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No. 98-1904: United States v. Weatherhead | |||||||||||
No. 98-1904
2. FPC is responsible for the coordination and processing of external requestsfor Department records, including the receipt, acknowledgment, retrievaland classification review of records determined to be responsive to suchrequests. External requests include those that have been made by the generalpublic, members of Congress, and other government agencies, and those thathave been made pursuant to judicial processes, such as subpoenas, courtorders, and discovery requests. 3. I have personal knowledge of the efforts of Department personnel to reviewand process one document, consisting of two pages, referred to the Departmentof State in connection with a Freedom of Information Act request dated November29, 1994, submitted by plaintiff to the Department of Justice ("DOJ").The actions taken by the Department of State in connection with the processingof 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 directresponse to plaintiff. The Department of State conducted a review of thisdocument, and by letter dated December 11, 1995 (Exhibit 2), advised plaintiffthat 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 aftera line-by-line review of the document, I have determined that no meaningfulsegregation of information from the withheld material can be made withoutdisclosing information requiring protection. This declaration includes thejustification for asserting the (b)(1) exemption to the withheld information,and a document description which addresses the withheld document. 6. 5 U.S.C. Section 552 (b)(1) states that the FOIA does not apply to mattersthat are: 2. I incorporate by reference the declaration dated March 5, 1996 of PeterM. Sheils, Acting Director, Office of Freedom of Information, Privacy, andClassification Review. 3. I make this supplemental declaration in support of the motion of theUnited States for reconsideration of the order of the District Court datedMarch 29, 1996 that a document withheld by the Department of State underthe Freedom of Information Act should be disclosed to plaintiff. The Departmentof State urges that the decision of the District Court be reconsidered becauseof the damage to U.S. foreign relations that could result from compliancewith the District Court's disclosure order. 4. It is a longstanding custom and accepted practice in international relationsto treat as confidential and not subject to public disclosure informationand documents exchanged between governments and their officials. Such confidentialityis presumptively accorded with respect to information unless an understandingexists between the governments involved that the information may be disclosed.Diplomatic confidentiality obtains even between governments that are hostileto each other and even with respect to information that may appear to beinnocuous. It also applies whether or not the foreign government documentwas marked with some security classification at the time by the sendingor receiving government. 5. In keeping with the rule of diplomatic confidentiality, the Departmentof State normally withholds documents containing information that originatedwith a foreign government from public disclosure, including in responseto a Freedom of Information Act (FOIA), Privacy Act, discovery, or othertype 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 governmentconcerned. In certain cases, such as this one, the Department may seek theviews of the foreign government and then may classify the document. We expectand receive similar treatment from foreign governments. The informationin this document is of a nature that it is evident that confidentialitywas expected at the time it was sent and its contents cannot be describedin greater detail without revealing the sensitivity of the document andI therefore urge the court to conduct an in camera review. 6. Disclosure of the information in violation of the accepted rule of diplomaticconfidentiality reasonably could be expected to cause damage to relationsbetween the U.S. and the originating government. Disclosure of informationconsidered confidential in diplomatic communications, voluntarily or incompliance with a court order, may lead not only the government directlyaffected, but also other governments more generally to conclude that theU.S. cannot be trusted to protect information furnished by them. This, inturn, would damage our relations with affected governments. It would alsolikely make other governments reluctant to provide sensitive informationto the U.S. in diplomatic communications, thereby damaging our ability toconduct the foreign relations of the U.S. and our national security, inwhich information received from foreign government officials plays a majorrole. 2. Pursuant to the authority vested in me as Secretary of State, I makethis declaration in support of the government's motion for a stay of themandate and to reaffirm the national security exemption over the BritishGovernment document that is the subject of this case. I am making this declarationand the following statements based upon the information conveyed to me bymy advisers in the course of their official duties and upon my own personaljudgment that the nature of the information in question merits an assertionof this exemption. 3. Great Britain is perhaps our staunchest and certainly one of our mostimportant allies. On a daily basis, the United States engages in complexand sensitive discussions with the British at various levels on numerousimportant subjects of concern, including weapons non-proliferation, tradedisputes, matters before the United Nations Security Council, human rightsand law enforcement. In many of these areas we have engaged in diplomaticdialogue with officials of the British in the course of which informationwas exchanged with an expectation of confidentiality. Such confidentialdiplomatic dialogue is essential to the conduct of foreign relations. Candidexchange such as the letter that is the subject of this litigation can onlyoccur in a confidential setting. Such a setting is often essential to exploreand resolve issues and concerns and achieve U.S. foreign policy goals. Further,the information that the United States acquires in confidence from othergovernments, or instrumentalities thereof, is essential to the formulationof 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 ofconfidentiality with which the information was provided would convey toBritish Government officials, and indeed to all other foreign governmentofficials as well, that U.S. officials are not able or willing to preservethe confidentiality expected in such exchanges. Such officials would beless willing in the future to engage in candid discussion and to furnishinformation important to the conduct of U.S. foreign relations and othergovernmental functions, and less disposed to cooperate in foreign relationsmatters of common interest. 4. When advised of the Court's latest decision in this case, the BritishGovernment requested that the letter remain confidential, as they had previouslyrequested on three occasions spanning two different British Governments.In this case, the British Government specifically asked that the U.S. Governmentseek an appeal. 5. One important foreign policy objective of the United States in recentyears has been to strengthen international cooperation on law enforcementmatters such as those involved in the extradition case that is the subjectof the document at issue in this litigation. This effort has led to an unprecedentedlevel of cooperation between the government of the United States and foreigngovernments around the world. In fact, the cooperation between the UnitedStates and the British on law enforcement matters has been long and successful. 6. A breach of confidentiality in this instance could adversely affect ourefforts with British officials and other governments. Cooperation betweenthe U.S. and U.K. in international extradition of fugitives is a matterof substantial national interest to both governments. It can also be a matterof political sensitivity in the extraditing country, as has been the casewith regard to fugitives extradited by the U.S. to the U.K. for crimes inNorthern 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 couldreasonably be expected to cause damage to the foreign relations of the UnitedStates. Moreover, by calling into question the confidentiality of diplomaticexchanges generally, such a disclosure reasonably could also be expectedto affect the more general bilateral relationship between the U.S. and theU.K. on law enforcement cooperation and other matters.
In the Supreme Court of the United States
UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF JUSTICE; AND UNITEDSTATES 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 underthe Freedom of Information Act ("FOIA"), 5 U.S.C. § 552.The request sought a letter from the British Foreign Office to the UnitedStates Department of Justice ("Justice") related to the extraditionof Sally Croft and Susan Hagan. The United States Department of State ("StateDepartment") withheld the letter under FOIA Exemption 1, which protectsclassified information from disclosure. 5 U.S.C. § 552(b)(1). The districtcourt initially ordered the letter's disclosure. The government sought reconsiderationof that decision, which the district court granted after conducting in camerareview and concluding that the letter contained "highly sensitive andinjurious material." We have jurisdiction under 28 U.S.C. § 1291,and we reverse.
BACKGROUND
On November 29, 1994, Weatherhead sent identical requests under FOIA toJustice and the State Department seeking a letter dated July 28, 1994 fromthe British Foreign Office to George Proctor, Director of the Office ofInternational Affairs, Criminal Division, Justice. The letter was relatedto the extradition of two women, Sally Croft and Susan Hagan, from the UnitedKingdom to the United States to stand trial for conspiracy to murder theUnited States Attorney for Oregon. Croft and Hagan were members of the controversialRajneeshpuram commune in Central Oregon in the 1980's. Believing that theletter contained an official British request that Justice take measuresto avoid prejudice to Croft and Hagan in the district where the Croft casewas pending, Weatherhead, the lawyer who represented Croft, intended toprovide 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 unableto locate the letter. Two weeks later, Justice reported that it had foundthe letter, but since it had been created by a foreign government, the letterwas forwarded to the State Department's FOIA office for review and response.Weatherhead administratively appealed Justice's failure to produce the letterto Justice's Office of Information and Privacy, which remanded the matterso that the Criminal Division, in consultation with the State Department,could determine if the letter should be released. On August 4, 1995, theState Department sent a letter to the British government which stated thatit had received a request for the letter, but "[b]efore complying withthis request, [it] would appreciate the concurrence of [the British] governmentin the release of the document" and to know if it wanted any portionsof the letter withheld.
On October 18, 1995, the British government responded that it was "unableto agree" to the letter's release because "the normal line incases like this is that all correspondence between Governments is confidentialunless papers have been formally requisitioned by the defence." Itcontinued, "In this particular case, requests from representativesof the defendants for sight of the letter have already been refused on groundsof confidentiality." The State Department classified the letter onOctober 27, 1995. On December 11, 1995, the State Department advised Weatherheadthat it had concluded that the letter contained confidential informationthat was properly classified in the interest of foreign relations and thereforewould be withheld under FOIA Exemption 1.
PROCEDURAL HISTORY
Weatherhead initiated a suit to compel production of the letter on November17, 1995 and moved for summary judgment on February 16, 1996. The districtcourt granted Weatherhead's motion for summary judgment, holding that thegovernment failed to demonstrate that the letter was properly classifiedunder Executive Order 12958. The government moved to set aside the judgmentunder Fed. R. Civ. P. 59(e). Even though it rejected most of the government'sarguments for withholding the letter, the district court granted the government'smotion for reconsideration.
The court chose to review the letter in camera out of concern that "highlysensitive and injurious material might be released only because defendantswere unable to articulate a factual basis for their concerns without givingaway the information itself." The court went on:
That proved to be the case. When the Court read the letter, it knew withouthesitation or reservation that the letter could not be released. The Courtis 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 ofit which could be disclosed without simultaneously disclosing injuriousmaterials.
Thus, the district court concluded that the letter should be withheld andthat Weatherhead would have to be satisfied with "the solace of knowingthat not only do two high ranking [Department of State] officers believedisclosure of the subject material injurious to the national interest, butso does an independent federal judge."
On October 16, 1996, Weatherhead filed a motion to set aside the September9, 1996 decision under Fed. R. Civ. P. 60(b)(6). With this motion, he submittedan affidavit in which he claimed an acquaintance had spoken to a person"employed by the English government" who had disclosed the letter'scontents to the acquaintance over the phone. Weatherhead included the informationhe learned from the acquaintance about the letter's contents in his affidavit.Plaintiff then claimed that the contents of the letter were in the publicdomain 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 motionfor reconsideration.
STANDARD OF REVIEW
We apply a two-step standard of review in an appeal from the grant of summaryjudgment 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 factualbasis for its decision. See id. Where the parties do not dispute that thecourt had an adequate factual basis for its decision, as is the case heresince the district court had the actual letter, we review the district court'sfactual findings underlying its decision for clear error. See id. We reviewde novo the district court's determination that a requested document isexempt from disclosure under FOIA. See id.
DISCUSSION
"The Freedom of Information Act, 5 U.S.C. § 552, mandates a policyof broad disclosure of government documents." Maricopa Audubon Soc.v. United States Forest Serv., 108 F.3d 1082, 1085 (9th Cir. 1997) (quotingChurch of Scientology v. Department of the Army, 611 F.2d 738, 741 (9thCir. 1980)). When a request is made, an agency may withhold a document,or portions thereof, only if the information at issue falls within one ofthe nine statutory exemptions contained in § 552(b). Maricopa AudubonSoc., 108 F.3d at 1085; Kamman v. IRS, 56 F.3d 46, 48 (9th Cir. 1995). Theseexemptions are to be narrowly construed. Id. The burden is on the governmentto prove that a particular document is exempt from disclosure. John DoeAgency 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 exemptsfrom FOIA disclosure "matters that are . . . (1)(A) specifically authorizedunder criteria established by an Executive order to be kept secret in theinterest of national defense or foreign policy and (B) are in fact properlyclassified pursuant to such Executive order."
