                                                                                 July 21, 1978



78-42        MEMORANDUM OPINION FOR THE
             CLASSIFICATION REVIEW COMMITTEE,
             DEPARTMENT OF JUSTICE

             Classification of Documents (28 CFR Part 17)— Effect
             of a Tie Vote by the Department Review Committee


   This responds to a memorandum questioning the legal effect of a tie vote by
the Department Review Committee (DRC) on the declassification of a
document.1 It is my conclusion that declassification is not appropriate where
the DRC is equally divided. The question arises from an incident which took
place in the course of reviewing an appeal from a denial of a request to
declassify a document. One member recused himself; the remaining members
split 2-2. The chairman ruled that the tie meant continued classification. The
DRC upheld the ruling by a vote of 4-1.
   The dissenting member argues that this ruling is contrary to 28 CFR § 17.39,
reading as follows:
      In making its determinations concerning requests for declassification
      of classified information or material, the Department Review Com­
      mittee shall impose for administrative purposes the burden of proof
      on the originating division to show that continued classification is
      warranted.
He contends that a tie vote by the DRC evidences a failure by the originating
division to meet its burden of proof. He also argues that a tie vote demonstrates
“ substantial doubt” that classification is appropriate under 28 CFR § 17.22,
which provides:
      Ifthe classifying authority has any substantial doubt . . . as to whether
      the information or material should be classified at all, he should
      designate the less restrictive treatment.
   The contention involvjng § 17.22 can be dealt with briefly. Part 17 of 28
CFR treats classification and declassification separately and establishes specific

  'U nder § 7(c) o f Executive O rder No. 11652, 3 C FR 678 (1971-1975 C om pilation), the Attorney
General is authorized to render an interpretation regarding any question arising in the course of
adm inistration o f the order.

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standards to govern each. Classification is governed by subpart D. Under 28
CFR § 17.15, information must be classified in “ the lowest . . . category
consistent with its proper protection.” Section 17.22 guides the classifying
authority in applying this standard. Subparts F and G provide parallel control
over declassification. Under 28 CFR § 17.29, information must be declassified
or downgraded “ as soon as there are no longer any grounds for continued
classification.” Section 17.39 guides the DRC in applying this standard to
declassification. While the provisions governing classification, including
§ 17.22, may provide useful guidance in assessing declassification questions, the
structure of the regulations suggests that those provisions are not designed to
control declassification decisions.
   The more substantial issue arises from the burden of proof provision in the
portion of the regulations that relate directly to the declassification review
process. Under 28 CFR § 17.29, the DRC must declassify if it finds that
circumstances have changed so that classification is no longer warranted.
Section 17.39 places “ for administrative purposes the burden of proof” on the
classifier to show that the information still requires protection. The term
“ burden of proof” is a general term of art which ordinarily includes within its
meaning both the “ burden of production” and the “ burden of persuasion”
and, depending on the context in which it is used, may refer to either. The first
is the burden of presenting evidence; the party having the burden of production
must go forward with his proof on an issue or lose it by default.2 The burden of
persuasion is the burden of ultimately convincing the finder of fact; that burden
may, and often is, placed on a party other than the one bearing the burden of
production.3
   The issue, then, is whether the reference to the “ burden of proof” in § 17.39
was intended to refer to the ultimate burden of persuasion or to the burden of
going forward. It is my opinion that this section imposes on the originating
division only the procedural burden of going forward with the production of
evidence and argument in favor of retaining the classification. The language of
the provision itself strongly suggests this conclusion— the burden is assigned
for “ administrative purposes.” The most logical connotation of those words is
that the burden has been allocated for procedural purposes, i.e., to govern the
order of proof. This is consistent with the ordinary understanding that the
allocation of the ultimate burden of persuasion to one or the other party in an
adjudication is a matter of substance.4
   This reading is also consistent with the familiar evidentiary principle that the
party most likely to have information about a subject is required to come
forward with it, and that a party ought not to be required to prove a negative.5
Since the DRC considers appeals from denial of declassification, the appellant-

  2Seegenerally M cC orm ick, Evidence § 336 (1972 e d .), at 783-84; 9 W igm ore, Evidence § 2485,
2487 (3d ed .), at 271-74.
  3For exam ple, the State bears the burden o f proof, including sanity, in a crim inal case, but the
defendant m ust first place sanity in issue. See 9 W igm ore, Evidence § 2501 (3d ed ), at 359'.
  *See W igm ore, Evidence § 2488 (3d. ed ), at 284.
  >See M cCorm ick, Evidence § 336 (1972 e d .), at 786-87.

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requester would normally have the burden of going forward with evidence that
continued classification is unnecessary.6 This would require the requester to
prove a negative in the face of the classifier’s superior knowledge of why
continued classification is needed. The regulation, therefore, requires the
classifier to go forward, in order to clearly define the issue before the DRC.
   This conclusion is consistent with the assigned function of the DRC, if that
function is to declassify a document when it is satisfied that there are “ no
longer any grounds for continued classification.” It takes action only when it
has “ determined” that classification is no longer appropriate. 28 CFR
§ 17.38(b)(4). Although the regulation reflects a sensitivity to the need of
preventing excessive classification, its primary purpose, like the central
purpose of Executive Order No. 11652, is to protect against the disclosure of
national security information.7 28 CFR § 17.1; Executive Order No. 11652,
preamble 6(G). If the regulation had been intended to create a contrary
presumption in favor of declassification, that purpose would have been more
clearly expressed than in the burden-of-proof reference in § 17.39.
   Relying upon the language of 28 CFR § 17.39, general principles of the law
of evidence, the purpose of the regulation and the Executive order governing
classified information, we conclude that an equally divided vote of the DRC
does not result in declassification.8

                                                          L arry A . H     ammond

                                                 Deputy Assistant Attorney General
                                                               Office o f Legal Counsel




   bSee M cC orm ick, Evidence § 337 (1972 ed .), at 786.
   ’ Section 3-301 o f Executive O rder N o. 12065, o f June 28, 1978, provides that inform ation
classified under that or previous Executive orders shall be declassified “ as early as national security
considerations p e rm it.” The new E xecutive order thus continues the prim ary em phasis on the
protection o f national security inform ation from disclosure.
   I also note that the leading case interpreting Executive O rder No. 11652, under the Freedom of
Inform ation A ct. 5 U .S .C . § 552(b)(1), holds that classification is presum ed lawful until the
requester show s otherw ise. Alfred A. K nopf Co. v. Colby. 509 F. (2d) 1362 (4th Cir. 1975).
   “T his is consistent with appellate court practice that a tie vote results in an affirm ance o f the
lower court. See, e.g.. Williams & Wilkins Co. v. United Stales, 420 U .S . 376 (1975); Bailey v.
Richardson, 341 U .S. 918 (1951).

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