary judgment
for the government and therefore, I respectfully dissent.
APPENDIX B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
No. CS-95-519-FVS
LESLIE R. WEATHERHEAD, PLAINTIFF
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS
[FILED: Sept. 9, 1996]
ORDER
BEFORE THE COURT are defendants' Motion for Reconsideration or in the alternative
to File Document In Camera, or in the alternative to Stay Pending Appeal.
Plaintiff is represented by Gregory J. Workland; defendants by Sanjay Bhambhani
and Assistant United States Attorney James R. Shively. The matter was argued
on June 3, 1996. This Order will memorialize the Court's ruling.
Background
By Order entered March 29, 1996, the Court granted plaintiff's motion for
summary judgment in this FOIA action. A timely motion for reconsideration
followed. The factual background which gave rise to this litigation is set
out in the Order under reconsideration and need not be repeated here. By
way of supplementation, defendants' motion seeks in the alternative to submit
nonpublic affidavits or the requested material itself for in camera review.
During oral argument heard telephonically on June 3, 1996, the Court declined
to conduct in camera review. During a subsequent conference held on June
24, 1996, the Court reluctantly granted the second prong of this alternative
relief and has now reviewed the requested document.
Analysis
Reconsideration pursuant to FRCP 59(e) is appropriate when a court:
(1) is presented with newly discovered evidence, (2) committed clear error
or the initial decision was manifestly unjust, or (3) if there is an intervening
change in controlling law. There may also be other, highly unusual, circumstances
warranting reconsideration.
School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263
(9th Cir. 1993) (citations omitted), cert. denied, ____ U.S. ___, 114 S.
Ct. 2742 (1994).
(1 ) Newly discovered evidence: Patrick F. Kennedy, whose declaration is
appended to defendants' brief, is the Assistant Secretary for Administration
for DOS. Attached to his declaration is the letter of inquiry sent by DOS
to the British Embassy and the Embassy's response. This is new evidence
so far as plaintiff and the Court are concerned, but not newly discovered
evidence from defendants' perspective. The Kennedy Declaration is slightly
more informative than is the Sheils Declaration, but still reflects a "trust
me" aura. The letter of inquiry cuts against defendants' position.
It suggests that DOS intended to comply with the FOIA request and would
have but for U.K.'s opposition ("Before complying with this request,
we would appreciate the concurrence of your government in the release of
the document"). This in turn suggests that as late as August 4, 1995
when the letter was drafted, DOS did not envision disclosure as adversely
affecting the national interest.
(2) Clear error: Defendants are not critical of the Court's analytical framework
and appear to agree that the sequential assessment made was a proper inquiry.
They do contend that: (a) the agency determination of harm was given inadequate
deference; (b) the letter should have been found to be foreign government
information; (c) when the Court rejected plaintiff's contentions that protracted
delay in the administrative process and the failure to cite the executive
order relied upon constituted a basis for directing disclosure, the inquiry
should have ended; (d) if Vaughn materials are found deficient, the proper
remedy is to allow the agency to supplement; and (e) former EO 12356 should
govern because that was the executive order in effect when the letter was
written.
(a) Deference: The older case law relied upon by defendants emanating from
the cold war era tends to accord great deference to agency determinations
involving national security. Taylor v. Dept. of Army, 684 F.2d 99, 109 (D.C.
Cir 1982) ("utmost deference"); Halperin v. CIA, 629 F.2d 144,
148 (D.C. Cir. 1980) ("substantial weight"). In the Ninth Circuit,
classification decisions are given deference (Wiener v. F.B.I., 943 F.2d
972, 980 (9th Cir. 1991), cert. denied, 505 U.S. 1212, 112 S. Ct. 3013 (1992)),
but not until the agency makes "an initial showing which would justify
deference by the district court." Rosenfeld v. U.S. Dept. of Justice,
57 F.3d 803, 807 (9th Cir. 1995), cert. dism'd, ___ U.S. ___, 116 S. Ct.
833 (1996). This is not a case such as Taylor which involved disclosure
of "military secrets [and] military planning," nor a case such
as Halperin which involved disclosure of the identity of CIA operatives.
The Vaughn materials submitted here fail to communicate the significance
of the letter's content other than to note it involves extradition matters
"with particular reference to the U.S.-U.K. extradition agreement."
Moreover, deference is given only because of the agency's knowledge and
experience. Taylor, supra, 684 F.2d at 109. There is a distinction to be
drawn between the situation where an agency sets out its views on factual
matters and where, as does the Sheils Declaration in large measure, it construes
the law as applied to the facts. The interpretation of an executive order
is a judicial function. Deferring to an agency in this context would be
an abdication of that function.
As will appear further in Section 4, however, the Court has accorded defendants'
declarations deference; enough to warrant granting the motion for reconsideration
(b) Foreign government information: This is a red herring. Even if the letter
qualified as foreign government information, it would not help defendants.
The Court assumed for purposes of disposition that § 1.2(a)(3) of Executive
Order [EO] 12958 was met under the foreign relations prong defined at §
1.5(d) ("Based on the assumption that §1.5(d) applies, §
1.2(a)(3) has been satisfied and so has § 552(b)(1)(A)"). It does
not matter which of the seven § 1.5 prongs is satisfied so long as
one of them is. Disposition did not rest on a failure to meet § 1.2(a)(3),
but rather the harm prong set out in § 1.2(a)(4).
Even if it mattered, defendants' current argument highlights its fallacy.
According to the defense, all materials generated by a foreign government
are confidential unless "an understanding exists between the governments
involved that the information may be disclosed." (Ct. Rec. 17, Kennedy
Declaration at ¶ 4). Also according to the defense, the release of
any confidential material always causes harm because (confirming suspicions
articulated in the Order under reconsideration), it is the act of producing
rather than the content of production which causes harm. According to Mr.
Kennedy, this is true even if the content "appear[s] to be innocuous,"
a term which by definition means "harmless." (Ct. Rec. 18, Kennedy
Declaration at ¶ 4.)
There may be historical practices and protocols in diplomatic circles supportive
of defendants' position, and probably are. In recognition of that history,
Congress could have shielded all materials either generated or held by DOS
from FOIA disclosure, but chose instead to defer to the Executive Branch.
The Executive Branch could have shielded all materials either generated
or held by DOS from FOIA disclosure, and for all practical purposes did
so in 1982 when EO 12356 was signed. In 1995, the current administration
eliminated the presumption of harm found in former EO 12356 § 1.3(c)
and now requires a showing of harm on a case-by-case basis. EO 12958 §
1.2(a)(4). This is a major shift in policy. Defendants might not view this
evolution as prudent policy, but the answer is to direct their concerns
to the President, not to ask courts to rewrite an executive order by inserting
language the President pointedly deleted.
(c) Scope of inquiry: The Court exceeded the scope of the inquiry as framed
by plaintiff, but not the scope of the case as developed by defendants.
In these sui generis FOIA actions, a plaintiff may have little or no idea
what the basis for withholding is until the agency responds. That is what
occurred here.
(d) Supplementation: Defendants apparently believe there is no end to their
right to supplement ad infinitum. FOIA actions are unique in many respects,
and it is true that decisions on occasion sanction remand as a remedy (e.g.,
Wiener, supra), but as noted in the Order under reconsideration:
[U]nlike the fact patterns of most of the authorities cited herein, this
is a very modest controversy. It involves one letter two pages long. No
reason appears why the declarations now on file could not have been drafted
with the specificity and particularity required by [Wiener].
(e ) Applicability of former 12356: In their reply, defendants contend that
former EO 12356 should apply because it was effective when the letter was
generated. The first problem with this premise is that it runs afoul of
the rule that the governing executive order is the one in effect when the
classification decision is made. Afshar v. Department of State, 702 F.2d
1125, 1135-37 (D.C. Cir. 1983). The second problem is that defendants had
it within their power to apply former EO 12356. Plaintiff's request was
made on November 29, 1994. EO 12958 was signed five months later on April
17, 1995. It did not become effective until 180 days later on October 14,
1995. Defendants did not seek input from U.K. until August 4, 1995, and
U.K. did not respond until October 18, 1995, four days after the effective
date of EO 12958. Had the classification decision been made with reasonable
dispatch, former EO 12356 would have applied, and given the presumption
of harm contained in § 1.3(c), the outcome of this action may have
been quite different. To apply former EO 12356 at this juncture would be
to rewrite the history of why, when and how defendants processed the request
and arrived at the classification decision. The protracted delay standing
alone has no bearing on the outcome, but the delay carries with it consequences
and no reason appears why the Court should relieve defendants of those consequences.
(3) New law: Other than authorities directed to entry of a stay pending
appeal, no new law is cited. Defendants apparently think Schiffer v. F.B.I.,
78 F.3d 1405 (9th Cir. 1996) is new, because they have attached a copy to
their brief, but Schiffer is a conventional application of Wiener, supra.
(4) Other, highly unusual, circumstances warranting reconsideration: As
previously noted, the Court accepted the letter for in camera review reluctantly
because the procedure does not serve the adversarial process and there was
no guarantee it would inform the Court. In deference to defendants' announced
concerns in their declarations, however, the Court concluded that these
risks paled beside the danger that highly sensitive and injurious material
might be released only because defendants were unable to articulate a factual
basis for their concerns without giving away the information itself. That
proved to be the case. When the Court read the letter, it knew without hesitation
or reservation that the letter could not be released. The Court is unable
to say why for the same reason defendants were unable to say why. The letter
is two pages long, tightly written, and there is no portion of it which
could be disclosed without simultaneously disclosing injurious materials.
In signing the 1995 executive order, the President doubtless thought it
in the public interest to cast aside veils of secrecy not truly justified
by the facts. This major shift in policy is not without its costs. Now that
the presumption of harm no longer exists, and each case must stand on its
own facts, the result which obtained here may well be repeated in district
courts across the country. FOIA actions are none too adversarial to begin
with, and this one ended with the adversarial process in tatters. A litigant
in this situation is left only with the solace of knowing that not only
do two high ranking DOS officers believe disclosure of the subject material
injurious to the national interest, but so does an independent federal judge.
This may be some comfort, but probably not much.
IT IS HEREBY ORDERED:
Defendant's Motions for Reconsideration or in the alternative to File Document
In Camera, or in the alternative to Stay Pending Appeal (Ct. Rec. 16) are
GRANTED in part and DENIED in part as moot as provided in the text.
IT IS SO ORDERED. The Clerk is hereby directed to enter this Order and furnish
copies to counsel.
Dated this 9th day of September 1996.
/s/ FRED VAN SICKLE
FRED VAN SICKLE
United States District Judge
APPENDIX C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
No. CS-95-519-FVS
LESLIE R. WEATHERHEAD, PLAINTIFF
v.
UNITED STATES OF AMERICA, ET AL. DEFENDANTS
[Filed: Mar. 29, 1996]
ORDER
In this matter, plaintiff is represented by Gregory Workland; defendants
are represented by Assistant United States Attorney James R. Shivley. Plaintiff
Weatherhead brings this motion for summary judgment pursuant to 5 U.S.C.
§ 552 seeking an order to compel the defendants to cease withholding
a document pursuant to the Freedom of Information Act [FOIA]. Jurisdiction
is properly in this Court. The motion was argued on March 6 and 13, 1996
and taken under advisement. This Order will memorialize the Court's ruling.