Executive Order No. 12958 ("EO 12958"), 60 Fed. Reg. 19825 (April20, 1995), is at issue in this case. EO 12958 requires four conditions forclassification: (1) the information must be classified by an "originalclassification authority"; (2) the information must be "underthe control of" the government; (3) the information must fall withinone of the authorized withholding categories under this order; and (4) theoriginal classification authority must "determine[ ] that the unauthorizeddisclosure of the information reasonably could be expected to result indamage to the national security" and must be "able to identifyor describe the damage." § 1.2(a).
The first three conditions for classification are not at issue here. Weatherheadnever contested that the State Department is an "original classificationauthority" 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 onappeal has not challenged the district court's conclusion that the letteris information concerning "foreign relations or foreign activitiesof the United States," § 1.5(d).1
Weatherhead does argue that the government has not shown that the withheldletter satisfies the fourth condition required for classification. Pursuantto EO 12958, § 1.2(a)(4), the original classification authority must"determine[ ] that the unauthorized disclosure of the information reasonablycould be expected to result in damage to the national security" andmust be "able to identify or describe the damage."2 "[D]amageto the national security" is "harm to the national defense orforeign relations of the United States from the unauthorized disclosureof 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 meetsthe 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 givea "particularized explanation of how disclosure of the particular documentwould damage the interest protected by the claimed exemption." Wienerv. FBI, 943 F.2d 972, 977 (9th Cir. 1991). To meet its burden, the governmentmust offer oral testimony or affidavits that are "detailed enough forthe district court to make a de novo assessment of the government's claimof 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 "restorethe adversary process to some extent, and to permit more effective judicialreview of the agency's decision." Id. at 977-78. The first purposeis still subject to serious obstacles. A plaintiff seeking production ofa document under FOIA is handicapped in this endeavor by the fact that onlythe agency truly knows the content of the withheld material. "Effectiveadvocacy is possible only if the requester knows the precise basis for thenondisclosure." Id. at 979. The second purpose is, however, easierto accomplish- through in camera review. In camera review by the districtcourt is appropriate in certain cases, where the government's public descriptionof a document may reveal the very information that the government claimsis exempt from disclosure. Doyle, 722 F.2d at 556. Ex parte in camera reviewis, of course, a last resort, given that it furthers judicial review butabrogates the adversary process to a significant extent.3 See National WildlifeFed'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 basisfor decision). Still, in certain FOIA cases that form of inquiry may beessential 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 partereview remains appropriate in certain FOIA cases, provided the preferredalternative to in camera review-government testimony and detailed affidavits-hasfirst failed to provide a sufficient basis for decision.").
Weatherhead argues that the government never met its burden of identifyingor describing any damage to national security that will result from releaseof the letter. We agree. In support of its decision to classify the withheldletter, the government submitted three declarations: that of Marshall R.Williams, which we will not discuss here, as it simply outlined the classificationprocess; that of Peter M. Sheils, Acting Director of the State Department'sOffice of Freedom of Information, Privacy, and Classification Review; andthat of Patrick Kennedy, Assistant Secretary for the Administration of theState Department. Mr. Sheils and Mr. Kennedy focus on two potential causesof damage to the national security: damage caused by the act of disclosinga letter between foreign governments, regardless of its particular contents,and damage caused because the letter concerns international extraditionproceedings.
In his declaration, Mr. Sheils states, in pertinent part:
Disclosure of foreign government information in violation of an understoodor, as in this case, clearly stated expectation of confidentiality wouldcause foreign officials, not only of the government providing the information,but of other governments as well, to conclude that U.S. officials are unableand/or unwilling to preserve the confidentiality expected in exchanges betweengovernments; thus foreign governments and their representatives would beless willing in the future to furnish information important to the conductof U.S. foreign relations and other governmental functions, and in generalless disposed to cooperate in foreign relations matters of common interest.Disclosure of the document at issue in the circumstances of this case wouldclearly result in damage to relations between the United States and theUnited Kingdom and, therefore, to the national security in a clearly identifiableway.
. . . .
The one document withheld in this case clearly concerns the foreign relationsor activities of the United States inasmuch as it is a communication froma British Home Office official to an official of the U.S. Department ofJustice 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 highlypublicized case. Disclosure of the document by the Government of the UnitedStates, particularly in light of the refusal of the British Government toagree to its release, would inevitably result in damage to relations betweenthe U.K. and the U.S.
The withheld document is a two-page letter dated July 28, 1994 from an officialof 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 letterconveys certain concerns of the U.K. Government regarding the case whichapparently was the subject of considerable attention in the British Parliamentand otherwise in the U.K. with particular reference to the U.S.-U.K. extraditionagreement.
The district court concluded that Mr. Sheils' statements were of a generaland conclusory nature and that his declaration failed to provide a particularizedexplanation of how disclosure of the letter would damage the relations betweenthe United States and the United Kingdom and therefore harm national security.We agree with the district court. Mr. Sheils merely confirms that the letterconcerns extradition matters; he does not address how or why the letter'sdisclosure of extradition matters in particular will damage United States-UnitedKingdom relations. Mr. Sheils instead focuses on how disclosing a lettercontaining 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 "toafford the requester an opportunity to intelligently advocate release ofthe withheld documents and to afford the court an opportunity to intelligentlyjudge 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 materialin the withheld letter will harm national security:
[i]t is a longstanding custom and accepted practice in international relationsto treat as confidential and not subject to public disclosure informationand documents exchanged between governments and their officials. . . . Diplomaticconfidentiality obtains . . . even with respect to information that mayappear to be innocuous.
. . . .
Disclosure by the U.S. of information furnished by another government inviolation of the confidentiality normally accorded such information mayalso make other governments hesitant to cooperate in matters of interestto the U.S. This includes U.S. law enforcement interests such as those involvedin the extradition case that is the subject of the document at issue inthis litigation. Cooperation between the U.S. and the U.K. in internationalextradition of fugitives is a matter of substantial national interest toboth governments. It can also be a matter of political sensitivity in theextraditing country, as has been the case with regard to fugitives extraditedby the U.S. to the U.K. charged with crimes in Northern Ireland and extraditionof the two women by the U.K. to the U.S. in the case discussed in the Britishdocument at issue here. Because of the sensitivity I cannot be more specificon the contents of the document and urge the court to conduct an in camerareview.
Mr. Kennedy also points out that the British embassy stated that "U.K.authorities had already refused, 'on grounds of confidentiality,' to disclosethe contents of the document." He concludes that:
In view of the expectation of the confidentiality of foreign governmentinformation and the explicit confirmation of that expectation by the BritishEmbassy letter . . . , I have no doubt disclosure of the document by theU.S. government would harm the U.S. foreign relations and thereby damagenational security.
Like Sheils, Kennedy focuses on how disclosure by the U.S. of foreign governmentinformation causes harm to U.S. foreign relations, and, thus, to nationalsecurity even if the content "appear[s] to be innocuous." Accordingto Kennedy, this harm occurs because all information exchanged between theU.S. and foreign governments is confidential. Mr. Kennedy also implies thatdisclosure would reduce international cooperation because of the sensitivityof 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 Kennedyprimarily rely on in their declarations, that even if the letter's contentsare not injurious, damage resulting solely from disclosing foreign governmentinformation meets the standards of the Executive Order. However, it is clearthat all information exchanged between foreign governments is not exemptfrom FOIA disclosure, not even all information that another government prefersto keep confidential-otherwise the inquiry would end after the first threeconditions for classification are satisfied. Congress could have exemptedall information exchanged between the U.S. and foreign governments fromFOIA requests, but chose instead to defer to the Executive Branch. Likewise,the Executive Branch could have shielded all documents involving foreigngovernments from FOIA disclosure in EO 12958. Instead, when it enacted EO12958 in 1995, it chose to make it easier for the public to view materialsfrom foreign governments by eliminating the presumption of harm found inthe prior Executive Order, EO 12356 § 1.3(c), and requiring the U.S.government to identify the particular damage that would result from releasingthe information.
The government next argues that if all foreign government information isnot shielded from FOIA disclosure, then all foreign government informationrelating to international extradition is protected by the exemption, becauseits sensitive nature makes its release inherently damaging to the nationalsecurity. While we do not preclude the possibility that the government mightbe able in some circumstance to establish an inherently damaging categoryof information, we need not decide that question now, because the governmentdid not meet its burden of establishing the justification for such a categoryin this case. Rather, it merely bandied about generalized fears of 'politicalsensitivity' relating to international extradition. In short, it failedto show that all documents falling within the category of internationalextraditions could reasonably be expected to result in damage to the nationalsecurity if released. Compare Armstrong v. Executive Office of the President,97 F.3d 575, 582 (D.C. Cir. 1996) (invalidating categorical rule forbiddingdisclosure of the names of lower-level FBI agents in all activities andrequiring more particularized showing of damage). Furthermore, the government'sconduct- seeking agreement from the British Government to release the letter,rather than assuming that the letter must be confidential-raises seriousquestions regarding the existence of such a category of withholdable information.Similarly, the response of the British Government to the State Department'srequest for concurrence in the release of the letter shows that all internationalextradition information is not confidential-the British Embassy in Washingtonwrote the State Department that "[t]he Home Office have advised thatthe normal line in cases like this is that all correspondence between governmentsis 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 therebydoing exactly what the British Government required in order to overcomeits restrictions regarding disclosure. Moreover, the British Embassy's responseraises further issues. Given that exceptions to the confidentiality of internationalextradition information do exist, it cannot be argued that the mere factof disclosure of any such information is harmful, but only that (1) a disclosureof any such information under circumstances that do not qualify as an exceptionwould cause injury, or (2) the disclosure of specific information wouldbe injurious in all circumstances. This, in turn, calls into question theappropriate scope and nature of such exceptions and whether categories subjectto exceptions can ever qualify for blanket exemptions.
Because the government has failed to establish either that the broad categoryof all foreign government information or the narrower category of internationalextradition information is confidential, we must next look to the individualdocument itself. Neither the government's briefs nor the declarations submittedin support of withholding the letter sufficiently explain the harm to nationalsecurity that could result from its disclosure.
The government argues that its decision to classify the document shouldbe given deference based on its affidavits and memoranda. Classificationdecisions are not given deference, however, until the government makes "aninitial 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 inthe documents it initially presented to the district court. Accordingly,the district court correctly held that the government failed to prove thewithheld letter was exempt from FOIA disclosure prior to conducting itsin camera ex parte review of the document.
Deference was given, however, to the government's perspective of the documentwhen the district court (and later this court) reviewed the letter in camera.We recognize that "[i]n certain FOIA cases . . ., the government'spublic description of a document and the reasons for exemption may revealthe very information that the government claims is exempt from disclosure."Doyle, 722 F.2d at 556. Here, after it found the government failed to providea sufficient basis for withholding the document in its briefs and declarations,the district court properly exercised its discretion to view the withheldletter in camera. After conducting in camera review of the letter, the districtcourt 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 unableto say why. . . . [T]here is no portion of it which could be disclosed withoutsimultaneously disclosing injurious materials.
