50 USC 435 Note: Information concerning US Personnel Classified as POW/MIA During the Vietnam and Korean Conflicts (McCain Bill)
About This Project
This project uses data compiled by the Sunshine in Government initiative, a coalition of journalism and transparency groups. SGI compiled data from federal agency annual FOIA reports to track how often b(3) exemptions were used. SGI also standardized the exemptions since some agencies used slightly different citations of the same laws. In some cases, agencies listed general laws without specifying a section under which information was withheld. This project does not include information from agencies that use no b(3) exemptions in 2008 or 2009. ProPublica compiled information about FOIA denials.
| Department | Claims |
|---|---|
| Dept. of Defense | 10.0 |
| National Archives and Records Administration | 2.0 |
TITLE 50--WAR AND NATIONAL DEFENSE
CHAPTER 15--NATIONAL SECURITY
SUBCHAPTER VI--ACCESS TO CLASSIFIED INFORMATION
Sec. 435. Procedures
(a) Not later than 180 days after October 14, 1994, the President
shall, by Executive order or regulation, establish procedures to govern
access to classified information which shall be binding upon all
departments, agencies, and offices of the executive branch of
Government. Such procedures shall, at a minimum--
(1) provide that, except as may be permitted by the President,
no employee in the executive branch of Government may be given
access to classified information by any department, agency, or
office of the executive branch of Government unless, based upon an
appropriate background investigation, such access is determined to
be clearly consistent with the national security interests of the
United States;
(2) establish uniform minimum requirements governing the scope
and frequency of background investigations and reinvestigations for
all employees in the executive branch of Government who require
access to classified information as part of their official
responsibilities;
(3) provide that all employees in the executive branch of
Government who require access to classified information shall be
required as a condition of such access to provide to the employing
department or agency written consent which permits access by an
authorized investigative agency to relevant financial records, other
financial information, consumer reports, travel records, and
computers used in the performance of Government duties, as
determined by the President, in accordance with section 436 of this
title, during the period of access to classified information and for
a period of three years thereafter;
(4) provide that all employees in the executive branch of
Government who require access to particularly sensitive classified
information, as determined by the President, shall be required, as a
condition of maintaining access to such information, to submit to
the employing department or agency, during the period of such
access, relevant information concerning their financial condition
and foreign travel, as determined by the President, as may be
necessary to ensure appropriate security; and
(5) establish uniform minimum standards to ensure that employees
in the executive branch of Government whose access to classified
information is being denied or terminated under this subchapter are
appropriately advised of the reasons for such denial or termination
and are provided an adequate opportunity to respond to all adverse
information which forms the basis for such denial or termination
before final action by the department or agency concerned.
(b)(1) Subsection (a) of this section shall not be deemed to limit
or affect the responsibility and power of an agency head pursuant to
other law or Executive order to deny or terminate access to classified
information if the national security so requires. Such responsibility
and power may be exercised only when the agency head determines that the
procedures prescribed by subsection (a) of this section cannot be
invoked in a manner that is consistent with the national security.
(2) Upon the exercise of such responsibility, the agency head shall
submit a report to the congressional intelligence committees.
(July 26, 1947, ch. 343, title VIII, Sec. 801, as added Pub. L. 103-359,
title VIII, Sec. 802(a), Oct. 14, 1994, 108 Stat. 3435; amended Pub. L.
106-120, title III, Sec. 305(a), Dec. 3, 1999, 113 Stat. 1611; Pub. L.
107-306, title III, Sec. 353(b)(2)(B), Nov. 27, 2002, 116 Stat. 2402.)
Amendments
2002--Subsec. (b)(2). Pub. L. 107-306 substituted ``congressional
intelligence committees'' for ``Permanent Select Committee on
Intelligence of the House of Representatives and the Select Committee on
Intelligence of the Senate''.
1999--Subsec. (a)(3). Pub. L. 106-120 substituted ``travel records,
and computers used in the performance of Government duties'' for ``and
travel records''.
Effective Date of 1999 Amendment
Pub. L. 106-120, title III, Sec. 305(c), Dec. 3, 1999, 113 Stat.
1612, provided that: ``The President shall modify the procedures
required by section 801(a)(3) of the National Security Act of 1947 [50
U.S.C. 435(a)(3)] to take into account the amendment to that section
made by subsection (a) of this section not later than 90 days after the
date of the enactment of this Act [Dec. 3, 1999].''
Effective Date
Section 802(c) of Pub. L. 103-359 provided that: ``The amendments
made by subsections (a) and (b) [enacting this subchapter] shall take
effect 180 days after the date of enactment of this Act [Oct. 14,
1994].''
Declassification of Information
Pub. L. 106-567, title VII, Dec. 27, 2000, 114 Stat. 2856, as
amended by Pub. L. 108-458, title I, Sec. 1102, Dec. 17, 2004, 118 Stat.
3699, provided that:
``SEC. 701. SHORT TITLE.
``This title may be cited as the `Public Interest Declassification
Act of 2000'.
``SEC. 702. FINDINGS.
``Congress makes the following findings:
``(1) It is in the national interest to establish an effective,
coordinated, and cost-effective means by which records on specific
subjects of extraordinary public interest that do not undermine the
national security interests of the United States may be collected,
retained, reviewed, and disseminated to Congress, policymakers in
the executive branch, and the public.
``(2) Ensuring, through such measures, public access to
information that does not require continued protection to maintain
the national security interests of the United States is a key to
striking the balance between secrecy essential to national security
and the
openness that is central to the proper functioning of the political
institutions of the United States.
``SEC. 703. PUBLIC INTEREST DECLASSIFICATION BOARD.
``(a) Establishment.--(1) There is established within the executive
branch of the United States a board to be known as the `Public Interest
Declassification Board' (in this title referred to as the `Board').
``(2) The Board shall report directly to the President or, upon
designation by the President, the Vice President, the Attorney General,
or other designee of the President. The other designee of the President
under this paragraph may not be an agency head or official authorized to
classify information under Executive Order 12958 [set out below], or any
successor order.
``(b) Purposes.--The purposes of the Board are as follows:
``(1) To advise the President, the Assistant to the President
for National Security Affairs, the Director of the Office of
Management and Budget, and such other executive branch officials as
the Board considers appropriate on the systematic, thorough,
coordinated, and comprehensive identification, collection, review
for declassification, and release to Congress, interested agencies,
and the public of declassified records and materials (including
donated historical materials) that are of archival value, including
records and materials of extraordinary public interest.
``(2) To promote the fullest possible public access to a
thorough, accurate, and reliable documentary record of significant
United States national security decisions and significant United
States national security activities in order to--
``(A) support the oversight and legislative functions of
Congress;
``(B) support the policymaking role of the executive branch;
``(C) respond to the interest of the public in national
security matters; and
``(D) promote reliable historical analysis and new avenues
of historical study in national security matters.
``(3) To provide recommendations to the President for the
identification, collection, and review for declassification of
information of extraordinary public interest that does not undermine
the national security of the United States, to be undertaken in
accordance with a declassification program that has been established
or may be established by the President by Executive order.
``(4) To advise the President, the Assistant to the President
for National Security Affairs, the Director of the Office of
Management and Budget, and such other executive branch officials as
the Board considers appropriate on policies deriving from the
issuance by the President of Executive orders regarding the
classification and declassification of national security
information.
``(5) To review and make recommendations to the President in a
timely manner with respect to any congressional request, made by the
committee of jurisdiction, to declassify certain records or to
reconsider a declination to declassify specific records.
``(c) Membership.--(1) The Board shall be composed of nine
individuals appointed from among citizens of the United States who are
preeminent in the fields of history, national security, foreign policy,
intelligence policy, social science, law, or archives, including
individuals who have served in Congress or otherwise in the Federal
Government or have otherwise engaged in research, scholarship, or
publication in such fields on matters relating to the national security
of the United States, of whom--
``(A) five shall be appointed by the President;
``(B) one shall be appointed by the Speaker of the House of
Representatives;
``(C) one shall be appointed by the majority leader of the
Senate;
``(D) one shall be appointed by the minority leader of the
Senate; and
``(E) one shall be appointed by the minority leader of the House
of Representatives.
``(2)(A) Of the members initially appointed to the Board by the
President--
``(i) three shall be appointed for a term of 4 years;
``(ii) one shall be appointed for a term of 3 years; and
``(iii) one shall be appointed for a term of 2 years.
``(B) The members initially appointed to the Board by the Speaker of
the House of Representatives or by the majority leader of the Senate
shall be appointed for a term of 3 years.
``(C) The members initially appointed to the Board by the minority
leader of the House of Representatives or the Senate shall be appointed
for a term of 2 years.
``(D) Any subsequent appointment to the Board shall be for a term of
3 years.
``(3) A vacancy in the Board shall be filled in the same manner as
the original appointment. A member of the Board appointed to fill a
vacancy before the expiration of a term shall serve for the remainder of
the term.
``(4) A member of the Board may be appointed to a new term on the
Board upon the expiration of the member's term on the Board, except that
no member may serve more than three full terms on the Board.
``(d) Chairperson; Executive Secretary.--(1)(A) The President shall
designate one of the members of the Board as the Chairperson of the
Board.
``(B) The term of service as Chairperson of the Board shall be 2
years.
``(C) A member serving as Chairperson of the Board may be
redesignated as Chairperson of the Board upon the expiration of the
member's term as Chairperson of the Board, except that no member shall
serve as Chairperson of the Board for more than 6 years.
``(2) The Director of the Information Security Oversight Office
shall serve as the Executive Secretary of the Board.
``(e) Meetings.--The Board shall meet as needed to accomplish its
mission, consistent with the availability of funds. A majority of the
members of the Board shall constitute a quorum.
``(f) Staff.--Any employee of the Federal Government may be detailed
to the Board, with the agreement of and without reimbursement to the
detailing agency, and such detail shall be without interruption or loss
of civil, military, or foreign service status or privilege.
``(g) Security.--(1) The members and staff of the Board shall, as a
condition of appointment to or employment with the Board, hold
appropriate security clearances for access to the classified records and
materials to be reviewed by the Board or its staff, and shall follow the
guidance and practices on security under applicable Executive orders and
Presidential or agency directives.
``(2) The head of an agency shall, as a condition of granting access
to a member of the Board, the Executive Secretary of the Board, or a
member of the staff of the Board to classified records or materials of
the agency under this title, require the member, the Executive
Secretary, or the member of the staff, as the case may be, to--
``(A) execute an agreement regarding the security of such
records or materials that is approved by the head of the agency; and
``(B) hold an appropriate security clearance granted or
recognized under the standard procedures and eligibility criteria of
the agency, including any special access approval required for
access to such records or materials.
``(3) The members of the Board, the Executive Secretary of the
Board, and the members of the staff of the Board may not use any
information acquired in the course of their official activities on the
Board for nonofficial purposes.
``(4) For purposes of any law or regulation governing access to
classified information that pertains to the na
tional security of the United States, and subject to any limitations on
access arising under section 706(b), and to facilitate the advisory
functions of the Board under this title, a member of the Board seeking
access to a record or material under this title shall be deemed for
purposes of this subsection to have a need to know the contents of the
record or material.
``(h) Compensation.--(1) Each member of the Board shall receive
compensation at a rate not to exceed the daily equivalent of the annual
rate of basic pay payable for positions at ES-1 of the Senior Executive
Service under section 5382 of title 5, United States Code, for each day
such member is engaged in the actual performance of duties of the Board.
``(2) Members of the Board shall be allowed travel expenses,
including per diem in lieu of subsistence at rates authorized for
employees of agencies under subchapter I of chapter 57 of title 5,
United States Code, while away from their homes or regular places of
business in the performance of the duties of the Board.
``(i) Guidance; Annual Budget.--(1) On behalf of the President, the
Assistant to the President for National Security Affairs shall provide
guidance on policy to the Board.
``(2) The Executive Secretary of the Board, under the direction of
the Chairperson of the Board and the Board, and acting in consultation
with the Archivist of the United States, the Assistant to the President
for National Security Affairs, and the Director of the Office of
Management and Budget, shall prepare the annual budget of the Board.
``(j) Support.--The Information Security Oversight Office may
support the activities of the Board under this title. Such support shall
be provided on a reimbursable basis.
``(k) Public Availability of Records and Reports.--(1) The Board
shall make available for public inspection records of its proceedings
and reports prepared in the course of its activities under this title to
the extent such records and reports are not classified and would not be
exempt from release under the provisions of section 552 of title 5,
United States Code.
``(2) In making records and reports available under paragraph (1),
the Board shall coordinate the release of such records and reports with
appropriate officials from agencies with expertise in classified
information in order to ensure that such records and reports do not
inadvertently contain classified information.
``(l) Applicability of Certain Administrative Laws.--The provisions
of the Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to
the activities of the Board under this title. However, the records of
the Board shall be governed by the provisions of the Federal Records Act
of 1950 [see References in Text note under section 450j of Title 25,
Indians].
``SEC. 704. IDENTIFICATION, COLLECTION, AND REVIEW FOR DECLASSIFICATION
OF INFORMATION OF ARCHIVAL VALUE OR EXTRAORDINARY PUBLIC
INTEREST.
``(a) Briefings on Agency Declassification Programs.--(1) As
requested by the Board, or by the Select Committee on Intelligence of
the Senate or the Permanent Select Committee on Intelligence of the
House of Representatives, the head of any agency with the authority
under an Executive order to classify information shall provide to the
Board, the Select Committee on Intelligence of the Senate, or the
Permanent Select Committee on Intelligence of the House of
Representatives, on an annual basis, a summary briefing and report on
such agency's progress and plans in the declassification of national
security information. Such briefing shall cover the declassification
goals set by statute, regulation, or policy, the agency's progress with
respect to such goals, and the agency's planned goals and priorities for
its declassification activities over the next 2 fiscal years. Agency
briefings and reports shall give particular attention to progress on the
declassification of records and materials that are of archival value or
extraordinary public interest to the people of the United States.
``(2)(A) The annual briefing and report under paragraph (1) for
agencies within the Department of Defense, including the military
departments and the elements of the intelligence community, shall be
provided on a consolidated basis.
``(B) In this paragraph, the term `elements of the intelligence
community' means the elements of the intelligence community specified or
designated under section 3(4) of the National Security Act of 1947 (50
U.S.C. 401a(4)).
``(b) Recommendations on Agency Declassification Programs.--(1) Upon
reviewing and discussing declassification plans and progress with an
agency, the Board shall provide to the head of the agency the written
recommendations of the Board as to how the agency's declassification
program could be improved. A copy of each recommendation shall also be
submitted to the Assistant to the President for National Security
Affairs and the Director of the Office of Management and Budget.
``(2) Consistent with the provisions of section 703(k), the Board's
recommendations to the head of an agency under paragraph (1) shall
become public 60 days after such recommendations are sent to the head of
the agency under that paragraph.
``(c) Recommendations on Special Searches for Records of
Extraordinary Public Interest.--(1) The Board shall also make
recommendations to the President regarding proposed initiatives to
identify, collect, and review for declassification classified records
and materials of extraordinary public interest.
``(2) In making recommendations under paragraph (1), the Board shall
consider the following:
``(A) The opinions and requests of Members of Congress,
including opinions and requests expressed or embodied in letters or
legislative proposals, and also including specific requests for the
declassification of certain records or for the reconsideration of
declinations to declassify specific records.
``(B) The opinions and requests of the National Security
Council, the Director of Central Intelligence, and the heads of
other agencies.
``(C) The opinions of United States citizens.
``(D) The opinions of members of the Board.
``(E) The impact of special searches on systematic and all other
on-going declassification programs.
``(F) The costs (including budgetary costs) and the impact that
complying with the recommendations would have on agency budgets,
programs, and operations.
``(G) The benefits of the recommendations.
``(H) The impact of compliance with the recommendations on the
national security of the United States.
``(d) President's Declassification Priorities.--(1) Concurrent with
the submission to Congress of the budget of the President each fiscal
year under section 1105 of title 31, United States Code, the Director of
the Office of Management and Budget shall publish a description of the
President's declassification program and priorities, together with a
listing of the funds requested to implement that program.
``(2) Nothing in this title shall be construed to substitute or
supersede, or establish a funding process for, any declassification
program that has been established or may be established by the President
by Executive order.
``(e) Declassification Reviews.--If requested by the President, the
Board shall review in a timely manner certain records or declinations to
declassify specific records, the declassification of which has been the
subject of specific congressional request described in section
703(b)(5).
``SEC. 705. PROTECTION OF NATIONAL SECURITY INFORMATION AND OTHER
INFORMATION.
``(a) In General.--Nothing in this title shall be construed to limit
the authority of the head of an agency to classify information or to
continue the classification of information previously classified by that
agency.
``(b) Special Access Programs.--Nothing in this title shall be
construed to limit the authority of the head of an agency to grant or
deny access to a special access program.
``(c) Authorities of Director of Central Intelligence.--Nothing in
this title shall be construed to limit the authorities of the Director
of Central Intelligence as the head of the intelligence community,
including the Director's responsibility to protect intelligence sources
and methods from unauthorized disclosure as required by section
103(c)(6) of the National Security Act of 1947 ([former] 50 U.S.C. 403-
3(c)(6)).
``(d) Exemptions to Release of Information.--Nothing in this title
shall be construed to limit any exemption or exception to the release to
the public under this title of information that is protected under
subsection (b) of section 552 of title 5, United States Code (commonly
referred to as the `Freedom of Information Act'), or section 552a of
title 5, United States Code (commonly referred to as the `Privacy Act').
``(e) Withholding Information From Congress.--Nothing in this title
shall be construed to authorize the withholding of information from
Congress.
``SEC. 706. STANDARDS AND PROCEDURES.
``(a) Liaison.--(1) The head of each agency with the authority under
an Executive order to classify information and the head of each Federal
Presidential library shall designate an employee of such agency or
library to act as liaison to the Board for purposes of this title.
``(2) The Board may establish liaison and otherwise consult with
such other historical and advisory committees as the Board considers
appropriate for purposes of this title.
``(b) Limitations on Access.--(1)(A) Except as provided in paragraph
(2), if the head of an agency or the head of a Federal Presidential
library determines it necessary to deny or restrict access of the Board,
or of the agency or library liaison to the Board, to information
contained in a record or material, in whole or in part, the head of the
agency or the head of the library shall promptly notify the Board in
writing of such determination.
``(B) Each notice to the Board under subparagraph (A) shall include
a description of the nature of the records or materials, and a
justification for the determination, covered by such notice.
``(2) In the case of a determination referred to in paragraph (1)
with respect to a special access program created by the Secretary of
Defense, the Director of Central Intelligence, or the head of any other
agency, the notification of denial of access under paragraph (1),
including a description of the nature of the Board's request for access,
shall be submitted to the Assistant to the President for National
Security Affairs rather than to the Board.
``(c) Discretion To Disclose.--At the conclusion of a
declassification review, the head of an agency may, in the discretion of
the head of the agency, determine that the public's interest in the
disclosure of records or materials of the agency covered by such review,
and still properly classified, outweighs the Government's need to
protect such records or materials, and may release such records or
materials in accordance with the provisions of Executive Order No. 12958
[set out below] or any successor order to such Executive order.
``(d) Discretion To Protect.--At the conclusion of a
declassification review, the head of an agency may, in the discretion of
the head of the agency, determine that the interest of the agency in the
protection of records or materials of the agency covered by such review,
and still properly classified, outweighs the public's need for access to
such records or materials, and may deny release of such records or
materials in accordance with the provisions of Executive Order No. 12958
or any successor order to such Executive order.
``(e) Reports.--(1)(A) Except as provided in paragraph (2), the
Board shall annually submit to the appropriate congressional committees
a report on the activities of the Board under this title, including
summary information regarding any denials to the Board by the head of an
agency or the head of a Federal Presidential library of access to
records or materials under this title.
``(B) In this paragraph, the term `appropriate congressional
committees' means the Select Committee on Intelligence and the Committee
on Governmental Affairs [now Committee on Homeland Security and
Governmental Affairs] of the Senate and the Permanent Select Committee
on Intelligence and the Committee on Government Reform of the House of
Representatives.
``(2) Notwithstanding paragraph (1), notice that the Board has been
denied access to records and materials, and a justification for the
determination in support of the denial, shall be submitted by the agency
denying the access as follows:
``(A) In the case of the denial of access to a special access
program created by the Secretary of Defense, to the Committees on
Armed Services and Appropriations of the Senate and to the
Committees on Armed Services and Appropriations of the House of
Representatives.
``(B) In the case of the denial of access to a special access
program created by the Director of Central Intelligence, or by the
head of any other agency (including the Department of Defense) if
the special access program pertains to intelligence activities, or
of access to any information and materials relating to intelligence
sources and methods, to the Select Committee on Intelligence of the
Senate and the Permanent Select Committee on Intelligence of the
House of Representatives.
