NCC Advocacy Update

NCC Advocacy Update, October 1994

Page Putnam Miller, October 1994

Access to CIA Operational Files of Historical Value

On August 8 the Federal Register carried a request for comments from the public regarding the historical value of the subject matter of the Central Intelligence Agency's (CIA) operational files. Since 1984 these files have been exempt from Freedom of Information Act (FOIA) requests. The CIA Information Act of 1984 exempted three categories of operation files from FOIA searches—the files of the Directorate of Operations, the files of the Directorate of Science and Technology, and the files of the Office of Security. Within these categories some of the files that would be of most interest to historians are the Policy and Management files of the Directorate of Operations, described in the Federal Register announcement as files containing information concerning the management of individual projects and decisions made for the conduct of operational activities. In hearings in 1983 when this legislation was under consideration, historians testified in the House and Senate in opposition to policies that closed off large bodies of records without any provisions for eventual access. In subsequent amendments, spearheaded by Senator Patrick Leahy, some concessions were made to ensure that the legislation not undercut the public's access through the FOIA to information used in setting United States foreign policy. One of the amendments adopted requires that not less than once every ten years the Director of Central Intelligence review those categories of records exempt from FOIA requests. With the end of the ten-year period occurring in October, the CIA is soliciting comments to assist with this review.

Through its Openness Initiative the CIA has in the last few years made some select information available to the public. But the long list in the Federal Register under "Declassification and Release of CIA Information of Historical Value" includes relatively few documents. At the March 1994 CIA Conference on the Origin and Development of the CIA in the Administration of Harry S. Truman, Anna Nelson of American University in a session titled "Research, Records, and Declassification Today" made clear that "the efforts of CIA public relations officials notwithstanding, the Agency has released very few of its records." The CIA collection in the National Archives consists mainly of intelligence estimates, articles from Studies in Intelligence, some documents used in the preparation of official CIA histories, and records related to the JFK assassination that were required by law to be deposited at the National Archives.

Historians have for a long time urged that older records of historical value be transferred to the National Archives and made available to researchers. While historians value the FOIA, historical methodology is best served when researchers have access to the whole body of records and not isolated documents. Since historians' FOIA requests often require expensive and time-consuming searches and frequently involve two-, three-, and even four-year waits, the most efficient and cost-effective means for providing access to older records is to make them available in the National Archives.

While the long-term objective of historians will continue to be focused on much-needed reform of systematic declassification policies, the opportunity to comment on the CIA's decennial review has not been ignored. Historians have urged that there be a full-scale revision of the operational categories defined in the CIA Information Act of 1984 to ensure that older records of historical value are accessible to scholars and to the public. Official responses have stressed that the principle that the sensitivity of a record declines with age should be a part of all access policies. A most troubling aspect of the current designation of files to be exempt from the Freedom of Information Act is that there is no consideration of the age of documents. Thus, a 1950 document is as inaccessible as one from 1990 if it falls within one of the exempted categories.

Although the comment period announced in the Federal Register was short, the NCC alerted a number of historians who responded to the notice.

State Department Historical Advisory Committee Warns of Potential Distortion of the Historical Record

The State Department Advisory Committee on Historical Diplomatic Documentation recently submitted to Secretary of State Warren Christopher in its annual report a warning of potential distortion of the historical record. Public Law 102-138, passed in 1991, established the committee and requires an annual report summarizing the committee's work and providing an assessment of the current status of the historical documentary series, Foreign Relations of the United States (FRUS), and the State Department's program for making its historical record available to the public.

The committee sent Secretary Christopher a clear message in stating: "The refusal of the State Department and other agencies, most often the Central Intelligence Agency, to declassify thirty-year-old documents needed for FRUS remains the greatest barrier to meeting the congressional mandate that the FRUS series be accurate and comprehensive." More specifically, the report states that it is the unanimous opinion of the committee that declassification refusals by the Department of State and the CIA will "seriously distort the record of American foreign policy with at least two nations during the Kennedy presidency—over thirty years ago."

Although historians are discouraged that declassification and staffing problems may delay the publication of FRUS volumes within the mandated time frame of no more than thirty years after the events they describe, the historical community is pleased that the advisory committee has been able to function in the oversight capacity prescribed by the law.

Committee chair Warren F. Kimball, a professor at Rutgers University and the representative of the American Historical Association on the committee, prepared the annual report, which will be summarized in the next issue of Perspectives.

Conference Committee on National Archives' Budget Expected to Meet Soon

The conference committee to work out the differences between the House and Senate versions of the National Archives and Records Administration's (NARA) FY'95 budget will be meeting soon. In February the president recommended $200.898 million for NARA, which included $4 million for the National Historical Publications and Records Commission (NHPRC). The House decided to pull out the NHPRC budget as a separate line item and passed a bill with $194.638 million for the National Archives and $7 million for the NHPRC with language in the legislation stating that $2 million of the NHPRC appropriation "shall be a grant to the Thomas P. O'Neill, Jr., Library" at Boston College. The Senate subcommittee initially recommended $199.638 million for NARA with $5 million earmarked for the NHPRC. Senator Bob Kerrey (D-Nebr.) introduced amendments which raised the appropriation to $200.238 million and included an additional $500,000 for the pilot NARA/Internet project which received some funding this year. Senator Mark Hatfield (R-Ore.) introduced an amendment to increase the amount earmarked for NHPRC from $5 million to $5.25 million, the current FY'94 level.

Update on PROFS Case

On August 8, Michael Tankersley and Alan Morrison, both of the Public Citizen Litigation Group, submitted a memorandum for the plaintiffs to the U.S. District Court for the District of Columbia focusing on the defendant's claim that the National Security Council (NSC) is not a federal agency and is not subject to the requirements of the Federal Records Act. The plaintiffs are urging the court to declare that the NSC is an "agency" and should therefore be obligated to preserve records stored on its electronic communications systems in accordance with the Federal Records Act.

Meanwhile, in this very complex case which is moving forward on a number of fronts, the National Archives is reviewing over one thousand pages of comments received in response to the request in the Federal Register earlier this summer for comments on guidance which had been developed in consultation with the plaintiffs on "Managing Federal Records on Electronic Mail."

National Archives Reconsiders Approach to Computerized Finding Aids

The National Archives has recently withdrawn a Request for Proposal for further development of a $10 million Archival Information System (AIC). Larry Hines, the National Archives' director of policy and systems, has explained the recent decision to withdraw the request on AIC, a project that NARA had been working on for the last several years, as a result of two factors—one, not having the money to award the contract and two, the agency's desire to enhance its Integrated Communications and Administrative Support System (ICASS). The enhancement of ICASS would support an index of the National Archives' massive holdings that would be accessible to all of the presidential libraries and records centers as well as the public through local area networks. Since AIC was being developed first and foremost as a management tool with reference functions as an added capabilities, it may well be that the abandonment of AIC could make way for the development of a more useful online electronic system for the public.