MDR for full text of 1957 CIA IG Report, "Operations of TSD"

Jeffrey Kaye filed this request with the Central Intelligence Agency of the United States of America.
Tracking # EOM-2016-01415
Est. Completion None
Status
Awaiting Appeal

Communications

From: Jeffrey Kaye

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

This submission constitutes a new Mandatory Declassification Request (MDR) for the 1957 CIA Inspector General Report on "Operations of TSD," wherein "TSD" stands for the CIA division, the Technical Services Division. A section of this report was previously released by CIA, specifically 8 pages, numbered 199-206, in Folder 0000146167 of CIA's MKULTRA FOIA release. Please note the exact title of this report may not be as simple as "Operations of TSD," as the latter title is taken from a handwritten note at the top of a page from the initial FOIA release. An eight-page section of the report was posted online by the website Cryptome.org at URL: https://cryptome.org/mkultra-0001.htm (accessed 13 August 2016). My MDR request, however, is for declassification of the entire IG report.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Jeffrey Kaye

From: Central Intelligence Agency

An acknowledgement letter, stating the request is being processed.

From: Central Intelligence Agency

The request has been rejected, with the agency stating that the information or document(s) requested are exempt from disclosure.

From: Jeffrey Kaye

November 27, 2016

Michael Lavergne
Information and Privacy Coordinator
Central Intelligence Agency
Washington, DC 20505

Re: Reference No. EOM-2016-01415

Dear Mr. Lavergne,

This is a formal request for appeal of the decision made in regards to my mandatory declassification review (MDR) request (number referenced above) for the 1957 CIA Inspector General Report on “Operations of TSD” (hereafter IG REPORT). In a letter dated November 1, 2016, you wrote, “We completed a thorough search of our records and located material responsive to your request. We have determined that the material must remain classified on the basis of sections 3.3(h)(1) and 3.3(h)(2) of the [Executive] Order [13526] and cannot be released in sanitized form.” I thank you for your prompt response.

In my initial request, filed on August 13, 2016, I asked for “the 1957 CIA Inspector General Report on ‘Operations of TSD,’ wherein ‘TSD’ stands for the CIA division, the Technical Services Division.” I believe the decision to withhold the report, concluding it “cannot be released in sanitized form,” to be incorrect for the reasons adumbrated below.

1) Previous declassification of sections of IG REPORT

I noted in my initial request that a portion of IG REPORT had been declassified previously. CIA released a section of this report, specifically 8 pages long (numbered pages 199-206) in Folder 0000146167 of CIA's MKULTRA FOIA release made a number of years ago. This section of IG REPORT was posted online by the website Cryptome.org at URL: https://cryptome.org/mkultra-0001.htm (accessed 13 August 2016). An alternate posting online is available online at http://documents.theblackvault.com/documents/mkultra/MKULTRA1/DOC_0000146167/DOC_0000146167.pdf (accessed November 25, 2016).

2) A History of Declassifications

Besides the portion of IG REPORT identified above, there have been other declassifications associated with similar material. From the 1970s onwards, many declassified documents associated with both TSD and the MKULTRA program were declassified by CIA. A later IG report on the MKULTRA program, involving TSD operations, and dated July 26, 1963, was subject to declassification review per E.O. 12065, which was conducted on 17 June 17, 1981. This 1963 report is also available online at numerous websites. One such URL is https://cryptome.org/mkultra-0003.htm (accessed November 25, 2016).

In addition to IG reports, many other documents related to MKULTRA’s history and operations have been declassified over the years. This material has been the subject of numerous books, and, even going back some years, Congressional hearings. The website The Black Vault has posted a complete selection of these documents at the URL: http://www.theblackvault.com/documentarchive/cia-mkultra-collection/ (accessed November 25, 2016).

3) Applicable Law

According to EO 13526, Section 3.5(c): “Agencies conducting a mandatory review for declassification shall declassify information that no longer meets the standards for classification under this order. They shall release this information unless withholding is otherwise authorized and warranted under applicable law.”

It is my understanding of your decision that the applicable law precluding the release of IG REPORT, or any portion of that report, is that it “remain classified on the basis of sections 3.3(h)(1) and 3.3(h)(2)” of Executive Order 13526.

