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.
