an individual could be held liable under an agreement not to disclose "classifiable" information. Since the employee knew that the entire briefing was classified, it can fairly be said that the employee reasonably should have known that the notes qualified for classification and were not "in fact properly classified" only because there had not yet been an opportunity for marking.

The Q & A does not provide illustrative examples of "oversight or error" resulting in information being "classifiable" rather than "classified," and it is not at all clear why an individual should be expected to determine or have knowledge of the sensitivity of the information in such circumstances, unless the "oversight or error" was that of the individual (i.e., having original classification authority) himself.

Unlike the "lack of opportunity" situation, which will require a factual showing of the individual's personal knowledge of a time-constrained sequence of events precluding an opportunity for proper marking, "oversight or error" may simply involve the non-occurrence of events; that is, it doesn't require a showing that "something happened" to prevent classification, it merely requires the assertion that, for any or no particular reason, "nothing happened" to achieve classification.

Again, it would be wholly unfair to expect that the individual should presume to make his or her own classification determination based exclusively on the nature of the information. Unless the Government can show the individual's personal knowledge of specific facts which should reasonably have informed the individual about the "oversight or error" but for which the information would have been "in fact properly classified," the individual should not be liable for disclosure of "classifiable" information in such circumstances.

Unfortunately, however, no explanation of any kind is provided in the express language of the agreement to define the term "classifiable" and the Government has refused to permit the Q & A and other explanatory briefing materials to be formally considered as a part of the agreement. Without such qualification, the Government could baldly assert the "classifiable" nature of almost any information and, consequently, the individual who signs such an agreement risks potential liability wholly unrelated to legitimate obligations to safeguard classified information.

The ACLU believes that the cited federal caselaw would require a judicial construction limiting the enforceability of SF 189 to information that is "in fact properly classified" or "classifiable" in the sense discussed above. There is no reason, however, to leave such limitations to chance in light of the various ways in which this problem could be more directly addressed.

Si

a

3

E

T

"Indirect" Disclosure

Similarly, the express imposition of liability for "direct or indirect unauthorized disclosure" in SF 189 raises definitional problems that could and should be clarified. What is meant by an "indirect" unauthorized disclosure?

an

The ISOO Q & A (#17) provides "one example" in terms of telling unauthorized individual "where he might obtain the information, for instance, that he should read the story on pages 30-33 of a particular magazine because it was entirely accurate."

a

However, this is clearly inadequate to give an individual fair notice of the kinds of conduct that could be considered violation of his or her obligations. Moreover, it is not at all clear why this example should be considered valid, since the story in the magazine is in the public domain and the individual cannot, based on these facts, be said to have disclosed anything but the whereabouts of unclassified information in response to an unspecified factual question.

It is noteworthy that the "Sanctions" for unauthorized disclosure of classified information by officers and employees of the U.S. Government, and its contractors, licensees, and grantees under Executive Order 12356, at Sec. 5.4 (b)(1), apply only if they "knowingly, willfully, or negligently disclose to unauthorized persons information properly classified under this Order or predecessor orders." Without such a limiting definition of culpable behavior, the term "indirect" disclosure in SF 189 could subject an individual who signs the agreement to liability for disclosures that occur without the individual's knowledge, intent or negligence and which therefore cannot fairly be viewed as a breach of the individual's obligations to safeguard classified information.

Disclosures of Classified Information to Congress

Finally, it is not clear whether the Government believes that an individual's disclosure of classified information to Congress is an "unauthorized disclosure" in violation of the agreement. Again, as shown in the language of Sec. 5.4(b)(1) of Executive Order 12356, an "unauthorized disclosure" in the context of classified information refers to a disclosure made to a person or persons who have not been cleared to receive information at that level of classification. A disclosure is not "unauthorized" simply because the specific transaction has not been approved; otherwise, each and every disclosure of classified information including those between two persons holding appropriate security clearances would be considered "unauthorized" unless

specifically approved.

While it may be argued that a different rule applies to SCI and other special access programs, a disclosure of classified information to a recipient "authorized" (i.e., cleared) to receive information at that level of classification is not an "unauthorized disclosure."

Members of Congress are, of course, cleared for access to all classified information by virtue of their positions. So long as the information is given directly to a Member of Congress, or is communicated to a Member of Congress or a Congressional committee or subcommittee through the custody of a Congressional staffperson who has an appropriate clearance for such classified information, the disclosure cannot be considered "unauthorized." See also Intelligence Oversight Act, 50 U.S.C. Sec. 413 (e); Civil Service Reform Act, 5 U.S.C. Sec. 2302(b) (8) and 7211; and other statutory authorities protecting communications of classified information to Congress by government employees. and other persons.

The language of SF 189 can and should, in the ACLU's view, be substantially improved through rescission and redrafting; in any event, its terms require further clarification which should become binding interpretations for the application and enforcement of the obligations and liability it imposes.

The following memorandum is submitted in response to your request, as discussed with Kris Kolesnik, for information on the possible effect of the required secrecy agreements, or "non-disclosure agreements" required of persons in the executive branch receiving security clearances, on the "whistleblowing" protections of federal law.

Many, but not all, civilian employees in the executive branch of the federal government are covered by the "whistleblowing" protections enacted in the 95th Congress as part of the Civil Service Reform Act of 1978, P.L. 95-454, 92 Stat. 1114. The statutory provisions work to protect an employee from "personnel actions" which are taken as "reprisals" for the employee's whistleblowing activities, that is, the disclosure by the employee of certain illegal, improper or wasteful governmental activities. See 5 U.S.c. §2302(b)(8).

The general intent of Congress in enacting the whistleblowing protection provisions of the Civil Service Reform Act was to encourage the disclosure of illegality, waste, and corruption in government by protecting those employees who "blow the whistle" on such activity, and in so protecting and encouraging such disclosures, ultimately to increase the efficiency and effectiveness of

CRS-2

the federal service. As stated in the Senate Report on the whistleblowing and

civil service reform legislation:

Often the whistleblower's reward for dedication
to the highest moral principles is harassment and
abuse. Whistle blowers frequently encounter
severe damage to their careers and substantial
economic loss. Protecting employees who disclose
government illegality, waste, and corruption is a
major step toward a more effective civil service.
In the vast Federal bureaucracy it is not
difficult to conceal wrongdoing provided that no
one summons the courage to disclose the truth.
Whenever misdeeds take place in a Federal agency,
there are employees who know that it has
occurred, and who are outraged by it. What is
needed is a means to assure them that they will
not suffer if they help uncover and correct
administrative abuses. What is needed is a means
to protect the Pentagon employee who discloses
billions of dollars in cost overruns, the GSA
employee who discloses widespread fraud, and the
nuclear engineer who questions the safety of
certain nuclear plants. These conscientious
civil servants deserve statutory protection
rather than bureaucratic harassment and
intimidation.

S. Rpt. No. 969, 95th Cong.,
2d Sess. 8 (1978).

There are, as a general matter, two types of protected whistleblowing disclosures that may be made by covered employees: (1) public disclosure of non-secret information or information not prohibited by law or certain executive orders from disclosure, and (2) disclosures of any information to specified and particular officers or employees of the government. Whistleblowing disclosures that are made public must not contain information the disclosure of which is prohibited by law, or which is specifically required by an executive order to be kept secret in the interest of national defense or the conduct of foreign affairs, such as classified information.

5 U.S.C.