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 Committee 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) of Executive O rder No. 11652, 3 CFR 678 (1971-1975 Com pilation), the Attorney 

General is authorized to render an interpretation regarding any question arising in the course of 

administration 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 appellant2Seegenerally M cCormick, Evidence § 336 (1972 ed .), at 783-84; 9 W igm ore, Evidence § 2485, 

2487 (3d ed.), at 271-74.

3For example, the State bears the burden of proof, including sanity, in a criminal case, but the 

defendant must first place sanity in issue. See 9 W igmore, Evidence § 2501 (3d ed ), at 359'.

*See W igmore, Evidence § 2488 (3d. ed ), at 284.

>See M cCormick, Evidence § 336 (1972 ed .), 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 a r r y A . H a m m o n d

Deputy Assistant Attorney General

Office o f Legal Counsel

bSee M cCormick, Evidence § 337 (1972 ed.), at 786.

’Section 3-301 o f Executive O rder No. 12065, of June 28, 1978, provides that information 

classified under that or previous Executive orders shall be declassified “ as early as national security 

considerations perm it.” The new Executive order thus continues the primary em phasis on the 

protection o f national security information from disclosure.

I also note that the leading case interpreting Executive Order No. 11652, under the Freedom of 

Information Act. 5 U .S.C . § 552(b)(1), holds that classification is presumed lawful until the 

requester shows otherwise. Alfred A. Knopf Co. v. Colby. 509 F. (2d) 1362 (4th Cir. 1975).

“This is consistent with appellate court practice that a tie vote results in an affirmance of 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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