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                                                       Calendar No. 489

105th CONGRESS

  2d Session

                                 S. 712

                          [Report No. 105-258]

_______________________________________________________________________

                                 A BILL

  To provide for a system to classify information in the interests of 
     national security and a system to declassify such information.

_______________________________________________________________________

                             July 22. 1998

                       Reported with an amendment





                                                       Calendar No. 489
105th CONGRESS
  2d Session
                                 S. 712

                          [Report No. 105-258]

  To provide for a system to classify information in the interests of 
     national security and a system to declassify such information.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 7, 1997

   Mr. Moynihan (for himself, Mr. Helms, Mr. Roth, Mr. Lott, and Mr. 
   Daschle) introduced the following bill; which was read twice and 
           referred to the Committee on Governmental Affairs

                              July 22, 1998

              Reported by Mr. Thompson, with an amendment
 
_______________________________________________________________________

                                 A BILL


 
  To provide for a system to classify information in the interests of 
     national security and a system to declassify such information.

    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 "Government Secrecy Reform Act of 
1998".

SEC. 2. CLASSIFICATION AND DECLASSIFICATION OF INFORMATION.

    (a) In General.--The President may, in accordance with this Act, 
protect from unauthorized disclosure any information owned by, produced 
by or for, or under the control of the executive branch when there is a 
demonstrable need to do so in order to protect the national security of 
the United States.
    (b) Establishment of Standards and Procedures for Classification 
and Declassification.--
            (1) Governmentwide procedures.--
                    (A) Classification.--The President shall, to the 
                extent necessary, establish categories of information 
                that may be classified and procedures for classifying 
                information under subsection (a).
                    (B) Declassification.--At the same time the 
                President establishes categories and procedures under 
                subparagraph (A), the President shall establish 
                procedures for declassifying information that was 
                previously classified.
            (2) Notice and comment.--
                    (A) Notice.--The President shall publish in the 
                Federal Register notice regarding the categories and 
                procedures proposed to be established under paragraph 
                (1).
                    (B) Comment.--The President shall provide an 
                opportunity for interested persons to submit comments 
                on the categories and procedures covered by 
                subparagraph (A).
                    (C) Deadline.--The President shall complete the 
                establishment of categories and procedures under this 
                subsection not later than 60 days after publishing 
                notice in the Federal Register under subparagraph (A). 
                Upon completion of the establishment of such categories 
                and procedures, the President shall publish in the 
                Federal Register notice regarding such categories and 
                procedures.
            (3) Modification.--In the event the President determines to 
        modify any categories or procedures established under paragraph 
        (1), subparagraphs (A) and (B) of paragraph (2) shall apply to 
        the modification of such categories or procedures.
            (4) Agency standards and procedures.--
                    (A) In general.--The head of each agency shall 
                establish standards and procedures to permit such 
                agency to classify and declassify information created 
                by such agency in accordance with the categories and 
                procedures established by this President under this 
                section and otherwise to carry out this Act. Such 
                standards and procedures shall include mechanisms to 
                minimize the risk of inadvertent or inappropriate 
                declassification of previously classified information 
                (including information classified by other agencies).
                    (B) Requirement for certain agencies.--The 
                President shall require each agency head with original 
                classification authority to produce written guidance on 
                classification and declassification of information in 
                order to minimize the derivative classification process 
                and to improve the subsequent declassification process. 
                Such written guidance may be treated as classified 
                information under this Act.
                    (C) Deadline.--Each agency head shall establish 
                standards and procedures under subparagraph (A) not 
                later than 60 days after the date on which the 
                President publishes notice under paragraph (2)(C) of 
                the categories and standards established by the 
                President under this subsection.
                    (D) Publication.--Each agency head shall publish in 
                the Federal Register the standards and procedures 
                established by such agency head under this paragraph.
    (c) Standard for Classification and Declassification.--
            (1) In general.--Subject to paragraphs (2) and (3), 
        information may be classified under this Act, and classified 
        information under review for declassification under this Act 
        may remain classified, only if the harm to national security 
        that might reasonably be expected from disclosure of such 
        information outweighs the public interest in disclosure of such 
        information.
            (2) Default rule.--In the event of significant doubt 
        whether the harm to national security that might reasonably be 
        expected from the disclosure of information would outweigh the 
        public interest in the disclosure of such information, such 
        information shall not be classified or, in the case of 
        classified information under review for declassification, 