Background
On November 29, 1994, plaintiff requested a copy of a letter sent by the
British Home Office to George Procter of the United States Department of
Justice [DOJ] dated July 28, 1994 relating to the extradition and prosecution
of two women, Sally Croft and Susan Hagan. (Exhibits A & B to plaintiff's
complaint). Separate requests were directed to DOJ and the Department of
State [DOS]. On May 4, 1995, DOS advised that no responsive document could
be located. DOJ did locate the letter and informed plaintiff that because
it was created by a foreign government, it would be referred to DOS for
review to determine whether it could be released. Correspondence and administrative
appeals followed throughout the summer. On September 12, 1995, DOJ advised
the matter was still under consideration. This action was commenced on November
17, 1995. On December 11, 1995, DOS declined to release the letter and asserted
for the first time an exemption under FOIA. DOS informed plaintiff that
the letter was now classified because the British Home Office did not wish
the letter released. The same information was later provided plaintiff by
DOJ.
Analysis
Initially, defendants correctly point out that the protracted delay in responding
to plaintiff's request is not a basis for compelling disclosure, but rather
a basis for plaintiff to demonstrate there has been an exhaustion of the
necessary administrative remedies and allows plaintiff to bring this action
in the United States District Court.
Defendants contend the information sought is exempt from disclosure under
5 U.S.C. § 552(b)(1) which provides:
This section does not apply to matters that are-
(1)(A) specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or foreign policy
and (B) are in fact properly classified pursuant to such Executive order[.]
The Executive Order [EO] applicable to this case is the one in effect at
the time of classification on October 27, 1995; EO 12958 (signed April 17,
1995 and effective 180 days later). See, e.g., Afshar v. Department of State,
702 F.2d 1125, 1135-37 (D.C. Cir. 1983) (EO in effect at time of classification
controls).
Defendants have submitted "Vaughn affidavits" containing the declarations
of Peter M. Sheils and Marshall R. Williams.1 The reference to "Vaughn
affidavits" comes from Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.
Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564 (1974) which is the
seminal case which designed the affidavit system now universally recognized
as appropriate and necessary in FOIA actions. The mechanics of the process
are that the agency prepares a "Vaughn index" "identifying
each document withheld, the statutory exemption claimed, and a particularized
explanation of how disclosure of the particular document would damage the
interest protected by the claimed exemption." Wiener v. F.B.I., 943
F.2d 972, 977 (9th Cir. 1991), cert. denied, 505 U.S. 1212, 112 S. Ct. 3013
(1992). A court then reviews the factual representations in light of the
relevant classification standards.
The current EO at § 1.2 provides for the following standards:
(a) Information may be originally classified under the terms of this order
only if all of the following conditions are met:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control
of the Unites States government;
(3) the information falls within one or more of the categories of information
listed in § 1.5 of this order; and
(4) the original classification authority determines that the unauthorized
disclosure of the information reasonably could be expected to result in
damage to the national security and the original classification authority
is able to identify or describe the damage.
As to § 1.2(a)(1), the original classification authority is classifying
the information. The Court believes that DOS is the original classification
authority and is classifying the information.
As to § 1.2(a)(2), the information is under the control of the United
States government.
Section § 1.2(a)(3) involves application of several subsections of
§ 1.5. Defendants contend that § 1.5(b) "foreign government
information" applies here. The definition of foreign government is
found at § 1.1(d). Foreign government information means "(1) information
provided to the United States Government by a foreign government or governments,
an international organization of governments, or any element thereof, with
the expectation that the information, the source of the information, or
both, are to be held in confidence [emphasis added][.]"
The language "with the expectation" should be read as referring
to the time the information was provided and not after the fact. "With,"
as used in this context, means "accompanied by, attended by."
Webster's New World Dictionary 1534 (3rd College ed.). "Expectation"
means " a thing looked forward to." Id. at 478. When a person
performs an act "with expectation," he has a present belief or
desire that some anticipated result will obtain in the future. Thus, the
expectation that the information would be held in confidence relates to
the time frame of July 28, 1994, being the date the letter was sent by the
British Home Office. There is no showing in this record of a contemporaneous
expectation of confidentiality with respect to the letter; only that upon
being later approached by DOS, Great Britain was "unable to agree to
its release."
Contrary to the government's position during oral argument, there has been
no showing that the prior EO in effect at the time the letter was sent (EO
12356) would allow a foreign government to believe that information it provided
to the United States would be presumptively treated as confidential.
Defendants further contend that the declaration of Mr. Sheils at paragraph
13 applies. The first sentence reads "There is a general understanding
among governments that confidentiality is normally to be accorded exchanges
between governments." Defendants contend that this general understanding
applies and that the information was thus provided with an understanding
of confidentiality.
This rationale does not logically follow. The Court is aware that foreign
governments are sophisticated in understanding the law and would appreciate
that information provided by a foreign government is subject to disclosure
under FOIA unless it satisfies the exemption requirements of § 1.2(a).
If such a rational applies, i.e., the general understanding among governments
that confidentiality is normally to be accorded exchanges between governments,
then all such exchanges would be confidential and the definition of "foreign
government information" in EO § 1.1(d) would have no meaning and
serve no purpose under FOIA. The Court does not believe that § 1.1(d)
is or was intended to be of no import or to be meaningless surplusage.
Further, § 1.1(d)(3) seeks to utilize provisions of the previous EO
by providing that "information received and treated as 'Foreign Government
Information' under the terms of a predecessor order" also constitutes
foreign government information under the current EO. The prior EO at §
6.1(d)(1) defines the term as "information provided by a foreign government
. . . with the expectation, expressed or implied, that the information,
the source, or both, are to be held in confidence." This subsection
adds nothing to the current EO except the words "expressed or implied."
Even if the current EO added anything to the definition, § 1.1(d)(3)
requires that the foreign government information must be treated as confidential
to be included under the current EO. Neither DOJ nor DOS treated the letter
as confidential at the time of receipt. Neither agency classified the letter
until nearly a year after the subject FOIA request. Neither asserted an
exemption until more than a year after the request, and then only at the
request of Great Britain.
The result of this review is that the classification is not proper under
EO § 1.5(b) because the July 28, 1994 letter does not fall within the
definition of "foreign government information." If not properly
classified under § 1.5(b), neither is it properly classified pursuant
to 552(b)(1)(A).
Defendants also contend that EO § 1.5(d) applies. That section provides
"Information may not be considered for classification unless it concerns:
. . . (d) foreign relations or foreign activities of the United States including
confidential sources[.]" While "foreign relations" is not
defined in the EO, it would appear that the fundamental function of DOS
is to oversee foreign relations and thus it would be assumed that the letter
does meet the definition of involving foreign relations. Based on the assumption
that § 1.5(d) applies, § 1.2(a)(3) has been satisfied and so has
§ 552(b)(1)(A).
The EO requires that the provisions of § 1.2(a)(4) also be met. That
subsection is satisfied when "the original classification authority
determines that the unauthorized disclosure of the information reasonably
could be expected to result in damage to the national security and the original
classification authority is able to identify or describe the damage."
The EO in § 1.1(1) defines damage to national security as "harm
to the national defense or foreign relations of the United States from the
unauthorized disclosure of information, to include the sensitivity, value,
and utility of that information."
Wiener, supra, requires "a particularized explanation of how disclosure
of a particular document would damage the interest protected by the claimed
exemption." 943 F.2d at 977. The Court goes on to indicate that the
purpose of requiring the showing is to "restore the adversary process
to some extent, and to permit more effective judicial review of the agency's
decision." Id. at 977-78. "Particularized explanation" means
that "[e]ffective advocacy is possible only if the requester knows
the precise basis for the nondisclosure." Id. at 979. "The agency
'must provide a relatively detailed justification, specifically identifying
the reasons why a particular exemption is relevant and correlating those
claims with the particular part of a withheld document to which they apply.'"
Bay Area Lawyers Alliance v. Dept. of State, 818 F. Supp. 1291, 1296 (N.D.
Cal. 1992) (emphasis original, citation omitted).
Here, the Court must apply the requirements of Wiener and Bay Area Lawyers
Alliance to the Vaughn declarations. Classification decisions are treated
with a measure of deference, but not until the agency makes "an initial
showing which would justify deference by the district court." Rosenfeld
v. U.S. Dept. of Justice, 57 F.3d 803, 807 (9th Cir. 1995), cert. dism'd,
____U.S. ____, 116 S. Ct. 833 (1996). At the same time, exemptions are construed
narrowly and the burden is on the agency to establish the claim of exemption.
John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S. Ct. 471, 475
(1989); Church of Scientology Intern. v. U.S. Dept. of Justice, 30 F.3d
224, 228 (1st Cir. 1994); Bay Area Lawyers Alliance, supra, 818 F. Supp.
at 1295). In terms of procedure the difficulty in these circumstances is
set out in Jones v. F.B.I, 41 F.3d 238 (6th Cir. 1994):
FOIA cases typically come up on appeal in this fashion, based on the defendant
agency's Vaughn affidavits and before the plaintiff has had a chance to
engage in discovery. This is a peculiar posture, difficult for our adversarial
system to handle. The problem goes to the very nature of these actions as
petitions for the release of documents. Where material has been withheld
by the government agency, the plaintiff must argue that the withholding
goes beyond that allowed by the statute. But the plaintiff is handicapped
in this endeavor by the fact that only the agency truly knows the content
of the withheld material. Except in cases in which the court takes the entire
set of responsive documents in camera, even the court does not know.
Id. at 242 (citations omitted).
Thus, in this case, the application of the above-described standards must
be viewed in light of the Vaughn declarations. Mr. Sheils, in his declaration
at paragraph 14, states:
Disclosure of foreign government information in violation of an understood
or, as in this case, clearly stated expectation of confidentiality would
cause foreign officials, not only of the government providing the information,
but of other governments as well, to conclude that U.S. officials are unable
and/or unwilling to preserve the confidentiality expected in exchanges between
governments; thus foreign governments and their representatives would be
less willing in the future to furnish information important to the conduct
of U.S. foreign relations and other governmental functions, and in general
less disposed to cooperate in foreign relations matters of common interest.
Disclosure of the document at issue in the circumstances of this case would
clearly result in damage to relations between the United Stats and the United
Kingdom and, therefore, to the national security in a clearly identifiable
way.
The declaration of Mr. Sheils goes on to say at paragraphs 16 and 17:
16. The one document withheld in this case clearly concerns the foreign
relations or activities of the United State inasmuch as it is a communication
from a British Home Office official to an official of the U.S. Department
of Justice concerning the extradition from the U.K. to the U.S. of two individuals,
apparently British nationals, to stand trial in the United States in a highly
publicized case. Disclosure of the document by the Government of the United
States, particularly in light of the refusal of the British Government to
agree to its release, would inevitably result in damage to relations between
the U.K. and the U.S.
17. The withheld document is a two-page letter dated July 28, 1994 from
an official of the British Home Office to an official of the U.S. Department
of Justice. Originally unclassified. Classified on October 27, 1995. Withheld
in full. Exemption (b)(1).
The letter comments on certain aspects of the extradition of two women,
apparently British citizens, to face charges in the United States. The letter
conveys certain concerns of the U.K. Government regarding the case which
apparently was the subject of considerable attention in the British Parliament
and otherwise in the U.K. with particular reference to the U.S.-U.K. extradition
agreement.
The issue is whether the information provided in the Vaughn declarations
meets the requirement of a particularized explanation of how disclosure
of this particular document would damage the interest protected by the claimed
exemption. While there are no specific rules or concrete standards to assist
this Court other than those indicated in Wiener, this Court determines that
the information provided in the several sections of the declaration of Mr.
Sheils is of a general and conclusory nature and not a particularized explanation
of how disclosure of this letter would damage the relations between the
United States and the United Kingdom and therefore national security or
how disclosure of this letter in light of the refusal of the British Government
to agree to its release would inevitably result in damage to relations between
the United Kingdom and the United States. Simply put, the declaration does
not "afford the requester an opportunity to intelligently advocate
release of the withheld documents and . . . afford the court an opportunity
to intelligently judge the contest." Wiener, supra, 943 F.2d at 979;
accord, Church of Scientology, supra, 30 F.3d at 231.