The 3.3(h)(1) exemption, which is for documents over 50 years old, states that such exemption is reserved for documents that can “clearly and demonstrably be expected to reveal…. (A) the identity of a confidential human source or a human intelligence source; or (B) key design concepts of weapons of mass destruction.”

Exemption 3.3(h)(2) is reserved for documents that constitute “extraordinary cases.” In such cases, an agency head “may, within 5 years of the onset of automatic declassification, propose to exempt additional specific information from declassification at 50 years.” Such claim of exemption from automatic declassification must be made according to the provisions of section 3.3(j) of the Executive Order, i.e., “[a]t least 1 year before information is subject to automatic declassification under this section…”

The EO continues:
“… an agency head or senior agency official shall notify the Director of the Information Security Oversight Office, serving as Executive Secretary of the [Interagency Security Classification Appeals] Panel, of any specific information that the agency proposes to exempt from automatic declassification under paragraphs (b) and (h) of this section.

“(1) The notification shall include:

“(A) a detailed description of the information, either by reference to information in specific records or in the form of a declassification guide;

“(B) an explanation of why the information should be exempt from automatic declassification and must remain classified for a longer period of time; and

“(C) a specific date or a specific and independently verifiable event for automatic declassification of specific records that contain the information proposed for exemption.”

The claim by CIA that IG REPORT cannot be released in toto, i.e., without sanitization, seems highly unlikely in regards to exemption 3.3(h)(1). Sections have already been released, as noted above, with no danger as to whether a “confidential human source or a human intelligence source” were in danger. A 1963 Inspector General report on the same general subject as IG REPORT also was released in more substantive form. Furthermore, it seems unlikely IG REPORT was substantively concerned with identification of human intelligence sources.

Hence, the exemption for released material according to section 3.3(h)(1) of EO 13526 appears to concern “key design concepts of weapons of mass destruction.” Such weapons are defined in U.S. law (18 U.S. Code § 2332a) as any “destructive device” (defined a weapon with a bore diameter of larger than one-half inch propelled by an explosive or propellant, or any “explosive, incendiary, or poison gas [see 18 U.S. Code § 921]); any weapon that “designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors”; “any weapon involving a biological agent, toxin, or vector”; or any weapon “designed to release radiation or radioactivity at a level dangerous to human life.”

According to a July 26, 1963 memorandum to the then-director of the CIA from then-CIA Inspector General J.S. Earman, the MKULTRA program was concerned with, at least in part, “the research and development of chemical, biological, and radiological materials capable of employment in clandestine operations to control human behavior.” (See quote of the document at URL: https://cryptome.org/mkultra-0003.htm [accessed November 25, 2016]). Hence, the apparent role of CIA in the development of weapons of mass destruction appears to be the basis of withholding material from declassification and release some 59 years after the fact.

But the EO language states that the exemption must be because the document would reveal “key design concepts” of such weapons of mass destruction. Given the arguments regarding prior declassifications made above, it seems that whatever exemption regarding “key design concepts” of WMD, or even identification of human intelligence sources, is segregable within IG REPORT, and there is no need to withhold that document in its totality.

Exemption 3.3(h)(2) presents a greater difficulty for this appeal, as it does not give any reason for the agency head to claim the exemption. But whatever those reasons are, they must presented to Interagency Security Classification Appeals Panel (hereafter ISCAP), along with a description of what information is exempted, and a projected date of declassification. I request that such information be released if IG REPORT is not to be released.

Further, I note that the language of Section 3.3(j) does not suggest the exemption of an entire document, and in fact argues against it. Section 3.3.(j)(1)(a) states the agency head must provide ISCAP “a detailed description of the information, either by reference to information in specific records or in the form of a declassification guide” to such information. This strongly suggests that only some portions of the document will be subject to exemption, not an entire document itself, especially one that is as long as an inspector general report, or one that has already had multiple pages previously declassified.

4) Public Interest

Finally, I argue that the material requested by MDR in this case is in the public interest. Much of the information in IG REPORT is already publicly available. Furthermore, it seems likely that the passage of time has reduced any potential harm from such release.