``(C) In the case of the denial of access to a special access
program created by the Secretary of Energy or the Administrator for
Nuclear Security, to the Committees on Armed Services and
Appropriations and the Select Committee on Intelligence of the
Senate and to the Committees on Armed Services and Appropriations
and the Permanent Select Committee on Intelligence of the House of
Representatives.
``(f) Notification of Review.--In response to a specific
congressional request for declassification review described in section
703(b)(5), the Board shall advise the originators of the request in a
timely manner whether the Board intends to conduct such review.
``SEC. 707. JUDICIAL REVIEW.
``Nothing in this title limits the protection afforded to any
information under any other provision of law. This title is not intended
and may not be construed to create any right or benefit, substantive or
procedural, enforceable against the United States, its agencies, its
officers, or its employees. This title does not modify in any way the
substantive criteria or procedures for the classification of
information, nor does this title create any right or benefit subject to
judicial review.
``SEC. 708. FUNDING.
``(a) Authorization of Appropriations.--There is hereby authorized
to be appropriated to carry out the provisions of this title amounts as
follows:
``(1) For fiscal year 2001, $650,000.
``(2) For each fiscal year after fiscal year 2001, such sums as
may be necessary for such fiscal year.
``(b) Funding Requests.--The President shall include in the budget
submitted to Congress for each fiscal year under section 1105 of title
31, United States Code, a request for amounts for the activities of the
Board under this title during such fiscal year.
``SEC. 709. DEFINITIONS.
``In this title:
``(1) Agency.--(A) Except as provided in subparagraph (B), the
term `agency' means the following:
``(i) An Executive agency, as that term is defined in
section 105 of title 5, United States Code.
``(ii) A military department, as that term is defined in
section 102 of such title.
``(iii) Any other entity in the executive branch that comes
into the possession of classified information.
``(B) The term does not include the Board.
``(2) Classified material or record.--The terms `classified
material' and `classified record' include any correspondence,
memorandum, book, plan, map, drawing, diagram, pictorial or graphic
work, photograph, film, microfilm, sound recording, videotape,
machine readable records, and other documentary material, regardless
of physical form or characteristics, that has been determined
pursuant to Executive order to require protection against
unauthorized disclosure in the interests of the national security of
the United States.
``(3) Declassification.--The term `declassification' means the
process by which records or materials that have been classified are
determined no longer to require protection from unauthorized
disclosure to protect the national security of the United States.
``(4) Donated historical material.--The term `donated historical
material' means collections of personal papers donated or given to a
Federal Presidential library or other archival repository under a
deed of gift or otherwise.
``(5) Federal presidential library.--The term `Federal
Presidential library' means a library operated and maintained by the
United States Government through the National Archives and Records
Administration under the applicable provisions of the Federal
Records Act of 1950 [see References in Text note under section 450j
of Title 25, Indians].
``(6) National security.--The term `national security' means the
national defense or foreign relations of the United States.
``(7) Records or materials of extraordinary public interest.--
The term `records or materials of extraordinary public interest'
means records or materials that--
``(A) demonstrate and record the national security policies,
actions, and decisions of the United States, including--
``(i) policies, events, actions, and decisions which led
to significant national security outcomes; and
``(ii) the development and evolution of significant
United States national security policies, actions, and
decisions;
``(B) will provide a significantly different perspective in
general from records and materials publicly available in other
historical sources; and
``(C) would need to be addressed through ad hoc record
searches outside any systematic declassification program
established under Executive order.
``(8) Records of archival value.--The term `records of archival
value' means records that have been determined by the Archivist of
the United States to have sufficient historical or other value to
warrant their continued preservation by the Federal Government.
``SEC. 710. EFFECTIVE DATE; SUNSET.
``(a) Effective Date.--This title shall take effect on the date that
is 120 days after the date of the enactment of this Act [Dec. 27, 2000].
``(b) Sunset.--The provisions of this title shall expire 8 years
after the date of the enactment of this Act, unless reauthorized by
statute.''
[Reference to the Director of Central Intelligence or the Director
of the Central Intelligence Agency in the Director's capacity as the
head of the intelligence community deemed to be a reference to the
Director of National Intelligence. Reference to the Director of Central
Intelligence or the Director of the Central Intelligence Agency in the
Director's capacity as the head of the Central Intelligence Agency
deemed to be a reference to the Director of the Central Intelligence
Agency. See section 1081(a), (b) of Pub. L. 108-458, set out as a note
under section 401 of this title.]
Compilation and Organization of Previously Declassified Records
Pub. L. 106-398, Sec. 1 [[div. A], title X, Sec. 1075(c), (d)], Oct.
30, 2000, 114 Stat. 1654, 1654A-280, provided that:
``(c) Compilation and Organization of Records.--The Department of
Defense may not be required, when conducting a special search, to
compile or organize records that have already been declassified and
placed into the public domain.
``(d) Special Searches.--For the purpose of this section, the term
`special search' means the response of the Department of Defense to any
of the following:
``(1) A statutory requirement to conduct a declassification
review on a specified set of agency records.
``(2) An Executive order to conduct a declassification review on
a specified set of agency records.
``(3) An order from the President or an official with delegated
authority from the President to conduct a declassification review on
a specified set of agency records.''
Certification and Report Related to Automatic Declassification of
Department of Defense Records
Pub. L. 106-65, div. A, title X, Sec. 1041(c), (d), Oct. 5, 1999,
113 Stat. 758, provided that:
``(c) Certification Required With Respect To Automatic
Declassification of Records.--No records of the Department of Defense
that have not been reviewed for declassification shall be subject to
automatic declassification unless the Secretary of Defense certifies to
Congress that such declassification would not harm the national
security.
``(d) Report on Automatic Declassification of Department of Defense
Records.--Not later than February 1, 2001, the Secretary of Defense
shall submit to the Committee on Armed Services of the House of
Representatives and the Committee on Armed Services of the Senate a
report on the efforts of the Department of Defense relating to the
declassification of classified records under the control of the
Department of Defense. Such report shall include the following:
``(1) An assessment of whether the Department will be able to
review all relevant records for declassification before any date
established for automatic declassification.
``(2) An estimate of the cost of reviewing records to meet any
requirement to review all relevant records for declassification by a
date established for automatic declassification.
``(3) An estimate of the number of records, if any, that the
Department will be unable to review for declassification before any
such date and the affect [sic] on national security of the automatic
declassification of those records.
``(4) An estimate of the length of time by which any such date
would need to be extended to avoid the automatic declassification of
records that have not yet been reviewed as of such date.''
Supplement to Plan for Declassification of Restricted Data and Formerly
Restricted Data
Pub. L. 106-65, div. C, title XXXI, Sec. 3149, Oct. 5, 1999, 113
Stat. 938, which was formerly set out as a note under this section, was
renumbered section 4523 of Pub. L. 107-314, the Bob Stump National
Defense Authorization Act for Fiscal Year 2003, by Pub. L. 108-136, div.
C, title XXXI, Sec. 3141(h)(13)(A)-(C), Nov. 24, 2003, 117 Stat. 1775,
and is classified to section 2673 of this title.
Identification in Budget Materials of Amounts for Declassification
Activities and Limitation on Expenditures for Such Activities
Pub. L. 106-65, div. C, title XXXI, Sec. 3173, Oct. 5, 1999, 113
Stat. 949, which was formerly set out as a note under this section, was
renumbered section 4525 of Pub. L. 107-314, the Bob Stump National
Defense Authorization Act for Fiscal Year 2003, by Pub. L. 108-136, div.
C, title XXXI, Sec. 3141(h)(15)(A)-(C), Nov. 24, 2003, 117 Stat. 1775,
and is classified to section 2675 of this title.
Protection Against Inadvertent Release of Restricted Data and Formerly
Restricted Data
Pub. L. 105-261, div. C, title XXXI, Sec. 3161, Oct. 17, 1998, 112
Stat. 2259, as amended by Pub. L. 106-65, div. A, title
X, Sec. 1067(3), Oct. 5, 1999, 113 Stat. 774; Pub. L. 106-398, Sec. 1
[div. C, title XXXI, Sec. 3193(a)], Oct. 30, 2000, 114 Stat. 1654,
1654A-480, which was formerly set out as a note under this section, was
renumbered section 4522 of Pub. L. 107-314, the Bob Stump National
Defense Authorization Act for Fiscal Year 2003, by Pub. L. 108-136, div.
C, title XXXI, Sec. 3141(h)(12)(A)-(C), Nov. 24, 2003, 117 Stat. 1774,
and is classified to section 2672 of this title.
Secrecy Agreements Used in Intelligence Activities
Pub. L. 104-93, title III, Sec. 306, Jan. 6, 1996, 109 Stat. 966,
provided that: ``Notwithstanding any other provision of law not
specifically referencing this section, a nondisclosure policy form or
agreement that is to be executed by a person connected with the conduct
of an intelligence or intelligence-related activity, other than an
employee or officer of the United States Government, may contain
provisions appropriate to the particular activity for which such
document is to be used. Such form or agreement shall, at a minimum--
``(1) require that the person will not disclose any classified
information received in the course of such activity unless
specifically authorized to do so by the United States Government;
and
``(2) provide that the form or agreement does not bar--
``(A) disclosures to Congress; or
``(B) disclosures to an authorized official of an executive
agency that are deemed essential to reporting a violation of
United States law.''
Voluntary Service Program
Pub. L. 104-93, title IV, Sec. 402, Jan. 6, 1996, 109 Stat. 969,
authorized the Director of Central Intelligence to establish and
maintain a program from fiscal years 1996 through 2001 to utilize the
services contributed by not more than 50 annuitants who served without
compensation as volunteers in aid of the review for declassification or
downgrading of classified information by the Central Intelligence Agency
under applicable Executive orders governing the classification and
declassification of national security information and Pub. L. 102-526
(44 U.S.C. 2107 note).
Commission on Protecting and Reducing Government Secrecy
Pub. L. 103-236, title IX, Apr. 30, 1994, 108 Stat. 525, provided
that:
``SEC. 901. SHORT TITLE.
``This title may be cited as the `Protection and Reduction of
Government Secrecy Act'.
``SEC. 902. FINDINGS.
``The Congress makes the following findings:
``(1) During the Cold War an extensive secrecy system developed
which limited public access to information and reduced the ability
of the public to participate with full knowledge in the process of
governmental decisionmaking.
``(2) In 1992 alone 6,349,532 documents were classified and
approximately three million persons held some form of security
clearance.
``(3) The burden of managing more than 6 million newly
classified documents every year has led to tremendous administrative
expense, reduced communication within the government and within the
scientific community, reduced communication between the government
and the people of the United States, and the selective and
unauthorized public disclosure of classified information.
``(4) It has been estimated that private businesses spend more
than $14 billion each year implementing government mandated
regulations for protecting classified information.
``(5) If a smaller amount of truly sensitive information were
classified the information could be held more securely.
``(6) In 1970 a Task Force organized by the Defense Science
Board and headed by Dr. Frederick Seitz concluded that `more might
be gained than lost if our Nation were to adopt--unilaterally, if
necessary--a policy of complete openness in all areas of
information'.
``(7) The procedures for granting security clearances have
themselves become an expensive and inefficient part of the secrecy
system and should be closely examined.
``(8) A bipartisan study commission specially constituted for
the purpose of examining the consequences of the secrecy system will
be able to offer comprehensive proposals for reform.
``SEC. 903. PURPOSE.
``It is the purpose of this title to establish for a two-year period
a Commission on Protecting and Reducing Government Secrecy--
``(1) to examine the implications of the extensive
classification of information and to make recommendations to reduce
the volume of information classified and thereby to strengthen the
protection of legitimately classified information; and
``(2) to examine and make recommendations concerning current
procedures relating to the granting of security clearances.
``SEC. 904. COMPOSITION OF THE COMMISSION.
``(a) Establishment.--To carry out the purpose of this title, there
is established a Commission on Protecting and Reducing Government
Secrecy (in this title referred to as the `Commission').
``(b) Composition.--The Commission shall be composed of twelve
members, as follows:
``(1) Four members appointed by the President, of whom two shall
be appointed from the executive branch of the Government and two
shall be appointed from private life.
``(2) Two members appointed by the Majority Leader of the
Senate, of whom one shall be a Member of the Senate and one shall be
appointed from private life.
``(3) Two members appointed by the Minority Leader of the
Senate, of whom one shall be a Member of the Senate and one shall be
appointed from private life.
``(4) Two members appointed by the Speaker of the House of
Representatives, of whom one shall be a Member of the House and one
shall be appointed from private life.
``(5) Two members appointed by the Minority Leader of the House
of Representatives, of whom one shall be a Member of the House and
one shall be appointed from private life.
``(c) Chairman.--The Commission shall elect a Chairman from among
its members.
``(d) Quorum; Vacancies.--After its initial meeting, the Commission
shall meet upon the call of the Chairman or a majority of its members.
Seven members of the Commission shall constitute a quorum. Any vacancy
in the Commission shall not affect its powers but shall be filled in the
same manner in which the original appointment was made.
``(e) Appointment of Members; Initial Meeting.--(1) It is the sense
of the Congress that members of the Commission should be appointed not
later than 60 days after the date of enactment of this title [Apr. 30,
1994].
``(2) If after 60 days from the date of enactment of this Act seven
or more members of the Commission have been appointed, those members who
have been appointed may meet and select a Chairman who thereafter shall
have authority to begin the operations of the Commission, including the
hiring of staff.
``SEC. 905. FUNCTIONS OF THE COMMISSION.
``The functions of the Commission shall be--
``(1) to conduct, for a period of 2 years from the date of its
first meeting, an investigation into all matters in any way related
to any legislation, executive order, regulation, practice, or
procedure relating to classified information or granting security
clearances; and
``(2) to submit to the Congress a final report containing such
recommendations concerning the classification of national security
information and the granting of security clearances as the
Commission shall determine, including proposing new procedures,
rules, regulations, or legislation.
``SEC. 906. POWERS OF THE COMMISSION.
``(a) In General.--(1) The Commission or, on the authorization of
the Commission, any subcommittee or member thereof, may, for the purpose
of carrying out the provisions of this title--
``(A) hold such hearings and sit and act at such times and
places, take such testimony, receive such evidence, administer such
oaths, and
``(B) require, by subpoena or otherwise, the attendance and
testimony of such witnesses and the production of such books,
records, correspondence, memoranda, papers, and documents,
as the Commission or such designated subcommittee or designated member
may deem advisable.
``(2) Subpoenas issued under paragraph (1)(B) may be issued under
the signature of the Chairman of the Commission, the chairman of any
designated subcommittee, or any designated member, and may be served by
any person designated by such Chairman, subcommittee chairman, or
member. The provisions of sections 102 through 104 of the Revised
Statutes of the United States (2 U.S.C. 192-194) shall apply in the case
of any failure of any witness to comply with any subpoena or to testify
when summoned under authority of this section.
``(b) Contracting.--The Commission may, to such extent and in such
amounts as are provided in appropriation Acts, enter into contracts to
enable the Commission to discharge its duties under this title.
``(c) Information From Federal Agencies.--The Commission is
authorized to secure directly from any executive department, bureau,
agency, board, commission, office, independent establishment, or
instrumentality of the Government information, suggestions, estimates,
and statistics for the purposes of this title. Each such department,
bureau, agency, board, commission, office, establishment, or
instrumentality shall, to the extent authorized by law, furnish such
information, suggestions, estimates, and statistics directly to the
Commission, upon request made by the Chairman.
``(d) Assistance From Federal Agencies.--(1) The Secretary of State
is authorized on a reimbursable or non-reimbursable basis to provide the
Commission with administrative services, funds, facilities, staff, and
other support services for the performance of the Commission's
functions.
``(2) The Administrator of General Services shall provide to the
Commission on a reimbursable basis such administrative support services
as the Commission may request.
``(3) In addition to the assistance set forth in paragraphs (1) and
(2), departments and agencies of the United States are authorized to
provide to the Commission such services, funds, facilities, staff, and
other support services as they may deem advisable and as may be
authorized by law.
``(e) Gifts.--The Commission may accept, use, and dispose of gifts
or donations of services or property.
``(f) Postal Services.--The Commission may use the United States
mails in the same manner and under the same conditions as departments
and agencies of the United States.
``SEC. 907. STAFF OF THE COMMISSION.
``(a) In General.--The Chairman, in accordance with rules agreed
upon by the Commission, may appoint and fix the compensation of a staff
director and such other personnel as may be necessary to enable the
Commission to carry out its functions, without regard to the provisions
of title 5, United States Code, governing appointments in the
competitive service, and without regard to the provisions of chapter 51
and subchapter III of chapter 53 of such title relating to
classification and General Schedule pay rates, except that no rate of
pay fixed under this subsection may exceed the equivalent of that
payable to a person occupying a position at level V of the Executive
Schedule under section 5316 of title 5, United States Code. Any Federal
Government employee may be detailed to the Commission without
reimbursement from the Commission, and such detailee shall retain the
rights, status, and privileges of his or her regular employment without
interruption.
``(b) Consultant Services.--The Commission is authorized to procure
the services of experts and consultants in accordance with section 3109
of title 5, United States Code, but at rates not to exceed the daily
rate paid a person occupying a position at level IV of the Executive
Schedule under section 5315 of title 5, United States Code.
``SEC. 908. COMPENSATION AND TRAVEL EXPENSES.
``(a) Compensation.--(1) Except as provided in paragraph (2), each
member of the Commission may be compensated at not to exceed the daily
equivalent of the annual rate of basic pay in effect for a position at
level IV of the Executive Schedule under section 5315 of title 5, United
States Code, for each day during which that member is engaged in the
actual performance of the duties of the Commission.
``(2) Members of the Commission who are officers or employees of the
United States or Members of Congress shall receive no additional pay on
account of their service on the Commission.
``(b) Travel Expenses.--While away from their homes or regular
places of business in the performance of services for the Commission,
members of the Commission shall be allowed travel expenses, including
per diem in lieu of subsistence, in the same manner as persons employed
intermittently in the Government service are allowed expenses under
section 5703(b) of title 5, United States Code.
``SEC. 909. SECURITY CLEARANCES FOR COMMISSION MEMBERS AND STAFF.
``The appropriate executive departments and agencies shall cooperate
with the Commission in expeditiously providing to the Commission members
and staff appropriate security clearances in a manner consistent with
existing procedures and requirements, except that no person shall be
provided with access to classified information pursuant to this section
who would not otherwise qualify for such security clearance.
``SEC. 910. FINAL REPORT OF COMMISSION; TERMINATION.
``(a) Final Report.--Not later than two years after the date of the
first meeting of the Commission, the Commission shall submit to the
Congress its final report, as described in section 905(2).
``(b) Termination.--(1) The Commission, and all the authorities of
this title, shall terminate on the date which is 60 days after the date
on which a final report is required to be transmitted under subsection
(a).
``(2) The Commission may use the 60-day period referred to in
paragraph (1) for the purpose of concluding its activities, including
providing testimony to committees of Congress concerning its final
report and disseminating that report.''
Reports Relating to Certain Special Access Programs and Similar Programs
Pub. L. 103-160, div. A, title XI, Sec. 1152, Nov. 30, 1993, 107
Stat. 1758, as amended by Pub. L. 106-65, div. C, title XXXII,
Sec. 3294(e)(2), Oct. 5, 1999, 113 Stat. 970, provided that:
``(a) In General.--(1) Not later than February 1 of each year, the
head of each covered department or agency shall submit to Congress a
report on each special access program carried out in the department or
agency.
``(2) Each such report shall set forth--
``(A) the total amount requested by the department or agency for
special access programs within the budget submitted under section
1105 of title 31,
United States Code, for the fiscal year following the fiscal year in
which the report is submitted; and
``(B) for each program in such budget that is a special access
program--
``(i) a brief description of the program;
``(ii) in the case of a procurement program, a brief
discussion of the major milestones established for the program;
``(iii) the actual cost of the program for each fiscal year
during which the program has been conducted before the fiscal
year during which that budget is submitted; and
``(iv) the estimated total cost of the program and the
estimated cost of the program for (I) the current fiscal year,
(II) the fiscal year for which the budget is submitted, and
(III) each of the four succeeding fiscal years during which the
program is expected to be conducted.
``(b) Newly Designated Programs.--(1) Not later than February 1 of
each year, the head of each covered department or agency shall submit to
Congress a report that, with respect to each new special access program
of that department or agency, provides--
``(A) notice of the designation of the program as a special
access program; and
``(B) justification for such designation.
``(2) A report under paragraph (1) with respect to a program shall
include--
``(A) the current estimate of the total program cost for the
program; and
``(B) an identification, as applicable, of existing programs or
technologies that are similar to the technology, or that have a
mission similar to the technology, or that have a mission similar to
the mission, of the program that is the subject of the notice.
``(3) In this subsection, the term `new special access program'
means a special access program that has not previously been covered in a
notice and justification under this subsection.
``(c) Revision in Classification of Programs.--(1) Whenever a change
in the classification of a special access program of a covered
department or agency is planned to be made or whenever classified
information concerning a special access program of a covered department
or agency is to be declassified and made public, the head of the
department or agency shall submit to Congress a report containing a
description of the proposed change or the information to be
declassified, the reasons for the proposed change or declassification,
and notice of any public announcement planned to be made with respect to
the proposed change or declassification.