In essence, what defendants are saying is that it is the act of disclosure
itself, not disclosure of the contents, which would harm national security.
This line of reasoning is inconsistent with EO § 1.1(1) which defines
damage to the national security as "harm to the national defense or
foreign relations of the United States from the unauthorized disclosure
of information, to include the sensitivity, value, and utility of that information
[emphasis added]." Clearly, these criteria place the focus on the information
disclosed, not the act of disclosing. If defendants' rationale were carried
forward, if any foreign government did not want a document disclosed, its
request would automatically supersede FOIA thereby defeating the public
policy of providing properly requested information.
Finally, the declarations do not adequately address segregability. Mr. Sheils'
declaration merely states that the letter is being "withheld in full"
because "no meaningful segregation of information from the withheld
material can be made without disclosing information requiring protection."
"This is entirely insufficient." Bay Area Lawyers Alliance, supra,
818 F. Supp. at 1300.
[E]ven if part of a document is FOIA exempt, the agency still must disclose
any portions which are not exempt-i.e., all "segregable" information-and
must address in its Vaughn index why the remaining information is not segregable.
The district court must make specific factual findings on the issue of segregability
to establish that the required de novo review of the agency's withholding
decision has in fact taken place. The Court may not "'simply approve
the withholding of an entire document without entering a finding on segregability.
. . .'"
Id. at 1296 (citations omitted).
The Court cannot make the required findings because the record reflects
no facts from which findings could be developed.
Defendants urge that summary judgment is inappropriate because a material
dispute exists over Great Britain's expectation of confidentiality. There
may be a dispute, but it is not material. The Court has assumed for purposes
of disposition that the letter falls within EO § 1.5(d) as "foreign
relations material" thereby satisfying § 552(b)(1)(A). Whether
it also falls within § 1.5(b) as "foreign government information"
is thus not material to the outcome because whether it does or not, §
552(b)(1)(B) is not satisfied.
Defendants also urge that summary judgment is inappropriate because material
disputes exist over the nature and magnitude of harm as recited in Mr. Sheils'
declaration at paragraphs 14 and 16. Initially, it is not clear how this
case could proceed to discovery and trial. If defendants do not wish to
release the letter, the significance of which does not appear in the record,
it seems most improbable they would be wiling to open up their inner departmental
workings so the system could test why the exemption was claimed and how
that decision was made.
However, the interesting possibility of proceeding to trial need not be
addressed because the Court concludes there are no genuine issues of material
fact. The information in the Vaughn declarations is undisputed in terms
of the operative (as opposed to ultimate) facts. The Court may rule as a
matter of law in this case. Moreover, unlike the fact patterns of most of
the authorities cited herein, this is a very modest controversy. It involves
one letter two pages long. No reason appears why the declarations now on
file could not have been drafted with the specificity and particularity
required by that decision. The burden of validating the claimed exemption
is on defendants. John Doe Agency, 493 U.S. at 152, 110 S. Ct. at 475.
It is the determination of the Court that the exemption provision of 5 U.S.C.
§ 552(b)(1)(B) has not been shown to apply and therefore plaintiff's
Motion for Summary Judgment (Ct. Rec. 4) requiring disclosure of the July
28, 1994 letter would be GRANTED. If any particular form of Order is required
to effectuate this ruling, plaintiff may submit a proposed Order in due
course.
IT IS SO ORDERED. The Clerk is hereby directed to enter this Order, enter
judgment thereon, furnish copies to counsel and close this file.
DATED this 29 day of March, 1996.
/s/ FRED VAN SICKLE
FRED VAN SICKLE
United States District Judge
1 Only Mr. Sheils' declaration is germane to these proceedings. Mr. Williams'
declaration does not attempt to support the classification decision and
merely chronciles the flow path as the subject request was processed through
administrative channels.
APPENDIX D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
No. CS-95-519-FVS
LESLIE R. WEATHERHEAD, PLAINTIFF
v.
UNITED STATES OF AMERICA,
UNITED STATES DEPARTMENT OF JUSTICE, AND UNITED STATES DEPARTMENT OF STATE,
DEFENDANT
[Filed: Apr. 12, 1996]
JUDGMENT IN A CIVIL CASE
This action came to hearing before the Court. The issues have been heard
and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that it is the determination of the Court that
the exemption provision of 5 USC 552 (b)(1)(B) has not been shown to apply
and therefore plaintiff's motion for summary judgment (Ct. Rec. 4) requiring
disclosure of the July 28, 1994 letter be GRANTED. If any particular form
of Order is required to effectuate this ruling, plaintiff may submit a proposed
Order in due course.
Dated: April 12, 1996 JAMES R. LARSEN, Clerk
by: ANNIE SMITH
ANNIE SMITH, Deputy
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 96-36260
D.C. No. CV-95-00519-FVS
LES WEATHERHEAD, PLAINTIFF-APPELLANT
v.
UNITED STATES OF AMERICA;
DEPARTMENT OF JUSTICE; UNITED
STATES DEPARTMENT OF STATE,
DEFENDANTS-APPELLEES
[Filed: Feb. 26, 1999]
ORDER
Before: HUG, Chief Judge, REINHARDT and SILVERMAN, Circuit Judges.
The panel has voted to deny Appellees' petition for rehearing and to reject
the suggestion for rehearing en banc.
The full court was advised of the suggestion for rehearing en banc. An active
judge requested a vote on whether to rehear the matter en banc. The matter
failed to receive a majority of the votes of the nonrecused active judges
in favor of en banc consideration. Fed. R. App. P. 35.
The petition for rehearing is denied and the suggestion for rehearing en
banc is rejected.
APPENDIX F
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NO. 96-36260
D.C. No. CV-95-00519-FVS
LES WEATHERHEAD, PLAINTIFF-APPELLANT
v.
UNITED STATES OF AMERICA;
DEPARTMENT OF JUSTICE; UNITED
STATES DEPARTMENT OF STATE,
DEFENDANTS-APPELLEES
[Filed: Mar. 9, 1999]
AMENDED ORDER
Before: HUG, Chief Judge, REINHARDT and SILVERMAN, Circuit Judges.
Chief Judge Hug and Judge Reinhardt voted to deny Appellees' petition for
rehearing and to reject the suggestion for rehearing en banc. Judge Silverman
voted to grant the petition for rehearing and to accept the suggestion for
rehearing en banc.
The full court was advised of the suggestion for rehearing en banc. An active
judge requested a vote on whether to rehear the matter en banc. The matter
failed to receive a majority of the votes of the nonrecused active judges
in favor of en banc consideration. Fed. R. App. P. 35.
The petition for rehearing is denied and the suggestion for rehearing en
banc is rejected.
APPENDIX G
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
Civil Action No. 95-0519-FVS
LESLIE R. WEATHERHEAD, PLAINTIFF
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS
DECLARATION OF PETER M. SHEILS
I, Peter M. Sheils, declare and state as follows:
1. I am the Department of State's Acting Information and Privacy Coordinator
and the Acting Director of the Department's Office of Freedom of Information,
Privacy, and Classification Review (FPC). In these capacities, I am the
Department official immediately responsible for responding to requests for
records under the Freedom of Information Act (FOIA), 5 U.S.C. §552,
the Privacy Act, 5 U.S.C. §552a, and other applicable records access
provisions. I have been in the employ of the Department of State since 1975,
and have served in a variety of positions with the Department's Information
Access Program for most of my tenure with the Department. I am authorized
to classify to the Top Secret level and to downgrade and to declassify national
security information pursuant to Executive Order (E.O.) 12958 and Department
of State regulations set forth in 22 CFR 9.14. I make the following statements
based upon my personal knowledge, which is in turn based on a personal review
of the document withheld, and upon information furnished to me in the course
of my official duties.
2. FPC is responsible for the coordination and processing of external requests
for Department records, including the receipt, acknowledgment, retrieval
and classification review of records determined to be responsive to such
requests. External requests include those that have been made by the general
public, members of Congress, and other government agencies, and those that
have been made pursuant to judicial processes, such as subpoenas, court
orders, and discovery requests.
3. I have personal knowledge of the efforts of Department personnel to review
and process one document, consisting of two pages, referred to the Department
of State in connection with a Freedom of Information Act request dated November
29, 1994, submitted by plaintiff to the Department of Justice ("DOJ").
The actions taken by the Department of State in connection with the processing
of this referral are set forth below.
4. By memorandum dated May 17, 1995 (Exhibit 1), DOJ referred one document,
consisting of two pages, to the Department of State for processing and direct
response to plaintiff. The Department of State conducted a review of this
document, and by letter dated December 11, 1995 (Exhibit 2), advised plaintiff
that the document was exempt from disclosure pursuant to exemption (b)(1)
of the FOIA.
5. In applying the (b)(1) exemption to the single denied document, and after
a line-by-line review of the document, I have determined that no meaningful
segregation of information from the withheld material can be made without
disclosing information requiring protection. This declaration includes the
justification for asserting the (b)(1) exemption to the withheld information,
and a document description which addresses the withheld document.
FOIA EXEMPTIONS CLAIMED
Exemption (b)(1)-Classified Information
6. 5 U.S.C. Section 552 (b)(1) states that the FOIA does not apply to matters
that are:
(A) specifically authorized under criteria established by an Executive Order
to be kept secret in the interest of national defense or foreign policy,
and
(B) are in fact properly classified pursuant to such an Executive order.
The information to which the (b)(1) exemption has been applied in this case
is required to be kept secret because it is foreign government information
and in the interest of foreign policy pursuant to Executive Order 12958,
and is properly classified pursuant to that Executive Order. This information
is therefore exempt from disclosure under subsection (b)(1) of the FOIA.
7. The one document withheld from the plaintiff is classified "Confidential".
Section 1.3(a)(3) of E.O. 12958 states that the designation "Confidential"
shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause damage to the national security that the original
classification authority is able to identify or describe. "Damage to
the national security" is defined in Section 1.1(1) as meaning "harm
to the national defense or foreign relations of the United States from the
unauthorized disclosure of information, to include the sensitivity, value,
and utility of that information."
8. The withheld document has been reviewed by an official with original
classification and declassification authority. The document comes within
two particular categories enumerated in E.O. 12958: "foreign government
information" [Section 1.5(b)]; and "foreign relations or foreign
activities of the United States" [Section 1.5(d)]. With respect to
the document withheld, an original classification authority has determined
that "the unauthorized disclosure of the information reasonably could
be expected to result in damage to the national security," consistent
with the provision of section 1.2(4) of E.O. 12958.
9. Procedurally, the document to which the (b)(1) exemption has been applied
was classified by the Department of State under Executive Order 12958. The
document was carefully reviewed to ensure that it was properly marked in
accordance with that Order.
10. Substantively, the information with respect to which the (b)(1) exemption
has been applied meets the classification criteria of E.O. 12958. Section
1.5 of the Executive Order states in pertinent part that "Information
may not be considered for classification unless it concerns: . . . (b) foreign
government information;" and "(d) foreign relations or foreign
activities of the United States . . . ."
Section 1.5(b)-Foreign Government Information
11. Section 1.5(b) of E.O. 12958 provides, in pertinent part, that:
Information may not be considered for classification unless it concerns:
. . .
(b) foreign government information
12. Section 1.1(d) states, in pertinent part, that "'Foreign Government
Information' means: (1) information provided to the United States Government
by a foreign government . . . with the expectation that the information,
the source of the information, or both, are to be held in confidence."
13. There is a general understanding among governments that confidentiality
is normally to be accorded exchanges between governments. The document addressed
in this declaration is a letter from an official of the British Home Office
to an official of the U.S. Department of Justice. That the information in
the document was intended by the U.K. Government to be held in confidence
is confirmed by the British response to a Department of State inquiry regarding
possible release to plaintiff. The British Foreign and Commonwealth Office
responded, through the British Embassy in Washington, that it was "unable
to agree to its release" (emphasis in the original). Consequently,
the Department of State classified the document Confidential to protect
its confidential character as foreign government information.