Nearly 40 years since the public revelations concerning the CIA’s MKULTRA and related programs, interest in this story remains high. Books published decades ago, such as John Marks’ “The Search for the ‘Manchurian Candidate’: The CIA and Mind Control: The Secret History of the Behavioral Sciences” (W.W. Norton & Co.), and Martin A. Lee and Bruce Shlain’s “Acid Dreams: The Complete Social History of LSD: The CIA, the Sixties, and Beyond” (Grove Press), remain in print and therefore in demand.

Newspaper and mainstream magazine articles continue to address the subject. As examples, see, for instance, “April 13, 1953: CIA OKs MK-ULTRA Mind-Control Tests,” by Kim Zetter, Wired Magazine, April 13, 2010 (URL: https://www.wired.com/2010/04/0413mk-ultra-authorized/ [accessed November 25, 2016]); “The CIA Can Do Mind Control: MK Ultra / College campuses, for starters / 1953-1973,” by Mark Jacobson, New York Magazine, November 17, 2013 (URL: http://nymag.com/news/features/conspiracy-theories/cia-mind-control/ [accessed November 25, 2016]); “Operation Midnight Climax: How the CIA Dosed S.F. Citizens with LSD,” by Troy Hooper, SF Weekly, March 14, 2012 (URL: http://archives.sfweekly.com/sanfrancisco/operation-midnight-climax-how-the-cia-dosed-sf-citizens-with-lsd/Content?oid=2184385 [accessed November 25, 2016]); and “What Do You Do When Your Family Was the Victim of CIA Mind-Control Experiments?” by Rea McNamara, VICE News, April 15, 2016 (URL: http://www.vice.com/read/how-do-you-turn-a-family-history-of-cia-mind-control-experiments-into-art [accessed November 25, 2016]).

Finally, in regards to public interest, it cannot be denied that there are a great deal of bogus or wild conspiratorial claims made about the CIA’s MKULTRA and related programs. Release of such documents as IG REPORT helps mitigate wild speculations, and therefore is in the public interest.

It is the contention of this appeal that due to prior releases and government investigations that the material discussed in IG REPORT does not constitute one of an unknown number of “extraordinary cases” that would require exemption from declassification. Even if the appeals panel finds that some material should be in fact exempt from release, I believe that all portions of IG REPORT that do not meet such exemption be released.

Therefore, Mr. Lavergne, in mind of all the arguments made above, I am appealing to the Agency Release Panel, and sending such appeal to your care and attention. If you, or anyone at the Panel, have any questions, or believe discussion of this matter would be beneficial, please contact me directly at jeffkaye@sbcglobal.net or at (415) 362-8262.

Thank you,

Jeffrey Kaye, Ph.D.
jeffkaye@sbcglobal.net

From: Central Intelligence Agency

An interim response, stating the request is being processed.

From: Jeffrey Kaye

To the Agency Release Panel of the CIA:

I am writing to address the delay in responding to my administrative appeal on CIA's decision regarding my mandatory declassification request (MDR) for the 1957 CIA Inspector General Report on "Operations of TSD," wherein "TSD" stands for the CIA division, the Technical Services Division. The reference number is #EOM-2016-01415. The initial request was made on 8/13/2016, and a rejection determination, reportedly due to the classified nature of the document itself, was dated November 1, 2016.

On November 28, 2016, I appealed that decision to the Agency Release Panel. According to a December 8, 2016 letter from Michael Levergne at the Agency Release Panel, that appeal was processed two days earlier, on December 6, 2016.

According to 32 CFR 2001.33(a)(2)(i), part of the implementing directive for MDRs, "The agency appellate authority shall normally make a determination within 60 working days following the receipt of an appeal. If additional time is required to make a determination, the agency appellate authority shall notify the requester of the additional time needed and provide the requester with the reason for the extension." Moreover, I will note here that Article VIII section A(3) of The Interagency Security Classification Appeals Panel (ISCAP) bylaws indicates that failure by the agency to make a final decision within 180 days will permit the requestor to appeal directly to the ISCAP.