        declassified.
            (3) Criteria.--For purposes of this subsection, in 
        determining the harm to national security that might reasonably 
be expected from disclosure of information, and the public interest in 
the disclosure of information, the official making the determination 
shall consider the following:
                    (A) With regard to the harm to national security 
                that might reasonably be expected from disclosure of 
                information, whether or not disclosure of the 
                information would--
                            (i) reveal the identity of a confidential 
                        human source, or reveal information about the 
                        application of an intelligence source or 
                        method, or reveal the identity of a human 
                        intelligence source when the unauthorized 
                        disclosure of that source would clearly and 
                        demonstrably damage the national security 
                        interests of the United States;
                            (ii) reveal information that would assist 
                        in the development or use of weapons of mass 
                        destruction;
                            (iii) reveal information that would impair 
                        United States cryptologic systems or 
                        activities;
                            (iv) reveal information that would impair 
                        the application of state of the art technology 
                        within a United States weapons system;
                            (v) reveal actual United States military 
                        war plans that remain in effect;
                            (vi) reveal 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;
                            (vii) reveal information that would clearly 
                        and demonstrably impair the current ability of 
                        United States Government officials to protect 
                        the President, Vice President, and other 
                        officials for whom protection services, in the 
                        interest of national security, are authorized;
                            (viii) reveal information that would 
                        seriously and demonstrably impair current 
                        national security emergency preparedness plans; 
                        or
                            (ix) violate a statute, treaty, or 
                        international agreement.
                    (B) With regard to the public interest in 
                disclosure of information--
                            (i) whether or not disclosure of the 
                        information would better enable United States 
                        citizens to hold Government officials 
                        accountable for their actions and policies;
                            (ii) whether or not disclosure of the 
                        information would assist the United States 
                        criminal justice system in holding persons 
                        responsible for criminal acts or acts contrary 
                        to the Constitution;
                            (iii) whether or not disclosure of the 
                        information would assist Congress, or any 
                        committee or subcommittee thereof, in carrying 
                        out its oversight responsibilities with regard 
                        to the executive branch or in adequately 
                        informing itself of executive branch policies 
                        and activities in order to carry out its 
                        legislative responsibilities; or
                            (iv) whether or not disclosure of the 
                        information would bring about any other 
                        significant benefit, including an increase in 
                        public awareness or understanding of Government 
                        activities or an enhancement of Government 
                        efficiency.
            (4) Written justification for classification.--
                    (A) Original classification.--Each agency official 
                who makes a decision to classify information not 
                previously classified shall, at the time of the 
                classification decision--
                            (i) identify himself or herself; and
                            (ii) provide in writing a detailed 
                        justification of that decision.
                    (B) Derivative classification.--In any case in 
                which an agency official or contractor employee 
                classifies a document on the basis of information 
                previously classified that is included or referenced in 
                the document, the official or employee, as the case may 
                be, shall--
                            (i) identify himself or herself in that 
                        document; and
                            (ii) provide a concise explanation of that 
                        decision.
    (d) Declassification of Information Classified under Act.--
            (1) In general.--Except as provided in paragraphs (2), (3), 
        and (4), information may not remain classified under this Act 
        after the date that is 10 years after the date of the original 
        classification of the information.
            (2) Earlier declassification.--When classifying information 
        under this Act, an agency official may provide for the 
        declassification of the information as of a date or event that 
        is earlier than the date otherwise provided for under paragraph 
        (1).
            (3) Later declassification.--When classifying information 
        under this Act, an agency official may provide for the 
        declassification of the information on the date that is 25 
        years after the date of the classification if the head of the 
        agency--
                    (A) determines that there is no likely set of 
                circumstances under which declassification would occur 
                within the time otherwise provided for under paragraph 
                (1);
                    (B) obtains the concurrence of the Director of the 
                Office of National Classification and Declassification 
                Oversight in the determination; and
                    (C) submits to the President a certification of the 
                determination.
            (4) Postponement of declassification.--
                    (A) In general.--The declassification of any 