14. Disclosure of foreign government information in violation of an understood
or, as in this case, clearly stated expectation of confidentiality would
cause foreign officials, not only of the government providing the information,
but of other governments as well, to conclude that U.S. officials are unable
and/or unwilling to preserve the confidentiality expected in exchanges between
governments; thus foreign governments and their representatives would be
less willing in the future to furnish information important to the conduct
of U.S. foreign relations and other governmental functions, and in general
less disposed to cooperate in foreign relations matters of common interest.
Disclosure of the document at issue in the circumstances of this case would
clearly result in damage to relations between the United States and the
United Kingdom and, therefore, to the national security in a clearly identifiable
way.
Section 1.5(d)-Foreign Relations or Foreign Activities of the United States
15. Section 1.5 of E.O. 12958 provides, in pertinent part, that:
Information may not be considered for classification unless it concerns.
. .
(d) foreign relations or foreign activities of the United States; . . .
16. The one document withheld in this case clearly concerns the foreign
relations or activities of the United States inasmuch as it is a communication
from a British Home Office official to an official of the U.S. Department
of Justice concerning the extradition from the U.K. to the U.S. of two individuals,
apparently British nationals, to stand trial in the United States in a highly
publicized case. Disclosure of the document by the Government of the United
States, particularly in light of the refusal of the British Government to
agree to its release, would inevitably result in damage to relations between
the U.K. and the U.S.
DOCUMENT DESCRIPTION FOR WITHHELD DOCUMENT
17. The withheld document is a two-page letter dated July 28, 1994 from
an official of the British Home Office to an official of the U.S. Department
of Justice. Originally unclassified. Classified on October 27, 1995. Withheld
in full. Exemption (b)(1).
The letter comments on certain aspects of the extradition of two women,
apparently British citizens, to face charges in the United States. The letter
conveys certain concerns of the U.K. Government regarding the case which
apparently was the subject of considerable attention in the British Parliament
and otherwise in the U.K. with particular reference to the U.S.-U.K. extradition
agreement.
I declare under the penalty of perjury that the foregoing is true and correct.
Executed this 5th day of March, 1996.
/s/ PETER M. SHEILS
PETER M. SHEILS
APPENDIX H
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
Civil Action No. 95-0519-FVS
LESLIE R. WEATHERHEAD, PLAINTIFF
v.
DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS
DECLARATION OF PATRICK F. KENNEDY
I, Patrick F. Kennedy, declare and state as follows:
1. I am the Department of State's Assistant Secretary for Administration.
In this capacity, I am the Department official responsible for supervising
the Department's Office of Freedom of Information, Privacy, and Classification
Review (FPC) and for administration of the agency's program under the Executive
Order on Classification of National Security Information (E.O. 12958). I
have been in the employ of the Department of State since 1972. I make the
following statement based upon my personal review of the document withheld,
and upon information furnished to me in the course of my official duties.
2. I incorporate by reference the declaration dated March 5, 1996 of Peter
M. Sheils, Acting Director, Office of Freedom of Information, Privacy, and
Classification Review.
3. I make this supplemental declaration in support of the motion of the
United States for reconsideration of the order of the District Court dated
March 29, 1996 that a document withheld by the Department of State under
the Freedom of Information Act should be disclosed to plaintiff. The Department
of State urges that the decision of the District Court be reconsidered because
of the damage to U.S. foreign relations that could result from compliance
with the District Court's disclosure order.
4. It is a longstanding custom and accepted practice in international relations
to treat as confidential and not subject to public disclosure information
and documents exchanged between governments and their officials. Such confidentiality
is presumptively accorded with respect to information unless an understanding
exists between the governments involved that the information may be disclosed.
Diplomatic confidentiality obtains even between governments that are hostile
to each other and even with respect to information that may appear to be
innocuous. It also applies whether or not the foreign government document
was marked with some security classification at the time by the sending
or receiving government.
5. In keeping with the rule of diplomatic confidentiality, the Department
of State normally withholds documents containing information that originated
with a foreign government from public disclosure, including in response
to a Freedom of Information Act (FOIA), Privacy Act, discovery, or other
type of disclosure request usually without consultation with that government.
When a request for such information is made under the FOIA or similar process,
the information, based on the subject matter and if not previously classified,
is classified by the Department without consultation with the government
concerned. In certain cases, such as this one, the Department may seek the
views of the foreign government and then may classify the document. We expect
and receive similar treatment from foreign governments. The information
in this document is of a nature that it is evident that confidentiality
was expected at the time it was sent and its contents cannot be described
in greater detail without revealing the sensitivity of the document and
I therefore urge the court to conduct an in camera review.
6. Disclosure of the information in violation of the accepted rule of diplomatic
confidentiality reasonably could be expected to cause damage to relations
between the U.S. and the originating government. Disclosure of information
considered confidential in diplomatic communications, voluntarily or in
compliance with a court order, may lead not only the government directly
affected, but also other governments more generally to conclude that the
U.S. cannot be trusted to protect information furnished by them. This, in
turn, would damage our relations with affected governments. It would also
likely make other governments reluctant to provide sensitive information
to the U.S. in diplomatic communications, thereby damaging our ability to
conduct the foreign relations of the U.S. and our national security, in
which information received from foreign government officials plays a major
role.
7. Disclosure by the U.S. of information furnished by another government
in violation of the confidentiality normally accorded such information may
also make other governments hesitant to cooperate in matters of interest
to the U.S. This includes U.S. law enforcement interests such as those involved
in the extradition case that is the subject of the document at issue in
this litigation. Cooperation between the U.S. and the U.K. in international
extradition of fugitives is a matter of substantial national interest to
both governments. It can also be a matter of political sensitivity in the
extraditing country, as has been the case with regard to fugitives extradited
by the U.S. to the U.K. charged with crimes in Northern Ireland and extradition
of the two women by the U.K. to the U.S. in the case discussed in the British
document at issue here. Because of the sensitivity I cannot be more specific
on the contents of the document and urge the court to conduct an in camera
review.
8. Although, the Department normally classifies and withholds foreign government
information in response to FOIA and other disclosure requests without consulting
the government that originated the information, in some cases, the foreign
government is consulted regarding possible disclosure. In this case, after
receiving the FOIA request from the plaintiff, the Department sent a letter
(Exhibit 1) dated August 4, 1995 to the British Embassy in Washington seeking
the views of the U.K. authorities on possible disclosure, in whole or in
part, of the letter from the British Home Office to the U.S. Department
of Justice.
9. The British Embassy replied by letter (Exhibit 2) dated October 18, 1995,
noting the expectation of confidentiality of such documents and stating
that the Government of the United Kingdom was unable to agree to disclosure,
in whole or in part. The Embassy noted, in particular, that U.K. authorities
had already refused, "on the grounds of confidentiality," to disclose
the contents of the document in response to a request by representatives
of the defendants in the extradition case. In view of the British Embassy's
reply, it is clear that the British authorities expected at the time the
Home Office sent the letter to the Department of Justice and continue to
expect that the document would be protected from disclosure in accordance
with accepted practice.
10. In view of the expectation of the confidentiality of foreign government
information and the explicit confirmation of that expectation by the British
Embassy letter at Exhibit 2, I have no doubt disclosure of the document
by the U.S. government would harm the U.S. foreign relations and thereby
damage national security. For this reason, the document is currently and
properly classified under E.O. 12958 and is exempt from disclosure under
exemption (b)(1) of the FOIA.
I declare under the penalty of perjury that the foregoing is true and correct.
Executed this 11th of April, 1996
/s/ PATRICK F. KENNEDY
PATRICK F. KENNEDY
APPENDIX I
UNITED STATES CIRCUIT COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 96-36260
LESLIE R. WEATHERHEAD, PLAINTIFF
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS
DECLARATION OF STROBE TALBOTT
I, STROBE TALBOTT, declare as follows:
1. I am the Acting Secretary of State of the United States. In this capacity
I am responsible for the formulation and implementation of the foreign policy
and conduct of the foreign relations of the United States, subject to the
direction of the President. I am familiar with the foreign policy issues
that relate to the United Kingdom, and with the conduct of our foreign relations
in general.
2. Pursuant to the authority vested in me as Secretary of State, I make
this declaration in support of the government's motion for a stay of the
mandate and to reaffirm the national security exemption over the British
Government document that is the subject of this case. I am making this declaration
and the following statements based upon the information conveyed to me by
my advisers in the course of their official duties and upon my own personal
judgment that the nature of the information in question merits an assertion
of this exemption.
3. Great Britain is perhaps our staunchest and certainly one of our most
important allies. On a daily basis, the United States engages in complex
and sensitive discussions with the British at various levels on numerous
important subjects of concern, including weapons non-proliferation, trade
disputes, matters before the United Nations Security Council, human rights
and law enforcement. In many of these areas we have engaged in diplomatic
dialogue with officials of the British in the course of which information
was exchanged with an expectation of confidentiality. Such confidential
diplomatic dialogue is essential to the conduct of foreign relations. Candid
exchange such as the letter that is the subject of this litigation can only
occur in a confidential setting. Such a setting is often essential to explore
and resolve issues and concerns and achieve U.S. foreign policy goals. Further,
the information that the United States acquires in confidence from other
governments, or instrumentalities thereof, is essential to the formulation
of U.S. foreign policy and to the conduct of U.S. foreign relations. Disclosure,
either voluntarily by the Department of State or by order of the Court,
of foreign government information where there remains the expectation of
confidentiality with which the information was provided would convey to
British Government officials, and indeed to all other foreign government
officials as well, that U.S. officials are not able or willing to preserve
the confidentiality expected in such exchanges. Such officials would be
less willing in the future to engage in candid discussion and to furnish
information important to the conduct of U.S. foreign relations and other
governmental functions, and less disposed to cooperate in foreign relations
matters of common interest.
4. When advised of the Court's latest decision in this case, the British
Government requested that the letter remain confidential, as they had previously
requested on three occasions spanning two different British Governments.
In this case, the British Government specifically asked that the U.S. Government
seek an appeal.
5. One important foreign policy objective of the United States in recent
years has been to strengthen international cooperation on law enforcement
matters such as those involved in the extradition case that is the subject
of the document at issue in this litigation. This effort has led to an unprecedented
level of cooperation between the government of the United States and foreign
governments around the world. In fact, the cooperation between the United
States and the British on law enforcement matters has been long and successful.
6. A breach of confidentiality in this instance could adversely affect our
efforts with British officials and other governments. Cooperation between
the U.S. and U.K. in international extradition of fugitives is a matter
of substantial national interest to both governments. It can also be a matter
of political sensitivity in the extraditing country, as has been the case
with regard to fugitives extradited by the U.S. to the U.K. for crimes in
Northern Ireland and extradition of the two women by the U.K. to the U.S.
in the case discussed in the British document at issue here. Consequently,
disclosure of the British government information withheld in this case could
reasonably be expected to cause damage to the foreign relations of the United
States. Moreover, by calling into question the confidentiality of diplomatic
exchanges generally, such a disclosure reasonably could also be expected
to affect the more general bilateral relationship between the U.S. and the
U.K. on law enforcement cooperation and other matters.
7. The ability of U.S. officials to make confidential assessments, analyses
or recommendations on foreign relations or foreign activities is also essential
to the conduct of foreign policy. It is necessary to have frank internal
assessments by foreign government officials of their motivations, objectives
and strategies, as well as of the implications for achieving U.S. foreign
policy goals. If such material were made public, not only would the United
States be seriously disadvantaged in pursuing its objectives, but also bilateral
relations often would be adversely affected by the reaction of foreign governments
or officials to disclosure of their "candid" views.