We disagree with the district court's conclusions. We have reviewed theletter in camera, and carefully considered its contents, including the "sensitivity,value, and utility" of the information contained therein. Having doneso, 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 aftergiving the act of classification the deference to which it is entitled,we are compelled to conclude that disclosure of the letter pursuant to Weatherhead'sFOIA request could not reasonably "be expected to result in damageto 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 reinstateits March 29, 1996 grant of summary judgment for Weatherhead.
REVERSED AND REMANDED.
1 The district court assumed that the letter involved foreign relationsand fell within classification category § 1.5(d) because "thefundamental 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 Aereasde 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 sincethe "[u]nauthorized disclosure of foreign government information ispresumed to cause damage to national security." EO 12356 § 1.3(c).The district court pointed out that if the government had not delayed forso long in processing this FOIA request, the request would have been analyzedunder the prior Order. The governing executive order is the one in effectwhen 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 letterwas classified on October 27, 1995. Therefore, EO 12958 applies.
3 In camera review may or may not be ex parte. In camera proceedings inFOIA cases involving classified documents are usually ex parte with eventhe counsel for the party seeking the documents denied the opportunity tobe present. Hence courts' hesitancy to conduct in camera review in suchcases. 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 theHome Office letter was sent by the British government to the U.S. JusticeDepartment with an expectation of confidentiality and that damage to Americannational security would result from breaching that expectation. Those factswere proved by the uncontroverted declarations of two State Department officials,Patrick F. Kennedy and Peter M. Sheils, both of which were furnished inconnection with the motion for summary judgment. Plaintiff offered no evidenceto the contrary.
The Kennedy declaration is the most significant. Kennedy, an assistant Secretaryof State, attested that it is longstanding custom and accepted practicein international relations to extend "diplomatic confidentiality"to information exchanged between governments such as the information involvedhere. Kennedy stated that upon receipt of plaintiff's FOIA request, theAmerican government consulted the British Embassy to seek its views on thepossible disclosure of the letter. The British Embassy responded that itsgovernment 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 directlyto the British government. Thus, Kennedy's declaration not only was uncontroverted;it was corroborated.
Kennedy's declaration also stated that disclosure of the information inviolation of accepted diplomatic confidentiality reasonably could be expectedto damage relations between the U.S. and Britain, and between the U.S. andother governments, and he explained how: If the letter is released, Britainand other countries could well conclude that the U.S. cannot be trustedto protect confidential information. He stated that if diplomatic confidentialityis violated, it is likely that other nations will be less inclined to providesensitive information or to cooperate in the international extradition offugitives and in other matters of substantial interest to the United States.Kennedy attested that extraditions can be the subject of political sensitivityin the extraditing country. Such, he stated, was the case involving thetwo British women whose extraditions were the subject of the very documentin question. Kennedy stated that he had "no doubt" but that disclosureof the letter would damage our foreign relations and national security.
Plaintiff offered no evidence to rebut any of this. He did not produce anaffidavit from a diplomat, political scientist, academic, student of foreignrelations, lawyer, journalist-anyone-to refute Kennedy's declaration. Noram I aware of any other reason to treat Kennedy's sobering assessment withso little regard. The proper inquiry is not whether Kennedy's declarationcould 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 informationcontained therein," the majority says that it "fail[s] to comprehendhow disclosing the letter at this time could cause harm to the nationaldefense or foreign relations of the United States." The district judge,on the other hand, "knew without hesitation or reservation that theletter 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 examinea document in camera for the existence of facts-to see, for example, whetherit 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 haspresumed to do here, to make its own evaluation of both the sensitivityof a classified document and the damage to national security that mightbe caused by disclosure. With all due respect, I suggest that in mattersof national defense and foreign policy, the court should be very leery ofsubstituting its own geopolitical judgment for that of career diplomatswhose assessments have not been refuted in any way.
There is no basis in the record to conclude otherwise than that the letteris "foreign government information" as defined by Section 1.1(d)of the Executive Order, that its release would cause damage to the nationalsecurity in the manner described by Kennedy, and that therefore it is exemptfrom disclosure. I would affirm the district court's grant of summary judgmentfor 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 alternativeto File Document In Camera, or in the alternative to Stay Pending Appeal.Plaintiff is represented by Gregory J. Workland; defendants by Sanjay Bhambhaniand Assistant United States Attorney James R. Shively. The matter was arguedon June 3, 1996. This Order will memorialize the Court's ruling.
Background
By Order entered March 29, 1996, the Court granted plaintiff's motion forsummary judgment in this FOIA action. A timely motion for reconsiderationfollowed. The factual background which gave rise to this litigation is setout in the Order under reconsideration and need not be repeated here. Byway of supplementation, defendants' motion seeks in the alternative to submitnonpublic affidavits or the requested material itself for in camera review.During oral argument heard telephonically on June 3, 1996, the Court declinedto conduct in camera review. During a subsequent conference held on June24, 1996, the Court reluctantly granted the second prong of this alternativerelief 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 erroror the initial decision was manifestly unjust, or (3) if there is an interveningchange in controlling law. There may also be other, highly unusual, circumstanceswarranting 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 isappended to defendants' brief, is the Assistant Secretary for Administrationfor DOS. Attached to his declaration is the letter of inquiry sent by DOSto the British Embassy and the Embassy's response. This is new evidenceso far as plaintiff and the Court are concerned, but not newly discoveredevidence from defendants' perspective. The Kennedy Declaration is slightlymore informative than is the Sheils Declaration, but still reflects a "trustme" aura. The letter of inquiry cuts against defendants' position.It suggests that DOS intended to comply with the FOIA request and wouldhave but for U.K.'s opposition ("Before complying with this request,we would appreciate the concurrence of your government in the release ofthe document"). This in turn suggests that as late as August 4, 1995when the letter was drafted, DOS did not envision disclosure as adverselyaffecting the national interest.
(2) Clear error: Defendants are not critical of the Court's analytical frameworkand appear to agree that the sequential assessment made was a proper inquiry.They do contend that: (a) the agency determination of harm was given inadequatedeference; (b) the letter should have been found to be foreign governmentinformation; (c) when the Court rejected plaintiff's contentions that protracteddelay in the administrative process and the failure to cite the executiveorder relied upon constituted a basis for directing disclosure, the inquiryshould have ended; (d) if Vaughn materials are found deficient, the properremedy is to allow the agency to supplement; and (e) former EO 12356 shouldgovern because that was the executive order in effect when the letter waswritten.
(a) Deference: The older case law relied upon by defendants emanating fromthe cold war era tends to accord great deference to agency determinationsinvolving 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.2d972, 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 justifydeference 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 disclosureof "military secrets [and] military planning," nor a case suchas Halperin which involved disclosure of the identity of CIA operatives.The Vaughn materials submitted here fail to communicate the significanceof 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 andexperience. Taylor, supra, 684 F.2d at 109. There is a distinction to bedrawn between the situation where an agency sets out its views on factualmatters and where, as does the Sheils Declaration in large measure, it construesthe law as applied to the facts. The interpretation of an executive orderis a judicial function. Deferring to an agency in this context would bean 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 letterqualified as foreign government information, it would not help defendants.The Court assumed for purposes of disposition that § 1.2(a)(3) of ExecutiveOrder [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 doesnot matter which of the seven § 1.5 prongs is satisfied so long asone 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 governmentare confidential unless "an understanding exists between the governmentsinvolved that the information may be disclosed." (Ct. Rec. 17, KennedyDeclaration at ¶ 4). Also according to the defense, the release ofany confidential material always causes harm because (confirming suspicionsarticulated in the Order under reconsideration), it is the act of producingrather 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, KennedyDeclaration at ¶ 4.)
There may be historical practices and protocols in diplomatic circles supportiveof defendants' position, and probably are. In recognition of that history,Congress could have shielded all materials either generated or held by DOSfrom FOIA disclosure, but chose instead to defer to the Executive Branch.The Executive Branch could have shielded all materials either generatedor held by DOS from FOIA disclosure, and for all practical purposes didso in 1982 when EO 12356 was signed. In 1995, the current administrationeliminated 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 thisevolution as prudent policy, but the answer is to direct their concernsto the President, not to ask courts to rewrite an executive order by insertinglanguage the President pointedly deleted.
(c) Scope of inquiry: The Court exceeded the scope of the inquiry as framedby 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 ideawhat the basis for withholding is until the agency responds. That is whatoccurred here.
(d) Supplementation: Defendants apparently believe there is no end to theirright 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, thisis a very modest controversy. It involves one letter two pages long. Noreason appears why the declarations now on file could not have been draftedwith the specificity and particularity required by [Wiener].
(e ) Applicability of former 12356: In their reply, defendants contend thatformer EO 12356 should apply because it was effective when the letter wasgenerated. The first problem with this premise is that it runs afoul ofthe rule that the governing executive order is the one in effect when theclassification decision is made. Afshar v. Department of State, 702 F.2d1125, 1135-37 (D.C. Cir. 1983). The second problem is that defendants hadit within their power to apply former EO 12356. Plaintiff's request wasmade on November 29, 1994. EO 12958 was signed five months later on April17, 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, andU.K. did not respond until October 18, 1995, four days after the effectivedate of EO 12958. Had the classification decision been made with reasonabledispatch, former EO 12356 would have applied, and given the presumptionof harm contained in § 1.3(c), the outcome of this action may havebeen quite different. To apply former EO 12356 at this juncture would beto rewrite the history of why, when and how defendants processed the requestand arrived at the classification decision. The protracted delay standingalone has no bearing on the outcome, but the delay carries with it consequencesand no reason appears why the Court should relieve defendants of those consequences.
(3) New law: Other than authorities directed to entry of a stay pendingappeal, 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 totheir brief, but Schiffer is a conventional application of Wiener, supra.
(4) Other, highly unusual, circumstances warranting reconsideration: Aspreviously noted, the Court accepted the letter for in camera review reluctantlybecause the procedure does not serve the adversarial process and there wasno guarantee it would inform the Court. In deference to defendants' announcedconcerns in their declarations, however, the Court concluded that theserisks paled beside the danger that highly sensitive and injurious materialmight be released only because defendants were unable to articulate a factualbasis for their concerns without giving away the information itself. Thatproved to be the case. When the Court read the letter, it knew without hesitationor reservation that the letter could not be released. The Court is unableto say why for the same reason defendants were unable to say why. The letteris two pages long, tightly written, and there is no portion of it whichcould be disclosed without simultaneously disclosing injurious materials.
In signing the 1995 executive order, the President doubtless thought itin the public interest to cast aside veils of secrecy not truly justifiedby the facts. This major shift in policy is not without its costs. Now thatthe presumption of harm no longer exists, and each case must stand on itsown facts, the result which obtained here may well be repeated in districtcourts across the country. FOIA actions are none too adversarial to beginwith, and this one ended with the adversarial process in tatters. A litigantin this situation is left only with the solace of knowing that not onlydo two high ranking DOS officers believe disclosure of the subject materialinjurious 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 DocumentIn Camera, or in the alternative to Stay Pending Appeal (Ct. Rec. 16) areGRANTED 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 furnishcopies 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; defendantsare represented by Assistant United States Attorney James R. Shivley. PlaintiffWeatherhead brings this motion for summary judgment pursuant to 5 U.S.C.§ 552 seeking an order to compel the defendants to cease withholdinga document pursuant to the Freedom of Information Act [FOIA]. Jurisdictionis properly in this Court. The motion was argued on March 6 and 13, 1996and 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 theBritish Home Office to George Procter of the United States Department ofJustice [DOJ] dated July 28, 1994 relating to the extradition and prosecutionof two women, Sally Croft and Susan Hagan. (Exhibits A & B to plaintiff'scomplaint). Separate requests were directed to DOJ and the Department ofState [DOS]. On May 4, 1995, DOS advised that no responsive document couldbe located. DOJ did locate the letter and informed plaintiff that becauseit was created by a foreign government, it would be referred to DOS forreview to determine whether it could be released. Correspondence and administrativeappeals followed throughout the summer. On September 12, 1995, DOJ advisedthe matter was still under consideration. This action was commenced on November17, 1995. On December 11, 1995, DOS declined to release the letter and assertedfor the first time an exemption under FOIA. DOS informed plaintiff thatthe letter was now classified because the British Home Office did not wishthe letter released. The same information was later provided plaintiff byDOJ.