                information or category of information that would 
                otherwise be declassified under paragraph (1) or (2) 
                may be postponed if an official of the agency with 
                original classification authority over the information 
                or category of information, as the case may be, 
                determines, before the time of declassification under 
                such paragraph, that the information or category of 
                information, as the case may be, should remain 
                classified.
                    (B) Procedure.--An official may not implement a 
                determination under subparagraph (A) until the 
                official--
                            (i) obtains the concurrence of the Director 
                        of the Office of National Classification and 
                        Declassification Oversight in the 
                        determination; and
                            (ii) submits to the President a 
                        certification of the determination.
                    (C) General duration of postponement.--Except as 
                provided in subparagraph (D), information the 
                declassification of which is postponed under this 
                paragraph may remain classified not longer than 15 
                years after the date of the postponement.
                    (D) Extended duration of postponement.--
                            (i) In general.--Subject to clauses (ii) 
                        and (iii), the declassification of any 
                        information that would otherwise be 
                        declassified under subparagraph (C) or 
                        paragraph (3) may be postponed if an official 
                        of the agency with original classification 
                        authority over the information determines that 
                        extraordinary circumstances require that the 
                        information remain classified.
                            (ii) Procedure.--An official may not 
                        implement a determination under clause (i) 
                        until the official--
                                    (I) obtains the concurrence of the 
                                Director of the Office of National 
                                Classification and Declassification 
                                Oversight in the determination; and
                                    (II) submits to the President a 
                                certification of the determination.
                            (iii) Review.--The President shall 
                        establish a schedule for the review of the need 
                        for continued classification of any information 
                        the declassification of which is postponed 
                        under this subparagraph. Such information shall 
                        be declassified at the earliest possible time 
                        after the termination of the circumstances with 
                        respect to such information referred to in 
                        clause (i).
                    (E) Concurrences.--A concurrence at the direction 
                of the Classification and Declassification Review Board 
                on appeal under section 4(c)(2) and a concurrence at 
                the direction of the President on appeal under section 
                5(a) shall be treated as a concurrence of the Director 
                of the Office of National Classification and 
                Declassification Oversight for purposes of 
                subparagraphs (B)(i) and (D)(i).
            (5) Approval required for declassification of certain 
        information.--Except as provided in this Act, no information 
        may be declassified or released without the approval of the 
        agency that originated the information.
            (6) Basis for determinations.--An agency official making a 
        determination under this subsection with respect to the 
        duration of classification of information, or the 
        declassification of information, shall make the determination 
        required under subsection (c) with respect to classification or 
        declassification in accordance with an assessment of the 
        criteria specified in paragraph (3) of such subsection (c) that 
        is current as of the determination.
            (7) Specification of declassification date.--Each agency 
        official making a decision to classify information shall 
specify upon such information the date or event of its declassification 
under this subsection.
    (e) Declassification of Current Classified Information.--
            (1) Procedures.--The President shall establish procedures 
        for declassifying information that was classified before the 
        effective date of this Act. Such procedures shall, to the 
        maximum extent practicable, be consistent with the provisions 
        of this section.
            (2) Automatic declassification.--The procedures established 
        under paragraph (1) shall include procedures for the automatic 
        declassification of information referred to in paragraph (1) 
        that has remained classified for more than 25 years as of such 
        date.
            (3) Notice and comment.--
                    (A) Notice.--The President shall publish notice in 
                the Federal Register of the procedures proposed to be 
                established under this subsection.
                    (B) Comment.--The President shall provide an 
                opportunity for interested persons to submit comments 
                on the procedures covered by subparagraph (A).
                    (C) Deadline.--The President shall complete the 
                establishment of procedures under this subsection not 
                later than 60 days after publishing notice in the 
                Federal Register under subparagraph (A). Upon 
                completion of the establishment of such procedures, the 
                President shall publish in the Federal Register notice 
                regarding such procedures.
    (f) Conforming Amendment to FOIA.--Section 552(b)(1) of title 5, 
United States Code, is amended to read as follows:
            "(1)(A) specifically authorized to be classified under the 
        Government Secrecy Reform Act of 1998, or specifically 
        authorized under criteria established by an Executive order to 
        be kept secret in the interest of national security and (B) are 
        in fact properly classified pursuant to that Act or Executive 
        order;".