8. Upon review of the document and the above factors, I conclude that revealing
the letter from the British Home Secretary made in confidence to a U.S.
official, reasonably could be expected to damage the national interest of
the United States by dealing a set-back to U.K. confidence in U.S. reliability
as a law enforcement partner. In addition, by calling into question the
expectation of confidentiality in diplomatic exchanges and revealing the
confidential assessments of the British Government, release reasonably could
be expected to damage other aspects of the bilateral relationship that are
important to the United States.
I declare under penalty of perjury that the foregoing is true and correct.
Executed in Washington, D.C.
/s/ STROBE TALBOTT
STROBE TALBOTT
March 2, 1999
APPENDIX J
Executive Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995) (3 C.F.R.
333 (1996)) provides:
Classified National Security Information
This order prescribes a uniform system for classifying, safeguarding, and
declassifying national security information. Our democratic principles require
that the American people be informed of the activities of their Government.
Also, our Nation's progress depends on the free flow of information. Nevertheless,
throughout our history, the national interest has required that certain
information be maintained in confidence in order to protect our citizens,
our democratic institutions, and our participation within the community
of nations. Protecting information critical to our Nation's security remains
a priority. In recent years, however, dramatic changes have altered, although
not eliminated, the national security threats that we confront. These changes
provide a greater opportunity to emphasize our commitment to open Government.
NOW, THEREFORE, by the authority vested in me as President by the Constitution
and the laws of the United States of America, it is hereby ordered as follows:
PART 1-ORIGINAL CLASSIFICATION
Section 1.1. Definitions. For purposes of this order:
(a) "National security"means the national defense or foreign relations
of the United States.
(b) "Information" means any knowledge that can be communicated
or documentary material, regardless of its physical form or characteristics,
that is owned by, produced by or for, or is under the control of the United
States Government. "Control" means the authority of the agency
that originates information, or its successor in function, to regulate access
to the information.
(c) "Classified national security information" (hereafter "classified
information") means information that has been determined pursuant to
this order or any predecessor order to require protection against unauthorized
disclosure and is marked to indicate its classified status when in documentary
form.
(d) "Foreign Government Information" means:
(1) information provided to the United States Government by a foreign government
or governments, an international organization of governments, or any element
thereof, with the expectation that the information, the source of the information,
or both, are to be held in confidence;
(2) information produced by the United States pursuant to or as a result
of a joint arrangement with a foreign government or governments, or an international
organization of governments, or any element thereof, requiring that the
information, the arrangement, or both, are to be held in confidence; or
(3) information received and treated as "Foreign Government Information"
under the terms of a predecessor order.
(e) "Classification" means the act or process by which information
is determined to be classified information.
(f) "Original classification" means an initial determination that
information requires, in the interest of national security, protection against
unauthorized disclosure.
(g) "Original classification authority" means an individual authorized
in writing, either by the President, or by agency heads or other officials
designated by the President, to classify information in the first instance.
(h) "Unauthorized disclosure" means a communication or physical
transfer of classified information to an unauthorized recipient.
(i) "Agency" means any "Executive agency," as defined
in 5 U.S.C. 105, and any other entity within the executive branch that comes
into the possession of classified information.
(j) "Senior agency official" means the official designated by
the agency head under section 5.6(c) of this order to direct and administer
the agency's program under which information is classified, safeguarded,
and declassified.
(k) "Confidential source" means any individual or organization
that has provided, or that may reasonably be expected to provide, information
to the United States on matters pertaining to the national security with
the expectation that the information or relationship, or both, are to be
held in confidence.
(l) "Damage to the national security" means harm to the national
defense or foreign relations of the United States from the unauthorized
disclosure of information, to include the sensitivity, value, and utility
of that information.
Sec. 1.2. Classification Standards. (a) Information may be originally classified
under the terms of this order only if all of the following conditions are
met:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control
of the United States Government;
(3) the information falls within one or more of the categories of information
listed in section 1.5 of this order; and
(4) the original classification authority determines that the unauthorized
disclosure of the information reasonably could be expected to result in
damage to the national security and the original classification authority
is able to identify or describe the damage.
(b) If there is significant doubt about the need to classify information,
it shall not be classified. This provision does not:
(1) amplify or modify the substantive criteria or procedures for classification;
or
(2) create any substantive or procedural rights subject to judicial review.
(c) Classified information shall not be declassified automatically as a
result of any unauthorized disclosure of identical or similar information.
Sec. 1.3. Classification Levels. (a) Information may be classified at one
of the following three levels:
(1) "Top Secret" shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause exceptionally
grave damage to the national security that the original classification authority
is able to identify or describe.
(2) "Secret" shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause serious damage
to the national security that the original classification authority is able
to identify or describe.
(3) "Confidential" shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause damage to the
national security that the original classification authority is able to
identify or describe.
(b) Except as otherwise provided by statute, no other terms shall be used
to identify United States classified information.
(c) If there is significant doubt about the appropriate level of classification,
it shall be classified at the lower level.
Sec. 1.4. Classification Authority. (a) The authority to classify information
originally may be exercised only by:
(1) the President;
(2) agency heads and officials designated by the President in the Federal
Register; or
(3) United States Government officials delegated this authority pursuant
to paragraph (c), below.
(b) Officials authorized to classify information at a specified level are
also authorized to classify information at a lower level.
(c) Delegation of original classification authority.
(1) Delegations of original classification authority shall be limited to
the minimum required to administer this order. Agency heads are responsible
for ensuring that designated subordinate officials have a demonstrable and
continuing need to exercise this authority.
(2) "Top Secret" original classification authority may be delegated
only by the President or by an agency head or official designated pursuant
to paragraph (a)(2), above.
(3) "Secret" or "Confidential" original classification
authority may be delegated only by the President; an agency head or official
designated pursuant to paragraph (a)(2), above; or the senior agency official,
provided that official has been delegated "Top Secret" original
classification authority by the agency head.
(4) Each delegation of original classification authority shall be in writing
and the authority shall not be redelegated except as provided in this order.
Each delegation shall identify the official by name or position title.
(d) Original classification authorities must receive training in original
classification as provided in this order and its implementing directives.
(e) Exceptional cases. When an employee, contractor, licensee, certificate
holder, or grantee of an agency that does not have original classification
authority originates information believed by that person to require classification,
the information shall be protected in a manner consistent with this order
and its implementing directives. The information shall be transmitted promptly
as provided under this order or its implementing directives to the agency
that has appropriate subject matter interest and classification authority
with respect to this information. That agency shall decide within 30 days
whether to classify this information. If it is not clear which agency has
classification responsibility for this information, it shall be sent to
the Director of the Information Security Oversight Office. The Director
shall determine the agency having primary subject matter interest and forward
the information, with appropriate recommenations, to that agency for a classification
determination.
Sec. 1.5. Classification Categories.
Information may not be considered for classification unless it concerns:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including special activities), intelligence
sources or methods, or cryptology;
(d) foreign relations or foreign activities of the United States, including
confidential sources;
(e) scientific, technological, or economic matters relating to the national
security;
(f) United States Government programs for safeguarding nuclear materials
or facilities; or
(g) vulnerabilities or capabilities of systems, installations, projects
or plans relating to the national security.
Sec. 1.6. Duration of Classification. (a) At the time of original classification,
the original classification authority shall attempt to establish a specific
date or event for declassification based upon the duration of the national
security sensitivity of the information. The date or event shall not exceed
the time frame in paragraph (b), below.
(b) If the original classification authority cannot determine an earlier
specific date or event for declassification, information shall be marked
for declassification 10 years from the date of the original decision, except
as provided in paragraph (d), below.
(c) An original classification authority may extend the duration of classification
or reclassify specific information for successive periods not to exceed
10 years at a time if such action is consistent with the standards and procedures
established under this order. This provision does not apply to information
contained in records that are more than 25 years old and have been determined
to have permanent historical value under title 44, United States Code.
(d) At the time of original classification, the original classification
authority may exempt from declassification within 10 years specific information,
the unauthorized disclosure of which could reasonably be expected to cause
damage to the national security for a period greater than that provided
in paragraph (b), above, and the release of which could reasonably be expected
to:
(1) reveal an intelligence source, method, or activity, or a cryptologic
system or activity;
(2) reveal information that would assist in the development or use of weapons
of mass destruction;
(3) reveal information that would impair the development or use of technology
within a United States weapons system;
(4) reveal United States military plans, or national security emergency
preparedness plans;
(5) reveal foreign government information;
(6) damage relations between the United States and a foreign government,
reveal a confidential source, or seriously undermine diplomatic activities
that are reasonably expected to be ongoing for a period greater than that
provided in paragraph (b), above;
(7) impair the ability of responsible United States Government officials
to protect the President, the Vice President, and other individuals for
whom protection services, in the interest of national security, are authorized;
or
(8) violate a statute, treaty, or international agreement.
(e) Information marked for an indefinite duration of classification under
predecessor orders, for example, "Originating Agency's Determination
Required," or information classified under predecessor orders that
contains no declassification instructions shall be declassified in accordance
with part 3 of this order.
Sec. 1.7. Identification and Markings. (a) At the time of original classification,
the following shall appear on the face of each classified document, or shall
be applied to other classified media in an appropriate manner:
(1) one of the three classification levels defined in section 1.3 of this
order;
(2) the identity, by name or personal identifier and position, of the original
classification authority;
(3) the agency and office of origin, if not otherwise evident;
(4) declassification instructions, which shall indicate one of the following:
(A) the date or event for declassification, as prescribed in section 1.6(a)
or section 1.6(c); or
(B) the date that is 10 years from the date of original classification,
as prescribed in section 1.6(b); or
(C) the exemption category from declassification, as prescribed in section
1.6(d); and
(5) a concise reason for classification which, at a minimum, cites the applicable
classification categories in section 1.5 of this order.
(b) Specific information contained in paragraph (a), above, may be excluded
if it would reveal additional classified information.
(c) Each classified document shall, by marking or other means, indicate
which portions are classified, with the applicable classification level,
which portions are exempt from declassification under section 1.6(d) of
this order, and which portions are unclassified. In accordance with standards
prescribed in directives issued under this order, the Director of the Information
Security Oversight Office may grant waivers of this requirement for specified
classes of documents or information. The Director shall revoke any waiver
upon a finding of abuse.
(d) Markings implementing the provisions of this order, including abbreviations
and requirements to safeguard classified working papers, shall conform to
the standards prescribed in implementing directives issued pursuant to this
order.
(e) Foreign government information shall retain its original classification
markings or shall be assigned a U.S. classification that provides a degree
of protection at least equivalent to that required by the entity that furnished
the information.
(f) Information assigned a level of classification under this or predecessor
orders shall be considered as classified at that level of classification
despite the omission of other required markings. Whenever such information
is used in the derivative classification process or is reviewed for possible
declassification, holders of such information shall coordinate with an appropriate
classification authority for the application of omitted markings.
(g) The classification authority shall, whenever practicable, use a classified
addendum whenever classified information constitutes a small portion of
an otherwise unclassified document.
Sec. 1.8. Classification Prohibitions and Limitations . (a) In no case shall
information be classified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection
in the interest of national security.
(b) Basic scientific research information not clearly related to the national
security may not be classified.
(c) Information may not be reclassified after it has been declassified and
released to the public under proper authority.
(d) Information that has not previously been disclosed to the public under
proper authority may be classified or reclassified after an agency has received
a request for it under the Freedom of Information Act (5 U.S.C. 552) or
the Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory review provisions
of section 3.6 of this order only if such classification meets the requirements
of this order and is accomplished on a document-by-document basis with the
personal participation or under the direction of the agency head, the deputy
agency head, or the senior agency official designated under section 5.6
of this order. This provision does not apply to classified information contained
in records that are more than 25 years old and have been determined to have
permanent historical value under title 44, United States Code.