Analysis
Initially, defendants correctly point out that the protracted delay in respondingto plaintiff's request is not a basis for compelling disclosure, but rathera basis for plaintiff to demonstrate there has been an exhaustion of thenecessary administrative remedies and allows plaintiff to bring this actionin the United States District Court.
Defendants contend the information sought is exempt from disclosure under5 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 Executiveorder to be kept secret in the interest of national defense or foreign policyand (B) are in fact properly classified pursuant to such Executive order[.]
The Executive Order [EO] applicable to this case is the one in effect atthe 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 classificationcontrols).
Defendants have submitted "Vaughn affidavits" containing the declarationsof Peter M. Sheils and Marshall R. Williams.1 The reference to "Vaughnaffidavits" 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 theseminal case which designed the affidavit system now universally recognizedas appropriate and necessary in FOIA actions. The mechanics of the processare that the agency prepares a "Vaughn index" "identifyingeach document withheld, the statutory exemption claimed, and a particularizedexplanation of how disclosure of the particular document would damage theinterest protected by the claimed exemption." Wiener v. F.B.I., 943F.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 therelevant classification standards.
The current EO at § 1.2 provides for the following standards:
(a) Information may be originally classified under the terms of this orderonly 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 controlof the Unites States government;
(3) the information falls within one or more of the categories of informationlisted in § 1.5 of this order; and
(4) the original classification authority determines that the unauthorizeddisclosure of the information reasonably could be expected to result indamage to the national security and the original classification authorityis able to identify or describe the damage.
As to § 1.2(a)(1), the original classification authority is classifyingthe information. The Court believes that DOS is the original classificationauthority and is classifying the information.
As to § 1.2(a)(2), the information is under the control of the UnitedStates government.
Section § 1.2(a)(3) involves application of several subsections of§ 1.5. Defendants contend that § 1.5(b) "foreign governmentinformation" applies here. The definition of foreign government isfound at § 1.1(d). Foreign government information means "(1) informationprovided to the United States Government by a foreign government or governments,an international organization of governments, or any element thereof, withthe expectation that the information, the source of the information, orboth, are to be held in confidence [emphasis added][.]"
The language "with the expectation" should be read as referringto 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 personperforms an act "with expectation," he has a present belief ordesire that some anticipated result will obtain in the future. Thus, theexpectation that the information would be held in confidence relates tothe time frame of July 28, 1994, being the date the letter was sent by theBritish Home Office. There is no showing in this record of a contemporaneousexpectation of confidentiality with respect to the letter; only that uponbeing later approached by DOS, Great Britain was "unable to agree toits release."
Contrary to the government's position during oral argument, there has beenno showing that the prior EO in effect at the time the letter was sent (EO12356) would allow a foreign government to believe that information it providedto the United States would be presumptively treated as confidential.
Defendants further contend that the declaration of Mr. Sheils at paragraph13 applies. The first sentence reads "There is a general understandingamong governments that confidentiality is normally to be accorded exchangesbetween governments." Defendants contend that this general understandingapplies and that the information was thus provided with an understandingof confidentiality.
This rationale does not logically follow. The Court is aware that foreigngovernments are sophisticated in understanding the law and would appreciatethat information provided by a foreign government is subject to disclosureunder FOIA unless it satisfies the exemption requirements of § 1.2(a).
If such a rational applies, i.e., the general understanding among governmentsthat confidentiality is normally to be accorded exchanges between governments,then all such exchanges would be confidential and the definition of "foreigngovernment information" in EO § 1.1(d) would have no meaning andserve 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 EOby providing that "information received and treated as 'Foreign GovernmentInformation' under the terms of a predecessor order" also constitutesforeign 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 subsectionadds 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 confidentialto be included under the current EO. Neither DOJ nor DOS treated the letteras confidential at the time of receipt. Neither agency classified the letteruntil nearly a year after the subject FOIA request. Neither asserted anexemption until more than a year after the request, and then only at therequest of Great Britain.
The result of this review is that the classification is not proper underEO § 1.5(b) because the July 28, 1994 letter does not fall within thedefinition of "foreign government information." If not properlyclassified under § 1.5(b), neither is it properly classified pursuantto 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 includingconfidential sources[.]" While "foreign relations" is notdefined in the EO, it would appear that the fundamental function of DOSis to oversee foreign relations and thus it would be assumed that the letterdoes meet the definition of involving foreign relations. Based on the assumptionthat § 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. Thatsubsection is satisfied when "the original classification authoritydetermines that the unauthorized disclosure of the information reasonablycould be expected to result in damage to the national security and the originalclassification authority is able to identify or describe the damage."The EO in § 1.1(1) defines damage to national security as "harmto the national defense or foreign relations of the United States from theunauthorized disclosure of information, to include the sensitivity, value,and utility of that information."
Wiener, supra, requires "a particularized explanation of how disclosureof a particular document would damage the interest protected by the claimedexemption." 943 F.2d at 977. The Court goes on to indicate that thepurpose of requiring the showing is to "restore the adversary processto some extent, and to permit more effective judicial review of the agency'sdecision." Id. at 977-78. "Particularized explanation" meansthat "[e]ffective advocacy is possible only if the requester knowsthe precise basis for the nondisclosure." Id. at 979. "The agency'must provide a relatively detailed justification, specifically identifyingthe reasons why a particular exemption is relevant and correlating thoseclaims 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 LawyersAlliance to the Vaughn declarations. Classification decisions are treatedwith a measure of deference, but not until the agency makes "an initialshowing which would justify deference by the district court." Rosenfeldv. 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 construednarrowly 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.3d224, 228 (1st Cir. 1994); Bay Area Lawyers Alliance, supra, 818 F. Supp.at 1295). In terms of procedure the difficulty in these circumstances isset 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 defendantagency's Vaughn affidavits and before the plaintiff has had a chance toengage in discovery. This is a peculiar posture, difficult for our adversarialsystem to handle. The problem goes to the very nature of these actions aspetitions for the release of documents. Where material has been withheldby the government agency, the plaintiff must argue that the withholdinggoes beyond that allowed by the statute. But the plaintiff is handicappedin this endeavor by the fact that only the agency truly knows the contentof the withheld material. Except in cases in which the court takes the entireset 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 mustbe viewed in light of the Vaughn declarations. Mr. Sheils, in his declarationat paragraph 14, states:
Disclosure of foreign government information in violation of an understoodor, as in this case, clearly stated expectation of confidentiality wouldcause foreign officials, not only of the government providing the information,but of other governments as well, to conclude that U.S. officials are unableand/or unwilling to preserve the confidentiality expected in exchanges betweengovernments; thus foreign governments and their representatives would beless willing in the future to furnish information important to the conductof U.S. foreign relations and other governmental functions, and in generalless disposed to cooperate in foreign relations matters of common interest.Disclosure of the document at issue in the circumstances of this case wouldclearly result in damage to relations between the United Stats and the UnitedKingdom and, therefore, to the national security in a clearly identifiableway.
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 foreignrelations or activities of the United State inasmuch as it is a communicationfrom a British Home Office official to an official of the U.S. Departmentof 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 highlypublicized case. Disclosure of the document by the Government of the UnitedStates, particularly in light of the refusal of the British Government toagree to its release, would inevitably result in damage to relations betweenthe U.K. and the U.S.
17. The withheld document is a two-page letter dated July 28, 1994 froman official of the British Home Office to an official of the U.S. Departmentof Justice. Originally unclassified. Classified on October 27, 1995. Withheldin 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 letterconveys certain concerns of the U.K. Government regarding the case whichapparently was the subject of considerable attention in the British Parliamentand otherwise in the U.K. with particular reference to the U.S.-U.K. extraditionagreement.
The issue is whether the information provided in the Vaughn declarationsmeets the requirement of a particularized explanation of how disclosureof this particular document would damage the interest protected by the claimedexemption. While there are no specific rules or concrete standards to assistthis Court other than those indicated in Wiener, this Court determines thatthe information provided in the several sections of the declaration of Mr.Sheils is of a general and conclusory nature and not a particularized explanationof how disclosure of this letter would damage the relations between theUnited States and the United Kingdom and therefore national security orhow disclosure of this letter in light of the refusal of the British Governmentto agree to its release would inevitably result in damage to relations betweenthe United Kingdom and the United States. Simply put, the declaration doesnot "afford the requester an opportunity to intelligently advocaterelease of the withheld documents and . . . afford the court an opportunityto 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 disclosureitself, not disclosure of the contents, which would harm national security.This line of reasoning is inconsistent with EO § 1.1(1) which definesdamage to the national security as "harm to the national defense orforeign relations of the United States from the unauthorized disclosureof information, to include the sensitivity, value, and utility of that information[emphasis added]." Clearly, these criteria place the focus on the informationdisclosed, not the act of disclosing. If defendants' rationale were carriedforward, if any foreign government did not want a document disclosed, itsrequest would automatically supersede FOIA thereby defeating the publicpolicy 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 withheldmaterial 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 discloseany portions which are not exempt-i.e., all "segregable" information-andmust address in its Vaughn index why the remaining information is not segregable.The district court must make specific factual findings on the issue of segregabilityto establish that the required de novo review of the agency's withholdingdecision has in fact taken place. The Court may not "'simply approvethe 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 reflectsno facts from which findings could be developed.
Defendants urge that summary judgment is inappropriate because a materialdispute exists over Great Britain's expectation of confidentiality. Theremay be a dispute, but it is not material. The Court has assumed for purposesof disposition that the letter falls within EO § 1.5(d) as "foreignrelations material" thereby satisfying § 552(b)(1)(A). Whetherit 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 materialdisputes 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 thiscase could proceed to discovery and trial. If defendants do not wish torelease 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 departmentalworkings so the system could test why the exemption was claimed and howthat decision was made.
However, the interesting possibility of proceeding to trial need not beaddressed because the Court concludes there are no genuine issues of materialfact. The information in the Vaughn declarations is undisputed in termsof the operative (as opposed to ultimate) facts. The Court may rule as amatter of law in this case. Moreover, unlike the fact patterns of most ofthe authorities cited herein, this is a very modest controversy. It involvesone letter two pages long. No reason appears why the declarations now onfile could not have been drafted with the specificity and particularityrequired by that decision. The burden of validating the claimed exemptionis 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'sMotion for Summary Judgment (Ct. Rec. 4) requiring disclosure of the July28, 1994 letter would be GRANTED. If any particular form of Order is requiredto effectuate this ruling, plaintiff may submit a proposed Order in duecourse.
IT IS SO ORDERED. The Clerk is hereby directed to enter this Order, enterjudgment 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 andmerely chronciles the flow path as the subject request was processed throughadministrative 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 heardand a decision has been rendered.