``(2) Except as provided in paragraph (3), a report referred to in
paragraph (1) shall be submitted not less than 14 days before the date
on which the proposed change, declassification, or public announcement
is to occur.
``(3) If the head of the department or agency determines that
because of exceptional circumstances the requirement of paragraph (2)
cannot be met with respect to a proposed change, declassification, or
public announcement concerning a special access program of the
department or agency, the head of the department or agency may submit
the report required by paragraph (1) regarding the proposed change,
declassification, or public announcement at any time before the proposed
change, declassification, or public announcement is made and shall
include in the report an explanation of the exceptional circumstances.
``(d) Revision of Criteria for Designating Programs.--Whenever there
is a modification or termination of the policy and criteria used for
designating a program of a covered department or agency as a special
access program, the head of the department or agency shall promptly
notify Congress of such modification or termination. Any such
notification shall contain the reasons for the modification or
termination and, in the case of a modification, the provisions of the
policy as modified.
``(e) Waiver of Reporting Requirement.--(1) The head of a covered
department or agency may waive any requirement under subsection (a),
(b), or (c) that certain information be included in a report under that
subsection if the head of the department or agency determines that
inclusion of that information in the report would adversely affect the
national security. Any such waiver shall be made on a case-by-case
basis.
``(2) If the head of a department or agency exercises the authority
provided under paragraph (1), the head of the department or agency shall
provide the information described in that subsection with respect to the
special access program concerned, and the justification for the waiver,
to Congress.
``(f) Initiation of Programs.--A special access program may not be
initiated by a covered department or agency until--
``(1) the appropriate oversight committees are notified of the
program; and
``(2) a period of 30 days elapses after such notification is
received.
``(g) Definitions.--For purposes of this section:
``(1) Covered department or agency.--(A) Except as provided in
subparagraph (B), the term `covered department or agency' means any
department or agency of the Federal Government that carries out a
special access program.
``(B) Such term does not include--
``(i) the Department of Defense (which is required to submit
reports on special access programs under section 119 of title
10, United States Code);
``(ii) the National Nuclear Security Administration (which
is required to submit reports on special access programs under
section 3236 of the National Nuclear Security Administration Act
[50 U.S.C. 2426]); or
``(iii) an agency in the Intelligence Community (as defined
in section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a)).
``(2) Special access program.--The term `special access program'
means any program that, under the authority of Executive Order 12356
[formerly set out below] (or any successor Executive order), is
established by the head of a department or agency whom the President
has designated in the Federal Register as an original `secret' or
`top secret' classification authority that imposes `need-to-know'
controls or access controls beyond those controls normally required
(by regulations applicable to such department or agency) for access
to information classified as `confidential', `secret', or `top
secret'.''
Disclosure of Information Concerning Unaccounted for United States
Personnel of Cold War, Korean Conflict, and Vietnam Era
Pub. L. 102-190, div. A, title X, Sec. 1082, Dec. 5, 1991, 105 Stat.
1480, as amended by Pub. L. 103-337, div. A, title X, Sec. 1036, Oct. 5,
1994, 108 Stat. 2841; Pub. L. 104-106, div. A, title X, Sec. 1085, Feb.
10, 1996, 110 Stat. 457, provided that:
``(a) Public Availability of Information.--(1) Except as provided in
subsection (b), the Secretary of Defense shall, with respect to any
information referred to in paragraph (2), place the information in a
suitable library-like location within a facility within the National
Capital region for public review and photocopying.
``(2) Paragraph (1) applies to any record, live-sighting report, or
other information in the custody of the official custodian referred to
in subsection (d)(3) that may pertain to the location, treatment, or
condition of (A) United States personnel who remain not accounted for as
a result of service in the Armed Forces or other Federal Government
service during the Korean conflict, the Vietnam era, or the Cold War, or
(B) their remains.
``(b) Exceptions.--(1) The Secretary of Defense may not make a
record or other information available to the public pursuant to
subsection (a) if--
``(A) the record or other information is exempt from the
disclosure requirements of section 552 of
title 5, United States Code, by reason of subsection (b) of that
section; or
``(B) the record or other information is in a system of records
exempt from the requirements of subsection (d) of section 552a of
such title pursuant to subsection (j) or (k) of that section.
``(2) The Secretary of Defense may not make a record or other
information available to the public pursuant to subsection (a) if the
record or other information specifically mentions a person by name
unless--
``(A) in the case of a person who is alive (and not
incapacitated) and whose whereabouts are known, that person
expressly consents in writing to the disclosure of the record or
other information; or
``(B) in the case of a person who is dead or incapacitated or
whose whereabouts are unknown, a family member or family members of
that person determined by the Secretary of Defense to be appropriate
for such purpose expressly consent in writing to the disclosure of
the record or other information.
``(3)(A) The limitation on disclosure in paragraph (2) does not
apply in the case of a person who is dead or incapacitated or whose
whereabouts are unknown if the family member or members of that person
determined pursuant to subparagraph (B) of that paragraph cannot be
located by the Secretary of Defense--
``(i) in the case of a person missing from the Vietnam era,
after a reasonable effort; and
``(ii) in the case of a person missing from the Korean Conflict
or Cold War, after a period of 90 days from the date on which any
record or other information referred to in paragraph (2) is received
by the Department of Defense for disclosure review from the
Archivist of the United States, the Library of Congress, or the
Joint United States-Russian Commission on POW/MIAs.
``(B) Paragraph (2) does not apply to the access of an adult member
of the family of a person to any record or information to the extent
that the record or other information relates to that person.
``(C) The authority of a person to consent to disclosure of a record
or other information for the purposes of paragraph (2) may be delegated
to another person or an organization only by means of an express legal
power of attorney granted by the person authorized by that paragraph to
consent to the disclosure.
``(c) Deadlines.--(1) In the case of records or other information
originated by the Department of Defense, the official custodian shall
make such records and other information available to the public pursuant
to this section not later than January 2, 1996. Such records or other
information shall be made available as soon as a review carried out for
the purposes of subsection (b) is completed.
``(2) Whenever a department or agency of the Federal Government
receives any record or other information referred to in subsection (a)
that is required by this section to be made available to the public, the
head of that department or agency shall ensure that such record or other
information is provided to the Secretary of Defense, and the Secretary
shall make such record or other information available in accordance with
subsection (a) as soon as possible and, in any event, not later than one
year after the date on which the record or information is received by
the department or agency of the Federal Government.
``(3) If the Secretary of Defense determines that the disclosure of
any record or other information referred to in subsection (a) by the
date required by paragraph (1) or (2) may compromise the safety of any
United States personnel referred to in subsection (a)(2) who remain not
accounted for but who may still be alive in captivity, then the
Secretary may withhold that record or other information from the
disclosure otherwise required by this section. Whenever the Secretary
makes a determination under the preceding sentence, the Secretary shall
immediately notify the President and the Congress of that determination.
``(d) Definitions.--For purposes of this section:
``(1) The terms `Korean conflict' and `Vietnam era' have the
meanings given those terms in section 101 of title 38, United States
Code.
``(2) The term `Cold War' means the period from the end of World
War II to the beginning of the Korean conflict and the period from
the end of the Korean conflict to the beginning of the Vietnam era.
``(3) The term `official custodian' means--
``(A) in the case of records, reports, and information
relating to the Korean conflict or the Cold War, the Archivist
of the United States; and
``(B) in the case of records, reports, and information
relating to the Vietnam era, the Secretary of Defense.''
Disclosure of Information Concerning American Personnel Listed as
Prisoner, Missing, or Unaccounted for in Southeast Asia
Pub. L. 100-453, title IV, Sec. 404, Sept. 29, 1988, 102 Stat. 1908,
provided that:
``(a) This section is enacted to ensure that current disclosure
policy is incorporated into law.
``(b) Except as provided in subsection (c), the head of each
department or agency--
``(1) with respect to which funds are authorized under this Act
[see Tables for classification], and
``(2) which holds or receives live sighting reports of any
United States citizen reported missing in action, prisoner of war,
or unaccounted for from the Vietnam Conflict,
shall make available to the next-of-kin of that United States citizen
all reports, or portions thereof, held by that department or agency
which have been correlated or possibly correlated to that citizen.
``(c) Subsection (b) does not apply with respect to--
``(1) information that would reveal or compromise sources and
methods of intelligence collection; or
``(2) specific information that previously has been made
available to the next-of-kin.
``(d) The head of each department or agency covered by subsection
(a) shall make information available under this section in a timely
manner.''
Executive Order No. 10501
Ex. Ord. No. 10501, Nov. 5, 1953, 18 F.R. 7049, as amended by Ex.
Ord. No. 10816, May 7, 1959, 24 F.R. 3777; Ex. Ord. No. 10901, Jan. 9,
1961, 26 F.R. 217; Ex. Ord. No. 10964, Sept. 20, 1961, 26 F.R. 8932; Ex.
Ord. No. 10985, Jan. 12, 1962, 27 F.R. 439; Ex. Ord. No. 11097, Feb. 28,
1963, 28 F.R. 2225; Ex. Ord. No. 11382, Nov. 28, 1967, 32 F.R. 16247,
which related to safeguarding official information, was superseded by
Ex. Ord. No. 11652, Mar. 8, 1972, 37 F.R. 5209, formerly set out below.
Ex. Ord. No. 10865. Safeguarding Classified Information Within Industry
Ex. Ord. No. 10865, Feb. 20, 1960, 25 F.R. 1583, as amended by Ex.
Ord. No. 10909, Jan. 17, 1961, 26 F.R. 508; Ex. Ord. No. 11382, Nov. 28,
1967, 32 F.R. 16247; Ex. Ord. No. 12829, Sec. 203(g), Jan. 6, 1993, 58
F.R. 3479; Ex. Ord. No. 13284, Sec. 15, Jan. 23, 2003, 68 F.R. 4076,
provided:
WHEREAS it is mandatory that the United States protect itself
against hostile or destructive activities by preventing unauthorized
disclosures of classified information relating to the national defense;
and
WHEREAS it is a fundamental principle of our Government to protect
the interests of individuals against unreasonable or unwarranted
encroachment; and
WHEREAS I find that the provisions and procedures prescribed by this
order are necessary to assure the preservation of the integrity of
classified defense information and to protect the national interest; and
WHEREAS I find that those provisions and procedures recognize the
interest of individuals affected thereby and provide maximum possible
safeguards to protect such interests:
NOW, THEREFORE, under and by virtue of the authority vested in me by
the Constitution and statutes of the United States, and as President of
the United States and as Commander in Chief of the armed forces of the
United States, it is hereby ordered as follows:
Section 1. When used in this order, the term ``head of a
department'' means the Secretary of State, the Sec
retary of Defense, the Secretary of Transportation, the Secretary of
Energy, the Secretary of Homeland Security, the Nuclear Regulatory
Commission, the Administrator of the National Aeronautics and Space
Administration, and, in section 4, the Attorney General. The term ``head
of a department'' also means the head of any department or agency,
including but not limited to those referenced above with whom the
Department of Defense makes an agreement to extend regulations
prescribed by the Secretary of Defense concerning authorizations for
access to classified information pursuant to Executive Order No. 12829
[set out below].
Sec. 2. An authorization for access to classified information
pursuant to Executive Order No. 12829 [set out below] may be granted by
the head of a department or his designee, including but not limited to,
those officials named in section 8 of this order, to an individual,
hereinafter termed an ``applicant'', for a specific classification
category only upon a finding that it is clearly consistent with the
national interest to do so.
Sec. 3. Except as provided in section 9 of this order, an
authorization for access to a specific classification category may not
be finally denied or revoked pursuant to Executive Order No. 12829 [set
out below] by the head of a department or his designee, including, but
not limited to, those officials named in section 8 of this order, unless
the applicant has been given the following:
(1) A written statement of the reasons why his access authorization
may be denied or revoked, which shall be as comprehensive and detailed
as the national security permits.
(2) A reasonable opportunity to reply in writing under oath or
affirmation to the statement of reasons.
(3) After he has filed under oath or affirmation a written reply to
the statement of reasons, the form and sufficiency of which may be
prescribed by regulations issued by the head of the department
concerned, an opportunity to appear personally before the head of the
department concerned or his designee including, but not limited to,
those officials named in section 8 of this order for the purpose of
supporting his eligibility for access authorization and to present
evidence on his behalf.
(4) A reasonable time to prepare for that appearance.
(5) An opportunity to be represented by counsel.
(6) An opportunity to cross-examine persons either orally or through
written interrogatories in accordance with section 4 on matters not
relating to the characterization in the statement of reasons of any
organization or individual other than the applicant.
(7) A written notice of the final decision in his case which, if
adverse, shall specify whether the head of the department or his
designee, including, but not limited to, those officials named in
section 8 of this order, found for or against him with respect to each
allegation in the statement of reasons.
Sec. 4. (a) An applicant shall be afforded an opportunity to cross-
examine persons who have made oral or written statements adverse to the
applicant relating to a controverted issue except that any such
statement may be received and considered without affording such
opportunity in the circumstances described in either of the following
paragraphs:
(1) The head of the department supplying the statement certifies
that the person who furnished the information is a confidential
informant who has been engaged in obtaining intelligence information for
the Government and that disclosure of his identity would be
substantially harmful to the national interest.
(2) The head of the department concerned or his special designee for
that particular purpose has preliminarily determined, after considering
information furnished by the investigative agency involved as to the
reliability of the person and the accuracy of the statement concerned,
that the statement concerned appears to be reliable and material, and
the head of the department or such special designee has determined that
failure to receive and consider such statement would, in view of the
level of access sought, be substantially harmful to the national
security and that the person who furnished the information cannot appear
to testify (A) due to death, severe illness, or similar cause, in which
case the identity of the person and the information to be considered
shall be made available to the applicant, or (B) due to some other cause
determined by the head of the department to be good and sufficient.
(b) Whenever procedures under paragraphs (1) or (2) of subsection
(a) of this section are used (1) the applicant shall be given a summary
of the information which shall be as comprehensive and detailed as the
national security permits, (2) appropriate consideration shall be
accorded to the fact that the applicant did not have an opportunity to
cross-examine such person or persons, and (3) a final determination
adverse to the applicant shall be made only by the head of the
department based upon his personal review of the case.
Sec. 5. (a) Records compiled in the regular course of business, or
other physical evidence other than investigative reports, may be
received and considered subject to rebuttal without authenticating
witnesses, provided that such information has been furnished to the
department concerned by an investigative agency pursuant to its
responsibilities in connection with assisting the head of the department
concerned to safeguard classified information within industry pursuant
to this order.
(b) Records compiled in the regular course of business, or other
physical evidence other than investigative reports, relating to a
controverted issue which, because they are classified, may not be
inspected by the applicant, may be received and considered provided
that: (1) the head of the department concerned or his special designee
for that purpose has made a preliminary determination that such physical
evidence appears to be material, (2) the head of the department
concerned or such designee has made a determination that failure to
receive and consider such physical evidence would, in view of the level
of access sought, be substantially harmful to the national security, and
(3) to the extent that the national security permits, a summary or
description of such physical evidence is made available to the
applicant. In every such case, information as to the authenticity and
accuracy of such physical evidence furnished by the investigative agency
involved shall be considered. In such instances a final determination
adverse to the applicant shall be made only by the head of the
department based upon his personal review of the case.
Sec. 6. The head of a department of the United States or his
representative, may issue, in appropriate cases, invitations and
requests to appear and testify in order that the applicant may have the
opportunity to cross-examine as provided by this order. Whenever a
witness is so invited or requested to appear and testify at a proceeding
and the witness is an officer or employee of the executive branch of the
Government or a member of the armed forces of the United States, and the
proceeding involves the activity in connection with which the witness is
employed, travel expenses and per diem are authorized as provided by the
Standardized Government Travel Regulations or the Joint Travel
Regulations, as appropriate. In all other cases (including non-
Government employees as well as officers or employees of the executive
branch of the Government or members of the armed forces of the United
States not covered by the foregoing sentence), transportation in kind
and reimbursement for actual expenses are authorized in an amount not to
exceed the amount payable under Standardized Government Travel
Regulations. An officer or employee of the executive branch of the
Government or a member of the armed forces of the United States who is
invited or requested to appear pursuant to this paragraph shall be
deemed to be in the performance of his official duties. So far as the
national security permits, the head of the investigative agency involved
shall cooperate with the Secretary, the Administrator, or the head of
the other department or agency, as the case may be, in identifying
persons who have made statements adverse to the applicant and in
assisting him in making them available for cross-examination. If a per
son so invited is an officer or employee of the executive branch of the
government or a member of the armed forces of the United States, the
head of the department or agency concerned shall cooperate in making
that person available for cross-examination.
Sec. 7. Any determination under this order adverse to an applicant
shall be a determination in terms of the national interest and shall in
no sense be a determination as to the loyalty of the applicant
concerned.
Sec. 8. Except as otherwise specified in the preceding provisions of
this order, any authority vested in the head of a department by this
order may be delegated to the the [sic] deputy of that department, or
the principal assistant to the head of that department, as the case may
be.
Sec. 9. Nothing contained in this order shall be deemed to limit or
affect the responsibility and powers of the head of a department to deny
or revoke access to a specific classification category if the security
of the nation so requires. Such authority may not be delegated and may
be exercised only when the head of a department determines that the
procedures prescribed in sections 3, 4, and 5 cannot be invoked
consistently with the national security and such determination shall be
conclusive.
Modification of Executive Order No. 10865
Ex. Ord. No. 10865, Feb. 20, 1960, 25 F.R. 1583, as amended, set out
above, when referring to functions of the Atomic Energy Commission is
modified to provide that all such functions shall be exercised by the
Secretary of Energy and the Nuclear Regulatory Commission, see section
4(a)(1) of Ex. Ord. No. 12038, Feb. 3, 1978, 43 F.R. 4957, set out under
section 7151 of Title 42, The Public Health and Welfare.
Executive Order No. 10985
Ex. Ord. No. 10985, Jan. 12, 1962, 27 F.R. 439, which amended
Executive Order No. 10501, which related to safeguarding official
information, was superseded by Ex. Ord. No. 11652, Mar. 8, 1972, 37 F.R.
5209, formerly set out below.
Executive Order No. 11097
Ex. Ord. No. 11097, Feb. 28, 1963, 28 F.R. 2225, which amended
Executive Order No. 10501, which related to safeguarding official
information, was superseded by Ex. Ord. No. 11652, Mar. 8, 1972, 37 F.R.
5209, formerly set out below.
Executive Order No. 11652
Ex. Ord. No. 11652, Mar. 8, 1972, 37 F.R. 5209, as amended by Ex.
Ord. No. 11714, Apr. 24, 1973, 38 F.R. 10245; Ex. Ord. No. 11862, June
11, 1975, 40 F.R. 25197; Ex. Ord. No. 12038, Feb. 3, 1978, 43 F.R. 4957,
which related to the classification and declassification of national
security information and material, was revoked by Ex. Ord. No. 12065,
June 28, 1978, 43 F.R. 28949, formerly set out below.
Ex. Ord. No. 11932. Classification of Certain Information and Material
Obtained From Advisory Bodies Created To Implement the International
Energy Program
Ex. Ord. No. 11932, Aug. 4, 1976, 41 F.R. 32691, provided:
The United States has entered into the Agreement on an International
Energy Program of November 18, 1974, which created the International
Energy Agency. This program is a substantial factor in the conduct of
our foreign relations and an important element of our national security.
The effectiveness of the Agreement depends significantly upon the
provision and exchange of information and material by participants in
advisory bodies created by the International Energy Agency.
Confidentiality is essential to assure the free and open discussion
necessary to accomplish the tasks assigned to those bodies. I have
consulted with the Secretary of State, the Attorney General and the
Administrator of the Federal Energy Administration concerning the
handling and safeguarding of information and material in the possession
of the United States which has been obtained pursuant to the program,
and I find that some of such information and material requires
protection as provided in Executive Order No. 11652 of March 8, 1972, as
amended [formerly set out above].
NOW, THEREFORE, by virtue of the authority vested in me by the
Constitution and statutes of the United States, and as President of the
United States, it is hereby ordered as follows:
Section 1. Information and material obtained pursuant to the
International Energy Program and which requires protection against
unauthorized disclosure in the interest of the national defense or
foreign relations of the United States shall be classified pursuant to
Executive Order No. 11652 of March 8, 1972, as amended [formerly set out
above]. The Secretary of State shall have the responsibility for the
classification, declassification and safeguarding of information and
material in the possession of the United States Government which has
been obtained pursuant to:
(a) Section 252(c)(3), (d)(2), or (e)(3) of the Energy Policy and
Conservation Act (89 Stat. 871; 42 U.S.C. 6272(c)(3), (d)(2), (e)(3)),
or
(b) The Voluntary Agreement and Program relating to the
International Energy Program (40 F.R. 16041, April 8, 1975), or
(c) Any similar Voluntary Agreement and Program entered into under
the Energy Policy and Conservation Act [42 U.S.C. 6201 et seq.] after
the date of this Order.