(e) Compilations of items of information which are individually unclassified
may be classified if the compiled information reveals an additional association
or relationship that:
(1) meets the standards for classification under this order; and
(2) is not otherwise revealed in the individual items of information.
As used in this order, "compilation" means an aggregation of pre-existing
unclassified items of information.
Sec. 1.9. Classification Challenges. (a) Authorized holders of information
who, in good faith, believe that its classification status is improper are
encouraged and expected to challenge the classification status of the information
in accordance with agency procedures established under paragraph (b), below.
(b) In accordance with implementing directives issued pursuant to this order,
an agency head or senior agency official shall establish procedures under
which authorized holders of information are encouraged and expected to challenge
the classification of information that they believe is improperly classified
or unclassified. These procedures shall assure that:
(1) individuals are not subject to retribution for bringing such actions;
(2) an opportunity is provided for review by an impartial official or panel;
and
(3) individuals are advised of their right to appeal agency decisions to
the Interagency Security Classification Appeals Panel established by section
5.4 of this order.
PART 2-DERIVATIVE CLASSIFICATION
Sec. 2.1. Definitions. For purposes of this order:
(a) "Derivative classification" means the incorporating, paraphrasing,
restating or generating in new form information that is already classified,
and marking the newly developed material consistent with the classification
markings that apply to the source information. Derivative classification
includes the classification of information based on classification guidance.
The duplication or reproduction of existing classified information is not
derivative classification.
(b) "Classification guidance" means any instruction or source
that prescribes the classification of specific information.
(c) "Classification guide" means a documentary form of classification
guidance issued by an original classification authority that identifies
the elements of information regarding a specific subject that must be classified
and establishes the level and duration of classification for each such element.
(d) "Source document" means an existing document that contains
classified information that is incorporated, paraphrased, restated, or generated
in new form into a new document.
(e) "Multiple sources" means two or more source documents, classification
guides, or a combination of both.
Sec. 2.2. Use of Derivative Classification. (a) Persons who only reproduce,
extract, or summarize classified information, or who only apply classification
markings derived from source material or as directed by a classification
guide, need not possess original classification authority.
(b) Persons who apply derivative classification markings shall:
(1) observe and respect original classification decisions; and
(2) carry forward to any newly created documents the pertinent classification
markings. For information derivatively classified based on multiple sources,
the derivative classifier shall carry forward:
(A) the date or event for declassification that corresponds to the longest
period of classification among the sources; and
(B) a listing of these sources on or attached to the official file or record
copy.
Sec. 2.3. Classification Guides. (a) Agencies with original classification
authority shall prepare classification guides to facilitate the proper and
uniform derivative classification of information. These guides shall conform
to standards contained in directives issued under this order.
(b) Each guide shall be approved personally and in writing by an official
who:
(1) has program or supervisory responsibility over the information or is
the senior agency official; and
(2) is authorized to classify information originally at the highest level
of classification prescribed in the guide.
(c) Agencies shall establish procedures to assure that classification guides
are reviewed and updated as provided in directives issued under this order.
PART 3-DECLASSIFICATION AND DOWNGRADING
Sec. 3.1. Definitions. For purposes of this order:
(a) "Declassification" means the authorized change in the status
of information from classified information to unclassified information.
(b) "Automatic declassification" means the declassification of
information based solely upon:
(1) the occurrence of a specific date or event as determined by the original
classification authority; or
(2) the expiration of a maximum time frame for duration of classification
established under this order.
(c) "Declassification authority" means:
(1) the official who authorized the original classification, if that official
is still serving in the same position;
(2) the originator's current successor in function;
(3) a supervisory official of either; or
(4) officials delegated declassification authority in writing by the agency
head or the senior agency official.
(d) "Mandatory declassification review" means the review for declassification
of classified information in response to a request for declassification
that meets the requirements under section 3.6 of this order.
(e) "Systematic declassification review" means the review for
declassification of classified information contained in records that have
been determined by the Archivist of the United States ("Archivist")
to have permanent historical value in accordance with chapter 33 of title
44, United States Code.
(f) "Declassification guide" means written instructions issued
by a declassification authority that describes the elements of information
regarding a specific subject that may be declassified and the elements that
must remain classified.
(g) "Downgrading" means a determination by a declassification
authority that information classified and safeguarded at a specified level
shall be classified and safeguarded at a lower level.
(h) "File series" means documentary material, regardless of its
physical form or characteristics, that is arranged in accordance with a
filing system or maintained as a unit because it pertains to the same function
or activity.
Sec. 3.2. Authority for Declassification. (a) Information shall be declassified
as soon as it no longer meets the standards for classification under this
order.
(b) It is presumed that information that continues to meet the classification
requirements under this order requires continued protection. In some exceptional
cases, however, the need to protect such information may be outweighed by
the public interest in disclosure of the information, and in these cases
the information should be declassified. When such questions arise, they
shall be referred to the agency head or the senior agency official. That
official will determine, as an exercise of discretion, whether the public
interest in disclosure outweighs the damage to national security that might
reasonably be expected from disclosure. This provision does not:
(1) amplify or modify the substantive criteria or procedures for classification;
or
(2) create any substantive or procedural rights subject to judicial review.
(c) If the Director of the Information Security Oversight Office determines
that information is classified in violation of this order, the Director
may require the information to be declassified by the agency that originated
the classification. Any such decision by the Director may be appealed to
the President through the Assistant to the President for National Security
Affairs. The information shall remain classified pending a prompt decision
on the appeal.
(d) The provisions of this section shall also apply to agencies that, under
the terms of this order, do not have original classification authority,
but had such authority under predecessor orders.
Sec. 3.3. Transferred Information. (a) In the case of classified information
transferred in conjunction with a transfer of functions, and not merely
for storage purposes, the receiving agency shall be deemed to be the originating
agency for purposes of this order.
(b) In the case of classified information that is not officially transferred
as described in paragraph (a), above, but that originated in an agency that
has ceased to exist and for which there is no successor agency, each agency
in possession of such information shall be deemed to be the originating
agency for purposes of this order. Such information may be declassified
or downgraded by the agency in possession after consultation with any other
agency that has an interest in the subject matter of the information.
(c) Classified information accessioned into the National Archives and Records
Administration ("National Archives") as of the effective date
of this order shall be declassified or downgraded by the Archivist in accordance
with this order, the directives issued pursuant to this order, agency declassification
guides, and any existing procedural agreement between the Archivist and
the relevant agency head.
(d) The originating agency shall take all reasonable steps to declassify
classified information contained in records determined to have permanent
historical value before they are accessioned into the National Archives.
However, the Archivist may require that records containing classified information
be accessioned into the National Archives when necessary to comply with
the provisions of the Federal Records Act. This provision does not apply
to information being transferred to the Archivist pursuant to section 2203
of title 44, United States Code, or information for which the National Archives
and Records Administration serves as the custodian of the records of an
agency or organization that goes out of existence.
(e) To the extent practicable, agencies shall adopt a system of records
management that will facilitate the public release of documents at the time
such documents are declassified pursuant to the provisions for automatic
declassification in sections 1.6 and 3.4 of this order.
Sec. 3.4. Automatic Declassification. (a) Subject to paragraph (b), below,
within 5 years from the date of this order, all classified information contained
in records that (1) are more than 25 years old, and (2) have been determined
to have permanent historical value under title 44, United States Code, shall
be automatically declassified whether or not the records have been reviewed.
Subsequently, all classified information in such records shall be automatically
declassified no longer than 25 years from the date of its original classification,
except as provided in paragraph (b), below.
(b) An agency head may exempt from automatic declassification under paragraph
(a), above, specific information, the release of which should be expected
to:
(1) reveal the identity of a confidential human source, or reveal information
about the application of an intelligence source or method, or reveal the
identity of a human intelligence source when the unauthorized disclosure
of that source would clearly and demonstrably damage the national security
interests of the United States;
(2) reveal information that would assist in the development or use of weapons
of mass destruction;
(3) reveal information that would impair U.S. cryptologic systems or activities;
(4) reveal information that would impair the application of state of the
art technology within a U.S. weapon system;
(5) reveal actual U.S. military war plans that remain in effect;
(6) reveal information that would seriously and demonstrably impair relations
between the United States and a foreign government, or seriously and demonstrably
undermine ongoing diplomatic activities of the United States;
(7) reveal information that would clearly and demonstrably impair the current
ability of United States Government officials to protect the President,
Vice President, and other officials for whom protection services, in the
interest of national security, are authorized;
(8) reveal information that would seriously and demonstrably impair current
national security emergency preparedness plans; or
(9) violate a statute, treaty, or international agreement.
(c) No later than the effective date of this order, an agency head shall
notify the President through the Assistant to the President for National
Security Affairs of any specific file series of records for which a review
or assessment has determined that the information within those file series
almost invariably falls within one or more of the exemption categories listed
in paragraph (b), above, and which the agency proposes to exempt from automatic
declassification. The notification shall include:
(1) a description of the file series;
(2) an explanation of why the information within the file series is almost
invariably exempt from automatic declassification and why the information
must remain classified for a longer period of time; and
(3) except for the identity of a confidential human source or a human intelligence
source, as provided in paragraph (b), above, a specific date or event for
declassification of the information.
The President may direct the agency head not to exempt the file series or
to declassify the information within that series at an earlier date than
recommended.
(d) At least 180 days before information is automatically declassified under
this section, an agency head or senior agency official shall notify the
Director of the Information Security Oversight Office, serving as Executive
Secretary of the Interagency Security Classification Appeals Panel, of any
specific information beyond that included in a notification to the President
under paragraph (c), above, that the agency proposes to exempt from automatic
declassification. The notification shall include:
(1) a description of the information;
(2) an explanation of why the information is exempt from automatic declassification
and must remain classified for a longer period of time; and
(3) except for the identity of a confidential human source or a human intelligence
source, as provided in paragraph (b), above, a specific date or event for
declassification of the information. The Panel may direct the agency not
to exempt the information or to declassify it at an earlier date than recommended.
The agency head may appeal such a decision to the President through the
Assistant to the President for National Security Affairs. The information
will remain classified while such an appeal is pending.
(e) No later than the effective date of this order, the agency head or senior
agency official shall provide the Director of the Information Security Oversight
Office with a plan for compliance with the requirements of this section,
including the establishment of interim target dates. Each such plan shall
include the requirement that the agency declassify at least 15 percent of
the records affected by this section no later than 1 year from the effective
date of this order, and similar commitments for subsequent years until the
effective date for automatic declassification.
(f) Information exempted from automatic declassification under this section
shall remain subject to the mandatory and systematic declassification review
provisions of this order.
(g) The Secretary of State shall determine when the United States should
commence negotiations with the appropriate officials of a foreign government
or international organization of governments to modify any treaty or international
agreement that requires the classification of information contained in records
affected by this section for a period longer than 25 years from the date
of its creation, unless the treaty or international agreement pertains to
information that may otherwise remain classified beyond 25 years under this
section.
Sec. 3.5. Systematic Declassification Review. (a) Each agency that has originated
classified information under this order or its predecessors shall establish
and conduct a program for systematic declassification review. This program
shall apply to historically valuable records exempted from automatic declassification
under section 3.4 of this order. Agencies shall prioritize the systematic
review of records based upon:
(1) recommendations of the Information Security Policy Advisory Council,
established in section 5.5 of this order, on specific subject areas for
systematic review concentration; or
(2) the degree of researcher interest and the likelihood of declassification
upon review.