IT IS ORDERED AND ADJUDGED that it is the determination of the Court thatthe exemption provision of 5 USC 552 (b)(1)(B) has not been shown to applyand therefore plaintiff's motion for summary judgment (Ct. Rec. 4) requiringdisclosure of the July 28, 1994 letter be GRANTED. If any particular formof Order is required to effectuate this ruling, plaintiff may submit a proposedOrder 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 rejectthe suggestion for rehearing en banc.
The full court was advised of the suggestion for rehearing en banc. An activejudge requested a vote on whether to rehear the matter en banc. The matterfailed to receive a majority of the votes of the nonrecused active judgesin favor of en banc consideration. Fed. R. App. P. 35.
The petition for rehearing is denied and the suggestion for rehearing enbanc 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 forrehearing and to reject the suggestion for rehearing en banc. Judge Silvermanvoted to grant the petition for rehearing and to accept the suggestion forrehearing en banc.
The full court was advised of the suggestion for rehearing en banc. An activejudge requested a vote on whether to rehear the matter en banc. The matterfailed to receive a majority of the votes of the nonrecused active judgesin favor of en banc consideration. Fed. R. App. P. 35.
The petition for rehearing is denied and the suggestion for rehearing enbanc 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 Coordinatorand the Acting Director of the Department's Office of Freedom of Information,Privacy, and Classification Review (FPC). In these capacities, I am theDepartment official immediately responsible for responding to requests forrecords under the Freedom of Information Act (FOIA), 5 U.S.C. §552,the Privacy Act, 5 U.S.C. §552a, and other applicable records accessprovisions. 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 InformationAccess Program for most of my tenure with the Department. I am authorizedto classify to the Top Secret level and to downgrade and to declassify nationalsecurity information pursuant to Executive Order (E.O.) 12958 and Departmentof State regulations set forth in 22 CFR 9.14. I make the following statementsbased upon my personal knowledge, which is in turn based on a personal reviewof the document withheld, and upon information furnished to me in the courseof my official duties.
FOIA EXEMPTIONS CLAIMED
Exemption (b)(1)-Classified Information
(A) specifically authorized under criteria established by an Executive Orderto 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 caseis required to be kept secret because it is foreign government informationand in the interest of foreign policy pursuant to Executive Order 12958,and is properly classified pursuant to that Executive Order. This informationis 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 reasonablycould be expected to cause damage to the national security that the originalclassification authority is able to identify or describe. "Damage tothe national security" is defined in Section 1.1(1) as meaning "harmto the national defense or foreign relations of the United States from theunauthorized disclosure of information, to include the sensitivity, value,and utility of that information."
8. The withheld document has been reviewed by an official with originalclassification and declassification authority. The document comes withintwo particular categories enumerated in E.O. 12958: "foreign governmentinformation" [Section 1.5(b)]; and "foreign relations or foreignactivities of the United States" [Section 1.5(d)]. With respect tothe document withheld, an original classification authority has determinedthat "the unauthorized disclosure of the information reasonably couldbe expected to result in damage to the national security," consistentwith the provision of section 1.2(4) of E.O. 12958.
9. Procedurally, the document to which the (b)(1) exemption has been appliedwas classified by the Department of State under Executive Order 12958. Thedocument was carefully reviewed to ensure that it was properly marked inaccordance with that Order.
10. Substantively, the information with respect to which the (b)(1) exemptionhas been applied meets the classification criteria of E.O. 12958. Section1.5 of the Executive Order states in pertinent part that "Informationmay not be considered for classification unless it concerns: . . . (b) foreigngovernment information;" and "(d) foreign relations or foreignactivities 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 GovernmentInformation' means: (1) information provided to the United States Governmentby 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 confidentialityis normally to be accorded exchanges between governments. The document addressedin this declaration is a letter from an official of the British Home Officeto an official of the U.S. Department of Justice. That the information inthe document was intended by the U.K. Government to be held in confidenceis confirmed by the British response to a Department of State inquiry regardingpossible release to plaintiff. The British Foreign and Commonwealth Officeresponded, through the British Embassy in Washington, that it was "unableto agree to its release" (emphasis in the original). Consequently,the Department of State classified the document Confidential to protectits confidential character as foreign government information.
14. Disclosure of foreign government information in violation of an understoodor, as in this case, clearly stated expectation of confidentiality wouldcause foreign officials, not only of the government providing the information,but of other governments as well, to conclude that U.S. officials are unableand/or unwilling to preserve the confidentiality expected in exchanges betweengovernments; thus foreign governments and their representatives would beless willing in the future to furnish information important to the conductof U.S. foreign relations and other governmental functions, and in generalless disposed to cooperate in foreign relations matters of common interest.Disclosure of the document at issue in the circumstances of this case wouldclearly result in damage to relations between the United States and theUnited Kingdom and, therefore, to the national security in a clearly identifiableway.
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 foreignrelations or activities of the United States inasmuch as it is a communicationfrom a British Home Office official to an official of the U.S. Departmentof 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 highlypublicized case. Disclosure of the document by the Government of the UnitedStates, particularly in light of the refusal of the British Government toagree to its release, would inevitably result in damage to relations betweenthe U.K. and the U.S.
DOCUMENT DESCRIPTION FOR WITHHELD DOCUMENT
17. The withheld document is a two-page letter dated July 28, 1994 froman official of the British Home Office to an official of the U.S. Departmentof Justice. Originally unclassified. Classified on October 27, 1995. Withheldin 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 letterconveys certain concerns of the U.K. Government regarding the case whichapparently was the subject of considerable attention in the British Parliamentand otherwise in the U.K. with particular reference to the U.S.-U.K. extraditionagreement.
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 supervisingthe Department's Office of Freedom of Information, Privacy, and ClassificationReview (FPC) and for administration of the agency's program under the ExecutiveOrder on Classification of National Security Information (E.O. 12958). Ihave been in the employ of the Department of State since 1972. I make thefollowing statement based upon my personal review of the document withheld,and upon information furnished to me in the course of my official duties.
7. Disclosure by the U.S. of information furnished by another governmentin violation of the confidentiality normally accorded such information mayalso make other governments hesitant to cooperate in matters of interestto the U.S. This includes U.S. law enforcement interests such as those involvedin the extradition case that is the subject of the document at issue inthis litigation. Cooperation between the U.S. and the U.K. in internationalextradition of fugitives is a matter of substantial national interest toboth governments. It can also be a matter of political sensitivity in theextraditing country, as has been the case with regard to fugitives extraditedby the U.S. to the U.K. charged with crimes in Northern Ireland and extraditionof the two women by the U.K. to the U.S. in the case discussed in the Britishdocument at issue here. Because of the sensitivity I cannot be more specificon the contents of the document and urge the court to conduct an in camerareview.
8. Although, the Department normally classifies and withholds foreign governmentinformation in response to FOIA and other disclosure requests without consultingthe government that originated the information, in some cases, the foreigngovernment is consulted regarding possible disclosure. In this case, afterreceiving the FOIA request from the plaintiff, the Department sent a letter(Exhibit 1) dated August 4, 1995 to the British Embassy in Washington seekingthe views of the U.K. authorities on possible disclosure, in whole or inpart, of the letter from the British Home Office to the U.S. Departmentof Justice.
9. The British Embassy replied by letter (Exhibit 2) dated October 18, 1995,noting the expectation of confidentiality of such documents and statingthat 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. authoritieshad already refused, "on the grounds of confidentiality," to disclosethe contents of the document in response to a request by representativesof the defendants in the extradition case. In view of the British Embassy'sreply, it is clear that the British authorities expected at the time theHome Office sent the letter to the Department of Justice and continue toexpect that the document would be protected from disclosure in accordancewith accepted practice.
10. In view of the expectation of the confidentiality of foreign governmentinformation and the explicit confirmation of that expectation by the BritishEmbassy letter at Exhibit 2, I have no doubt disclosure of the documentby the U.S. government would harm the U.S. foreign relations and therebydamage national security. For this reason, the document is currently andproperly classified under E.O. 12958 and is exempt from disclosure underexemption (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 capacityI am responsible for the formulation and implementation of the foreign policyand conduct of the foreign relations of the United States, subject to thedirection of the President. I am familiar with the foreign policy issuesthat relate to the United Kingdom, and with the conduct of our foreign relationsin general.
7. The ability of U.S. officials to make confidential assessments, analysesor recommendations on foreign relations or foreign activities is also essentialto the conduct of foreign policy. It is necessary to have frank internalassessments by foreign government officials of their motivations, objectivesand strategies, as well as of the implications for achieving U.S. foreignpolicy goals. If such material were made public, not only would the UnitedStates be seriously disadvantaged in pursuing its objectives, but also bilateralrelations often would be adversely affected by the reaction of foreign governmentsor officials to disclosure of their "candid" views.
8. Upon review of the document and the above factors, I conclude that revealingthe letter from the British Home Secretary made in confidence to a U.S.official, reasonably could be expected to damage the national interest ofthe United States by dealing a set-back to U.K. confidence in U.S. reliabilityas a law enforcement partner. In addition, by calling into question theexpectation of confidentiality in diplomatic exchanges and revealing theconfidential assessments of the British Government, release reasonably couldbe expected to damage other aspects of the bilateral relationship that areimportant 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, anddeclassifying national security information. Our democratic principles requirethat 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 certaininformation be maintained in confidence in order to protect our citizens,our democratic institutions, and our participation within the communityof nations. Protecting information critical to our Nation's security remainsa priority. In recent years, however, dramatic changes have altered, althoughnot eliminated, the national security threats that we confront. These changesprovide a greater opportunity to emphasize our commitment to open Government.
NOW, THEREFORE, by the authority vested in me as President by the Constitutionand 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 relationsof the United States.
(b) "Information" means any knowledge that can be communicatedor documentary material, regardless of its physical form or characteristics,that is owned by, produced by or for, or is under the control of the UnitedStates Government. "Control" means the authority of the agencythat originates information, or its successor in function, to regulate accessto the information.
(c) "Classified national security information" (hereafter "classifiedinformation") means information that has been determined pursuant tothis order or any predecessor order to require protection against unauthorizeddisclosure and is marked to indicate its classified status when in documentaryform.
(d) "Foreign Government Information" means:
(1) information provided to the United States Government by a foreign governmentor governments, an international organization of governments, or any elementthereof, 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 resultof a joint arrangement with a foreign government or governments, or an internationalorganization of governments, or any element thereof, requiring that theinformation, 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 informationis determined to be classified information.
(f) "Original classification" means an initial determination thatinformation requires, in the interest of national security, protection againstunauthorized disclosure.
(g) "Original classification authority" means an individual authorizedin writing, either by the President, or by agency heads or other officialsdesignated by the President, to classify information in the first instance.
(h) "Unauthorized disclosure" means a communication or physicaltransfer of classified information to an unauthorized recipient.
(i) "Agency" means any "Executive agency," as definedin 5 U.S.C. 105, and any other entity within the executive branch that comesinto the possession of classified information.
(j) "Senior agency official" means the official designated bythe agency head under section 5.6(c) of this order to direct and administerthe agency's program under which information is classified, safeguarded,and declassified.
(k) "Confidential source" means any individual or organizationthat has provided, or that may reasonably be expected to provide, informationto the United States on matters pertaining to the national security withthe expectation that the information or relationship, or both, are to beheld in confidence.
(l) "Damage to the national security" means harm to the nationaldefense or foreign relations of the United States from the unauthorizeddisclosure of information, to include the sensitivity, value, and utilityof that information.