Sec. 2. Information or material classified pursuant to Section 1 of
this Order may be exempted from the General Declassification Schedule
established by Section 5 of Executive Order No. 11652 [formerly set out
above] if it was obtained by the United States on the understanding that
it be kept in confidence, or if it might otherwise be exempted under
Section 5(B) of such Order.
Sec. 3. (a) Within 60 days of the date of this Order, the Secretary
of State shall promulgate regulations which implement his
responsibilities under this Order.
(b) The directives issued under Section 6 of Executive Order No.
11652 [formerly set out above] shall not apply to information and
material classified under this Order. However, the regulations
promulgated by the Secretary of State shall:
(1) conform, to the extent practicable, to the policies set
forth in Section 6 of Executive Order No. 11652 [formerly set out
above], and
(2) provide that he may take such measures as he deems necessary
and appropriate to ensure the confidentiality of any information and
material classified under this Order that may remain in the custody
or control of any person outside the United States Government.
Gerald R. Ford.
Executive Order No. 12065
Ex. Ord. No. 12065, June 28, 1978, 43 F.R. 28949, as amended by Ex.
Ord. No. 12148, July 20, 1979, 44 F.R. 43239; Ex. Ord. No. 12163, Sept.
29, 1979, 44 F.R. 56673, which related to classification and
declassification of national security information and material, was
revoked by Ex. Ord. No. 12356, Apr. 2, 1982, 47 F.R. 14874, 15557,
formerly set out below.
Executive Order No. 12356
Ex. Ord. No. 12356, Apr. 2, 1982, 47 F.R. 14874, 15557, which
prescribed a uniform system for classifying, declassifying, and
safeguarding national security information, was revoked by Ex. Ord. No.
12958, Sec. 6.1(d), Apr. 17, 1995, 60 F.R. 19843, set out below.
Ex. Ord. No. 12812. Declassification and Release of Materials Pertaining
to Prisoners of War and Missing in Action
Ex. Ord. No. 12812, July 22, 1992, 57 F.R. 32879, provided:
WHEREAS, the Senate, by S. Res. 324 of July 2, 1992, has asked that
I ``expeditiously issue an Executive
order requiring all executive branch departments and agencies to
declassify and publicly release without compromising United States
national security all documents, files, and other materials pertaining
to POWs and MIAs;'' and
WHEREAS, indiscriminate release of classified material could
jeopardize continuing United States Government efforts to achieve the
fullest possible accounting of Vietnam-era POWs and MIAs; and
WHEREAS, I have concluded that the public interest would be served
by the declassification and public release of materials pertaining to
Vietnam-era POWs and MIAs as provided below;
NOW, THEREFORE, by the authority vested in me as President by the
Constitution and the laws of the United States of America, I hereby
order as follows:
Section 1. All executive departments and agencies shall
expeditiously review all documents, files, and other materials
pertaining to American POWs and MIAs lost in Southeast Asia for the
purposes of declassification in accordance with the standards and
procedures of Executive Order No. 12356 [formerly set out above].
Sec. 2. All executive departments and agencies shall make publicly
available documents, files, and other materials declassified pursuant to
section 1, except for those the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy of returnees, family
members of POWs and MIAs, or other persons, or would impair the
deliberative processes of the executive branch.
Sec. 3. This order is not intended to create any right or benefit,
substantive or procedural, enforceable by a party against the United
States, its agencies or instrumentalities, its officers or employees, or
any other person.
George Bush.
Ex. Ord. No. 12829. National Industrial Security Program
Ex. Ord. No. 12829, Jan. 6, 1993, 58 F.R. 3479, as amended by Ex.
Ord. No. 12885, Dec. 14, 1993, 58 F.R. 65863, provided:
This order establishes a National Industrial Security Program to
safeguard Federal Government classified information that is released to
contractors, licensees, and grantees of the United States Government. To
promote our national interests, the United States Government issues
contracts, licenses, and grants to nongovernment organizations. When
these arrangements require access to classified information, the
national security requires that this information be safeguarded in a
manner equivalent to its protection within the executive branch of
Government. The national security also requires that our industrial
security program promote the economic and technological interests of the
United States. Redundant, overlapping, or unnecessary requirements
impede those interests. Therefore, the National Industrial Security
Program shall serve as a single, integrated, cohesive industrial
security program to protect classified information and to preserve our
Nation's economic and technological interests.
Therefore, by the authority vested in me as President by the
Constitution and the laws of the United States of America, including the
Atomic Energy Act of 1954, as amended (42 U.S.C. 2011-2286) [42 U.S.C.
2011 et seq.], the National Security Act of 1947, as amended (codified
as amended in scattered sections of the United States Code) [see Short
Title note set out under section 401 of this title], and the Federal
Advisory Committee Act, as amended (5 U.S.C. App. 2) [5 U.S.C. App.], it
is hereby ordered as follows:
PART 1. ESTABLISHMENT AND POLICY
Section 101. Establishment. (a) There is established a National
Industrial Security Program. The purpose of this program is to safeguard
classified information that may be released or has been released to
current, prospective, or former contractors, licensees, or grantees of
United States agencies. For the purposes of this order, the terms
``contractor, licensee, or grantee'' means current, prospective, or
former contractors, licensees, or grantees of United States agencies.
The National Industrial Security Program shall be applicable to all
executive branch departments and agencies.
(b) The National Industrial Security Program shall provide for the
protection of information classified pursuant to Executive Order No.
12356 of April 2, 1982 [formerly set out above], or its successor, and
the Atomic Energy Act of 1954, as amended [42 U.S.C. 2011 et seq.].
(c) For the purposes of this order, the term ``contractor'' does not
include individuals engaged under personal services contracts.
Sec. 102. Policy Direction. (a) The National Security Council shall
provide overall policy direction for the National Industrial Security
Program.
(b) The Director of the Information Security Oversight Office,
established under Executive Order No. 12356 of April 2, 1982 [formerly
set out above], shall be responsible for implementing and monitoring the
National Industrial Security Program and shall:
(1) develop, in consultation with the agencies, and promulgate
subject to the approval of the National Security Council, directives for
the implementation of this order, which shall be binding on the
agencies;
(2) oversee agency, contractor, licensee, and grantee actions to
ensure compliance with this order and implementing directives;
(3) review all agency implementing regulations, internal rules, or
guidelines. The Director shall require any regulation, rule, or
guideline to be changed if it is not consistent with this order or
implementing directives. Any such decision by the Director may be
appealed to the National Security Council. The agency regulation, rule,
or guideline shall remain in effect pending a prompt decision on the
appeal;
(4) have the authority, pursuant to terms of applicable contracts,
licenses, grants, or regulations, to conduct on-site reviews of the
implementation of the National Industrial Security Program by each
agency, contractor, licensee, and grantee that has access to or stores
classified information and to require of each agency, contractor,
licensee, and grantee those reports, information, and other cooperation
that may be necessary to fulfill the Director's responsibilities. If
these reports, inspections, or access to specific classified
information, or other forms of cooperation, would pose an exceptional
national security risk, the affected agency head or the senior official
designated under section 203(a) of this order may request the National
Security Council to deny access to the Director. The Director shall not
have access pending a prompt decision by the National Security Council;
(5) report any violations of this order or its implementing
directives to the head of the agency or to the senior official
designated under section 203(a) of this order so that corrective action,
if appropriate, may be taken. Any such report pertaining to the
implementation of the National Industrial Security Program by a
contractor, licensee, or grantee shall be directed to the agency that is
exercising operational oversight over the contractor, licensee, or
grantee under section 202 of this order;
(6) consider and take action on complaints and suggestions from
persons within or outside the Government with respect to the
administration of the National Industrial Security Program;
(7) consider, in consultation with the advisory committee
established by this order, affected agencies, contractors, licensees,
and grantees, and recommend to the President through the National
Security Council changes to this order; and
(8) report at least annually to the President through the National
Security Council on the implementation of the National Industrial
Security Program.
(c) Nothing in this order shall be construed to supersede the
authority of the Secretary of Energy or the Nuclear Regulatory
Commission under the Atomic Energy Act of 1954, as amended [42 U.S.C.
2011 et seq.], or
the authority of the Director of Central Intelligence under the National
Security Act of 1947, as amended [see Short Title note set out under
section 401 of this title], or Executive Order No. 12333 of December 8,
1981 [50 U.S.C. 401 note].
Sec. 103. National Industrial Security Program Policy Advisory
Committee. (a) Establishment. There is established the National
Industrial Security Program Policy Advisory Committee (``Committee'').
The Director of the Information Security Oversight Office shall serve as
Chairman of the Committee and appoint the members of the Committee. The
members of the Committee shall be the representatives of those
departments and agencies most affected by the National Industrial
Security Program and nongovernment representatives of contractors,
licensees, or grantees involved with classified contracts, licenses, or
grants, as determined by the Chairman.
(b) Functions. (1) The Committee members shall advise the Chairman
of the Committee on all matters concerning the policies of the National
Industrial Security Program, including recommended changes to those
policies as reflected in this order, its implementing directives, or the
operating manual established under this order, and serve as a forum to
discuss policy issues in dispute.
(2) The Committee shall meet at the request of the Chairman, but at
least twice during the calendar year.
(c) Administration. (1) Members of the Committee shall serve without
compensation for their work on the Committee. However, nongovernment
members may be allowed travel expenses, including per diem in lieu of
subsistence, as authorized by law for persons serving intermittently in
the Government service (5 U.S.C. 5701-5707).
(2) To the extent permitted by law and subject to the availability
of funds, the Administrator of General Services shall provide the
Committee with administrative services, facilities, staff, and other
support services necessary for the performance of its functions.
(d) General. Notwithstanding any other Executive order, the
functions of the President under the Federal Advisory Committee Act, as
amended [5 U.S.C. App.], except that of reporting to the Congress, which
are applicable to the Committee, shall be performed by the Administrator
of General Services in accordance with the guidelines and procedures
established by the General Services Administration.
PART 2. OPERATIONS
Sec. 201. National Industrial Security Program Operating Manual. (a)
The Secretary of Defense, in consultation with all affected agencies and
with the concurrence of the Secretary of Energy, the Nuclear Regulatory
Commission, and the Director of Central Intelligence, shall issue and
maintain a National Industrial Security Program Operating Manual
(``Manual''). The Secretary of Energy and the Nuclear Regulatory
Commission shall prescribe and issue that portion of the Manual that
pertains to information classified under the Atomic Energy Act of 1954,
as amended [42 U.S.C. 2011 et seq.]. The Director of Central
Intelligence shall prescribe and issue that portion of the Manual that
pertains to intelligence sources and methods, including Sensitive
Compartmented Information.
(b) The Manual shall prescribe specific requirements, restrictions,
and other safeguards that are necessary to preclude unauthorized
disclosure and control authorized disclosure of classified information
to contractors, licensees, or grantees. The Manual shall apply to the
release of classified information during all phases of the contracting
process including bidding, negotiation, award, performance, and
termination of contracts, the licensing process, or the grant process,
with or under the control of departments or agencies.
(c) The Manual shall also prescribe requirements, restrictions, and
other safeguards that are necessary to protect special classes of
classified information, including Restricted Data, Formerly Restricted
Data, intelligence sources and methods information, Sensitive
Compartmented Information, and Special Access Program information.
(d) In establishing particular requirements, restrictions, and other
safeguards within the Manual, the Secretary of Defense, the Secretary of
Energy, the Nuclear Regulatory Commission, and the Director of Central
Intelligence shall take into account these factors: (i) the damage to
the national security that reasonably could be expected to result from
an unauthorized disclosure; (ii) the existing or anticipated threat to
the disclosure of information; and (iii) the short- and long-term costs
of the requirements, restrictions, and other safeguards.
(e) To the extent that is practicable and reasonable, the
requirements, restrictions, and safeguards that the Manual establishes
for the protection of classified information by contractors, licensees,
and grantees shall be consistent with the requirements, restrictions,
and safeguards that directives implementing Executive Order No. 12356 of
April 2, 1982 [formerly set out above], or the Atomic Energy Act of
1954, as amended, establish for the protection of classified information
by agencies. Upon request by the Chairman of the Committee, the
Secretary of Defense shall provide an explanation and justification for
any requirement, restriction, or safeguard that results in a standard
for the protection of classified information by contractors, licensees,
and grantees that differs from the standard that applies to agencies.
(f) The Manual shall be issued to correspond as closely as possible
to pertinent decisions of the Secretary of Defense and the Director of
Central Intelligence made pursuant to the recommendations of the Joint
Security Review Commission and to revisions to the security
classification system that result from Presidential Review Directive 29,
but in any event no later than June 30, 1994.
Sec. 202. Operational Oversight. (a) The Secretary of Defense shall
serve as Executive Agent for inspecting and monitoring the contractors,
licensees, and grantees who require or will require access to, or who
store or will store classified information; and for determining the
eligibility for access to classified information of contractors,
licensees, and grantees and their respective employees. The heads of
agencies shall enter into agreements with the Secretary of Defense that
establish the terms of the Secretary's responsibilities on behalf of
these agency heads.
(b) The Director of Central Intelligence retains authority over
access to intelligence sources and methods, including Sensitive
Compartmented Information. The Director of Central Intelligence may
inspect and monitcr [sic] contractor, licensee, and grantee programs and
facilities that involve access to such information or may enter into
written agreements with the Secretary of Defense, as Executive Agent, to
inspect and monitor these programs or facilities, in whole or in part,
on the Director's behalf.
(c) The Secretary of Energy and the Nuclear Regulatory Commission
retain authority over access to information under their respective
programs classified under the Atomic Energy Act of 1954, as amended [42
U.S.C. 2011 et seq.]. The Secretary or the Commission may inspect and
monitor contractor, licensee, and grantee programs and facilities that
involve access to such information or may enter into written agreements
with the Secretary of Defense, as Executive Agent, to inspect and
monitor these programs or facilities, in whole or in part, on behalf of
the Secretary or the Commission, respectively.
(d) The Executive Agent shall have the authority to issue, after
consultation with affected agencies, standard forms or other
standardization that will promote the implementation of the National
Industrial Security Program.
Sec. 203. Implementation. (a) The head of each agency that enters
into classified contracts, licenses, or grants shall designate a senior
agency official to direct and administer the agency's implementation and
compliance with the National Industrial Security Program.
(b) Agency implementing regulations, internal rules, or guidelines
shall be consistent with this order, its implementing directives, and
the Manual. Agencies shall issue these regulations, rules, or guidelines
no later than 180 days from the issuance of the Manual. They may
incorporate all or portions of the Manual by reference.
(c) Each agency head or the senior official designated under
paragraph (a) above shall take appropriate and prompt corrective action
whenever a violation of this order, its implementing directives, or the
Manual occurs.
(d) The senior agency official designated under paragraph (a) above
shall account each year for the costs within the agency associated with
the implementation of the National Industrial Security Program. These
costs shall be reported to the Director of the Information Security
Oversight Office, who shall include them in the reports to the President
prescribed by this order.
(e) The Secretary of Defense, with the concurrence of the
Administrator of General Services, the Administrator of the National
Aeronautics and Space Administration, and such other agency heads or
officials who may be responsible, shall amend the Federal Acquisition
Regulation to be consistent with the implementation of the National
Industrial Security Program.
(f) All contracts, licenses, or grants that involve access to
classified information and that are advertised or proposed following the
issuance of agency regulations, rules, or guidelines described in
paragraph (b) above shall comply with the National Industrial Security
Program. To the extent that is feasible, economical, and permitted by
law, agencies shall amend, modify, or convert preexisting contracts,
licenses, or grants, or previously advertised or proposed contracts,
licenses, or grants, that involve access to classified information for
operation under the National Industrial Security Program. Any direct
inspection or monitoring of contractors, licensees, or grantees
specified by this order shall be carried out pursuant to the terms of a
contract, license, grant, or regulation.
(g) Executive Order No. 10865 of February 20, 1960 [set out above],
as amended by Executive Order No. 10909 of January 17, 1961, and
Executive Order No. 11382 of November 27, 1967, is hereby amended as
follows:
(1) Section 1(a) and (b) are revoked as of the effective date of
this order.
(2) Section 1(c) is renumbered as Section 1 and is amended to read
as follows:
``Section 1. When used in this order, the term `head of a
department' means the Secretary of State, the Secretary of Defense, the
Secretary of Transportation, the Secretary of Energy, the Nuclear
Regulatory Commission, the Administrator of the National Aeronautics and
Space Administration, and, in section 4, the Attorney General. The term
`head of a department' also means the head of any department or agency,
including but not limited to those referenced above with whom the
Department of Defense makes an agreement to extend regulations
prescribed by the Secretary of Defense concerning authorizations for
access to classified information pursuant to Executive Order No.
12829.''
(3) Section 2 is amended by inserting the words ``pursuant to
Executive Order No. 12829'' after the word ``information.''
(4) Section 3 is amended by inserting the words ``pursuant to
Executive Order No. 12829'' between the words ``revoked'' and ``by'' in
the second clause of that section.
(5) Section 6 is amended by striking out the words ``The Secretary
of State, the Secretary of Defense, the Administrator of the National
Aeronautics and Space Administration, the Secretary of Transportation,
or his representative, or the head of any other department or agency of
the United States with which the Department of Defense makes an
agreement under section (1)(b),'' at the beginning of the first
sentence, and inserting in their place ``The head of a department of the
United States . . . .''
(6) Section 8 is amended by striking out paragraphs (1) through (7)
and inserting in their place ``. . . the deputy of that department, or
the principal assistant to the head of that department, as the case may
be.''
(h) All delegations, rules, regulations, orders, directives,
agreements, contracts, licenses, and grants issued under preexisting
authorities, including section 1(a) and (b) of Executive Order No. 10865
of February 20, 1960, as amended, by Executive Order No. 10909 of
January 17, 1961, and Executive Order No. 11382 of November 27, 1967,
shall remain in full force and effect until amended, modified, or
terminated pursuant to authority of this order.
(i) This order shall be effective immediately.
Ex. Ord. No. 12937. Declassification of Selected Records Within National
Archives of United States
Ex. Ord. No. 12937, Nov. 10, 1994, 59 F.R. 59097, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, it is hereby ordered:
Section 1. The records in the National Archives of the United States
referenced in the list accompanying this order are hereby declassified.
Sec. 2. The Archivist of the United States shall take such actions
as are necessary to make such records available for public research no
later than 30 days from the date of this Order, except to the extent
that the head of an affected agency and the Archivist have determined
that specific information within such records must be protected from
disclosure pursuant to an authorized exemption to the Freedom of
Information Act, 5 U.S.C. 552, other than the exemption that pertains to
national security information.
Sec. 3. Nothing contained in this order shall create any right or
benefit, substantive or procedural, enforceable by any party against the
United States, its agencies or instrumentalities, its officers or
employees, or any other person.
William J. Clinton.
Records in the following record groups (``RG'') in the National
Archives of the United States shall be declassified. Page numbers are
approximate. A complete list of the selected records is available from
the Archivist of the United States.
I. All unreviewed World War II and earlier records, including:..........
A. RG 18, Army Air Forces 1,722,400 pp.
B. RG 65, Federal Bureau of 362,500 pp.
Investigation
C. RG 127, United States 195,000 pp.
Marine Corps
D. RG 216, Office of 112,500 pp.
Censorship
E. RG 226, Office of 415,000 pp.
Strategic Services
F. RG 60, United States 4,422,500 pp.
Occupation Headquarters
G. RG 331, Allied 3,097,500 pp.
Operational and
Occupation Headquarters,
World War II (including
350 reels of Allied
Force Headquarters)
H. RG 332, United States 1,182,500 pp.
Theaters of War, World
War II
I. RG 338, Mediterranean 9,500,000 pp.
Theater of Operations
and European Command
Subtotal for World War II 21.0 million pp.
and earlier
II. Post-1945 Collections (Military and Civil)..........................
A. RG 19, Bureau of Ships, 1,732,500 pp.
Pre-1950 General
Correspondence (selected
records)
B. RG 51, Bureau of the 142,500 pp.
Budget, 52.12 Budget
Preparation Branch, 1952-
69
C. RG 72, Bureau of 5,655,000 pp.
Aeronautics (Navy)
(selected records)
D. RG 166, Foreign 1,272,500 pp.
Agricultural Service,
Narrative Reports, 1955-
61
E. RG 313, Naval Operating 407,500 pp.
Forces (selected
records)
F. RG 319, Office of the
Chief of Military
History
Manuscripts and 933,000 pp.
Background Papers
(selected records)
G. RG 337, Headquarters, 1,269,700 pp.
Army Ground Forces
(selected records)
H. RG 341, Headquarters, 4,870,000 pp.
United States Air Force
(selected records)
I. RG 389, Office of the 448,000 pp.
Provost Marshal General
(selected records)
J. RG 391, United States 240,000 pp.
Army Regular Army Mobil
Units
K. RG 428, General Records 31,250 pp.
of the Department of the
Navy (selected records)
L. RG 472, Army Vietnam 5,864,000 pp.
Collection (selected
records)
Subtotal for Other 22.9 million pp.
