FAS Note: This is a revised draft, dated April 20, 2000, of the Public Interest Declassification Act introduced last year by Senator Moynihan. (The previous version may be viewed here.) The bill was modified, i.e. weakened, in response to pressures from the executive branch. See the endorsements of the new draft from White House Chief of Staff John Podesta and from OMB Director Jacob Lew.
Draft 106th CONGRESS 1st Session S. 1801 To improve the identification, collection, and review for declassification of records and materials that are of archival value or extraordinary public interest to the people of the United States, and for other purposes. IN THE SENATE OF THE UNITED STATES
October 27, 1999
Mr. MOYNIHAN introduced the following bill; which was read twice and referred to the Committee on Governmental Affairs
A BILL To improve the identification, collection, and review for declassification of records and materials that are of archival value or extraordinary public interest to the people of the United States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the 'Public Interest Declassification Act of 1999'.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) A comprehensive reform of the management of the classification and declassification of information is essential but will require additional funding, more technical development, and more coordination by the executive branch.
(2) The dissemination of declassified records of archival value that pertain to the national security of the United States is in the public interest and can best be accomplished through continued on-going systematic declassification of classified information.
(3) 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 may be collected, retained, reviewed, and disseminated for Congress, policymakers in the executive branch, and the public.
(4) Ensuring, through such measures, public access to information that does not require continued protection 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. 3. PUBLIC INTEREST DECLASSIFICATION BOARD.
(a) ESTABLISHMENT- There is established within the executive branch of the United States a board to be known as the 'Public Interest Declassification Board' (in this Act referred to as the 'Board').
(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, or such other executive branch officials as it deems appropriate, on the systematic, thorough, coordinated, comprehensive, and cost-effective 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 those that are 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, to be undertaken in accordance with a declassification program that has been established or may be established by the President through 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, or such other executive branch officials as it deems appropriate, on policies deriving from the President's issuance of Executive orders regarding the classification and declassification of national security information.
(c) MEMBERSHIP- (1) The Board shall be composed of nine individuals appointed by the President from among citizens of the United States who are preeminent in the fields of history, national security, foreign policy, social science, law, or archives, including individuals who have served in Congress or otherwise in 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.
(2)(A) Of the members initially appointed to the Board, three shall be appointed for a term of four years, three shall be appointed for a term of three years, and three shall be appointed for a term of two years.
(B) Any subsequent appointment to the Board shall be for a term of three 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 continue to serve on the Board when the member's term expires until a successor is appointed.
(5) 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 two years.
(C) A member serving as Chairperson of the Board may be re-designated as Chairperson of the Board upon the expiration of the member's term as Chairperson of the Board.
(2) The Director of the Information Security Oversight Office shall select the Executive Secretary of the Board.
(e) MEETINGS- The Board shall meet as needed to accomplish its mission. 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 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 and shall follow the guidance and practices on security issued under Executive Order or agency directive.
(2) The head of an agency may, as a condition of granting access to a member, the Executive Secretary or staff of the Board to classified records or materials of the agency under this Act, require the member, the Executive Secretary or staff 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) Members, the Executive Secretary and 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 national security of the United States, and subject to any limitations on access arising under section 6(b), and to facilitate the Board's advisory functions a member of the Board seeking access to a record or material under this paragraph shall be deemed 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 1 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, under the direction of the Chairperson and 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, prepare the annual budget for the Board.
(j) 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 Act 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.
(k) INAPPLICABILITY OF FACA- The provisions of the Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the activities of the Board under this Act, provided however that the records of the Board shall be governed by the Federal Records Act.
SEC. 4. 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, any agency with the authority under Executive order to classify information shall provide, on an annual basis, a summary briefing and report on its 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 against those goals, and the agency's planned goals and priorities for its declassification activities over the next two fiscal years. Agency briefings and reports shall give particular attention to progress on the declassification of records and materials that are of extraordinary public interest.
(2) Agencies within the Department of Defense, including military departments, shall present a consolidated report and briefing to the Board.
(b) RECOMMENDATIONS ON AGENCY DECLASSIFICATION PROGRAMS- Upon reviewing and discussing declassification plans and progress with each agency, the Board shall provide to the agency head its written recommendations as to how the agency's declassification program could be improved. Consistent with the requirements and limitations of section 3(j), the Board's recommendations shall become public 60 days after they are sent to the agency head, and a copy of each recommendation shall be sent to the Assistant to the President for National Security Affairs and the Director of the Office of Management and Budget.
(c) RECOMMENDATIONS ON SPECIAL SEARCHES FOR RECORDS OF EXTRAORDINARY PUBLIC INTEREST- 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. In making recommendations under this paragraph, 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.