Sec. 1.2. Classification Standards. (a) Information may be originally classifiedunder the terms of this order only if all of the following conditions aremet:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the controlof the United States Government;
(3) the information falls within one or more of the categories of informationlisted in section 1.5 of this order; and
(4) the original classification authority determines that the unauthorizeddisclosure of the information reasonably could be expected to result indamage to the national security and the original classification authorityis 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 aresult of any unauthorized disclosure of identical or similar information.
Sec. 1.3. Classification Levels. (a) Information may be classified at oneof the following three levels:
(1) "Top Secret" shall be applied to information, the unauthorizeddisclosure of which reasonably could be expected to cause exceptionallygrave damage to the national security that the original classification authorityis able to identify or describe.
(2) "Secret" shall be applied to information, the unauthorizeddisclosure of which reasonably could be expected to cause serious damageto the national security that the original classification authority is ableto identify or describe.
(3) "Confidential" shall be applied to information, the unauthorizeddisclosure of which reasonably could be expected to cause damage to thenational security that the original classification authority is able toidentify or describe.
(b) Except as otherwise provided by statute, no other terms shall be usedto 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 informationoriginally may be exercised only by:
(1) the President;
(2) agency heads and officials designated by the President in the FederalRegister; or
(3) United States Government officials delegated this authority pursuantto paragraph (c), below.
(b) Officials authorized to classify information at a specified level arealso authorized to classify information at a lower level.
(c) Delegation of original classification authority.
(1) Delegations of original classification authority shall be limited tothe minimum required to administer this order. Agency heads are responsiblefor ensuring that designated subordinate officials have a demonstrable andcontinuing need to exercise this authority.
(2) "Top Secret" original classification authority may be delegatedonly by the President or by an agency head or official designated pursuantto paragraph (a)(2), above.
(3) "Secret" or "Confidential" original classificationauthority may be delegated only by the President; an agency head or officialdesignated pursuant to paragraph (a)(2), above; or the senior agency official,provided that official has been delegated "Top Secret" originalclassification authority by the agency head.
(4) Each delegation of original classification authority shall be in writingand 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 originalclassification as provided in this order and its implementing directives.
(e) Exceptional cases. When an employee, contractor, licensee, certificateholder, or grantee of an agency that does not have original classificationauthority originates information believed by that person to require classification,the information shall be protected in a manner consistent with this orderand its implementing directives. The information shall be transmitted promptlyas provided under this order or its implementing directives to the agencythat has appropriate subject matter interest and classification authoritywith respect to this information. That agency shall decide within 30 dayswhether to classify this information. If it is not clear which agency hasclassification responsibility for this information, it shall be sent tothe Director of the Information Security Oversight Office. The Directorshall determine the agency having primary subject matter interest and forwardthe information, with appropriate recommenations, to that agency for a classificationdetermination.
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), intelligencesources or methods, or cryptology;
(d) foreign relations or foreign activities of the United States, includingconfidential sources;
(e) scientific, technological, or economic matters relating to the nationalsecurity;
(f) United States Government programs for safeguarding nuclear materialsor facilities; or
(g) vulnerabilities or capabilities of systems, installations, projectsor 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 specificdate or event for declassification based upon the duration of the nationalsecurity sensitivity of the information. The date or event shall not exceedthe time frame in paragraph (b), below.
(b) If the original classification authority cannot determine an earlierspecific date or event for declassification, information shall be markedfor declassification 10 years from the date of the original decision, exceptas provided in paragraph (d), below.
(c) An original classification authority may extend the duration of classificationor reclassify specific information for successive periods not to exceed10 years at a time if such action is consistent with the standards and proceduresestablished under this order. This provision does not apply to informationcontained in records that are more than 25 years old and have been determinedto have permanent historical value under title 44, United States Code.
(d) At the time of original classification, the original classificationauthority may exempt from declassification within 10 years specific information,the unauthorized disclosure of which could reasonably be expected to causedamage to the national security for a period greater than that providedin paragraph (b), above, and the release of which could reasonably be expectedto:
(1) reveal an intelligence source, method, or activity, or a cryptologicsystem or activity;
(2) reveal information that would assist in the development or use of weaponsof mass destruction;
(3) reveal information that would impair the development or use of technologywithin a United States weapons system;
(4) reveal United States military plans, or national security emergencypreparedness 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 activitiesthat are reasonably expected to be ongoing for a period greater than thatprovided in paragraph (b), above;
(7) impair the ability of responsible United States Government officialsto protect the President, the Vice President, and other individuals forwhom 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 underpredecessor orders, for example, "Originating Agency's DeterminationRequired," or information classified under predecessor orders thatcontains no declassification instructions shall be declassified in accordancewith 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 shallbe applied to other classified media in an appropriate manner:
(1) one of the three classification levels defined in section 1.3 of thisorder;
(2) the identity, by name or personal identifier and position, of the originalclassification 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 section1.6(d); and
(5) a concise reason for classification which, at a minimum, cites the applicableclassification categories in section 1.5 of this order.
(b) Specific information contained in paragraph (a), above, may be excludedif it would reveal additional classified information.
(c) Each classified document shall, by marking or other means, indicatewhich portions are classified, with the applicable classification level,which portions are exempt from declassification under section 1.6(d) ofthis order, and which portions are unclassified. In accordance with standardsprescribed in directives issued under this order, the Director of the InformationSecurity Oversight Office may grant waivers of this requirement for specifiedclasses of documents or information. The Director shall revoke any waiverupon a finding of abuse.
(d) Markings implementing the provisions of this order, including abbreviationsand requirements to safeguard classified working papers, shall conform tothe standards prescribed in implementing directives issued pursuant to thisorder.
(e) Foreign government information shall retain its original classificationmarkings or shall be assigned a U.S. classification that provides a degreeof protection at least equivalent to that required by the entity that furnishedthe information.
(f) Information assigned a level of classification under this or predecessororders shall be considered as classified at that level of classificationdespite the omission of other required markings. Whenever such informationis used in the derivative classification process or is reviewed for possibledeclassification, holders of such information shall coordinate with an appropriateclassification authority for the application of omitted markings.
(g) The classification authority shall, whenever practicable, use a classifiedaddendum whenever classified information constitutes a small portion ofan otherwise unclassified document.
Sec. 1.8. Classification Prohibitions and Limitations . (a) In no case shallinformation 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 protectionin the interest of national security.
(b) Basic scientific research information not clearly related to the nationalsecurity may not be classified.
(c) Information may not be reclassified after it has been declassified andreleased to the public under proper authority.
(d) Information that has not previously been disclosed to the public underproper authority may be classified or reclassified after an agency has receiveda request for it under the Freedom of Information Act (5 U.S.C. 552) orthe Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory review provisionsof section 3.6 of this order only if such classification meets the requirementsof this order and is accomplished on a document-by-document basis with thepersonal participation or under the direction of the agency head, the deputyagency head, or the senior agency official designated under section 5.6of this order. This provision does not apply to classified information containedin records that are more than 25 years old and have been determined to havepermanent historical value under title 44, United States Code.
(e) Compilations of items of information which are individually unclassifiedmay be classified if the compiled information reveals an additional associationor 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-existingunclassified items of information.
Sec. 1.9. Classification Challenges. (a) Authorized holders of informationwho, in good faith, believe that its classification status is improper areencouraged and expected to challenge the classification status of the informationin 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 underwhich authorized holders of information are encouraged and expected to challengethe classification of information that they believe is improperly classifiedor 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 tothe Interagency Security Classification Appeals Panel established by section5.4 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 classificationmarkings that apply to the source information. Derivative classificationincludes the classification of information based on classification guidance.The duplication or reproduction of existing classified information is notderivative classification.
(b) "Classification guidance" means any instruction or sourcethat prescribes the classification of specific information.
(c) "Classification guide" means a documentary form of classificationguidance issued by an original classification authority that identifiesthe elements of information regarding a specific subject that must be classifiedand establishes the level and duration of classification for each such element.
(d) "Source document" means an existing document that containsclassified information that is incorporated, paraphrased, restated, or generatedin new form into a new document.
(e) "Multiple sources" means two or more source documents, classificationguides, 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 classificationmarkings derived from source material or as directed by a classificationguide, 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 classificationmarkings. 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 longestperiod of classification among the sources; and
(B) a listing of these sources on or attached to the official file or recordcopy.
Sec. 2.3. Classification Guides. (a) Agencies with original classificationauthority shall prepare classification guides to facilitate the proper anduniform derivative classification of information. These guides shall conformto standards contained in directives issued under this order.
(b) Each guide shall be approved personally and in writing by an officialwho:
(1) has program or supervisory responsibility over the information or isthe senior agency official; and
(2) is authorized to classify information originally at the highest levelof classification prescribed in the guide.
(c) Agencies shall establish procedures to assure that classification guidesare 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 statusof information from classified information to unclassified information.
(b) "Automatic declassification" means the declassification ofinformation based solely upon:
(1) the occurrence of a specific date or event as determined by the originalclassification authority; or
(2) the expiration of a maximum time frame for duration of classificationestablished under this order.
(c) "Declassification authority" means:
(1) the official who authorized the original classification, if that officialis 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 agencyhead or the senior agency official.
(d) "Mandatory declassification review" means the review for declassificationof classified information in response to a request for declassificationthat meets the requirements under section 3.6 of this order.
(e) "Systematic declassification review" means the review fordeclassification of classified information contained in records that havebeen determined by the Archivist of the United States ("Archivist")to have permanent historical value in accordance with chapter 33 of title44, United States Code.
(f) "Declassification guide" means written instructions issuedby a declassification authority that describes the elements of informationregarding a specific subject that may be declassified and the elements thatmust remain classified.
(g) "Downgrading" means a determination by a declassificationauthority that information classified and safeguarded at a specified levelshall be classified and safeguarded at a lower level.
(h) "File series" means documentary material, regardless of itsphysical form or characteristics, that is arranged in accordance with afiling system or maintained as a unit because it pertains to the same functionor activity.
Sec. 3.2. Authority for Declassification. (a) Information shall be declassifiedas soon as it no longer meets the standards for classification under thisorder.
(b) It is presumed that information that continues to meet the classificationrequirements under this order requires continued protection. In some exceptionalcases, however, the need to protect such information may be outweighed bythe public interest in disclosure of the information, and in these casesthe information should be declassified. When such questions arise, theyshall be referred to the agency head or the senior agency official. Thatofficial will determine, as an exercise of discretion, whether the publicinterest in disclosure outweighs the damage to national security that mightreasonably 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 determinesthat information is classified in violation of this order, the Directormay require the information to be declassified by the agency that originatedthe classification. Any such decision by the Director may be appealed tothe President through the Assistant to the President for National SecurityAffairs. The information shall remain classified pending a prompt decisionon the appeal.
(d) The provisions of this section shall also apply to agencies that, underthe 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 informationtransferred in conjunction with a transfer of functions, and not merelyfor storage purposes, the receiving agency shall be deemed to be the originatingagency for purposes of this order.
(b) In the case of classified information that is not officially transferredas described in paragraph (a), above, but that originated in an agency thathas ceased to exist and for which there is no successor agency, each agencyin possession of such information shall be deemed to be the originatingagency for purposes of this order. Such information may be declassifiedor downgraded by the agency in possession after consultation with any otheragency that has an interest in the subject matter of the information.
(c) Classified information accessioned into the National Archives and RecordsAdministration ("National Archives") as of the effective dateof this order shall be declassified or downgraded by the Archivist in accordancewith this order, the directives issued pursuant to this order, agency declassificationguides, and any existing procedural agreement between the Archivist andthe relevant agency head.