TOTAL 43.9 million pp.
Ex. Ord. No. 12951. Release of Imagery Acquired by Space-Based National
Intelligence Reconnaissance Systems
Ex. Ord. No. 12951, Feb. 22, 1995, 60 F.R. 10789, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America and in order to release certain
scientifically or environmentally useful imagery acquired by space-based
national intelligence reconnaissance systems, consistent with the
national security, it is hereby ordered as follows:
Section 1. Public Release of Historical Intelligence Imagery.
Imagery acquired by the space-based national intelligence reconnaissance
systems known as the Corona, Argon, and Lanyard missions shall, within
18 months of the date of this order, be declassified and transferred to
the National Archives and Records Administration with a copy sent to the
United States Geological Survey of the Department of the Interior
consistent with procedures approved by the Director of Central
Intelligence and the Archivist of the United States. Upon transfer, such
imagery shall be deemed declassified and shall be made available to the
public.
Sec. 2. Review for Future Public Release of Intelligence Imagery.
(a) All information that meets the criteria in section 2(b) of this
order shall be kept secret in the interests of national defense and
foreign policy until deemed otherwise by the Director of Central
Intelligence. In consultation with the Secretaries of State and Defense,
the Director of Central Intelligence shall establish a comprehensive
program for the periodic review of imagery from systems other than the
Corona, Argon, and Lanyard missions, with the objective of making
available to the public as much imagery as possible consistent with the
interests of national defense and foreign policy. For imagery from
obsolete broad-area film-return systems other than Corona, Argon, and
Lanyard missions, this review shall be completed within 5 years of the
date of this order. Review of imagery from any other system that the
Director of Central Intelligence deems to be obsolete shall be
accomplished according to a timetable established by the Director of
Central Intelligence. The Director of Central Intelligence shall report
annually to the President on the implementation of this order.
(b) The criteria referred to in section 2(a) of this order consist
of the following: imagery acquired by a space-based national
intelligence reconnaissance system other than the Corona, Argon, and
Lanyard missions.
Sec. 3. General Provisions. (a) This order prescribes a
comprehensive and exclusive system for the public release of imagery
acquired by space-based national intelligence reconnaissance systems.
This order is the exclusive Executive order governing the public release
of imagery for purposes of section 552(b)(1) of the Freedom of
Information Act [5 U.S.C. 552(b)(1)].
(b) Nothing contained in this order shall create any right or
benefit, substantive or procedural, enforceable by any party against the
United States, its agencies or instrumentalities, its officers or
employees, or any other person.
Sec. 4. Definition. As used herein, ``imagery'' means the product
acquired by space-based national intelligence reconnaissance systems
that provides a likeness or representation of any natural or man-made
feature or related objective or activities and satellite positional data
acquired at the same time the likeness or representation was acquired.
William J. Clinton.
Ex. Ord. No. 12958. Classified National Security Information
Ex. Ord. No. 12958, Apr. 17, 1995, 60 F.R. 19825, as amended by Ex.
Ord. No. 12972, Sept. 18, 1995, 60 F.R. 48863; Ex. Ord. No. 13142, Nov.
19, 1999, 64 F.R. 66089; Ex. Ord. No. 13292, Mar. 25, 2003, 68 F.R.
15315, provided:
This order prescribes a uniform system for classifying,
safeguarding, and declassifying national security information, including
information relating to defense against transnational terrorism. Our
democratic principles require that the American people be informed of
the activities of their Government. Also, our Nation's progress depends
on the free flow of information. Nevertheless, throughout our history,
the national defense has required that certain information be maintained
in confidence in order to protect our citizens, our democratic
institutions, our homeland security, and our interactions with foreign
nations. Protecting information critical to our Nation's security
remains a priority.
NOW, THEREFORE, by the authority vested in me as President by the
Constitution and the laws of the United States of America, it is hereby
ordered as follows:
PART 1--ORIGINAL CLASSIFICATION
Sec. 1.1. Classification Standards. (a) Information may be
originally classified under the terms of this order only if all of the
following conditions are met:
(1) an original classification authority is classifying the
information;
(2) the information is owned by, produced by or for, or is under the
control of the United States Government;
(3) the information falls within one or more of the categories of
information listed in section 1.4 of this order; and
(4) the original classification authority determines that the
unauthorized disclosure of the information reasonably could be expected
to result in damage to the national security, which includes defense
against transnational terrorism, and the original classification
authority is able to identify or describe the damage.
(b) Classified information shall not be declassified automatically
as a result of any unauthorized disclosure of identical or similar
information.
(c) The unauthorized disclosure of foreign government information is
presumed to cause damage to the national security.
Sec. 1.2. Classification Levels. (a) Information may be classified
at one of the following three levels:
(1) ``Top Secret'' shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause exceptionally
grave damage to the national security that the original classification
authority is able to identify or describe.
(2) ``Secret'' shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause serious damage
to the national security that the original classification authority is
able to identify or describe.
(3) ``Confidential'' shall be applied to information, the
unauthorized disclosure of which reasonably could be expected to cause
damage to the national security that the original classification
authority is able to identify or describe.
(b) Except as otherwise provided by statute, no other terms shall be
used to identify United States classified information.
Sec. 1.3. Classification Authority. (a) The authority to classify
information originally may be exercised only by:
(1) the President and, in the performance of executive duties, the
Vice President;
(2) agency heads and officials designated by the President in the
Federal Register; and
(3) United States Government officials delegated this authority
pursuant to paragraph (c) of this section.
(b) Officials authorized to classify information at a specified
level are also authorized to classify information at a lower level.
(c) Delegation of original classification authority.
(1) Delegations of original classification authority shall be
limited to the minimum required to administer this order. Agency heads
are responsible for ensuring that designated subordinate officials have
a demonstrable and continuing need to exercise this authority.
(2) ``Top Secret'' original classification authority may be
delegated only by the President; in the performance of executive duties,
the Vice President; or an agency head or official designated pursuant to
paragraph (a)(2) of this section.
(3) ``Secret'' or ``Confidential'' original classification authority
may be delegated only by the President; in the performance of executive
duties, the Vice President; or an agency head or official designated
pursuant to paragraph (a)(2) of this section; or the senior agency
official described in section 5.4(d) of this order, provided that
official has been delegated ``Top Secret'' original classification
authority by the agency head.
(4) Each delegation of original classification authority shall be in
writing and the authority shall not be redelegated except as provided in
this order. Each delegation shall identify the official by name or
position title.
(d) Original classification authorities must receive training in
original classification as provided in this order and its implementing
directives. Such training must include instruction on the proper
safeguarding of classified information and of the criminal, civil, and
administrative sanctions that may be brought against an individual who
fails to protect classified information from unauthorized disclosure.
(e) Exceptional cases. When an employee, government contractor,
licensee, certificate holder, or grantee of an agency who does not have
original classification authority originates information believed by
that person to require classification, the information shall be
protected in a manner consistent with this order and its implementing
directives. The information shall be transmitted promptly as provided
under this order or its implementing directives to the agency that has
appropriate subject matter interest and classification authority with
respect to this information. That agency shall decide within 30 days
whether to classify this information. If it is not clear which agency
has classification responsibility for this information, it shall be sent
to the Director of the Information Security Oversight Office. The
Director shall determine the agency having primary subject matter
interest and forward the information, with appropriate recommendations,
to that agency for a classification determination.
Sec. 1.4. Classification Categories. Information shall not be
considered for classification unless it concerns:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including special activities),
intelligence sources or methods, or cryptology;
(d) foreign relations or foreign activities of the United States,
including confidential sources;
(e) scientific, technological, or economic matters relating to the
national security, which includes defense against transnational
terrorism;
(f) United States Government programs for safeguarding nuclear
materials or facilities;
(g) vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services relating to the
national security, which includes defense against transnational
terrorism; or
(h) weapons of mass destruction.
Sec. 1.5. Duration of Classification. (a) At the time of original
classification, the original classification authority shall attempt to
establish a specific date or event for declassification based upon the
duration of the national security sensitivity of the information. Upon
reaching the date or event, the information shall be automatically
declassified. The date or event shall not exceed the time frame
established in paragraph (b) of this section.
(b) If the original classification authority cannot determine an
earlier specific date or event for declassification, information shall
be marked for declassification 10 years from the date of the original
decision, unless the original classification authority otherwise
determines that the sensitivity of the information requires that it
shall be marked for declassification for up to 25 years from the date of
the original decision. All information classified under this section
shall be subject to section 3.3 of this order if it is contained in
records of permanent historical value under title 44, United States
Code.
(c) An original classification authority may extend the duration of
classification, change the level of classification, or reclassify
specific information only when the standards and procedures for
classifying information under this order are followed.
(d) Information marked for an indefinite duration of classification
under predecessor orders, for example, marked as ``Originating Agency's
Determination Required,'' or information classified under predecessor
orders that contains no declassification instructions shall be
declassified in accordance with part 3 of this order.
Sec. 1.6. Identification and Markings. (a) At the time of original
classification, the following shall appear on the face of each
classified document, or shall be applied to other classified media in an
appropriate manner:
(1) one of the three classification levels defined in section 1.2 of
this order;
(2) the identity, by name or personal identifier and position, of
the original classification authority;
(3) the agency and office of origin, if not otherwise evident;
(4) declassification instructions, which shall indicate one of the
following:
(A) the date or event for declassification, as prescribed in
section 1.5(a) or section 1.5(c);
(B) the date that is 10 years from the date of original
classification, as prescribed in section 1.5(b); or
(C) the date that is up to 25 years from the date of original
classification, as prescribed in section 1.5(b); and
(5) a concise reason for classification that, at a minimum, cites
the applicable classification categories in section 1.4 of this order.
(b) Specific information described in paragraph (a) of this section
may be excluded if it would reveal additional classified information.
(c) With respect to each classified document, the agency originating
the document shall, by marking or other means, indicate which portions
are classified, with the applicable classification level, and which
portions are unclassified. In accordance with standards prescribed in
directives issued under this order, the Director of the Information
Security Oversight Office may grant waivers of this requirement. The
Director shall revoke any waiver upon a finding of abuse.
(d) Markings implementing the provisions of this order, including
abbreviations and requirements to safeguard classified working papers,
shall conform to the standards prescribed in implementing directives
issued pursuant to this order.
(e) Foreign government information shall retain its original
classification markings or shall be assigned a
U.S. classification that provides a degree of protection at least
equivalent to that required by the entity that furnished the
information. Foreign government information retaining its original
classification markings need not be assigned a U.S. classification
marking provided that the responsible agency determines that the foreign
government markings are adequate to meet the purposes served by U.S.
classification markings.
(f) Information assigned a level of classification under this or
predecessor orders shall be considered as classified at that level of
classification despite the omission of other required markings. Whenever
such information is used in the derivative classification process or is
reviewed for possible declassification, holders of such information
shall coordinate with an appropriate classification authority for the
application of omitted markings.
(g) The classification authority shall, whenever practicable, use a
classified addendum whenever classified information constitutes a small
portion of an otherwise unclassified document.
(h) Prior to public release, all declassified records shall be
appropriately marked to reflect their declassification.
Sec. 1.7. Classification Prohibitions and Limitations.
(a) In no case shall information be classified in order to:
(1) conceal violations of law, inefficiency, or administrative
error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not
require protection in the interest of the national security.
(b) Basic scientific research information not clearly related to the
national security shall not be classified.
(c) Information may be reclassified after declassification and
release to the public under proper authority only in accordance with the
following conditions:
(1) the reclassification action is taken under the personal
authority of the agency head or deputy agency head, who determines in
writing that the reclassification of the information is necessary in the
interest of the national security;
(2) the information may be reasonably recovered; and
(3) the reclassification action is reported promptly to the Director
of the Information Security Oversight Office.
(d) Information that has not previously been disclosed to the public
under proper authority may be classified or reclassified after an agency
has received a request for it under the Freedom of Information Act (5
U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory
review provisions of section 3.5 of this order only if such
classification meets the requirements of this order and is accomplished
on a document-by-document basis with the personal participation or under
the direction of the agency head, the deputy agency head, or the senior
agency official designated under section 5.4 of this order.
(e) Compilations of items of information that are individually
unclassified may be classified if the compiled information reveals an
additional association or relationship that: (1) meets the standards for
classification under this order; and (2) is not otherwise revealed in
the individual items of information. As used in this order,
``compilation'' means an aggregation of pre-existing unclassified items
of information.
Sec. 1.8. Classification Challenges. (a) Authorized holders of
information who, in good faith, believe that its classification status
is improper are encouraged and expected to challenge the classification
status of the information in accordance with agency procedures
established under paragraph (b) of this section.
(b) In accordance with implementing directives issued pursuant to
this order, an agency head or senior agency official shall establish
procedures under which authorized holders of information are encouraged
and expected to challenge the classification of information that they
believe is improperly classified or unclassified. These procedures shall
ensure that:
(1) individuals are not subject to retribution for bringing such
actions;
(2) an opportunity is provided for review by an impartial official
or panel; and
(3) individuals are advised of their right to appeal agency
decisions to the Interagency Security Classification Appeals Panel
(Panel) established by section 5.3 of this order.
PART 2--DERIVATIVE CLASSIFICATION
Sec. 2.1. Use of Derivative Classification. (a) Persons who only
reproduce, extract, or summarize classified information, or who only
apply classification markings derived from source material or as
directed by a classification guide, need not possess original
classification authority.
(b) Persons who apply derivative classification markings shall:
(1) observe and respect original classification decisions; and
(2) carry forward to any newly created documents the pertinent
classification markings. For information derivatively classified based
on multiple sources, the derivative classifier shall carry forward:
(A) the date or event for declassification that corresponds to
the longest period of classification among the sources; and
(B) a listing of these sources on or attached to the official
file or record copy.
Sec. 2.2. Classification Guides. (a) Agencies with original
classification authority shall prepare classification guides to
facilitate the proper and uniform derivative classification of
information. These guides shall conform to standards contained in
directives issued under this order.
(b) Each guide shall be approved personally and in writing by an
official who:
(1) has program or supervisory responsibility over the information
or is the senior agency official; and
(2) is authorized to classify information originally at the highest
level of classification prescribed in the guide.
(c) Agencies shall establish procedures to ensure that
classification guides are reviewed and updated as provided in directives
issued under this order.
PART 3--DECLASSIFICATION AND DOWNGRADING
Sec. 3.1. Authority for Declassification. (a) Information shall be
declassified as soon as it no longer meets the standards for
classification under this order.
(b) It is presumed that information that continues to meet the
classification requirements under this order requires continued
protection. In some exceptional cases, however, the need to protect such
information may be outweighed by the public interest in disclosure of
the information, and in these cases the information should be
declassified. When such questions arise, they shall be referred to the
agency head or the senior agency official. That official will determine,
as an exercise of discretion, whether the public interest in disclosure
outweighs the damage to the national security that might reasonably be
expected from disclosure. This provision does not:
(1) amplify or modify the substantive criteria or procedures for
classification; or
(2) create any substantive or procedural rights subject to judicial
review.
(c) If the Director of the Information Security Oversight Office
determines that information is classified in violation of this order,
the Director may require the information to be declassified by the
agency that originated the classification. Any such decision by the
Director may be appealed to the President through the Assistant to the
President for National Security Affairs. The information shall remain
classified pending a prompt decision on the appeal.
(d) The provisions of this section shall also apply to agencies
that, under the terms of this order, do not
have original classification authority, but had such authority under
predecessor orders.
Sec. 3.2. Transferred Records. (a) In the case of classified records
transferred in conjunction with a transfer of functions, and not merely
for storage purposes, the receiving agency shall be deemed to be the
originating agency for purposes of this order.
(b) In the case of classified records that are not officially
transferred as described in paragraph (a) of this section, but that
originated in an agency that has ceased to exist and for which there is
no successor agency, each agency in possession of such records shall be
deemed to be the originating agency for purposes of this order. Such
records may be declassified or downgraded by the agency in possession
after consultation with any other agency that has an interest in the
subject matter of the records.
(c) Classified records accessioned into the National Archives and
Records Administration (National Archives) as of the effective date of
this order shall be declassified or downgraded by the Archivist of the
United States (Archivist) in accordance with this order, the directives
issued pursuant to this order, agency declassification guides, and any
existing procedural agreement between the Archivist and the relevant
agency head.
(d) The originating agency shall take all reasonable steps to
declassify classified information contained in records determined to
have permanent historical value before they are accessioned into the
National Archives. However, the Archivist may require that classified
records be accessioned into the National Archives when necessary to
comply with the provisions of the Federal Records Act [see References in
Text note set out under section 3603 of Title 44, Public Printing and
Documents]. This provision does not apply to records being transferred
to the Archivist pursuant to section 2203 of title 44, United States
Code, or records for which the National Archives serves as the custodian
of the records of an agency or organization that has gone out of
existence.
(e) To the extent practicable, agencies shall adopt a system of
records management that will facilitate the public release of documents
at the time such documents are declassified pursuant to the provisions
for automatic declassification in section 3.3 of this order.
Sec. 3.3. Automatic Declassification. (a) Subject to paragraphs (b)-
(e) of this section, on December 31, 2006, all classified records that
(1) are more than 25 years old and (2) have been determined to have
permanent historical value under title 44, United States Code, shall be
automatically declassified whether or not the records have been
reviewed. Subsequently, all classified records shall be automatically
declassified on December 31 of the year that is 25 years from the date
of its original classification, except as provided in paragraphs (b)-(e)
of this section.
(b) An agency head may exempt from automatic declassification under
paragraph (a) of this section specific information, the release of which
could be expected to:
(1) reveal the identity of a confidential human source, or a human
intelligence source, or reveal information about the application of an
intelligence source or method;
(2) reveal information that would assist in the development or use
of weapons of mass destruction;
(3) reveal information that would impair U.S. cryptologic systems or
activities;
(4) reveal information that would impair the application of state of
the art technology within a U.S. weapon system;
(5) reveal actual U.S. military war plans that remain in effect;
(6) reveal information, including foreign government information,
that would seriously and demonstrably impair relations between the
United States and a foreign government, or seriously and demonstrably
undermine ongoing diplomatic activities of the United States;
(7) reveal information that would clearly and demonstrably impair
the current ability of United States Government officials to protect the
President, Vice President, and other protectees for whom protection
services, in the interest of the national security, are authorized;
(8) reveal information that would seriously and demonstrably impair
current national security emergency preparedness plans or reveal current
vulnerabilities of systems, installations, infrastructures, or projects
relating to the national security; or
(9) violate a statute, treaty, or international agreement.
(c) An agency head shall notify the President through the Assistant
to the President for National Security Affairs of any specific file
series of records for which a review or assessment has determined that
the information within that file series almost invariably falls within
one or more of the exemption categories listed in paragraph (b) of this
section and which the agency proposes to exempt from automatic
declassification. The notification shall include:
(1) a description of the file series;
(2) an explanation of why the information within the file series is
almost invariably exempt from automatic declassification and why the
information must remain classified for a longer period of time; and
(3) except for the identity of a confidential human source or a
human intelligence source, as provided in paragraph (b) of this section,
a specific date or event for declassification of the information. The
President may direct the agency head not to exempt the file series or to
declassify the information within that series at an earlier date than
recommended. File series exemptions previously approved by the President
shall remain valid without any additional agency action.
(d) At least 180 days before information is automatically
declassified under this section, an agency head or senior agency
official shall notify the Director of the Information Security Oversight
Office, serving as Executive Secretary of the Panel, of any specific
information beyond that included in a notification to the President
under paragraph (c) of this section that the agency proposes to exempt
from automatic declassification. The notification shall include:
(1) a description of the information, either by reference to
information in specific records or in the form of a declassification
guide;
(2) an explanation of why the information is exempt from automatic
declassification and must remain classified for a longer period of time;
and
(3) except for the identity of a confidential human source or a
human intelligence source, as provided in paragraph (b) of this section,
a specific date or event for declassification of the information. The
Panel may direct the agency not to exempt the information or to
declassify it at an earlier date than recommended. The agency head may
appeal such a decision to the President through the Assistant to the
President for National Security Affairs. The information will remain
classified while such an appeal is pending.
(e) The following provisions shall apply to the onset of automatic
declassification:
(1) Classified records within an integral file block, as defined in
this order, that are otherwise subject to automatic declassification
under this section shall not be automatically declassified until
December 31 of the year that is 25 years from the date of the most
recent record within the file block.
(2) By notification to the Director of the Information Security
Oversight Office, before the records are subject to automatic
declassification, an agency head or senior agency official designated
under section 5.4 of this order may delay automatic declassification for
up to 5 additional years for classified information contained in
microforms, motion pictures, audiotapes, videotapes, or comparable media
that make a review for possible declassification exemptions more
difficult or costly.