(b) The Archivist shall conduct a systematic declassification review program
for classified information: (1) accessioned into the National Archives as
of the effective date of this order; (2) information transferred to the
Archivist pursuant to section 2203 of title 44, United States Code; and
(3) information for which the National Archives and Records Administration
serves as the custodian of the records of an agency or organization that
has gone out of existence. This program shall apply to pertinent records
no later than 25 years from the date of their creation. The Archivist shall
establish priorities for the systematic review of these records based upon
the recommendations of the Information Security Policy Advisory Council;
or the degree of researcher interest and the likelihood of declassification
upon review. These records shall be reviewed in accordance with the standards
of this order, its implementing directives, and declassification guides
provided to the Archivist by each agency that originated the records. The
Director of the Information Security Oversight Office shall assure that
agencies provide the Archivist with adequate and current declassification
guides.
(c) After consultation with affected agencies, the Secretary of Defense
may establish special procedures for systematic review for declassification
of classified cryptologic information, and the Director of Central Intelligence
may establish special procedures for systematic review for declassification
of classified information pertaining to intelligence activities (including
special activities), or intelligence sources or methods.
Sec. 3.6. Mandatory Declassification Review. (a) Except as provided in paragraph
(b), below, all information classified under this order or predecessor orders
shall be subject to a review for declassification by the originating agency
if:
(1) the request for a review describes the document or material containing
the information with sufficient specificity to enable the agency to locate
it with a reasonable amount of effort;
(2) the information is not exempted from search and review under the Central
Intelligence Agency Information Act; and
(3) the information has not been reviewed for declassification within the
past 2 years. If the agency has reviewed the information within the past
2 years, or the information is the subject of pending litigation, the agency
shall inform the requester of this fact and of the requester's appeal rights.
(b) Information originated by:
(1) the incumbent President;
(2) the incumbent President's White House Staff;
(3) committees, commissions, or boards appointed by the incumbent President;
or
(4) other entities within the Executive Office of the President that solely
advise and assist the incumbent President is exempted from the provisions
of paragraph (a), above. However, the Archivist shall have the authority
to review, downgrade, and declassify information of former Presidents under
the control of the Archivist pursuant to sections 2107, 2111, 2111 note,
or 2203 of title 44, United States Code. Review procedures developed by
the Archivist shall provide for consultation with agencies having primary
subject matter interest and shall be consistent with the provisions of applicable
laws or lawful agreements that pertain to the respective Presidential papers
or records. Agencies with primary subject matter interest shall be notified
promptly of the Archivist's decision. Any final decision by the Archivist
may be appealed by the requester or an agency to the Interagency Security
Classification Appeals Panel. The information shall remain classified pending
a prompt decision on the appeal.
(c) Agencies conducting a mandatory review for declassification shall declassify
information that no longer meets the standards for classification under
this order. They shall release this information unless withholding is otherwise
authorized and warranted under applicable law.
(d) In accordance with directives issued pursuant to this order, agency
heads shall develop procedures to process requests for the mandatory review
of classified information. These procedures shall apply to information classified
under this or predecessor orders. They also shall provide a means for administratively
appealing a denial of a mandatory review request, and for notifying the
requester of the right to appeal a final agency decision to the Interagency
Security Classification Appeals Panel.
(e) After consultation with affected agencies, the Secretary of Defense
shall develop special procedures for the review of cryptologic information,
the Director of Central Intelligence shall develop special procedures for
the review of information pertaining to intelligence activities (including
special activities), or intelligence sources or methods, and the Archivist
shall develop special procedures for the review of information accessioned
into the National Archives.
Sec. 3.7. Processing Requests and Reviews. In response to a request for
information under the Freedom of Information Act, the Privacy Act of 1974,
or the mandatory review provisions of this order, or pursuant to the automatic
declassification or systematic review provisions of this order:
(a) An agency may refuse to confirm or deny the existence or nonexistence
of requested information whenever the fact of its existence or nonexistence
is itself classified under this order.
(b) When an agency receives any request for documents in its custody that
contain information that was originally classified by another agency, or
comes across such documents in the process of the automatic declassification
or systematic review provisions of this order, it shall refer copies of
any request and the pertinent documents to the originating agency for processing,
and may, after consultation with the originating agency, inform any requester
of the referral unless such association is itself classified under this
order. In cases in which the originating agency determines in writing that
a response under paragraph (a), above, is required, the referring agency
shall respond to the requester in accordance with that paragraph.
Sec. 3.8. Declassification Database. (a) The Archivist in conjunction with
the Director of the Information Security Oversight Office and those agencies
that originate classified information, shall establish a Government wide
database of information that has been declassified. The Archivist shall
also explore other possible uses of technology to facilitate the declassification
process.
(b) Agency heads shall fully cooperate with the Archivist in these efforts.
(c) Except as otherwise authorized and warranted by law, all declassified
information contained within the database established under paragraph (a),
above, shall be available to the public.
PART 4-SAFEGUARDING
Sec. 4.1. Definitions. For purposes of this order: (a) "Safeguarding"
means measures and controls that are prescribed to protect classified information.
(b) "Access" means the ability or opportunity to gain knowledge
of classified information.
(c) "Need-to-know" means a determination made by an authorized
holder of classified information that a prospective recipient requires access
to specific classified information in order to perform or assist in a lawful
and authorized governmental function.
(d) "Automated information system" means an assembly of computer
hardware, software, or firmware configured to collect, create, communicate,
compute, disseminate, process, store, or control data or information.
(e) "Integrity" means the state that exists when information is
unchanged from its source and has not been accidentally or intentionally
modified, altered, or destroyed.
(f) "Network" means a system of two or more computers that can
exchange data or information.
(g) "Telecommunications" means the preparation, transmission,
or communication of information by electronic means.
(h) "Special access program" means a program established for a
specific class of classified information that imposes safeguarding and access
requirements that exceed those normally required for information at the
same classification level.
Sec. 4.2. General Restrictions on Access. (a) A person may have access to
classified information provided that:
(1) a favorable determination of eligibility for access has been made by
an agency head or the agency head's designee;
(2) the person has signed an approved nondisclosure agreement; and
(3) the person has a need-to-know the information.
(b) Classified information shall remain under the control of the originating
agency or its successor in function. An agency shall not disclose information
originally classified by another agency without its authorization. An official
or employee leaving agency service may not remove classified information
from the agency's control.
(c) Classified information may not be removed from official premises without
proper authorization.
(d) Persons authorized to disseminate classified information outside the
executive branch shall assure the protection of the information in a manner
equivalent to that provided within the executive branch.
(e) Consistent with law, directives, and regulation, an agency head or senior
agency official shall establish uniform procedures to ensure that automated
information systems, including networks and telecommunications systems,
that collect, create, communicate, compute, disseminate, process, or store
classified informaion have controls that:
(1) prevent access by unauthorized persons; and
(2) ensure the integrity of the information.
(f) Consistent with law, directives, and regulation, each agency head or
senior agency official shall establish controls to ensure that classified
information is used, processed, stored, reproduced, transmitted, and destroyed
under conditions that provide adequate protection and prevent access by
unauthorized persons.
(g) Consistent with directives issued pursuant to this order, an agency
shall safeguard foreign government information under standards that provide
a degree of protection at least equivalent to that required by the government
or international organization of governments that furnished the information.
When adequate to achieve equivalency, these standards may be less restrictive
than the safeguarding standards that ordinarily apply to United States "Confidential"
information, including allowing access to individuals with a need-to-know
who have not otherwise been cleared for access to classified information
or executed an approved nondisclosure agreement.
(h) Except as provided by statute or directives issued pursuant to this
order, classified information originating in one agency may not be disseminated
outside any other agency to which it has been made available without the
consent of the originating agency. An agency head or senior agency official
may waive this requirement for specific information originated within that
agency. For purposes of this section, the Department of Defense shall be
considered one agency.
Sec. 4.3. Distribution Controls. (a) Each agency shall establish controls
over the distribution of classified information to assure that it is distributed
only to organizations or individuals eligible for access who also have a
need-to-know the information.
(b) Each agency shall update, at least annually, the automatic, routine,
or recurring distribution of classified information that they distribute.
Recipients shall cooperate fully with distributors who are updating distribution
lists and shall notify distributors whenever a relevant change in status
occurs.
Sec. 4.4. Special Access Programs. (a) Establishment of special access programs.
Unless otherwise authorized by the President, only the Secretaries of State,
Defense and Energy, and the Director of Central Intelligence, or the principal
deputy of each, may create a special access program. For special access
programs pertaining to intelligence activities (including special activities,
but not including military operational, strategic and tactical programs),
or intelligence sources or methods, this function will be exercised by the
Director of Central Intelligence. These officials shall keep the number
of these programs at an absolute minimum, and shall establish them only
upon a specific finding that:
(1) the vulnerability of, or threat to, specific information is exceptional;
and
(2) the normal criteria for determining eligibility for access applicable
to information classified at the same level are not deemed sufficient to
protect the information from unauthorized disclosure; or
(3) the program is required by statute.
(b) Requirements and Limitations. (1) Special access programs shall be limited
to programs in which the number of persons who will have access ordinarily
will be reasonably small and commensurate with the objective of providing
enhanced protection for the information involved.
(2) Each agency head shall establish and maintain a system of accounting
for special access programs consistent with directives issued pursuant to
this order.
(3) Special access programs shall be subject to the oversight program established
under section 5.6(c) of this order. In addition, the Director of the Information
Security Oversight Office shall be afforded access to these programs, in
accordance with the security requirements of each program, in order to perform
the functions assigned to the Information Security Oversight Office under
this order. An agency head may limit access to a special access program
to the Director and no more than one other employee of the Information Security
Oversight Office; or, for special access programs that are extraordinarily
sensitive and vulnerable, to the Director only.
(4) The agency head or principal deputy shall review annually each special
access program to determine whether it continues to meet the requirements
of this order.
(5) Upon request, an agency shall brief the Assistant to the President for
National Security Affairs, or his or her designee, on any or all of the
agency's special access programs.
(c) Within 180 days after the effective date of this order, each agency
head or principal deputy shall review all existing special access programs
under the agency's jurisdiction. These officials shall terminate any special
access programs that do not clearly meet the provisions of this order. Each
existing special access program that an agency head or principal deputy
validates shall be treated as if it were established on the effective date
of this order.
(d) Nothing in this order shall supersede any requirement made by or under
10 U.S.C. 119.
Sec. 4.5. Access by Historical Researchers and Former Presidential Appointees.
(a) The requirement in section 4.2(a)(3) of this order that access to classified
information may be granted only to individuals who have a need-to-know the
information may be waived for persons who:
(1) are engaged in historical research projects; or
(2) previously have occupied policy-making positions to which they were
appointed by the President.
(b) Waivers under this section may be granted only if the agency head or
senior agency official of the originating agency:
(1) determines in writing that access is consistent with the interest of
national security;
(2) takes appropriate steps to protect classified information from unauthorized
disclosure or compromise, and ensures that the information is safeguarded
in a manner consistent with this order; and
(3) limits the access granted to former Presidential appointees to items
that the person originated, reviewed, signed, or received while serving
as a Presidential appointee.
PART 5-IMPLEMENTATION AND REVIEW
Sec. 5.1. Definitions. For purposes of this order: (a) "Self-inspection"
means the internal review and evaluation of individual agency activities
and the agency as a whole with respect to the implementation of the program
established under this order and its implementing directives.
(b) "Violation" means:
(1) any knowing, willful, or negligent action that could reasonably be expected
to result in an unauthorized disclosure of classified information;
(2) any knowing, willful, or negligent action to classify or continue the
classification of information contrary to the requirements of this order
or its implementing directives; or
(3) any knowing, willful, or negligent action to create or continue a special
access program contrary to the requirements of this order.
(c) "Infraction" means any knowing, willful, or negligent action
contrary to the requirements of this order or its implementing directives
that does not comprise a "violation," as defined above.
