ML20214T010

Responds to 820609 Memo Re Document Referral Procedure Under Foia.Policies & Regulations Governing Referral of Documents Located in Files Which Contain Info Originating W/Other Agencies Have Been Examined.Partially Withheld Memos Encl

ML20214T010
Person / Time
Issue date:	08/13/1982
From:	Brady R NRC OFFICE OF ADMINISTRATION (ADM)
To:	Bacon J CENTRAL INTELLIGENCE AGENCY
Shared Package
ML20214S926	List: ML20214S923 ML20214S981 ML20214T010
References
FOIA-86-9, FOIA-86-A-68 NUDOCS 8706100086
Download: ML20214T010 (4)

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t AU(1131982 Mr. John E. Racon CIA Coordinator for Infomation and Privacy Central Intelligence Agency Washington, DC 20505

Dear IIr. Bacon:

I am responding to your memorandun to rie, dated June 9.1982, concerning docuent referral procedures under the Freedom of Infomation and Privacy Acts. As you requested, we have examined our current policies and regula-tions governing the referral of doctrients located in our flies which contain

'information originating with other agencies.

After very careful co'nsideration, we do not believe we can at this time only inform all requesters that we have referred their request to another agency without mentioning the other agency's name. We do believe a response of

" referred to originating agency for direct response." or something equivalent, is possible if we sake such response in relation to the entire Intelligence Comunity, thereby avoiding the mention of the CIA. We will begin this prs-cedure irriediately.

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We share your concern about protecting classified informa'.fon and believe our...;

proposed procedure will suppo,rt this goal.-

Please contact Hohr-t F. Whipp of this division on 427-4476,1i we can be of any further assistance.

Sincerely.

ORIGINAL SIGNED BY RAYMONDJ.BRADY Raymond J. Brady, Director.

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Office.'o.f Administratiotr.

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Mr. William J Dirks Executive Director for operaticas Ecclear Regulatory Co= mission

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Dear Mr. Dirks:

This Office has b'en in' formed that the House Con =ittee on Energy and Commerce Subcommittee on Energy Conservation and Power has requested access to certain CIA originated nfn nation which is in'the NRC's possession.

All of this ir fo :.ation is classified..We wish to remind you.that Section IV.D of Direct;.ive No.1 ~of the. Infc: nation Security oversight Office implementing Executive order 12065 (43 yed.

Reg. 46280, October 5,1978) provides that "... classified information originating in one. agency may not be dissemihat*ed outside any other agency to which it has been "kithout i.he cons'est of the originati$g agency.r.ade available Accordingly.,

as this Agency has not authorized any release of the infe==ation in your possession, we requeit;thit you so advise the Co==1ttee.

will, of course, cooperate f611y vith*the' Congress andYou m permit any, disclosures to be made that'are consistent with the Director's responsibility as set forth in 50 U.S.C.

Section 403(d) to protect intelligence' sources and methods.

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.;fue of Genera!,Cs.nset 19 April 1982 Mr. William J. Dircks Executive Director for Operations.

Nuclear Regulatory Commission Washington, D.C.

20555

Dear Mr. Dircks:

This is to confirm my earlier response to the Nuclear Regulatory Commission's April 15, 1982 oral request. Any list of document numbers of CIA-originated materials, including intelligence reports, in the NRC's possession would be classified, and theref ore, fall within the scope of my March 17, 1982 letter to you. Accordingly, we ask that you refer any inquiries for CIA-orf ginated,information to this Agenet for

-direct response.

As noted in my March',17, 1982 letter, the CIA will, ofl

, course, cooperate fully,with the Congress and permit any

-disclosures to be made that are consistent with the Director's aresponsibility as feetdorth-in' 50 U.S.C. section 403(d)-sto

-f -w protect intelligenceisonrc.esand methods. In fact','. toward the" end of March this Age'ncy receive and, senate for much of the same,d requests from both the House information that y.ou have indicated was requested, by, Chairnan 0,ttinger, and we. are preparing a comprehensive response to those inquiries at this time.-

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NHf' flantiling of F01A Req.tomts Concernin.1 "opics to tJhieh !nform tieri Pr.wie!eil by C1.\\ Is Rrtsponsivu 1.

You have asked for a lagal opiniran on the question of hoa the Nuclear flenulatory Commission (Nit:2) shoultl rcnnond to l'Ofa requests to which 1:sforma tiran provis!c.I by CI A is runponisive.

In tiie **want thit the ?:l:C tu*li ves th1t infririrtt iun in

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( *. +. iii.n which as provide.1 by or other. iso oriqinated with'the CIA is renponsive to.iny Vill A ru guese., it shall inf orma lly,

' lie fo.e,1 t wit,h.tho f mnn're proceedin,g. D p,s,.tR how.J,h = 'rerpien t shoutil be prneessud Itn.ter no circu nstances shoubt NRC,even acknowledge the Enets*thht.it la a recipirnt of a.qency intnro.ition to rnIA requestern without the prior approval of CIA.