(3) By notification to the Director of the Information Security
Oversight Office, before the records are sub
ject to automatic declassification, an agency head or senior agency
official designated under section 5.4 of this order may delay automatic
declassification for up to 3 years for classified records that have been
referred or transferred to that agency by another agency less than 3
years before automatic declassification would otherwise be required.
(4) By notification to the Director of the Information Security
Oversight Office, an agency head or senior agency official designated
under section 5.4 of this order may delay automatic declassification for
up to 3 years from the date of discovery of classified records that were
inadvertently not reviewed prior to the effective date of automatic
declassification.
(f) Information exempted from automatic declassification under this
section shall remain subject to the mandatory and systematic
declassification review provisions of this order.
(g) The Secretary of State shall determine when the United States
should commence negotiations with the appropriate officials of a foreign
government or international organization of governments to modify any
treaty or international agreement that requires the classification of
information contained in records affected by this section for a period
longer than 25 years from the date of its creation, unless the treaty or
international agreement pertains to information that may otherwise
remain classified beyond 25 years under this section.
(h) Records containing information that originated with other
agencies or the disclosure of which would affect the interests or
activities of other agencies shall be referred for review to those
agencies and the information of concern shall be subject to automatic
declassification only by those agencies, consistent with the provisions
of subparagraphs (e)(3) and (e)(4) of this section.
Sec. 3.4. Systematic Declassification Review. (a) Each agency that
has originated classified information under this order or its
predecessors shall establish and conduct a program for systematic
declassification review. This program shall apply to records of
permanent historical value exempted from automatic declassification
under section 3.3 of this order. Agencies shall prioritize the
systematic review of records based upon the degree of researcher
interest and the likelihood of declassification upon review.
(b) The Archivist shall conduct a systematic declassification review
program for classified records: (1) accessioned into the National
Archives as of the effective date of this order; (2) transferred to the
Archivist pursuant to section 2203 of title 44, United States Code; and
(3) for which the National Archives serves as the custodian for an
agency or organization that has gone out of existence. This program
shall apply to pertinent records no later than 25 years from the date of
their creation. The Archivist shall establish priorities for the
systematic review of these records based upon the degree of researcher
interest and the likelihood of declassification upon review. These
records shall be reviewed in accordance with the standards of this
order, its implementing directives, and declassification guides provided
to the Archivist by each agency that originated the records. The
Director of the Information Security Oversight Office shall ensure that
agencies provide the Archivist with adequate and current
declassification guides.
(c) After consultation with affected agencies, the Secretary of
Defense may establish special procedures for systematic review for
declassification of classified cryptologic information, and the Director
of Central Intelligence may establish special procedures for systematic
review for declassification of classified information pertaining to
intelligence activities (including special activities), or intelligence
sources or methods.
Sec. 3.5. Mandatory Declassification Review. (a) Except as provided
in paragraph (b) of this section, all information classified under this
order or predecessor orders shall be subject to a review for
declassification by the originating agency if:
(1) the request for a review describes the document or material
containing the information with sufficient specificity to enable the
agency to locate it with a reasonable amount of effort;
(2) the information is not exempted from search and review under
sections 105C [now 702], 105D [now 703], or 701 of the National Security
Act of 1947 (50 U.S.C. 403-5c [now 432], 403-5e [now 432a], and 431);
and
(3) the information has not been reviewed for declassification
within the past 2 years. If the agency has reviewed the information
within the past 2 years, or the information is the subject of pending
litigation, the agency shall inform the requester of this fact and of
the requester's appeal rights.
(b) Information originated by:
(1) the incumbent President or, in the performance of executive
duties, the incumbent Vice President;
(2) the incumbent President's White House Staff or, in the
performance of executive duties, the incumbent Vice President's Staff;
(3) committees, commissions, or boards appointed by the incumbent
President; or
(4) other entities within the Executive Office of the President that
solely advise and assist the incumbent President is exempted from the
provisions of paragraph (a) of this section. However, the Archivist
shall have the authority to review, downgrade, and declassify papers or
records of former Presidents under the control of the Archivist pursuant
to sections 2107, 2111, 2111 note, or 2203 of title 44, United States
Code. Review procedures developed by the Archivist shall provide for
consultation with agencies having primary subject matter interest and
shall be consistent with the provisions of applicable laws or lawful
agreements that pertain to the respective Presidential papers or
records. Agencies with primary subject matter interest shall be notified
promptly of the Archivist's decision. Any final decision by the
Archivist may be appealed by the requester or an agency to the Panel.
The information shall remain classified pending a prompt decision on the
appeal.
(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.
(d) In accordance with directives issued pursuant to this order,
agency heads shall develop procedures to process requests for the
mandatory review of classified information. These procedures shall apply
to information classified under this or predecessor orders. They also
shall provide a means for administratively appealing a denial of a
mandatory review request, and for notifying the requester of the right
to appeal a final agency decision to the Panel.
(e) After consultation with affected agencies, the Secretary of
Defense shall develop special procedures for the review of cryptologic
information; the Director of Central Intelligence shall develop special
procedures for the review of information pertaining to intelligence
activities (including special activities), or intelligence sources or
methods; and the Archivist shall develop special procedures for the
review of information accessioned into the National Archives.
Sec. 3.6. Processing Requests and Reviews. In response to a request
for information under the Freedom of Information Act [5 U.S.C. 552], the
Privacy Act of 1974 [5 U.S.C. 552a], or the mandatory review provisions
of this order, or pursuant to the automatic declassification or
systematic review provisions of this order:
(a) An agency may refuse to confirm or deny the existence or
nonexistence of requested records whenever the fact of their existence
or nonexistence is itself classified under this order or its
predecessors.
(b) When an agency receives any request for documents in its custody
that contain information that was originally classified by another
agency, or comes across such documents in the process of the automatic
declassification or systematic review provisions of this
order, it shall refer copies of any request and the pertinent documents
to the originating agency for processing, and may, after consultation
with the originating agency, inform any requester of the referral unless
such association is itself classified under this order or its
predecessors. In cases in which the originating agency determines in
writing that a response under paragraph (a) of this section is required,
the referring agency shall respond to the requester in accordance with
that paragraph.
Sec. 3.7. Declassification Database. (a) The Director of the
Information Security Oversight Office, in conjunction with those
agencies that originate classified information, shall coordinate the
linkage and effective utilization of existing agency databases of
records that have been declassified and publicly released.
(b) Agency heads shall fully cooperate with the Director of the
Information Security Oversight Office in these efforts.
PART 4--SAFEGUARDING
Sec. 4.1. General Restrictions on Access. (a) A person may have
access to classified information provided that:
(1) a favorable determination of eligibility for access has been
made by an agency head or the agency head's designee;
(2) the person has signed an approved nondisclosure agreement; and
(3) the person has a need-to-know the information.
(b) Every person who has met the standards for access to classified
information in paragraph (a) of this section shall receive
contemporaneous training on the proper safeguarding of classified
information and on the criminal, civil, and administrative sanctions
that may be imposed on an individual who fails to protect classified
information from unauthorized disclosure.
(c) Classified information shall remain under the control of the
originating agency or its successor in function. An agency shall not
disclose information originally classified by another agency without its
authorization. An official or employee leaving agency service may not
remove classified information from the agency's control.
(d) Classified information may not be removed from official premises
without proper authorization.
(e) Persons authorized to disseminate classified information outside
the executive branch shall ensure the protection of the information in a
manner equivalent to that provided within the executive branch.
(f) Consistent with law, directives, and regulation, an agency head
or senior agency official shall establish uniform procedures to ensure
that automated information systems, including networks and
telecommunications systems, that collect, create, communicate, compute,
disseminate, process, or store classified information have controls
that:
(1) prevent access by unauthorized persons; and
(2) ensure the integrity of the information.
(g) Consistent with law, directives, and regulation, each agency
head or senior agency official shall establish controls to ensure that
classified information is used, processed, stored, reproduced,
transmitted, and destroyed under conditions that provide adequate
protection and prevent access by unauthorized persons.
(h) Consistent with directives issued pursuant to this order, an
agency shall safeguard foreign government information under standards
that provide a degree of protection at least equivalent to that required
by the government or international organization of governments that
furnished the information. When adequate to achieve equivalency, these
standards may be less restrictive than the safeguarding standards that
ordinarily apply to United States ``Confidential'' information,
including modified handling and transmission and allowing access to
individuals with a need-to-know who have not otherwise been cleared for
access to classified information or executed an approved nondisclosure
agreement.
(i) Except as otherwise provided by statute, this order, directives
implementing this order, or by direction of the President, classified
information originating in one agency shall not be disseminated outside
any other agency to which it has been made available without the consent
of the originating agency. An agency head or senior agency official may
waive this requirement for specific information originated within that
agency. For purposes of this section, the Department of Defense shall be
considered one agency. Prior consent is not required when referring
records for declassification review that contain information originating
in several agencies.
Sec. 4.2. Distribution Controls. (a) Each agency shall establish
controls over the distribution of classified information to ensure that
it is distributed only to organizations or individuals eligible for
access and with a need-to-know the information.
(b) In an emergency, when necessary to respond to an imminent threat
to life or in defense of the homeland, the agency head or any designee
may authorize the disclosure of classified information to an individual
or individuals who are otherwise not eligible for access. Such actions
shall be taken only in accordance with the directives implementing this
order and any procedures issued by agencies governing the classified
information, which shall be designed to minimize the classified
information that is disclosed under these circumstances and the number
of individuals who receive it. Information disclosed under this
provision or implementing directives and procedures shall not be deemed
declassified as a result of such disclosure or subsequent use by a
recipient. Such disclosures shall be reported promptly to the originator
of the classified information. For purposes of this section, the
Director of Central Intelligence may issue an implementing directive
governing the emergency disclosure of classified intelligence
information.
(c) Each agency shall update, at least annually, the automatic,
routine, or recurring distribution of classified information that they
distribute. Recipients shall cooperate fully with distributors who are
updating distribution lists and shall notify distributors whenever a
relevant change in status occurs.
Sec. 4.3. Special Access Programs. (a) Establishment of special
access programs. Unless otherwise authorized by the President, only the
Secretaries of State, Defense, and Energy, and the Director of Central
Intelligence, or the principal deputy of each, may create a special
access program. For special access programs pertaining to intelligence
activities (including special activities, but not including military
operational, strategic, and tactical programs), or intelligence sources
or methods, this function shall be exercised by the Director of Central
Intelligence. These officials shall keep the number of these programs at
an absolute minimum, and shall establish them only when the program is
required by statute or upon a specific finding that:
(1) the vulnerability of, or threat to, specific information is
exceptional; and
(2) the normal criteria for determining eligibility for access
applicable to information classified at the same level are not deemed
sufficient to protect the information from unauthorized disclosure.
(b) Requirements and limitations. (1) Special access programs shall
be limited to programs in which the number of persons who will have
access ordinarily will be reasonably small and commensurate with the
objective of providing enhanced protection for the information involved.
(2) Each agency head shall establish and maintain a system of
accounting for special access programs consistent with directives issued
pursuant to this order.
(3) Special access programs shall be subject to the oversight
program established under section 5.4(d) of this order. In addition, the
Director of the Information Security Oversight Office shall be afforded
access to these programs, in accordance with the security requirements
of each program, in order to perform the functions assigned to the
Information Security Oversight Office under this order. An agency head
may limit access to a special access program to the Director and
no more than one other employee of the Information Security Oversight
Office, or, for special access programs that are extraordinarily
sensitive and vulnerable, to the Director only.
(4) The agency head or principal deputy shall review annually each
special access program to determine whether it continues to meet the
requirements of this order.
(5) Upon request, an agency head shall brief the Assistant to the
President for National Security Affairs, or a designee, on any or all of
the agency's special access programs.
(c) Nothing in this order shall supersede any requirement made by or
under 10 U.S.C. 119.
Sec. 4.4. Access by Historical Researchers and Certain Former
Government Personnel. (a) The requirement in section 4.1(a)(3) of this
order that access to classified information may be granted only to
individuals who have a need-to-know the information may be waived for
persons who:
(1) are engaged in historical research projects;
(2) previously have occupied policy-making positions to which they
were appointed by the President under section 105(a)(2)(A) of title 3,
United States Code, or the Vice President under 106(a)(1)(A) of title 3,
United States Code; or
(3) served as President or Vice President.
(b) Waivers under this section may be granted only if the agency
head or senior agency official of the originating agency:
(1) determines in writing that access is consistent with the
interest of the national security;
(2) takes appropriate steps to protect classified information from
unauthorized disclosure or compromise, and ensures that the information
is safeguarded in a manner consistent with this order; and
(3) limits the access granted to former Presidential appointees and
Vice Presidential appointees to items that the person originated,
reviewed, signed, or received while serving as a Presidential appointee
or a Vice Presidential appointee.
PART 5--IMPLEMENTATION AND REVIEW
Sec. 5.1. Program Direction. (a) The Director of the Information
Security Oversight Office, under the direction of the Archivist and in
consultation with the Assistant to the President for National Security
Affairs, shall issue such directives as are necessary to implement this
order. These directives shall be binding upon the agencies. Directives
issued by the Director of the Information Security Oversight Office
shall establish standards for:
(1) classification and marking principles;
(2) safeguarding classified information, which shall pertain to the
handling, storage, distribution, transmittal, and destruction of and
accounting for classified information;
(3) agency security education and training programs;
(4) agency self-inspection programs; and
(5) classification and declassification guides.
(b) The Archivist shall delegate the implementation and monitoring
functions of this program to the Director of the Information Security
Oversight Office.
Sec. 5.2. Information Security Oversight Office. (a) There is
established within the National Archives an Information Security
Oversight Office. The Archivist shall appoint the Director of the
Information Security Oversight Office, subject to the approval of the
President.
(b) Under the direction of the Archivist, acting in consultation
with the Assistant to the President for National Security Affairs, the
Director of the Information Security Oversight Office shall:
(1) develop directives for the implementation of this order;
(2) oversee agency actions to ensure compliance with this order and
its implementing directives;
(3) review and approve agency implementing regulations and agency
guides for systematic declassification review prior to their issuance by
the agency;
(4) have the authority to conduct on-site reviews of each agency's
program established under this order, and to require of each agency
those reports, information, and other cooperation that may be necessary
to fulfill its responsibilities. If granting access to specific
categories of classified information would pose an exceptional national
security risk, the affected agency head or the senior agency official
shall submit a written justification recommending the denial of access
to the President through the Assistant to the President for National
Security Affairs within 60 days of the request for access. Access shall
be denied pending the response;
(5) review requests for original classification authority from
agencies or officials not granted original classification authority and,
if deemed appropriate, recommend Presidential approval through the
Assistant to the President for National Security Affairs;
(6) consider and take action on complaints and suggestions from
persons within or outside the Government with respect to the
administration of the program established under this order;
(7) have the authority to prescribe, after consultation with
affected agencies, standardization of forms or procedures that will
promote the implementation of the program established under this order;
(8) report at least annually to the President on the implementation
of this order; and
(9) convene and chair interagency meetings to discuss matters
pertaining to the program established by this order.
Sec. 5.3. Interagency Security Classification Appeals Panel.
(a) Establishment and administration.
(1) There is established an Interagency Security Classification
Appeals Panel. The Departments of State, Defense, and Justice, the
Central Intelligence Agency, the National Archives, and the Assistant to
the President for National Security Affairs shall each be represented by
a senior-level representative who is a full-time or permanent part-time
Federal officer or employee designated to serve as a member of the Panel
by the respective agency head. The President shall select the Chair of
the Panel from among the Panel members.
(2) A vacancy on the Panel shall be filled as quickly as possible as
provided in paragraph (a)(1) of this section.
(3) The Director of the Information Security Oversight Office shall
serve as the Executive Secretary. The staff of the Information Security
Oversight Office shall provide program and administrative support for
the Panel.
(4) The members and staff of the Panel shall be required to meet
eligibility for access standards in order to fulfill the Panel's
functions.
(5) The Panel shall meet at the call of the Chair. The Chair shall
schedule meetings as may be necessary for the Panel to fulfill its
functions in a timely manner.
(6) The Information Security Oversight Office shall include in its
reports to the President a summary of the Panel's activities.
(b) Functions. The Panel shall:
(1) decide on appeals by persons who have filed classification
challenges under section 1.8 of this order;
(2) approve, deny, or amend agency exemptions from automatic
declassification as provided in section 3.3 of this order; and
(3) decide on appeals by persons or entities who have filed requests
for mandatory declassification review under section 3.5 of this order.
(c) Rules and procedures. The Panel shall issue bylaws, which shall
be published in the Federal Register. The bylaws shall establish the
rules and procedures that the Panel will follow in accepting,
considering, and issuing decisions on appeals. The rules and procedures
of the Panel shall provide that the Panel will consider appeals only on
actions in which:
(1) the appellant has exhausted his or her administrative
remedies within the responsible agency;
(2) there is no current action pending on the issue within the
Federal courts; and
(3) the information has not been the subject of review by the
Federal courts or the Panel within the past 2 years.
(d) Agency heads shall cooperate fully with the Panel so that it can
fulfill its functions in a timely and fully informed manner. An agency
head may appeal a decision of the Panel to the President through the
Assistant to the President for National Security Affairs. The Panel
shall report to the President through the Assistant to the President for
National Security Affairs any instance in which it believes that an
agency head is not cooperating fully with the Panel.
(e) The Panel is established for the sole purpose of advising and
assisting the President in the discharge of his constitutional and
discretionary authority to protect the national security of the United
States. Panel decisions are committed to the discretion of the Panel,
unless changed by the President.
(f) Notwithstanding paragraphs (a) through (e) of this section,
whenever the Panel reaches a conclusion that information owned or
controlled by the Director of Central Intelligence (Director) should be
declassified, and the Director notifies the Panel that he objects to its
conclusion because he has determined that the information could
reasonably be expected to cause damage to the national security and to
reveal (1) the identity of a human intelligence source, or (2)
information about the application of an intelligence source or method
(including any information that concerns, or is provided as a result of,
a relationship with a cooperating intelligence element of a foreign
government), the information shall remain classified unless the
Director's determination is appealed to the President, and the President
reverses the determination.
Sec. 5.4. General Responsibilities. Heads of agencies that originate
or handle classified information shall:
(a) demonstrate personal commitment and commit senior management to
the successful implementation of the program established under this
order;
(b) commit necessary resources to the effective implementation of
the program established under this order;
(c) ensure that agency records systems are designed and maintained
to optimize the safeguarding of classified information, and to
facilitate its declassification under the terms of this order when it no
longer meets the standards for continued classification; and
(d) designate a senior agency official to direct and administer the
program, whose responsibilities shall include:
(1) overseeing the agency's program established under this order,
provided, an agency head may designate a separate official to oversee
special access programs authorized under this order. This official shall
provide a full accounting of the agency's special access programs at
least annually;
(2) promulgating implementing regulations, which shall be published
in the Federal Register to the extent that they affect members of the
public;
(3) establishing and maintaining security education and training
programs;
(4) establishing and maintaining an ongoing self-inspection program,
which shall include the periodic review and assessment of the agency's
classified product;
(5) establishing procedures to prevent unnecessary access to
classified information, including procedures that:
(A) require that a need for access to classified information is
established before initiating administrative clearance procedures;
and
(B) ensure that the number of persons granted access to
classified information is limited to the minimum consistent with
operational and security requirements and needs;
(6) developing special contingency plans for the safeguarding of
classified information used in or near hostile or potentially hostile
areas;
(7) ensuring that the performance contract or other system used to
rate civilian or military personnel performance includes the management
of classified information as a critical element or item to be evaluated
in the rating of:
(A) original classification authorities;
(B) security managers or security specialists; and
(C) all other personnel whose duties significantly involve the
creation or handling of classified information;
(8) accounting for the costs associated with the implementation of
this order, which shall be reported to the Director of the Information
Security Oversight Office for publication; and
(9) assigning in a prompt manner agency personnel to respond to any
request, appeal, challenge, complaint, or suggestion arising out of this
order that pertains to classified information that originated in a
component of the agency that no longer exists and for which there is no
clear successor in function.
Sec. 5.5. Sanctions. (a) If the Director of the Information Security
Oversight Office finds that a violation of this order or its
implementing directives has occurred, the Director shall make a report
to the head of the agency or to the senior agency official so that
corrective steps, if appropriate, may be taken.
(b) Officers and employees of the United States Government, and its
contractors, licensees, certificate holders, and grantees shall be
subject to appropriate sanctions if they knowingly, willfully, or
negligently:
(1) disclose to unauthorized persons information properly classified
under this order or predecessor orders;
(2) classify or continue the classification of information in
violation of this order or any implementing directive;
(3) create or continue a special access program contrary to the
requirements of this order; or
(4) contravene any other provision of this order or its implementing
directives.
(c) Sanctions may include reprimand, suspension without pay,
removal, termination of classification authority, loss or denial of
access to classified information, or other sanctions in accordance with
applicable law and agency regulation.