SEC. 3. OFFICE OF NATIONAL CLASSIFICATION AND DECLASSIFICATION 
              OVERSIGHT.

    (a) Establishment.--
            (1) In general.--There is established within the Executive 
        Office of the President an office to be known as the Office of 
        National Classification and Declassification Oversight (in this 
        section referred to as the "Oversight Office").
            (2) Purpose.--The purpose of the Oversight Office is to 
        standardize the policies and procedures used by agencies to 
        assess information for initial classification and to review 
        information for declassification.
    (b) Director.--
            (1) In general.--There shall be a Director of the Office of 
        National Classification and Declassification Oversight who 
        shall be appointed by the President, by and with the advice and 
        consent of the Senate. The Director shall be the head of the 
        Oversight Office.
            (2) Qualifications.--To the maximum extent practicable, the 
        President shall nominate for appointment as Director 
        individuals who have experience in policy relating to 
        classification and declassification of information, records 
        management, and information technology.
            (3) Supervision.--The Director shall report directly to the 
        President.
            (4) Executive schedule.--Section 5314 of title 5, United 
        States Code, is amended by adding at the end the following:
            "Director, Office of National Classification and 
        Declassification Oversight.".
    (c) Personnel and Resources.--
            (1) Transfer.--All personnel, funds, and other resources of 
        the Information Security Oversight Office are hereby 
        transferred to the Oversight Office and shall constitute the 
        personnel, funds, and other resources of the Oversight Office.
            (2) Interim director.--The Director of the Information 
        Security Oversight Office shall serve as acting Director of the 
        Oversight Office until a Director of the Oversight Office is 
        appointed under subsection (b)(1).
    (d) Duties.--The Oversight Office shall--
            (1) coordinate and oversee the classification and 
        declassification policies and practices of agencies in order to 
        ensure the compliance of such policies and procedures with the 
        requirements of this Act;
            (2) develop and issue directives, instructions, and 
        educational aids and forms to assist in the implementation of 
        the provisions of this Act;
            (3) develop a program of research and development of 
        technologies to improve the efficiency of classification and 
        declassification processes under this Act;
            (4) determine whether or not information is classified in 
        violation of this Act and direct that information determined to 
        be classified in violation of this Act be declassified by the 
agency that originated the classification;
            (5) determine whether the concurrence of the Director in an 
        agency determination to postpone the declassification of 
        information under section 2(d)(4) is consistent with the 
        provisions of this Act;
            (6) review the proposed budgets of agencies for 
        classification and declassification programs and make 
        recommendations to the Office of Management and Budget as to 
        means of ensuring that such budgets provide sufficient funds to 
        permit agencies to comply with the requirements of this Act;
            (7) subject to the supervision and control of the 
        President, oversee special access programs;
            (8) conduct audits and on-site reviews of agency 
        classification and declassification programs; and
            (9) establish and maintain a Government-wide database on 
        the declassification activities of the Government, including an 
        unclassified version of the database available to the public.
    (e) Agency Cooperation.--Subject to the control and supervision of 
the President, each agency shall provide the Oversight Office with such 
information and other cooperation as the Director of the Oversight 
Office considers appropriate to permit the Oversight Office to carry 
out its duties.
    (f) Protection of Information.--The Director of the Oversight 
Office shall take appropriate actions to prevent disclosure to the 
public of classified information that is provided to the Oversight 
Office. Such actions may include a requirement that the staff of the 
Oversight Office possess security clearances appropriate for the 
information considered and reviewed by the Oversight Office.
    (g) Annual Report.--
            (1) Requirement.--Not later than March 31 each year, the 
        Director of the Oversight Office shall submit to Congress and 
        to the President a report on the compliance of agencies with 
        the requirements of this Act.
            (2) Elements.--Each report under paragraph (1) shall--
                    (A) include a summary of the extent of the 
                compliance of agencies Government-wide with the 
                requirements of this Act as of the date of such report; 
                and
                    (B) set forth an assessment of the compliance of 
                each agency with such requirements as of that date.
            (3) Form.--Each report under paragraph (1) shall be 
        submitted in unclassified form, but may include a classified 
        annex.
            (4) Availability.--The Oversight Office shall make 
        available to the public the unclassified form of each report 
        under paragraph (1) on an Internet Web site maintained by the 
        Oversight Office.

SEC. 4. CLASSIFICATION AND DECLASSIFICATION REVIEW BOARD.