Thin nrocedure in connistent of Mrecutive Order 12356.with the re.niire-sents of- %ction 3.4( f) 3.

Paraqraph 2 above may le incorporated into tht v..neor.indum of tin.1erstandinr cuecutml with the NRC.

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March 17, 1982 l

MEMORANDUM FOR:

Chairman Palladino FROM:

Lednard Bickwit, Jr., General Counsel

SUBJECT:

TRANSMITTAL OF CLASSIFIED INFOhMATION TO CONGRESSIONAL OVERSIGHT COMMITTEES you have requested my opinion whether, in light of Section 303 of the Atomic Energy Act, the Commission may on its own authority transmit classified intelligence information to one of its Congressional oversight committees over the objection of the-

.wency (in this case the Central Intelligence Agency) which originated the information. For the reasons discussed below, I conclude that it may not and that a committee request for such information must be referred to the originating agency.

1 The Commission's general statutory authority and obligatilon to transmit information to its Congressional oversight committtes is set forth in section 303 of th's Atomic Energy Act.

This authority and obligation extends to information and documents relating to the Commission's functions that are within the Commission's control. However, I do not believe that the authority or obligation extends to information or documents which are within the commission's. possession but beyond its legal power to transmit.

f I understand that the information sought in this case is classified under Executive Order 12065. Executive Order 12065 provides in section 5-202(d) that the Director of the Information Security Oversight Office shall develop and promulgate, subje.ct to the approval of the National Security Council, directives for the implementation of the Order which shall be binding on all Federal agencies. The Information Security Oversight Office's implementing Directive.No. 1 on national security information, j

which was approved by the National Security Council for

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publication and issuance on September 39,1978, provides in section IV.D,' as follows: ". -

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Dissemination /Except as otherwise provided by section 102 of the National Security Act of 1947, 61 Stat. 495, 50 U.S.C. 403 (1970 and Supp. V 1975), classified information originating in one agency may not be disseminated outside any other a haan made available w h u"*

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I also understand that the information sought in this case

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originated within the Central Intelligence Agency, and was pruided,by that agency to the Commission ch the understanding that the' above quoted provisions of the Directive would fully apply. Finally, it is my understanding that the Central Intelligence. Agency has refused to give the Commission the requisite permission to transmit the information to the co:r.mittee.'

4 The courts have recognized that the Constitution grants authority to the President to adopt restrictions on the disclosure of in *. rmation when its release would damage the national secui ity or toreign policy interests of the United States. See Sne v.

, United States, 444 U.S. 507, 509 ncte 3 and 511-512'TI9 United States v. Nixon, 418 U.S. 683, 710-711 (1974); U.S. v.

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,R,eynolds, 345 U.S. 1, 10 (1953): C. s S. Air I,ines v. Waterman L.;,'. Corp., 333 U.S.103,111 (1948). Considerable additional research would be required to determine the exact dimensions of the Constitutional 1y-based privilege against disclosure.

However, I believe that the case law provides authority for the President, and Executive Branch agen'cies actin ~g under authority

• delegated by the President; to restrict or condition the transfer of classified information from an Executive Branch agency t'o the Commission so that the originating agency retains control oirer the. dissemination' of the information-Moreover, the authority of the originating agency in this case..to impose restrictions on the' Cons:ission's further dissemination of the reports is bolstered by statute.

The Nation ~ lSecur'ity 'Act of 1947 provides an authority a

and' mandate to the Central Intelligence Agency to protect intelligence source's a'nd methods froin. unauthorized disclosure and to provide for the appropriate dissemination of such information within the Government. 50 U.S.C. S 403 (d) (3). I conclude therefore that the restrictions placed on the Commission by the i

above.-gited portions of Executive Order 12065 and the implementing Directive deprive the Commission of lega'l authority.

under Section 303 of the Atomic Energy Act to disseminate the information in question outside of'the Commission unless consent to do so is obtained from' the originating agency.

1 I understand that in this case the Central Intelligence Agency l

, has indicated a willingness to discuss the relevant information it has with the subcommitte'e1 requesting it and suggests that the subcommittee conta'dt'th~e. Agency in that regard. Since it does not appear that all avenues that could lead to providing l

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-fo mation to Congress have been fully explored, my office has

. conducted the additional legal research that would be r.ecessaiy to determine the precise dimensions of any privilege

.?.ch the Executive Branch may have to withhold information frem Congress.

cc Commissioner Gilinsky I

Cemmissioner Bradford cc.~:~.issioner Ahearne ccmmissioner Roberts OPE SECY OCA nii n w,.. ' ~.'.t. 4 g.

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