(d) The agency head, senior agency official, or other supervisory
official shall, at a minimum, promptly remove the classification
authority of any individual who demonstrates reckless disregard or a
pattern of error in applying the classification standards of this order.
(e) The agency head or senior agency official shall:
(1) take appropriate and prompt corrective action when a violation
or infraction under paragraph (b) of this section occurs; and
(2) notify the Director of the Information Security Oversight Office
when a violation under paragraph (b)(1), (2), or (3) of this section
occurs.
PART 6--GENERAL PROVISIONS
Sec. 6.1. Definitions. For purposes of this order:
(a) ``Access'' means the ability or opportunity to gain knowledge of
classified information.
(b) ``Agency'' means any ``Executive agency,'' as defined in 5
U.S.C. 105; any ``Military department'' as defined in 5 U.S.C. 102; and
any other entity within the executive branch that comes into the
possession of classified information.
(c) ``Automated information system'' means an assembly of computer
hardware, software, or firmware configured to collect, create,
communicate, compute, disseminate, process, store, or control data or
information.
(d) ``Automatic declassification'' means the declassification of
information based solely upon:
(1) the occurrence of a specific date or event as determined by the
original classification authority; or
(2) the expiration of a maximum time frame for duration of
classification established under this order.
(e) ``Classification'' means the act or process by which information
is determined to be classified information.
(f) ``Classification guidance'' means any instruction or source that
prescribes the classification of specific information.
(g) ``Classification guide'' means a documentary form of
classification guidance issued by an original classification authority
that identifies the elements of information regarding a specific subject
that must be classified and establishes the level and duration of
classification for each such element.
(h) ``Classified national security information'' or ``classified
information'' means information that has been determined pursuant to
this order or any predecessor order to require protection against
unauthorized disclosure and is marked to indicate its classified status
when in documentary form.
(i) ``Confidential source'' means any individual or organization
that has provided, or that may reasonably be expected to provide,
information to the United States on matters pertaining to the national
security with the expectation that the information or relationship, or
both, are to be held in confidence.
(j) ``Damage to the national security'' means harm to the national
defense or foreign relations of the United States from the unauthorized
disclosure of information, taking into consideration such aspects of the
information as the sensitivity, value, utility, and provenance of that
information.
(k) ``Declassification'' means the authorized change in the status
of information from classified information to unclassified information.
(l) ``Declassification authority'' means:
(1) the official who authorized the original classification, if that
official is still serving in the same position;
(2) the originator's current successor in function;
(3) a supervisory official of either; or
(4) officials delegated declassification authority in writing by the
agency head or the senior agency official.
(m) ``Declassification guide'' means written instructions issued by
a declassification authority that describes the elements of information
regarding a specific subject that may be declassified and the elements
that must remain classified.
(n) ``Derivative classification'' means the incorporating,
paraphrasing, restating, or generating in new form information that is
already classified, and marking the newly developed material consistent
with the classification markings that apply to the source information.
Derivative classification includes the classification of information
based on classification guidance. The duplication or reproduction of
existing classified information is not derivative classification.
(o) ``Document'' means any recorded information, regardless of the
nature of the medium or the method or circumstances of recording.
(p) ``Downgrading'' means a determination by a declassification
authority that information classified and safeguarded at a specified
level shall be classified and safeguarded at a lower level.
(q) ``File series'' means file units or documents arranged according
to a filing system or kept together because they relate to a particular
subject or function, result from the same activity, document a specific
kind of transaction, take a particular physical form, or have some other
relationship arising out of their creation, receipt, or use, such as
restrictions on access or use.
(r) ``Foreign government information'' means:
(1) information provided to the United States Government by a
foreign government or governments, an international organization of
governments, or any element thereof, with the expectation that the
information, the source of the information, or both, are to be held in
confidence;
(2) information produced by the United States Government pursuant to
or as a result of a joint arrangement with a foreign government or
governments, or an international organization of governments, or any
element thereof, requiring that the information, the arrangement, or
both, are to be held in confidence; or
(3) information received and treated as ``foreign government
information'' under the terms of a predecessor order.
(s) ``Information'' means any knowledge that can be communicated or
documentary material, regardless of its physical form or
characteristics, that is owned by, produced by or for, or is under the
control of the United States Government. ``Control'' means the authority
of the agency that originates information, or its successor in function,
to regulate access to the information.
(t) ``Infraction'' means any knowing, willful, or negligent action
contrary to the requirements of this order or its implementing
directives that does not constitute a ``violation,'' as defined below.
(u) ``Integral file block'' means a distinct component of a file
series, as defined in this section, that should be maintained as a
separate unit in order to ensure the integrity of the records. An
integral file block may consist of a set of records covering either a
specific topic or a range of time such as presidential administration or
a 5-year retirement schedule within a specific file series that is
retired from active use as a group.
(v) ``Integrity'' means the state that exists when information is
unchanged from its source and has not been accidentally or intentionally
modified, altered, or destroyed.
(w) ``Mandatory declassification review'' means the review for
declassification of classified information in response to a request for
declassification that meets the requirements under section 3.5 of this
order.
(x) ``Multiple sources'' means two or more source documents,
classification guides, or a combination of both.
(y) ``National security'' means the national defense or foreign
relations of the United States.
(z) ``Need-to-know'' means a determination made by an authorized
holder of classified information that a prospective recipient requires
access to specific classified information in order to perform or assist
in a lawful and authorized governmental function.
(aa) ``Network'' means a system of two or more computers that can
exchange data or information.
(bb) ``Original classification'' means an initial determination that
information requires, in the interest of the national security,
protection against unauthorized disclosure.
(cc) ``Original classification authority'' means an individual
authorized in writing, either by the President, the Vice President in
the performance of executive duties, or by agency heads or other
officials designated by the President, to classify information in the
first instance.
(dd) ``Records'' means the records of an agency and Presidential
papers or Presidential records, as those terms are defined in title 44,
United States Code, including those created or maintained by a
government contractor, licensee, certificate holder, or grantee that are
subject to the sponsoring agency's control under the terms of the
contract, license, certificate, or grant.
(ee) ``Records having permanent historical value'' means
Presidential papers or Presidential records and the records of an agency
that the Archivist has determined should be maintained permanently in
accordance with title 44, United States Code.
(ff) ``Records management'' means the planning, controlling,
directing, organizing, training, promoting, and other managerial
activities involved with respect to records creation, records
maintenance and use, and records disposition in order to achieve
adequate and proper documentation of the policies and transactions of
the Federal Government and effective and economical management of agency
operations.
(gg) ``Safeguarding'' means measures and controls that are
prescribed to protect classified information.
(hh) ``Self-inspection'' means the internal review and evaluation of
individual agency activities and the agency as a whole with respect to
the implementation of the program established under this order and its
implementing directives.
(ii) ``Senior agency official'' means the official designated by the
agency head under section 5.4(d) of this order to direct and administer
the agency's program under which information is classified, safeguarded,
and declassified.
(jj) ``Source document'' means an existing document that contains
classified information that is incorporated, paraphrased, restated, or
generated in new form into a new document.
(kk) ``Special access program'' means a program established for a
specific class of classified information that imposes safeguarding and
access requirements that exceed those normally required for information
at the same classification level.
(ll) ``Systematic declassification review'' means the review for
declassification of classified information contained in records that
have been determined by the Archivist to have permanent historical value
in accordance with title 44, United States Code.
(mm) ``Telecommunications'' means the preparation, transmission, or
communication of information by electronic means.
(nn) ``Unauthorized disclosure'' means a communication or physical
transfer of classified information to an unauthorized recipient.
(oo) ``Violation'' means:
(1) any knowing, willful, or negligent action that could reasonably
be expected to result in an unauthorized disclosure of classified
information;
(2) any knowing, willful, or negligent action to classify or
continue the classification of information contrary to the requirements
of this order or its implementing directives; or
(3) any knowing, willful, or negligent action to create or continue
a special access program contrary to the requirements of this order.
(pp) ``Weapons of mass destruction'' means chemical, biological,
radiological, and nuclear weapons.
Sec. 6.2. General Provisions. (a) Nothing in this order shall
supersede any requirement made by or under the Atomic Energy Act of
1954, as amended [42 U.S.C. 2011 et seq.], or the National Security Act
of 1947, as amended [act July 26, 1947, see Short Title note set out
under section 401 of this title]. ``Restricted Data'' and ``Formerly
Restricted Data'' shall be handled, protected, classified, downgraded,
and declassified in conformity with the provisions of the Atomic Energy
Act of 1954, as amended, and regulations issued under that Act.
(b) The Attorney General, upon request by the head of an agency or
the Director of the Information Security Oversight Office, shall render
an interpretation of this order with respect to any question arising in
the course of its administration.
(c) Nothing in this order limits the protection afforded any
information by other provisions of law, including the Constitution,
Freedom of Information Act [5 U.S.C. 552] exemptions, the Privacy Act of
1974 [5 U.S.C. 552a], and the National Security Act of 1947, as amended.
This order is not intended to and does not create any right or benefit,
substantive or procedural, enforceable at law by a party against the
United States, its departments, agencies, officers, employees, or
agents. The foregoing is in addition to the specific provisos set forth
in sections 3.1(b) and 5.3(e) of this order.'' [sic]
(d) Executive Order 12356 of April 6, 1982, was revoked as of
October 14, 1995.
Sec. 6.3. Effective Date. This order is effective immediately,
except for section 1.6, which shall become effective 180 days from the
date of this order.
Officials Designated To Classify National Security Information
Executive Secretary of National Security Council designated to
exercise authority of President to classify certain information
originally as ``Top Secret'' by section 7(b) of Ex. Ord. No. 13010, July
15, 1996, 61 F.R. 37347, as amended, set out as a note under section
5195 of Title 42, The Public Health and Welfare.
Order of President of the United States, dated Oct. 13, 1995, 60
F.R. 53845, provided:
Pursuant to the provisions of Section 1.4 of Executive Order No.
12958 of April 17, 1995, entitled ``Classified National Security
Information,'' [set out above] I hereby designate the following
officials to classify information originally as ``Top Secret'',
``Secret'', or ``Confidential'':
TOP SECRET
Executive Office of the President:
The Vice President
The Chief of Staff to the President
The Director, Office of Management and Budget
The Assistant to the President for National Security Affairs
The Director, Office of National Drug Control Policy
The Chairman, President's Foreign Intelligence Advisory Board
Departments and Agencies:
The Secretary of State
The Secretary of the Treasury
The Secretary of Defense
The Secretary of the Army
The Secretary of the Navy
The Secretary of the Air Force
The Attorney General
The Secretary of Energy
The Chairman, Nuclear Regulatory Commission
The Director, United States Arms Control and Disarmament Agency
The Director of Central Intelligence
The Administrator, National Aeronautics and Space Administration
The Director, Federal Emergency Management Agency
SECRET
Executive Office of the President:
The United States Trade Representative
The Chairman, Council of Economic Advisers
The Director, Office of Science and Technology Policy
Departments and Agencies:
The Secretary of Commerce
The Secretary of Transportation
The Administrator, Agency for International Development
The Director, United States Information Agency
CONFIDENTIAL
The President, Export-Import Bank of the United States
The President, Overseas Private Investment Corporation
Any delegation of this authority shall be in accordance with Section
1.4(c) of Executive Order No. 12958.
This Order shall be published in the Federal Register.
William J. Clinton.
[For abolition of United States Arms Control and Disarmament Agency
and United States Information Agency (other than Broadcasting Board of
Governors and International Broadcasting Bureau), transfer of functions,
and treatment of references, see sections 6511-6521, 6531, 6532, and
6551 of Title 22, Foreign Relations and Intercourse.]
Order of President of the United States, dated Feb. 27, 1996, 61
F.R. 7977, provided:
Pursuant to the provisions of section 1.4 of Executive Order No.
12958 of April 17, 1995, entitled ``Classified National Security
Information,'' [set out above] I hereby designate the following
additional officials to classify information originally as ``Top
Secret'':
The Chair, Commission on the Roles and Capabilities of the United
States Intelligence Community
The Director, National Counterintelligence Center
The Chair of the Commission on the Roles and Capabilities of the
United States Intelligence Community, shall exercise the authority to
classify information originally as ``Top Secret'' during the existence
of the
Commission and for such time afterwards as may be necessary to complete
the Commission's administrative affairs.
The authority of the Director of the National Counterintelligence
Center to classify information originally as ``Top Secret'' is limited
to those circumstances in which the original classification of
information is necessary in order for the Center to fulfill its mission
and functions.
Any delegation of this authority shall be in accordance with section
1.4(c) of Executive Order No. 12958.
This order shall be published in the Federal Register.
William J. Clinton.
Order of President of the United States, dated Feb. 26, 1997, 62
F.R. 9349, provided:
Pursuant to the provisions of section 1.4 of Executive Order 12958
of April 17, 1995, entitled ``Classified National Security
Information,'' [set out above] I hereby designate the following
additional official to classify information originally as ``Top
Secret'':
The Chair, President's Commission on Critical Infrastructure
Protection.
The Chair of the President's Commission on Critical Infrastructure
Protection, established under Executive Order 13010 of July 15, 1996 [42
U.S.C. 5195 note], shall exercise the authority to classify information
originally as ``Top Secret'' during the existence of the Commission.
Any delegation of this authority shall be in accordance with section
1.4(c) of Executive Order 12958.
This order shall be published in the Federal Register.
William J. Clinton.
Order of President of the United States, dated Dec. 10, 2001, 66
F.R. 64347, provided:
Pursuant to the provisions of section 1.4 of Executive Order 12958
of April 17, 1995, entitled ``Classified National Security
Information,'' [set out above] I hereby designate the Secretary of
Health and Human Services to classify information originally as
``Secret.''
Any delegation of this authority shall be in accordance with section
1.4(c) of Executive Order 12958.
This order shall be published in the Federal Register.
George W. Bush.
Order of President of the United States, dated May 6, 2002, 67 F.R.
31109, provided:
In accordance with the provisions of section 1.4 of Executive Order
12958 of April 17, 1995, entitled ``Classified National Security
Information,'' [set out above] I hereby designate the Administrator of
the Environmental Protection Agency to classify information originally
as ``Secret.''
Any delegation of this authority shall be in accordance with section
1.4(c) of Executive Order 12958.
This order shall be published in the Federal Register.
George W. Bush.
Order of President of the United States, dated Sept. 26, 2002, 67
F.R. 61465, provided:
In accordance with the provisions of section 1.4 of Executive Order
12958 of April 17, 1995, entitled ``Classified National Security
Information,'' [set out above] I hereby designate the Secretary of
Agriculture to classify information originally as ``Secret.''
Any delegation of this authority shall be in accordance with section
1.4(c) of Executive Order 12958.
This order shall be published in the Federal Register.
George W. Bush.
Order of President of the United States, dated Sept. 17, 2003, 68
F.R. 55257, provided:
Consistent with the provisions of section 1.3 of Executive Order
12958 of April 17, 1995, as amended, entitled ``Classified National
Security Information,'' [set out above] I hereby designate the Director
of the Office of Science and Technology Policy to classify information
originally as ``Top Secret.''
Any delegation of this authority shall be in accordance with section
1.3(c) of Executive Order 12958, as amended.
This order shall be published in the Federal Register.
George W. Bush.
Order of President of the United States, dated Apr. 21, 2005, 70
F.R. 21609, provided:
Consistent with the provisions of section 1.3 of Executive Order
12958 of April 17, 1995, as amended, entitled ``Classified National
Security Information,'' [set out above] I hereby designate the following
officers to classify information originally as ``Top Secret:''
Director of National Intelligence; and
Director of the Central Intelligence Agency.
Any delegation of this authority shall be in accordance with section
1.3(c) of Executive Order 12958, as amended.
This order shall be published in the Federal Register.
George W. Bush.
Ex. Ord. No. 12968. Access to Classified Information
Ex. Ord. No. 12968, Aug. 2, 1995, 60 F.R. 40245, provided:
The national interest requires that certain information be
maintained in confidence through a system of classification in order to
protect our citizens, our democratic institutions, and our participation
within the community of nations. The unauthorized disclosure of
information classified in the national interest can cause irreparable
damage to the national security and loss of human life.
Security policies designed to protect classified information must
ensure consistent, cost effective, and efficient protection of our
Nation's classified information, while providing fair and equitable
treatment to those Americans upon whom we rely to guard our national
security.
This order establishes a uniform Federal personnel security program
for employees who will be considered for initial or continued access to
classified information.
NOW, THEREFORE, by the authority vested in me as President by the
Constitution and the laws of the United States of America, it is hereby
ordered as follows:
PART 1--DEFINITIONS, ACCESS TO CLASSIFIED INFORMATION, FINANCIAL
DISCLOSURE, AND OTHER ITEMS
Section 1.1. Definitions. For the purposes of this order: (a)
``Agency'' means any ``Executive agency,'' as defined in 5 U.S.C. 105,
the ``military departments,'' as defined in 5 U.S.C. 102, and any other
entity within the executive branch that comes into the possession of
classified information, including the Defense Intelligence Agency,
National Security Agency, and the National Reconnaissance Office.
(b) ``Applicant'' means a person other than an employee who has
received an authorized conditional offer of employment for a position
that requires access to classified information.
(c) ``Authorized investigative agency'' means an agency authorized
by law or regulation to conduct a counterintelligence investigation or
investigation of persons who are proposed for access to classified
information to ascertain whether such persons satisfy the criteria for
obtaining and retaining access to such information.
(d) ``Classified information'' means information that has been
determined pursuant to Executive Order No. 12958 [set out above], or any
successor order, Executive Order No. 12951 [set out above], or any
successor order, or the Atomic Energy Act of 1954 (42 U.S.C. 2011 [et
seq.]), to require protection against unauthorized disclosure.
(e) ``Employee'' means a person, other than the President and Vice
President, employed by, detailed or assigned to, an agency, including
members of the Armed Forces; an expert or consultant to an agency; an
industrial or commercial contractor, licensee, certificate holder, or
grantee of an agency, including all subcontractors; a personal services
contractor; or any
other category of person who acts for or on behalf of an agency as
determined by the appropriate agency head.
(f) ``Foreign power'' and ``agent of a foreign power'' have the
meaning provided in 50 U.S.C. 1801.
(g) ``Need for access'' means a determination that an employee
requires access to a particular level of classified information in order
to perform or assist in a lawful and authorized governmental function.
(h) ``Need-to-know'' means a determination made by an authorized
holder of classified information that a prospective recipient requires
access to specific classified information in order to perform or assist
in a lawful and authorized governmental function.
(i) ``Overseas Security Policy Board'' means the Board established
by the President to consider, develop, coordinate and promote policies,
standards and agreements on overseas security operations, programs and
projects that affect all United States Government agencies under the
authority of a Chief of Mission.
(j) ``Security Policy Board'' means the Board established by the
President to consider, coordinate, and recommend policy directives for
U.S. security policies, procedures, and practices.
(k) ``Special access program'' has the meaning provided in section
4.1 of Executive Order No. 12958 [set out above], or any successor
order.
Sec. 1.2. Access to Classified Information. (a) No employee shall be
granted access to classified information unless that employee has been
determined to be eligible in accordance with this order and to possess a
need-to-know.
(b) Agency heads shall be responsible for establishing and
maintaining an effective program to ensure that access to classified
information by each employee is clearly consistent with the interests of
the national security.
(c) Employees shall not be granted access to classified information
unless they:
(1) have been determined to be eligible for access under section 3.1
of this order by agency heads or designated officials based upon a
favorable adjudication of an appropriate investigation of the employee's
background;
(2) have a demonstrated need-to-know; and
(3) have signed an approved nondisclosure agreement.
(d) All employees shall be subject to investigation by an
appropriate government authority prior to being granted access to
classified information and at any time during the period of access to
ascertain whether they continue to meet the requirements for access.
(e)(1) All employees granted access to classified information shall
be required as a condition of such access to provide to the employing
agency written consent permitting access by an authorized investigative
agency, for such time as access to classified information is maintained
and for a period of 3 years thereafter, to:
(A) relevant financial records that are maintained by a financial
institution as defined in 31 U.S.C. 5312(a) or by a holding company as
defined in section 1101(6) of the Right to Financial Privacy Act of 1978
(12 U.S.C. 3401[(6)]);
(B) consumer reports pertaining to the employee under the Fair
Credit Reporting Act (15 U.S.C. 1681a [1681 et seq.]); and
(C) records maintained by commercial entities within the United
States pertaining to any travel by the employee outside the United
States.
(2) Information may be requested pursuant to employee consent under
this section where:
(A) there are reasonable grounds to believe, based on credible
information, that the employee or former employee is, or may be,
disclosing classified information in an unauthorized manner to a foreign
power or agent of a foreign power;
(B) information the employing agency deems credible indicates the
employee or former employee has incurred excessive indebtedness or has
acquired a level of affluence that cannot be explained by other
information; or
(C) circumstances indicate the employee or former employee had the
capability and opportunity to disclose classified information that is
known to have been lost or compromised to a foreign power or an agent of
a foreign power.