    (a) Establishment.--There is established within the Executive 
Office of the President a board to be known as the Classification and 
Declassification Review Board (in this section referred to as the 
"Board").
    (b) Membership.--
            (1) In general.--The Board shall consist of five members 
        appointed by the President, by and with the advice and consent 
        of the Senate, from among individuals who are distinguished 
        historians, political scientists, archivists, and other social 
        scientists, and from among members of the public with 
        demonstrated expertise in matters relating to the national 
        security of the United States, records management, or 
        government information policy.
            (2) Nomination.--
                    (A) Consultation.--In nominating individuals for 
                appointment to the Board, the President shall consult 
                with the Secretary of Defense, Secretary of State, 
                Attorney General, National Security Advisor, Director 
                of Central Intelligence, Archivist of the United 
                States, and Director of the Office of Management and 
                Budget.
                    (B) Limitation.--The President may not nominate for 
                appointment to the Board any individual who is 
                currently an officer or employee of the United States 
                or who has previously served as a member of the Board.
                    (C) Initial nominations.--The President shall make 
                the first nominations of members for appointment to the 
                Board not later than 120 days after the effective date 
                of this Act.
            (3) Term.--Members of the Board shall be appointed for a 
        term of 4 years, expect that of the members first nominated for 
        appointment to the Board under paragraph (2)(C)--
                    (A) two shall be nominated for a 4-year term 
                (including the member who shall be the Director of the 
                Board);
                    (B) two shall be nominated for a 3-year term; and
                    (C) one shall be nominated for a 2-year term.
            (4) Vacancies.--An individual appointed to fill a vacancy 
        shall be appointed for the unexpired term of the member 
        replaced.
            (5) Limitation on employment.--No member of the Board may, 
        while serving as a member of the Board, serve as an officer or 
        employee of the Federal Government in any other capacity.
    (c) Powers and Duties.--The Board shall--
            (1) decide on appeals by agencies which challenge a 
        declassification order of the Director of the Office of 
        National Classification and Declassification Oversight under 
        section 3(d)(4);
            (2) decide on appeals by agencies which challenge a 
        determination of the Director not to concur in the postponement 
        of the declassification of information under section 3(d)(5); 
        and
            (3) decide on appeals by persons or entities who have filed 
        requests for mandatory declassification review.
    (d) Deadlines for Certain Appeals.--An agency may appeal a 
declassification order or determination under subsection (c) only if 
the agency submits the appeal to the Board not later than 60 days after 
the date of the declassification order or determination, as the case 
may be.
    (e) Protection of Information.--The Board shall take appropriate 
actions to prevent the disclosure to the public of classified 
information that is provided to the Board. Such actions shall include a 
requirement that the members and staff of the Board possess security 
clearances appropriate for the information considered and reviewed by 
the Board.
    (f) Personnel Matters.--
            (1) Compensation.--
                    (A) Compensation of members.--Each member of the 
                Board shall be compensated at a rate equal to the daily 
                equivalent of the annual rate of basic pay prescribed 
                for level IV of the Executive Schedule under section 
                5315 of title 5, United States Code, for each day 
                (including travel time) during which such member is 
                engaged in the performance of the duties of the Board.
                    (B) Travel expenses.--The 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 
                services for the Board.
            (2) Staff.--The Director of the Board may, with the 
        concurrence of the Board, appoint such staff, including an 
        executive secretary, as the Board requires to carry out its 
        duties.
            (3) Detail of government employees.--Any Federal Government 
        employee may be detailed to the Board without reimbursement, 
        and such detail shall be without interruption or loss of civil 
        service status or privilege.
    (g) Rules and Procedures.--
            (1) Requirement.--The Board shall establish, and may from 
        time to time modify, such rules and procedures as the Board 
        considers appropriate to carry out its duties. Such rules and 
        procedures shall provide that a decision of the Board requires 
        a vote of a majority of the members of the Board.
            (2) Publication.--The Board shall publish its rules and 
        procedures in the Federal Register.
            (3) Initial rules and procedures.--The Board shall 
        establish its initial rules and procedures not later than 270 
        days after the date of enactment of this Act.

SEC. 5. APPEAL OF DETERMINATIONS OF CLASSIFICATION AND DECLASSIFICATION 
              REVIEW BOARD.

    (a) Appeal.--Subject to subsection (c), any agency may appeal to 
the President a decision or other action of the Classification and 
Declassification Review Board under section 4(c).
    (b) Deadline.--An agency may appeal a decision or other action 
under subsection (a) only if the agency submits the appeal to the 
President not later than 60 days after the date of the decision or 
other action concerned.
    (c) Finality.--A decision of the President on an appeal under 
subsection (a) shall be final.

SEC. 6. PROHIBITIONS.

    (a) Withholding Information From Congress.--Nothing in this Act 
shall be construed to authorize the withholding of information from 
Congress.
    (b) Judicial Review.--Except in the case of the amendment to 
section 552 of title 5, United States Code, made by section 2(f), no 
person may seek or obtain judicial review of any provision of this Act 
or any action taken under a provision of this Act.

SEC. 7. DEFINITIONS.

    In this Act:
            (1) The term "agency" means any executive agency as 
        defined in section 105 of title 5, United States Code, any 
        military department as defined in section 102 of such title, 
        and any other entity in the executive branch of the Government 
        that comes into the possession of classified information.
            (2) The terms "classify", "classified", and 
        "classification" refer to the process by which information is 
        determined to require protection from unauthorized disclosure 
        pursuant to this Act in order to protect the national security 
        of the United States.
            (3) The terms "declassify", "declassified", and 
        "declassification" refer to the process by which information 
        that has been classified is determined to no longer require 
        protection from unauthorized disclosure pursuant to this Act.

SEC. 8. EFFECTIVE DATE.

    This Act and the amendment made by section 3(f) shall take effect 
180 days after the date of enactment of this Act.




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