(B) The opinions and requests of the National Security Council and of the heads of agencies.
(C) The opinions of United States citizens.
(D) The opinions of individual 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.
(d) PRESIDENT'S DECLASSIFICATION PRIORITIES- Concurrent with the President's budget submission to Congress for 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, along with a listing of the funds requested to implement that program. Provided nothing in this Act 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 through Executive order.
SEC. 5. PROTECTION OF NATIONAL SECURITY INFORMATION AND OTHER INFORMATION.
(a) IN GENERAL- Nothing in this Act 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 an agency.
(b) SPECIAL ACCESS PROGRAMS- Nothing in this Act shall be construed to limit the authority of the head of an agency to grant or deny access to a special access program.
(c) EXEMPTIONS AND EXCEPTIONS TO RELEASE OF INFORMATION- Nothing in this Act shall be construed to limit any exemption or exception to the release to the public under this Act of information that is protected under section 552(b) 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).
(d) WITHHOLDING INFORMATION FROM CONGRESS- Nothing in this Act shall be construed to authorize the withholding of information from Congress.
SEC. 6. STANDARDS AND PROCEDURES.
(a) LIAISON- (1) The head of each agency with the authority under Executive order to classify information and each Federal Presidential library shall designate an employee of such agency or library, as the case may be, to act as liaison to the Board for purposes of this Act.
(2) The Board may establish liaison and otherwise consult with such other historical and advisory committees as the Board considers appropriate to the purposes of this Act.
(b) LIMITATIONS ON ACCESS- If the head of an agency or Federal Presidential library determines it necessary to deny or restrict access to the Board, or to 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 library, as the case may be, shall promptly notify the Board in writing of such determination. Each such notice to the Board shall include a description of the nature of the records or materials, and a justification for the determination, covered by such notice, except with respect to special access programs created by the Secretary of Defense, the Director of Central Intelligence or other agency heads. With respect to such special access programs, notification of a denial of access, including a description of the nature of the Board's request, shall be provided to the Assistant to the President for National Security Affairs rather than the Board.
(c) DISCRETION TO DISCLOSE- At the conclusion of a declassification review, the head of an agency may, in his discretion, determine that the public's interest in disclosure of that agency's records or materials covered by such review or request, 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 12958 or its successors.
(d) REPORTS- (1) Except as provided by subsection (2), the Board shall annually submit to the appropriate congressional committees a report on the activities of the Board under this Act, including summary information regarding any denials by the head of an agency or Federal Presidential library of access for the Board to records or materials under this Act.
(2) Notice that the Board has been denied access to records and materials, and a justification for this determination shall be provided by that agency:
(a) with respect to special access programs created by the Secretary of Defense, to the Armed Services and Appropriations Committees of the Senate and the Armed Services and Appropriations Committees of the House of Representatives, consistent with 10 U.S.C. 119;
(b) with respect to special access programs created by the Director of Central Intelligence or 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) with respect to the special access programs created by the Secretary of Energy and the Administrator of the National Nuclear Security Administration, to the Senate Appropriations Committee, House Appropriations Committee, Senate Armed Services Committee, and the House Armed Services Committee, consistent with the Atomic Energy Act of 1954, as amended, and by the National Nuclear Security Administration Act, 50 U.S.C. 2401.".
(d) with respect to special access programs created by the Secretary of State, to the Senate Foreign Relations Committee, and the International Relations Committee of the House of Representatives.
(3) In this subsection, the term 'appropriate congressional committees' means the Select Committee on Intelligence and the Committee on Governmental Affairs of the Senate and the Permanent Select Committee on Intelligence and the Committee on Government Reform and Oversight of the House of Representatives.
SEC. 7. JUDICIAL REVIEW.
Nothing in this Act limits the protection afforded to any information under any other provisions of law. This Act is not intended and should not be construed to create any right or benefit, substantive or procedural, enforceable at law against the United States, its agencies, its officers, or its employees. This Act does not modify in any way the substantive criteria or procedures for the classification of information, nor does this Act create any right or benefit subject to judicial review.
SEC. 8. FUNDING.
(a) AUTHORIZATION OF APPROPRIATIONS- There is authorized to be appropriated not to exceed $650,000 for fiscal year 2001 and such sums as may be necessary for each fiscal year thereafter to carry out the purposes of this Act.
(b) FUNDING REQUESTS- The President shall include in the budget submission 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 Act during such fiscal year.
(c) The Information Security Oversight Office is authorized to support the activities of the Board. Such support shall be provided on a reimbursable basis.
SEC. 9. DEFINITIONS.
In this Act:
(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 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 or statute 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 chapter 21 of title 44, United States Code.
(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 those 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.