(3) Nothing in this section shall be construed to affect the
authority of an investigating agency to obtain information pursuant to
the Right to Financial Privacy Act [of 1978, 12 U.S.C. 3401 et seq.],
the Fair Credit Reporting Act [15 U.S.C. 1681 et seq.] or any other
applicable law.
Sec. 1.3. Financial Disclosure. (a) Not later than 180 days after
the effective date of this order, the head of each agency that
originates, handles, transmits, or possesses classified information
shall designate each employee, by position or category where possible,
who has a regular need for access to classified information that, in the
discretion of the agency head, would reveal:
(1) the identity of covert agents as defined in the Intelligence
Identities Protection Act of 1982 (50 U.S.C. 421 [et seq.]);
(2) technical or specialized national intelligence collection and
processing systems that, if disclosed in an unauthorized manner, would
substantially negate or impair the effectiveness of the system;
(3) the details of:
(A) the nature, contents, algorithm, preparation, or use of any
code, cipher, or cryptographic system or;
(B) the design, construction, functioning, maintenance, or repair of
any cryptographic equipment; but not including information concerning
the use of cryptographic equipment and services;
(4) particularly sensitive special access programs, the disclosure
of which would substantially negate or impair the effectiveness of the
information or activity involved; or
(5) especially sensitive nuclear weapons design information (but
only for those positions that have been certified as being of a high
degree of importance or sensitivity, as described in section 145(f) of
the Atomic Energy Act of 1954, as amended [42 U.S.C. 2165(f)]).
(b) An employee may not be granted access, or hold a position
designated as requiring access, to information described in subsection
(a) unless, as a condition of access to such information, the employee:
(1) files with the head of the agency a financial disclosure report,
including information with respect to the spouse and dependent children
of the employee, as part of all background investigations or
reinvestigations;
(2) is subject to annual financial disclosure requirements, if
selected by the agency head; and
(3) files relevant information concerning foreign travel, as
determined by the Security Policy Board.
(c) Not later than 180 days after the effective date of this order,
the Security Policy Board shall develop procedures for the
implementation of this section, including a standard financial
disclosure form for use by employees under subsection (b) of this
section, and agency heads shall identify certain employees, by position
or category, who are subject to annual financial disclosure.
Sec. 1.4. Use of Automated Financial Record Data Bases. As part of
all investigations and reinvestigations described in section 1.2(d) of
this order, agencies may request the Department of the Treasury, under
terms and conditions prescribed by the Secretary of the Treasury, to
search automated data bases consisting of reports of currency
transactions by financial institutions, international transportation of
currency or monetary instruments, foreign bank and financial accounts,
transactions under $10,000 that are reported as possible money
laundering violations, and records of foreign travel.
Sec. 1.5. Employee Education and Assistance. The head of each agency
that grants access to classified information shall establish a program
for employees with access to classified information to: (a) educate
employees about individual responsibilities under this order; and
(b) inform employees about guidance and assistance available
concerning issues that may affect their eligibility for access to
classified information, including
sources of assistance for employees who have questions or concerns about
financial matters, mental health, or substance abuse.
PART 2--ACCESS ELIGIBILITY POLICY AND PROCEDURE
Sec. 2.1. Eligibility Determinations. (a) Determinations of
eligibility for access to classified information shall be based on
criteria established under this order. Such determinations are separate
from suitability determinations with respect to the hiring or retention
of persons for employment by the government or any other personnel
actions.
(b) The number of employees that each agency determines are eligible
for access to classified information shall be kept to the minimum
required for the conduct of agency functions.
(1) Eligibility for access to classified information shall not be
requested or granted solely to permit entry to, or ease of movement
within, controlled areas when the employee has no need for access and
access to classified information may reasonably be prevented. Where
circumstances indicate employees may be inadvertently exposed to
classified information in the course of their duties, agencies are
authorized to grant or deny, in their discretion, facility access
approvals to such employees based on an appropriate level of
investigation as determined by each agency.
(2) Except in agencies where eligibility for access is a mandatory
condition of employment, eligibility for access to classified
information shall only be requested or granted based on a demonstrated,
foreseeable need for access. Requesting or approving eligibility in
excess of actual requirements is prohibited.
(3) Eligibility for access to classified information may be granted
where there is a temporary need for access, such as one-time
participation in a classified project, provided the investigative
standards established under this order have been satisfied. In such
cases, a fixed date or event for expiration shall be identified and
access to classified information shall be limited to information related
to the particular project or assignment.
(4) Access to classified information shall be terminated when an
employee no longer has a need for access.
Sec. 2.2. Level of Access Approval. (a) The level at which an access
approval is granted for an employee shall be limited, and relate
directly, to the level of classified information for which there is a
need for access. Eligibility for access to a higher level of classified
information includes eligibility for access to information classified at
a lower level.
(b) Access to classified information relating to a special access
program shall be granted in accordance with procedures established by
the head of the agency that created the program or, for programs
pertaining to intelligence activities (including special activities but
not including military operational, strategic, and tactical programs) or
intelligence sources and methods, by the Director of Central
Intelligence. To the extent possible and consistent with the national
security interests of the United States, such procedures shall be
consistent with the standards and procedures established by and under
this order.
Sec. 2.3. Temporary Access to Higher Levels. (a) An employee who has
been determined to be eligible for access to classified information
based on favorable adjudication of a completed investigation may be
granted temporary access to a higher level where security personnel
authorized by the agency head to make access eligibility determinations
find that such access:
(1) is necessary to meet operational or contractual exigencies not
expected to be of a recurring nature;
(2) will not exceed 180 days; and
(3) is limited to specific, identifiable information that is made
the subject of a written access record.
(b) Where the access granted under subsection (a) of this section
involves another agency's classified information, that agency must
concur before access to its information is granted.
Sec. 2.4. Reciprocal Acceptance of Access Eligibility
Determinations. (a) Except when an agency has substantial information
indicating that an employee may not satisfy the standards in section 3.1
of this order, background investigations and eligibility determinations
conducted under this order shall be mutually and reciprocally accepted
by all agencies.
(b) Except where there is substantial information indicating that
the employee may not satisfy the standards in section 3.1 of this order,
an employee with existing access to a special access program shall not
be denied eligibility for access to another special access program at
the same sensitivity level as determined personally by the agency head
or deputy agency head, or have an existing access eligibility
readjudicated, so long as the employee has a need for access to the
information involved.
(c) This section shall not preclude agency heads from establishing
additional, but not duplicative, investigative or adjudicative
procedures for a special access program or for candidates for detail or
assignment to their agencies, where such procedures are required in
exceptional circumstances to protect the national security.
(d) Where temporary eligibility for access is granted under sections
2.3 or 3.3 of this order or where the determination of eligibility for
access is conditional, the fact of such temporary or conditional access
shall be conveyed to any other agency that considers affording the
employee access to its information.
Sec. 2.5. Specific Access Requirement. (a) Employees who have been
determined to be eligible for access to classified information shall be
given access to classified information only where there is a need-to-
know that information.
(b) It is the responsibility of employees who are authorized holders
of classified information to verify that a prospective recipient's
eligibility for access has been granted by an authorized agency official
and to ensure that a need-to-know exists prior to allowing such access,
and to challenge requests for access that do not appear well-founded.
Sec. 2.6. Access by Non-United States Citizens. (a) Where there are
compelling reasons in furtherance of an agency mission, immigrant alien
and foreign national employees who possess a special expertise may, in
the discretion of the agency, be granted limited access to classified
information only for specific programs, projects, contracts, licenses,
certificates, or grants for which there is a need for access. Such
individuals shall not be eligible for access to any greater level of
classified information than the United States Government has determined
may be releasable to the country of which the subject is currently a
citizen, and such limited access may be approved only if the prior 10
years of the subject's life can be appropriately investigated. If there
are any doubts concerning granting access, additional lawful
investigative procedures shall be fully pursued.
(b) Exceptions to these requirements may be permitted only by the
agency head or the senior agency official designated under section 6.1
of this order to further substantial national security interests.
PART 3--ACCESS ELIGIBILITY STANDARDS
Sec. 3.1. Standards. (a) No employee shall be deemed to be eligible
for access to classified information merely by reason of Federal service
or contracting, licensee, certificate holder, or grantee status, or as a
matter of right or privilege, or as a result of any particular title,
rank, position, or affiliation.
(b) Except as provided in sections 2.6 and 3.3 of this order,
eligibility for access to classified information shall be granted only
to employees who are United States citizens for whom an appropriate
investigation has been completed and whose personal and professional
history affirmatively indicates loyalty to the United States, strength
of character, trustworthiness, honesty, reliability, discretion, and
sound judgment, as well as freedom from conflicting allegiances and
potential for coercion, and willingness and ability to abide
by regulations governing the use, handling, and protection of classified
information. A determination of eligibility for access to such
information is a discretionary security decision based on judgments by
appropriately trained adjudicative personnel. Eligibility shall be
granted only where facts and circumstances indicate access to classified
information is clearly consistent with the national security interests
of the United States, and any doubt shall be resolved in favor of the
national security.
(c) The United States Government does not discriminate on the basis
of race, color, religion, sex, national origin, disability, or sexual
orientation in granting access to classified information.
(d) In determining eligibility for access under this order, agencies
may investigate and consider any matter that relates to the
determination of whether access is clearly consistent with the interests
of national security. No inference concerning the standards in this
section may be raised solely on the basis of the sexual orientation of
the employee.
(e) No negative inference concerning the standards in this section
may be raised solely on the basis of mental health counseling. Such
counseling can be a positive factor in eligibility determinations.
However, mental health counseling, where relevant to the adjudication of
access to classified information, may justify further inquiry to
determine whether the standards of subsection (b) of this section are
satisfied, and mental health may be considered where it directly relates
to those standards.
(f) Not later than 180 days after the effective date of this order,
the Security Policy Board shall develop a common set of adjudicative
guidelines for determining eligibility for access to classified
information, including access to special access programs.
Sec. 3.2. Basis for Eligibility Approval. (a) Eligibility
determinations for access to classified information shall be based on
information concerning the applicant or employee that is acquired
through the investigation conducted pursuant to this order or otherwise
available to security officials and shall be made part of the
applicant's or employee's security record. Applicants or employees shall
be required to provide relevant information pertaining to their
background and character for use in investigating and adjudicating their
eligibility for access.
(b) Not later than 180 days after the effective date of this order,
the Security Policy Board shall develop a common set of investigative
standards for background investigations for access to classified
information. These standards may vary for the various levels of access.
(c) Nothing in this order shall prohibit an agency from utilizing
any lawful investigative procedure in addition to the investigative
requirements set forth in this order and its implementing regulations to
resolve issues that may arise during the course of a background
investigation or reinvestigation.
Sec. 3.3. Special Circumstances. (a) In exceptional circumstances
where official functions must be performed prior to the completion of
the investigative and adjudication process, temporary eligibility for
access to classified information may be granted to an employee while the
initial investigation is underway. When such eligibility is granted, the
initial investigation shall be expedited.
(1) Temporary eligibility for access under this section shall
include a justification, and the employee must be notified in writing
that further access is expressly conditioned on the favorable completion
of the investigation and issuance of an access eligibility approval.
Access will be immediately terminated, along with any assignment
requiring an access eligibility approval, if such approval is not
granted.
(2) Temporary eligibility for access may be granted only by security
personnel authorized by the agency head to make access eligibility
determinations and shall be based on minimum investigative standards
developed by the Security Policy Board not later than 180 days after the
effective date of this order.
(3) Temporary eligibility for access may be granted only to
particular, identified categories of classified information necessary to
perform the lawful and authorized functions that are the basis for the
granting of temporary access.
(b) Nothing in subsection (a) shall be construed as altering the
authority of an agency head to waive requirements for granting access to
classified information pursuant to statutory authority.
(c) Where access has been terminated under section 2.1(b)(4) of this
order and a new need for access arises, access eligibility up to the
same level shall be reapproved without further investigation as to
employees who were determined to be eligible based on a favorable
adjudication of an investigation completed within the prior 5 years,
provided they have remained employed by the same employer during the
period in question, the employee certifies in writing that there has
been no change in the relevant information provided by the employee for
the last background investigation, and there is no information that
would tend to indicate the employee may no longer satisfy the standards
established by this order for access to classified information.
(d) Access eligibility shall be reapproved for individuals who were
determined to be eligible based on a favorable adjudication of an
investigation completed within the prior 5 years and who have been
retired or otherwise separated from United States Government employment
for not more than 2 years; provided there is no indication the
individual may no longer satisfy the standards of this order, the
individual certifies in writing that there has been no change in the
relevant information provided by the individual for the last background
investigation, and an appropriate record check reveals no unfavorable
information.
Sec. 3.4. Reinvestigation Requirements. (a) Because circumstances
and characteristics may change dramatically over time and thereby alter
the eligibility of employees for continued access to classified
information, reinvestigations shall be conducted with the same priority
and care as initial investigations.
(b) Employees who are eligible for access to classified information
shall be the subject of periodic reinvestigations and may also be
reinvestigated if, at any time, there is reason to believe that they may
no longer meet the standards for access established in this order.
(c) Not later than 180 days after the effective date of this order,
the Security Policy Board shall develop a common set of reinvestigative
standards, including the frequency of reinvestigations.
PART 4--INVESTIGATIONS FOR FOREIGN GOVERNMENTS
Sec. 4. Authority. Agencies that conduct background investigations,
including the Federal Bureau of Investigation and the Department of
State, are authorized to conduct personnel security investigations in
the United States when requested by a foreign government as part of its
own personnel security program and with the consent of the individual.
PART 5--REVIEW OF ACCESS DETERMINATIONS
Sec. 5.1. Determinations of Need for Access. A determination under
section 2.1(b)(4) of this order that an employee does not have, or no
longer has, a need for access is a discretionary determination and shall
be conclusive.
Sec. 5.2. Review Proceedings for Denials or Revocations of
Eligibility for Access. (a) Applicants and employees who are determined
to not meet the standards for access to classified information
established in section 3.1 of this order shall be:
(1) provided as comprehensive and detailed a written explanation of
the basis for that conclusion as the national security interests of the
United States and other applicable law permit;
(2) provided within 30 days, upon request and to the extent the
documents would be provided if requested under the Freedom of
Information Act (5 U.S.C. 552) or
the Privacy Act (3 U.S.C. 552a), as applicable, any documents, records,
and reports upon which a denial or revocation is based;
(3) informed of their right to be represented by counsel or other
representative at their own expense; to request any documents, records,
and reports as described in section 5.2(a)(2) upon which a denial or
revocation is based; and to request the entire investigative file, as
permitted by the national security and other applicable law, which, if
requested, shall be promptly provided prior to the time set for a
written reply;
(4) provided a reasonable opportunity to reply in writing to, and to
request a review of, the determination;
(5) provided written notice of and reasons for the results of the
review, the identity of the deciding authority, and written notice of
the right to appeal;
(6) provided an opportunity to appeal in writing to a high level
panel, appointed by the agency head, which shall be comprised of at
least three members, two of whom shall be selected from outside the
security field. Decisions of the panel shall be in writing, and final
except as provided in subsection (b) of this section; and
(7) provided an opportunity to appear personally and to present
relevant documents, materials, and information at some point in the
process before an adjudicative or other authority, other than the
investigating entity, as determined by the agency head. A written
summary or recording of such appearance shall be made part of the
applicant's or employee's security record, unless such appearance occurs
in the presence of the appeals panel described in subsection (a)(6) of
this section.
(b) Nothing in this section shall prohibit an agency head from
personally exercising the appeal authority in subsection (a)(6) of this
section based upon recommendations from an appeals panel. In such case,
the decision of the agency head shall be final.
(c) Agency heads shall promulgate regulations to implement this
section and, at their sole discretion and as resources and national
security considerations permit, may provide additional review
proceedings beyond those required by subsection (a) of this section.
This section does not require additional proceedings, however, and
creates no procedural or substantive rights.
(d) When the head of an agency or principal deputy personally
certifies that a procedure set forth in this section cannot be made
available in a particular case without damaging the national security
interests of the United States by revealing classified information, the
particular procedure shall not be made available. This certification
shall be conclusive.
(e) This section shall not be deemed to limit or affect the
responsibility and power of an agency head pursuant to any law or other
Executive order to deny or terminate access to classified information in
the interests of national security. The power and responsibility to deny
or terminate access to classified information pursuant to any law or
other Executive order may be exercised only where the agency head
determines that the procedures prescribed in subsection (a) of this
section cannot be invoked in a manner that is consistent with national
security. This determination shall be conclusive.
(f)(1) This section shall not be deemed to limit or affect the
responsibility and power of an agency head to make determinations of
suitability for employment.
(2) Nothing in this section shall require that an agency provide the
procedures prescribed in subsection (a) of this section to an applicant
where a conditional offer of employment is withdrawn for reasons of
suitability or any other reason other than denial of eligibility for
access to classified information.
(3) A suitability determination shall not be used for the purpose of
denying an applicant or employee the review proceedings of this section
where there has been a denial or revocation of eligibility for access to
classified information.
PART 6--IMPLEMENTATION
Sec. 6.1. Agency Implementing Responsibilities. Heads of agencies
that grant employees access to classified information shall: (a)
designate a senior agency official to direct and administer the agency's
personnel security program established by this order. All such programs
shall include active oversight and continuing security education and
awareness programs to ensure effective implementation of this order;
(b) cooperate, under the guidance of the Security Policy Board, with
other agencies to achieve practical, consistent, and effective
adjudicative training and guidelines; and
(c) conduct periodic evaluations of the agency's implementation and
administration of this order, including the implementation of section
1.3(a) of this order. Copies of each report shall be provided to the
Security Policy Board.
Sec. 6.2. Employee Responsibilities. (a) Employees who are granted
eligibility for access to classified information shall:
(1) protect classified information in their custody from
unauthorized disclosure;
(2) report all contacts with persons, including foreign nationals,
who seek in any way to obtain unauthorized access to classified
information;
(3) report all violations of security regulations to the appropriate
security officials; and
(4) comply with all other security requirements set forth in this
order and its implementing regulations.
(b) Employees are encouraged and expected to report any information
that raises doubts as to whether another employee's continued
eligibility for access to classified information is clearly consistent
with the national security.
Sec. 6.3. Security Policy Board Responsibilities and Implementation.
(a) With respect to actions taken by the Security Policy Board pursuant
to sections 1.3(c), 3.1(f), 3.2(b), 3.3(a)(2), and 3.4(c) of this order,
the Security Policy Board shall make recommendations to the President
through the Assistant to the President for National Security Affairs for
implementation.
(b) Any guidelines, standards, or procedures developed by the
Security Policy Board pursuant to this order shall be consistent with
those guidelines issued by the Federal Bureau of Investigation in March
1994 on Background Investigations Policy/Guidelines Regarding Sexual
Orientation.
(c) In carrying out its responsibilities under this order, the
Security Policy Board shall consult where appropriate with the Overseas
Security Policy Board. In carrying out its responsibilities under
section 1.3(c) of this order, the Security Policy Board shall obtain the
concurrence of the Director of the Office of Management and Budget.
Sec. 6.4. Sanctions. Employees shall be subject to appropriate
sanctions if they knowingly and willfully grant eligibility for, or
allow access to, classified information in violation of this order or
its implementing regulations. Sanctions may include reprimand,
suspension without pay, removal, and other actions in accordance with
applicable law and agency regulations.
PART 7--GENERAL PROVISIONS
Sec. 7.1. Classified Information Procedures Act. Nothing in this
order is intended to alter the procedures established under the
Classified Information Procedures Act (18 U.S.C. App.).
Sec. 7.2. General. (a) Information obtained by an agency under
sections 1.2(e) or 1.3 of this order may not be disseminated outside the
agency, except to:
(1) the agency employing the employee who is the subject of the
records or information;
(2) the Department of Justice for law enforcement or
counterintelligence purposes; or
(3) any agency if such information is clearly relevant to the
authorized responsibilities of such agency.
(b) The Attorney General, at the request of the head of an agency,
shall render an interpretation of this order with respect to any
question arising in the course of its administration.
(c) No prior Executive orders are repealed by this order. To the
extent that this order is inconsistent with
any provision of any prior Executive order, this order shall control,
except that this order shall not diminish or otherwise affect the
requirements of Executive Order No. 10450 [5 U.S.C. 7311 note], the
denial and revocation procedures provided to individuals covered by
Executive Order No. 10865, as amended [set out above], or access by
historical researchers and former presidential appointees under
Executive Order No. 12958 [set out above] or any successor order.
(d) If any provision of this order or the application of such
provision is held to be invalid, the remainder of this order shall not
be affected.
(e) This Executive order is intended only to improve the internal
management of the executive branch and is not intended to, and does not,
create any right to administrative or judicial review, or any other
right or benefit or trust responsibility, substantive or procedural,
enforceable by a party against the United States, its agencies or
instrumentalities, its officers or employees, or any other person.
(f) This order is effective immediately.
William J. Clinton.