(d) The originating agency shall take all reasonable steps to declassifyclassified information contained in records determined to have permanenthistorical value before they are accessioned into the National Archives.However, the Archivist may require that records containing classified informationbe accessioned into the National Archives when necessary to comply withthe provisions of the Federal Records Act. This provision does not applyto information being transferred to the Archivist pursuant to section 2203of title 44, United States Code, or information for which the National Archivesand Records Administration serves as the custodian of the records of anagency or organization that goes out of existence.
(e) To the extent practicable, agencies shall adopt a system of recordsmanagement that will facilitate the public release of documents at the timesuch documents are declassified pursuant to the provisions for automaticdeclassification 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 containedin records that (1) are more than 25 years old, and (2) have been determinedto have permanent historical value under title 44, United States Code, shallbe automatically declassified whether or not the records have been reviewed.Subsequently, all classified information in such records shall be automaticallydeclassified 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 expectedto:
(1) reveal the identity of a confidential human source, or reveal informationabout the application of an intelligence source or method, or reveal theidentity of a human intelligence source when the unauthorized disclosureof that source would clearly and demonstrably damage the national securityinterests of the United States;
(2) reveal information that would assist in the development or use of weaponsof 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 theart 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 relationsbetween the United States and a foreign government, or seriously and demonstrablyundermine ongoing diplomatic activities of the United States;
(7) reveal information that would clearly and demonstrably impair the currentability of United States Government officials to protect the President,Vice President, and other officials for whom protection services, in theinterest of national security, are authorized;
(8) reveal information that would seriously and demonstrably impair currentnational 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 shallnotify the President through the Assistant to the President for NationalSecurity Affairs of any specific file series of records for which a reviewor assessment has determined that the information within those file seriesalmost invariably falls within one or more of the exemption categories listedin paragraph (b), above, and which the agency proposes to exempt from automaticdeclassification. The notification shall include:
(1) a description of the file series;
(2) an explanation of why the information within the file series is almostinvariably exempt from automatic declassification and why the informationmust remain classified for a longer period of time; and
(3) except for the identity of a confidential human source or a human intelligencesource, as provided in paragraph (b), above, a specific date or event fordeclassification of the information.
The President may direct the agency head not to exempt the file series orto declassify the information within that series at an earlier date thanrecommended.
(d) At least 180 days before information is automatically declassified underthis section, an agency head or senior agency official shall notify theDirector of the Information Security Oversight Office, serving as ExecutiveSecretary of the Interagency Security Classification Appeals Panel, of anyspecific information beyond that included in a notification to the Presidentunder paragraph (c), above, that the agency proposes to exempt from automaticdeclassification. The notification shall include:
(1) a description of the information;
(2) an explanation of why the information is exempt from automatic declassificationand must remain classified for a longer period of time; and
(3) except for the identity of a confidential human source or a human intelligencesource, as provided in paragraph (b), above, a specific date or event fordeclassification of the information. The Panel may direct the agency notto 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 theAssistant to the President for National Security Affairs. The informationwill remain classified while such an appeal is pending.
(e) No later than the effective date of this order, the agency head or senioragency official shall provide the Director of the Information Security OversightOffice with a plan for compliance with the requirements of this section,including the establishment of interim target dates. Each such plan shallinclude the requirement that the agency declassify at least 15 percent ofthe records affected by this section no later than 1 year from the effectivedate of this order, and similar commitments for subsequent years until theeffective date for automatic declassification.
(f) Information exempted from automatic declassification under this sectionshall remain subject to the mandatory and systematic declassification reviewprovisions of this order.
(g) The Secretary of State shall determine when the United States shouldcommence negotiations with the appropriate officials of a foreign governmentor international organization of governments to modify any treaty or internationalagreement that requires the classification of information contained in recordsaffected by this section for a period longer than 25 years from the dateof its creation, unless the treaty or international agreement pertains toinformation that may otherwise remain classified beyond 25 years under thissection.
Sec. 3.5. Systematic Declassification Review. (a) Each agency that has originatedclassified information under this order or its predecessors shall establishand conduct a program for systematic declassification review. This programshall apply to historically valuable records exempted from automatic declassificationunder section 3.4 of this order. Agencies shall prioritize the systematicreview 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 forsystematic review concentration; or
(2) the degree of researcher interest and the likelihood of declassificationupon review.
(b) The Archivist shall conduct a systematic declassification review programfor classified information: (1) accessioned into the National Archives asof the effective date of this order; (2) information transferred to theArchivist pursuant to section 2203 of title 44, United States Code; and(3) information for which the National Archives and Records Administrationserves as the custodian of the records of an agency or organization thathas gone out of existence. This program shall apply to pertinent recordsno later than 25 years from the date of their creation. The Archivist shallestablish priorities for the systematic review of these records based uponthe recommendations of the Information Security Policy Advisory Council;or the degree of researcher interest and the likelihood of declassificationupon review. These records shall be reviewed in accordance with the standardsof this order, its implementing directives, and declassification guidesprovided to the Archivist by each agency that originated the records. TheDirector of the Information Security Oversight Office shall assure thatagencies provide the Archivist with adequate and current declassificationguides.
(c) After consultation with affected agencies, the Secretary of Defensemay establish special procedures for systematic review for declassificationof classified cryptologic information, and the Director of Central Intelligencemay establish special procedures for systematic review for declassificationof classified information pertaining to intelligence activities (includingspecial 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 ordersshall be subject to a review for declassification by the originating agencyif:
(1) the request for a review describes the document or material containingthe information with sufficient specificity to enable the agency to locateit with a reasonable amount of effort;
(2) the information is not exempted from search and review under the CentralIntelligence Agency Information Act; and
(3) the information has not been reviewed for declassification within thepast 2 years. If the agency has reviewed the information within the past2 years, or the information is the subject of pending litigation, the agencyshall 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 solelyadvise and assist the incumbent President is exempted from the provisionsof paragraph (a), above. However, the Archivist shall have the authorityto review, downgrade, and declassify information of former Presidents underthe control of the Archivist pursuant to sections 2107, 2111, 2111 note,or 2203 of title 44, United States Code. Review procedures developed bythe Archivist shall provide for consultation with agencies having primarysubject matter interest and shall be consistent with the provisions of applicablelaws or lawful agreements that pertain to the respective Presidential papersor records. Agencies with primary subject matter interest shall be notifiedpromptly of the Archivist's decision. Any final decision by the Archivistmay be appealed by the requester or an agency to the Interagency SecurityClassification Appeals Panel. The information shall remain classified pendinga prompt decision on the appeal.
(c) Agencies conducting a mandatory review for declassification shall declassifyinformation that no longer meets the standards for classification underthis order. They shall release this information unless withholding is otherwiseauthorized and warranted under applicable law.
(d) In accordance with directives issued pursuant to this order, agencyheads shall develop procedures to process requests for the mandatory reviewof classified information. These procedures shall apply to information classifiedunder this or predecessor orders. They also shall provide a means for administrativelyappealing a denial of a mandatory review request, and for notifying therequester of the right to appeal a final agency decision to the InteragencySecurity Classification Appeals Panel.
(e) After consultation with affected agencies, the Secretary of Defenseshall develop special procedures for the review of cryptologic information,the Director of Central Intelligence shall develop special procedures forthe review of information pertaining to intelligence activities (includingspecial activities), or intelligence sources or methods, and the Archivistshall develop special procedures for the review of information accessionedinto the National Archives.
Sec. 3.7. Processing Requests and Reviews. In response to a request forinformation under the Freedom of Information Act, the Privacy Act of 1974,or the mandatory review provisions of this order, or pursuant to the automaticdeclassification or systematic review provisions of this order:
(a) An agency may refuse to confirm or deny the existence or nonexistenceof requested information whenever the fact of its existence or nonexistenceis itself classified under this order.
(b) When an agency receives any request for documents in its custody thatcontain information that was originally classified by another agency, orcomes across such documents in the process of the automatic declassificationor systematic review provisions of this order, it shall refer copies ofany request and the pertinent documents to the originating agency for processing,and may, after consultation with the originating agency, inform any requesterof the referral unless such association is itself classified under thisorder. In cases in which the originating agency determines in writing thata response under paragraph (a), above, is required, the referring agencyshall respond to the requester in accordance with that paragraph.
Sec. 3.8. Declassification Database. (a) The Archivist in conjunction withthe Director of the Information Security Oversight Office and those agenciesthat originate classified information, shall establish a Government widedatabase of information that has been declassified. The Archivist shallalso explore other possible uses of technology to facilitate the declassificationprocess.
(b) Agency heads shall fully cooperate with the Archivist in these efforts.
(c) Except as otherwise authorized and warranted by law, all declassifiedinformation 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 knowledgeof classified information.
(c) "Need-to-know" means a determination made by an authorizedholder of classified information that a prospective recipient requires accessto specific classified information in order to perform or assist in a lawfuland authorized governmental function.
(d) "Automated information system" means an assembly of computerhardware, 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 isunchanged from its source and has not been accidentally or intentionallymodified, altered, or destroyed.
(f) "Network" means a system of two or more computers that canexchange 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 aspecific class of classified information that imposes safeguarding and accessrequirements that exceed those normally required for information at thesame classification level.
Sec. 4.2. General Restrictions on Access. (a) A person may have access toclassified information provided that:
(1) a favorable determination of eligibility for access has been made byan 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 originatingagency or its successor in function. An agency shall not disclose informationoriginally classified by another agency without its authorization. An officialor employee leaving agency service may not remove classified informationfrom the agency's control.
(c) Classified information may not be removed from official premises withoutproper authorization.
(d) Persons authorized to disseminate classified information outside theexecutive branch shall assure the protection of the information in a mannerequivalent to that provided within the executive branch.
(e) Consistent with law, directives, and regulation, an agency head or senioragency official shall establish uniform procedures to ensure that automatedinformation systems, including networks and telecommunications systems,that collect, create, communicate, compute, disseminate, process, or storeclassified 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 orsenior agency official shall establish controls to ensure that classifiedinformation is used, processed, stored, reproduced, transmitted, and destroyedunder conditions that provide adequate protection and prevent access byunauthorized persons.
(g) Consistent with directives issued pursuant to this order, an agencyshall safeguard foreign government information under standards that providea degree of protection at least equivalent to that required by the governmentor international organization of governments that furnished the information.When adequate to achieve equivalency, these standards may be less restrictivethan the safeguarding standards that ordinarily apply to United States "Confidential"information, including allowing access to individuals with a need-to-knowwho have not otherwise been cleared for access to classified informationor executed an approved nondisclosure agreement.
(h) Except as provided by statute or directives issued pursuant to thisorder, classified information originating in one agency may not be disseminatedoutside any other agency to which it has been made available without theconsent of the originating agency. An agency head or senior agency officialmay waive this requirement for specific information originated within thatagency. For purposes of this section, the Department of Defense shall beconsidered one agency.
Sec. 4.3. Distribution Controls. (a) Each agency shall establish controlsover the distribution of classified information to assure that it is distributedonly to organizations or individuals eligible for access who also have aneed-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 distributionlists and shall notify distributors whenever a relevant change in statusoccurs.
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 principaldeputy of each, may create a special access program. For special accessprograms 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 theDirector of Central Intelligence. These officials shall keep the numberof these programs at an absolute minimum, and shall establish them onlyupon 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 applicableto information classified at the same level are not deemed sufficient toprotect the information from unauthorized disclosure; or
(3) the program is required by statute.