Per the timeline in paragraph one of this communication, it appears CIA will fail to meet that 180 day timeline. I have to date (June 3, 2017) heard nothing from the CIA or its Agency Appeal Panel regarding my appeal of their MDR decision. The statutory time-clock began on December 6, 2016 and comes due on Monday, June 5, 2017. If no communication or appeal decision is received by the end of the week of June 5, 2017 (granting you one business week extension), I intend to file an appeal directly to ISCAP.

Sincerely,
Jeffrey Kaye

From: Jeffrey Kaye

Executive Secretary, ISCAP
C/O Information Security Oversight Office
The National Archives Building
700 Pennsylvania Avenue, NW, Room 100
Washington, D.C. 20408
Telephone: (202) 357-5250
FAX: (202) 357-5907
E-Mail: iscap@nara.gov

Dear Executive Secretary, ISCAP

I am writing to appeal a Mandatory Declassification Request I made to the CIA on August 13, 2016. The request was for the 1957 CIA Inspector General Report on "Operations of TSD," wherein "TSD" stands for the CIA division, the Technical Services Division. The CIA responded to my initial request on September 12, 2016, assigning my request the Reference number EOM-2016-01415. (Copies of the correspondence will accompany this request, but the relevant material can also be found online at https://www.muckrock.com/foi/united-states-of-america-10/mdr-for-full-text-of-1957-cia-ig-report-operations-of-tsd-27746/.)

That request was rejected. In a letter dated November 1, 2016, Michael Lavergne, Information and Privacy Coordinator at the CIA, explained, “We have determined that the material must remain classified on the basis of sections 3.3(h)(1) and 3.3(h)(2) of the Order and cannot be released in sanitized form.” The “Order” appears to be Executive Order 13526.

On November 27, 2016, I appealed the above decision to the CIA’s Agency Release Panel. I will not repeat here all the reasons for my appeal, as a copy of that letter is appended to this document. But in the main, the reasons for the appeal were based on the fact that previous portions of the document had been earlier declassified. In particular, the CIA released a section of the report, "Operations of TSD," specifically 8 pages of that report (numbered pages 199-206), which can be found in Folder 0000146167 of CIA's MKULTRA FOIA release made a number of years ago. This section of the 1957 IG REPORT was posted online by the website Cryptome.org at URL: https://cryptome.org/mkultra-0001.htm (accessed 13 August 2016). An alternate posting online is available online at http://documents.theblackvault.com/documents/mkultra/MKULTRA1/DOC_0000146167/DOC_0000146167.pdf (accessed November 25, 2016).

Additionally, I told the CIA's Appeals Board I do not believe the document requested meets the criteria for exemption for documents over 50 years old. Finally, I argued that the release of the material was in the public interest. See my November 27, 2016 appeal letter to Michael Lavergne,
Information and Privacy Coordinator, Central Intelligence Agency, attached.

On December 8, 2016, I received a letter from Michael Lavergne, who also acts as Executive Secretary of the CIA’s Agency Release Panel, informing me that they had received my appeal, and stated that the CIA had “processed” it. To date, I have never received further information regarding that "processing," nor a notice of any need for extension for that appeal, nor any decision made on the appeal itself.

Via Muckrock News website, through whom I filed my MDR request, follow-up requests to the CIA asking about status have been sent five times since the CIA's original interim response to me that they are processing my appeal.

On June 3, 2017, I wrote to the CIA to inform them that the statutory clock was running out on the 6-month time frame they have to reply to my appeal of the denial of the original MDR request. I still have heard nothing from them; hence I am following through with this appeal to ISCAP.

The relevant law regarding the timeline issue, taken from the ISCAP website is: “Section 2001.33(a)(2)(i) of the implementing directive states that the agency should normally make a determination within 60 days of the receipt of the administrative appeal or notify the requestor of a need for additional time. Article VIII section A(3) of the bylaws indicates that failure by the agency to make a final decision within 180 days will permit the requestor to appeal directly to the ISCAP.”

I will note that I am not asking for anything like “operational files” of the CIA, but for an Inspector General report. Please refer to my appeal letter and my original MDR request letter for the rationale of my arguments appealing CIA's original MDR denial.

If there are any questions, I can be reached by text message or direct telephone call at my cell number: 415-260-4222.

Thanks very much for your attention to this.

Sincerely,
Jeffrey Kaye

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