The Nazi War Crimes and Japanese Imperial Government Records
Interagency Working Group
May 10, 2001
MEMORANDUM FOR: Members, Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group (IWG)
FROM: Steven Garfinkel, Chair
SUBJECT: Foreign Government Information
At our last meeting, the representatives of two agencies raised the issue of exempting foreign government information. The purpose of this memorandum is to remind the member agencies that "foreign government information" is not an exemption category per se under Executive Order 12958, "Classified National Security Information," for historical material over 25 years old. The applicable exemptions under the Nazi War Crimes Disclosure Act, which mimic the national security exemptions in E.O. 12958, also do not include a specific exemption for foreign government information. Therefore, in order to exempt information that originated from a foreign government, the responsible agency head, not the foreign government, must determine that the information clearly falls within another exemption to disclosure under the Act.
Some background information on this subject may be informative. Under the predecessor classification systems to E.O. 12958, foreign government information was a specific exemption category for information whatever its age. However, under these systems, many agencies had experienced situations in which older records of historical value, which otherwise were no longer sensitive, remained classified because the foreign government refused to authorize declassification. Often these decisions were made by liaisons from the comparable agency of the foreign government without any input from a higher authority. In some notable situations, these actions resulted in ludicrous decisions for continued classification that brought public ridicule to the entire security classification system, and made the protection of truly sensitive information more difficult.
As a result, with the development of E.O. 12958, the White House made a purposeful decision not to include foreign government information as a specific exemption category for historical records over 25 years old. Instead, in accordance with the Order's implementing directive (32 CFR § 2001.51(g)), the responsible agency or the Department of State is encouraged to consult with the foreign government, but the ultimate decision rests with an authorized official of the agency (the agency head under the Nazi War Crimes Disclosure Act).
With respect to records subject to the exemption standards of the Nazi War Crimes Disclosure Act, agencies must exercise this responsibility with particular care. The onus for relevant records, even records that may include foreign government information, clearly leans toward declassification and disclosure.
In applying the exemptions… there shall be a presumption that the public interest in the release of Nazi war criminal records will be served by disclosure and release of the records. Assertion of such exemption may only be made when the agency head determines that disclosure and release would be harmful to a specific interest identified in the exemption. An agency head who makes such an exemption shall promptly report it to the committees of Congress with appropriate jurisdiction…
[Section 3(b)(3)(A) of the Act]