Sec. 5.2. Program Direction. (a) The Director of the Office of Management
and Budget, in consultation with the Assistant to the President for National
Security Affairs and the co-chairs of the Security Policy Board, shall issue
such directives as are necessary to implement this order. These directives
shall be binding upon
the agencies. Directives issued by the Director of the Office of Management
and Budget shall establish standards for:
(1) classification and marking principles;
(2) agency security education and training programs;
(3) agency self-inspection programs; and
(4) classification and declassification guides.
(b) The Director of the Office of Management and Budget shall delegate the
implementation and monitorship functions of this program to the Director
of the Information Security Oversight Office.
(c) The Security Policy Board, established by a Presidential Decision Directive,
shall make a recommendation to the President through the Assistant to the
President for National Security Affairs with respect to the issuance of
a Presidential directive on safeguarding classified information. The Presidential
directive shall pertain to the handling, storage, distribution, transmittal,
and destruction of and accounting for classified information.
Sec. 5.3. Information Security Oversight Office. (a) There is established
within the Office of Management and Budget an Information Security Oversight
Office. The Director of the Office of Management and Budget shall appoint
the Director of the Information Security Oversight Office, subject to the
approval of the President.
(b) Under the direction of the Director of the Office of Management and
Budget acting in consultation with the Assistant to the President for National
Security Affairs, the Director of the Information Security Oversight Office
shall:
(1) develop directives for the implementation of this order;
(2) oversee agency actions to ensure compliance with this order and its
implementing directives;
(3) review and approve agency implementing regulations and agency guides
for systematic declassiication review prior to their issuance by the agency;
(4) have the authority to conduct on-site reviews of each agency's program
established under this order, and to require of each agency those reports,
information, and other cooperation that may be necessary to fulfill its
responsibilities. If granting access to specific categories of classified
information would pose an exceptional national security risk, the affected
agency head or the senior agency official shall submit a written justification
recommending the denial of access to the Director of the Office of Management
and Budget within 60 days of the request for access. Access shall be denied
pending a prompt decision by the Director of the Office of Management and
Budget, who shall consult on this decision with the Assistant to the President
for National Security Affairs;
(5) review requests for original classification authority from agencies
or officials not granted original classification authority and, if deemed
appropriate, recommend Presidential approval through the Director of the
Office of Management and Budget;
(6) consider and take action on complaints and suggestions from persons
within or outside the Government with respect to the administration of the
program established under this order;
(7) have the authority to prescribe, after consultation with affected agencies,
standardization of forms or procedures that will promote the implementation
of the program established under this order;
(8) report at least annually to the President on the implementation of this
order; and
(9) convene and chair interagency meetings to discuss matters pertaining
to the program established by this order.
Sec. 5.4. Interagency Security Classification Appeals Panel.
(a) Establishment and Administration.
(1) There is established an Interagency Security Classification Appeals
Panel ("Panel"). The Secretaries of State and Defense, the Attorney
General, the Director of Central Intelligence, the Archivist of the United
States, and the Assistant to the President for National Security Affairs
shall each appoint a senior level representative to serve as a member of
the Panel. The President shall select the Chair of the Panel from among
the Panel members.
(2) A vacancy on the Panel shall be filled as quickly as possible as provided
in paragraph (1), above.
(3) The Director of the Information Security Oversight Office shall serve
as the Executive Secretary. The staff of the Information Security Oversight
Office shall provide program and administrative support for the Panel.
(4) The members and staff of the Panel shall be required to meet eligibility
for access standards in order to fulfill the Panel's functions.
(5) The Panel shall meet at the call of the Chair. The Chair shall schedule
meetings as may be necessary for the Panel to fulfill its functions in a
timely manner.
(6) The Information Security Oversight Office shall include in its reports
to the President a summary of the Panel's activities.
(b) Functions. The Panel shall:
(1) decide on appeals by persons who have filed classification challenges
under section 1.9 of this order;
(2) approve, deny, or amend agency exemptions from automatic declassification
as provided in section 3.4 of this order; and
(3) decide on appeals by persons or entities who have filed requests for
mandatory declassification review under section 3.6 of this order.
(c) Rules and Procedures. The Panel shall issue bylaws, which shall be published
in the Federal Register no later than 120 days from the effective date of
this order. The bylaws shall establish the rules and procedures that the
Panel will follow in accepting, considering, and issuing decisions on appeals.
The rules and procedures of the Panel shall provide that the Panel will
consider appeals only on actions in which: (1) the appellant has exhausted
his or her administrative remedies within the responsible agency; (2) there
is no current action pending on the issue within the federal courts; and
(3) the information has not been the subject of review by the federal courts
or the Panel within the past 2 years.
(d) Agency heads will cooperate fully with the Panel so that it can fulfill
its functions in a timely and fully informed manner. An agency head may
appeal a decision of the Panel to the President through the Assistant to
the President for National Security Affairs. The Panel will report to the
President through the Assistant to the President for National Security Affairs
any instance in which it believes that an agency head is not cooperating
fully with the Panel.
(e) The Appeals Panel is established for the sole purpose of advising and
assisting the President in the discharge of his constitutional and discretionary
authority to protect the national security of the United States. Panel decisions
are committed to the discretion of the Panel, unless reversed by the President.
Sec. 5.5. Information Security Policy Advisory Council.
(a) Establishment. There is established an Information Security Policy Advisory
Council ("Council"). The Council shall be composed of seven members
appointed by the President for staggered terms not to exceed 4 years, from
among persons who have demonstrated interest and expertise in an area related
to the subject matter of this order and are not otherwise employees of the
Federal Government. The President shall appoint the Council Chair from among
the members. The Council shall comply with the Federal Advisory Committee
Act, as amended, 5 U.S.C. App. 2.
(b) Functions. The Council shall:
(1) advise the President, the Assistant to the President for National Security
Affairs, the Director of the Office of Management and Budget, or such other
executive branch officials as it deems appropriate, on policies established
under this order or its implementing directives, including recommended changes
to those policies;
(2) provide recommendations to agency heads for specific subject areas for
systematic declassification review; and
(3) serve as a forum to discuss policy issues in dispute.
(c) Meetings. The Council shall meet at least twice each calendar year,
and as determined by the Assistant to the President for National Security
Affairs or the Director of the Office of Management and Budget.
(d) Administration.
(1) Each Council member may be compensated at a rate of pay not to exceed
the daily equivalent of the annual rate of basic pay in effect for grade
GS-18 of the general schedule under section 5376 of title 5, United States
Code, for each day during which that member is engaged in the actual performance
of the duties of the Council.
(2) While away from their homes or regular place of business in the actual
performance of the duties of the Council, members may be allowed travel
expenses, including per diem in lieu of subsistence, as authorized by law
for persons serving intermittently in the Government service (5 U.S.C. 5703(b)).
(3) To the extent permitted by law and subject to the availability of funds,
the Information Security Oversight Office shall provide the Council with
administrative services, facilities, staff, and other support services necessary
for the performance of its functions.
(4) Notwithstanding any other Executive order, the functions of the President
under the Federal Advisory Committee Act, as amended, that are applicable
to the Council, except that of reporting to the Congress, shall be performed
by the Director of the Information Security Oversight Office in accordance
with the guidelines and procedures established by the General Services Administration.
Sec. 5.6. General Responsibilities. Heads of agencies that originate or
handle classified information shall:
(a) demonstrate personal commitment and commit senior management to the
successful implementation of the program established under this order;
(b) commit necessary resources to the effective implementation of the program
established under this order; and
(c) designate a senior agency official to direct and administer the program,
whose responsibilities shall include:
(1) overseeing the agency's program established under this order, provided,
an agency head may designate a separate official to oversee special access
programs authorized under this order. This official shall provide a full
accounting of the agency's special access programs at least annually;
(2) promulgating implementing regulations, which shall be published in the
Federal Register to the extent that they affect members of the public;
(3) establishing and maintaining security education and training programs;
(4) establishing and maintaining an ongoing self-inspection program, which
shall include the periodic review and assessment of the agency's classified
product;
(5) establishing procedures to prevent unnecessary access to classified
information, including procedures that: (i) require that a need for access
to classified information is established before initiating administrative
clearance procedures; and (ii) ensure that the number of persons granted
access to classified information is limited to the minimum consistent with
operational and security requirements and needs;
(6) developing special contingency plans for the safeguarding of classified
information used in or near hostile or potentially hostile areas;
(7) assuring that the performance contract or other system used to rate
civilian or military personnel performance includes the management of classified
information as a critical element or item to be evaluated in the rating
of: (i) original classification authorities; (ii) security managers or security
specialists; and (iii) all other personnel whose duties significantly involve
the creation or handling of classified information;
(8) accounting for the costs associated with the implementation of this
order, which shall be reported to the Director of the Information Security
Oversight Office for publication; and
(9) assigning in a prompt manner agency personnel to respond to any request,
appeal, challenge, complaint, or suggestion arising out of this order that
pertains to classified information that originated in a component of the
agency that no longer exists and for which there is no clear successor in
function.
Sec. 5.7. Sanctions. (a) If the Director of the Information Security Oversight
Office finds that a violation of this order or its implementing directives
may have occurred, the Director shall make a report to the head of the agency
or to the senior agency official so that corrective steps, if appropriate,
may be taken.
(b) Officers and employees of the United States Government, and its contractors,
licensees, certificate holders, and grantees shall be subject to appropriate
sanctions if they knowingly, willfully, or negligently:
(1) disclose to unauthorized persons information properly classified under
this order or predecessor orders;
(2) classify or continue the classification of information in violation
of this order or any implementing directive;
(3) create or continue a special access program contrary to the requirements
of this order; or
(4) contravene any other provision of this order or its implementing directives.
(c) Sanctions may include reprimand, suspension without pay, removal, termination
of classification authority, loss or denial of access to classified information,
or other sanctions in accordance with applicable law and agency regulation.
(d) The agency head, senior agency official, or other supervisory official
shall, at a minimum, promptly remove the classification authority of any
individual who demonstrates reckless disregard or a pattern of error in
applying the classification standards of this order.
(e) The agency head or senior agency official shall:
(1) take appropriate and prompt corrective action when a violation or infraction
under paragraph (b), above, occurs; and
(2) notify the Director of the Information Security Oversight Office when
a violation under paragraph (b)(1), (2) or (3), above, occurs.
PART 6-GENERAL PROVISIONS
Sec. 6.1. General Provisions. (a) Nothing in this order shall supersede
any requirement made by or under the Atomic Energy Act of 1954, as amended,
or the National Security Act of 1947, as amended. "Restricted Data"
and "Formerly Restricted Data" shall be handled, protected, classified,
downgraded, and declassified in conformity with the provisions of the Atomic
Energy Act of 1954, as amended, and regulations issued under that Act.
(b) The Attorney General, upon request by the head of an agency or the Director
of the Information Security Oversight Office, shall render an interpretation
of this order with respect to any question arising in the course of its
administration.
(c) Nothing in this order limits the protection afforded any information
by other provisions of law, including the exemptions to the Freedom of Information
Act, the Privacy Act, and the National Security Act of 1947, as amended.
This order is not intended, and should not be construed, to create any right
or benefit, substantive or procedural, enforceable at law by a party against
the United States, its agencies, its officers, or its employees. The foregoing
is in addition to the specific provisos set forth in sections 1.2(b), 3.2(b)
and 5.4(e) of this order.
(d) Executive Order No. 12356 of April 6, 1982, is revoked as of the effective
date of this order.
Sec. 6.2. Effective Date. This order shall become effective 180 days from
the date of this order.
/s/ WILLIAM J. CLINTON
WILLIAM J. CLINTON
THE WHITE HOUSE,
April 17, 1995.