(b) Requirements and Limitations. (1) Special access programs shall be limitedto programs in which the number of persons who will have access ordinarilywill be reasonably small and commensurate with the objective of providingenhanced protection for the information involved.
(2) Each agency head shall establish and maintain a system of accountingfor special access programs consistent with directives issued pursuant tothis order.
(3) Special access programs shall be subject to the oversight program establishedunder section 5.6(c) of this order. In addition, the Director of the InformationSecurity Oversight Office shall be afforded access to these programs, inaccordance with the security requirements of each program, in order to performthe functions assigned to the Information Security Oversight Office underthis order. An agency head may limit access to a special access programto the Director and no more than one other employee of the Information SecurityOversight Office; or, for special access programs that are extraordinarilysensitive and vulnerable, to the Director only.
(4) The agency head or principal deputy shall review annually each specialaccess program to determine whether it continues to meet the requirementsof this order.
(5) Upon request, an agency shall brief the Assistant to the President forNational Security Affairs, or his or her designee, on any or all of theagency's special access programs.
(c) Within 180 days after the effective date of this order, each agencyhead or principal deputy shall review all existing special access programsunder the agency's jurisdiction. These officials shall terminate any specialaccess programs that do not clearly meet the provisions of this order. Eachexisting special access program that an agency head or principal deputyvalidates shall be treated as if it were established on the effective dateof this order.
(d) Nothing in this order shall supersede any requirement made by or under10 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 classifiedinformation may be granted only to individuals who have a need-to-know theinformation may be waived for persons who:
(1) are engaged in historical research projects; or
(2) previously have occupied policy-making positions to which they wereappointed by the President.
(b) Waivers under this section may be granted only if the agency head orsenior agency official of the originating agency:
(1) determines in writing that access is consistent with the interest ofnational security;
(2) takes appropriate steps to protect classified information from unauthorizeddisclosure or compromise, and ensures that the information is safeguardedin a manner consistent with this order; and
(3) limits the access granted to former Presidential appointees to itemsthat the person originated, reviewed, signed, or received while servingas 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 activitiesand the agency as a whole with respect to the implementation of the programestablished under this order and its implementing directives.
(b) "Violation" means:
(1) any knowing, willful, or negligent action that could reasonably be expectedto result in an unauthorized disclosure of classified information;
(2) any knowing, willful, or negligent action to classify or continue theclassification of information contrary to the requirements of this orderor its implementing directives; or
(3) any knowing, willful, or negligent action to create or continue a specialaccess program contrary to the requirements of this order.
(c) "Infraction" means any knowing, willful, or negligent actioncontrary to the requirements of this order or its implementing directivesthat does not comprise a "violation," as defined above.
Sec. 5.2. Program Direction. (a) The Director of the Office of Managementand Budget, in consultation with the Assistant to the President for NationalSecurity Affairs and the co-chairs of the Security Policy Board, shall issuesuch directives as are necessary to implement this order. These directivesshall be binding upon
the agencies. Directives issued by the Director of the Office of Managementand 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 theimplementation and monitorship functions of this program to the Directorof 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 thePresident for National Security Affairs with respect to the issuance ofa Presidential directive on safeguarding classified information. The Presidentialdirective 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 establishedwithin the Office of Management and Budget an Information Security OversightOffice. The Director of the Office of Management and Budget shall appointthe Director of the Information Security Oversight Office, subject to theapproval of the President.
(b) Under the direction of the Director of the Office of Management andBudget acting in consultation with the Assistant to the President for NationalSecurity Affairs, the Director of the Information Security Oversight Officeshall:
(1) develop directives for the implementation of this order;
(2) oversee agency actions to ensure compliance with this order and itsimplementing directives;
(3) review and approve agency implementing regulations and agency guidesfor systematic declassiication review prior to their issuance by the agency;
(4) have the authority to conduct on-site reviews of each agency's programestablished under this order, and to require of each agency those reports,information, and other cooperation that may be necessary to fulfill itsresponsibilities. If granting access to specific categories of classifiedinformation would pose an exceptional national security risk, the affectedagency head or the senior agency official shall submit a written justificationrecommending the denial of access to the Director of the Office of Managementand Budget within 60 days of the request for access. Access shall be deniedpending a prompt decision by the Director of the Office of Management andBudget, who shall consult on this decision with the Assistant to the Presidentfor National Security Affairs;
(5) review requests for original classification authority from agenciesor officials not granted original classification authority and, if deemedappropriate, recommend Presidential approval through the Director of theOffice of Management and Budget;
(6) consider and take action on complaints and suggestions from personswithin or outside the Government with respect to the administration of theprogram established under this order;
(7) have the authority to prescribe, after consultation with affected agencies,standardization of forms or procedures that will promote the implementationof the program established under this order;
(8) report at least annually to the President on the implementation of thisorder; and
(9) convene and chair interagency meetings to discuss matters pertainingto 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 AppealsPanel ("Panel"). The Secretaries of State and Defense, the AttorneyGeneral, the Director of Central Intelligence, the Archivist of the UnitedStates, and the Assistant to the President for National Security Affairsshall each appoint a senior level representative to serve as a member ofthe Panel. The President shall select the Chair of the Panel from amongthe Panel members.
(2) A vacancy on the Panel shall be filled as quickly as possible as providedin paragraph (1), above.
(3) The Director of the Information Security Oversight Office shall serveas the Executive Secretary. The staff of the Information Security OversightOffice shall provide program and administrative support for the Panel.
(4) The members and staff of the Panel shall be required to meet eligibilityfor access standards in order to fulfill the Panel's functions.
(5) The Panel shall meet at the call of the Chair. The Chair shall schedulemeetings as may be necessary for the Panel to fulfill its functions in atimely manner.
(6) The Information Security Oversight Office shall include in its reportsto the President a summary of the Panel's activities.
(b) Functions. The Panel shall:
(1) decide on appeals by persons who have filed classification challengesunder section 1.9 of this order;
(2) approve, deny, or amend agency exemptions from automatic declassificationas provided in section 3.4 of this order; and
(3) decide on appeals by persons or entities who have filed requests formandatory declassification review under section 3.6 of this order.
(c) Rules and Procedures. The Panel shall issue bylaws, which shall be publishedin the Federal Register no later than 120 days from the effective date ofthis order. The bylaws shall establish the rules and procedures that thePanel will follow in accepting, considering, and issuing decisions on appeals.The rules and procedures of the Panel shall provide that the Panel willconsider appeals only on actions in which: (1) the appellant has exhaustedhis or her administrative remedies within the responsible agency; (2) thereis 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 courtsor the Panel within the past 2 years.
(d) Agency heads will cooperate fully with the Panel so that it can fulfillits functions in a timely and fully informed manner. An agency head mayappeal a decision of the Panel to the President through the Assistant tothe President for National Security Affairs. The Panel will report to thePresident through the Assistant to the President for National Security Affairsany instance in which it believes that an agency head is not cooperatingfully with the Panel.
(e) The Appeals Panel is established for the sole purpose of advising andassisting the President in the discharge of his constitutional and discretionaryauthority to protect the national security of the United States. Panel decisionsare 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 AdvisoryCouncil ("Council"). The Council shall be composed of seven membersappointed by the President for staggered terms not to exceed 4 years, fromamong persons who have demonstrated interest and expertise in an area relatedto the subject matter of this order and are not otherwise employees of theFederal Government. The President shall appoint the Council Chair from amongthe members. The Council shall comply with the Federal Advisory CommitteeAct, as amended, 5 U.S.C. App. 2.
(b) Functions. The Council shall:
(1) advise the President, the Assistant to the President for National SecurityAffairs, the Director of the Office of Management and Budget, or such otherexecutive branch officials as it deems appropriate, on policies establishedunder this order or its implementing directives, including recommended changesto those policies;
(2) provide recommendations to agency heads for specific subject areas forsystematic 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 SecurityAffairs 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 exceedthe daily equivalent of the annual rate of basic pay in effect for gradeGS-18 of the general schedule under section 5376 of title 5, United StatesCode, for each day during which that member is engaged in the actual performanceof the duties of the Council.
(2) While away from their homes or regular place of business in the actualperformance of the duties of the Council, members may be allowed travelexpenses, including per diem in lieu of subsistence, as authorized by lawfor 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 withadministrative services, facilities, staff, and other support services necessaryfor the performance of its functions.
(4) Notwithstanding any other Executive order, the functions of the Presidentunder the Federal Advisory Committee Act, as amended, that are applicableto the Council, except that of reporting to the Congress, shall be performedby the Director of the Information Security Oversight Office in accordancewith the guidelines and procedures established by the General Services Administration.
Sec. 5.6. General Responsibilities. Heads of agencies that originate orhandle classified information shall:
(a) demonstrate personal commitment and commit senior management to thesuccessful implementation of the program established under this order;
(b) commit necessary resources to the effective implementation of the programestablished 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 accessprograms authorized under this order. This official shall provide a fullaccounting of the agency's special access programs at least annually;
(2) promulgating implementing regulations, which shall be published in theFederal 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, whichshall include the periodic review and assessment of the agency's classifiedproduct;
(5) establishing procedures to prevent unnecessary access to classifiedinformation, including procedures that: (i) require that a need for accessto classified information is established before initiating administrativeclearance procedures; and (ii) ensure that the number of persons grantedaccess to classified information is limited to the minimum consistent withoperational and security requirements and needs;
(6) developing special contingency plans for the safeguarding of classifiedinformation used in or near hostile or potentially hostile areas;
(7) assuring that the performance contract or other system used to ratecivilian or military personnel performance includes the management of classifiedinformation as a critical element or item to be evaluated in the ratingof: (i) original classification authorities; (ii) security managers or securityspecialists; and (iii) all other personnel whose duties significantly involvethe creation or handling of classified information;
(8) accounting for the costs associated with the implementation of thisorder, which shall be reported to the Director of the Information SecurityOversight 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 thatpertains to classified information that originated in a component of theagency that no longer exists and for which there is no clear successor infunction.
Sec. 5.7. Sanctions. (a) If the Director of the Information Security OversightOffice finds that a violation of this order or its implementing directivesmay have occurred, the Director shall make a report to the head of the agencyor 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 appropriatesanctions if they knowingly, willfully, or negligently:
(1) disclose to unauthorized persons information properly classified underthis order or predecessor orders;
(2) classify or continue the classification of information in violationof this order or any implementing directive;
(3) create or continue a special access program contrary to the requirementsof this order; or
(4) contravene any other provision of this order or its implementing directives.
(c) Sanctions may include reprimand, suspension without pay, removal, terminationof 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 officialshall, at a minimum, promptly remove the classification authority of anyindividual who demonstrates reckless disregard or a pattern of error inapplying 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 infractionunder paragraph (b), above, occurs; and
(2) notify the Director of the Information Security Oversight Office whena 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 supersedeany 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 AtomicEnergy 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 Directorof the Information Security Oversight Office, shall render an interpretationof this order with respect to any question arising in the course of itsadministration.
(c) Nothing in this order limits the protection afforded any informationby other provisions of law, including the exemptions to the Freedom of InformationAct, 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 rightor benefit, substantive or procedural, enforceable at law by a party againstthe United States, its agencies, its officers, or its employees. The foregoingis 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 effectivedate of this order.
Sec. 6.2. Effective Date. This order shall become effective 180 days fromthe date of this order.
/s/ WILLIAM J. CLINTON
WILLIAM J. CLINTON
THE WHITE HOUSE,
April 17, 1995.
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