Government Secrecy Reform Act of 1999 - Authorizes the President, in accordance with this Act, to protect from unauthorized disclosure, 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.
Sets forth requirements for the establishment of standards and procedures for classifying and declassifying information. Authorizes information to be classified, and classified information under review for declassification to remain classified, only if the harm to national security expected from disclosure of such information outweighs the public interest in disclosure. Requires the President to: (1) prescribe the factors to be utilized in deciding whether the disclosure of information might reasonably be expected to harm national security or might serve the public interest; and (2) in prescribing factors, to also prescribe guidance to be utilized in applying such factors.
Bars information from remaining classified under this Act after ten years after the date of original classification. Authorizes an agency official to provide for declassification earlier than such date. Permits an agency official with original classification authority to provide for declassification up to 25 years after the date of original classification under certain conditions. Sets forth additional requirements for other postponements of declassification.
Prohibits the declassification or release of information classified under this Act without the approval of the agency that originally classified the information, except as provided in this Act.
Directs the President to establish procedures for declassifying information that was classified before this Act's effective date. Requires such procedures to include procedures for the automatic declassification of such information that has remained classified for more than 25 years as of such date.
(Sec. 3) Establishes within the National Archives and Records Administration the Office of National Classification and Declassification Oversight (Office) to carry out specified duties with respect to the coordination and oversight of classification and declassification policies and practices of Federal agencies. Requires the Assistant to the President for National Security Affairs to provide policy guidance to the Office on behalf of the President.
Establishes within the Executive Office of the President the Classification and Declassification Review Board to decide on appeals by agencies which challenge Office declassification orders or Office determinations not to concur in postponement of declassification and on appeals by persons who have filed requests for mandatory declassification review.
(Sec. 5) Authorizes agencies to appeal Board decisions or actions to the President. Makes the President's decision on such appeals final.
(Sec. 6) Prohibits judicial review of any provision of, or action taken under, this Act, except as otherwise provided by the Freedom of Information Act.
[Congressional Bills 106th Congress]
[From the U.S. Government Printing Office]
[S. 22 Introduced in Senate (IS)]
106th CONGRESS
1st Session
S. 22
To provide for a system to classify information in the interests of
national security and a system to declassify information, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 19, 1999
Mr. Moynihan (for himself, Mr. Helms, Mr. Lott, Mr. Daschle, Mr.
Thompson, Ms. Collins, and Mr. Schumer) introduced the following bill;
which was read twice and referred to the Committee on Governmental
Affairs
_______________________________________________________________________
A BILL
To provide for a system to classify information in the interests of
national security and a system to declassify information, 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 ``Government Secrecy Reform Act of
1999''.
SEC. 2. CLASSIFICATION AND DECLASSIFICATION OF INFORMATION.
(a) In General.--The President may, in accordance with the
provisions of 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
paragraph (1) 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
such modification.
(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 the President under this
section and otherwise to carry out the provisions of
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) Guidance.--
(i) In general.--The President shall
require the head of each agency with original
classification authority to produce written
guidance on the classification and
declassification of information in order to
improve the classification and declassification
of information by such agency and the
derivative classification of information and
declassification of derivatively classified
information by such agency and other agencies.
Such guidance may be treated as classified
information under this Act.
(ii) Declassification period for certain
information.--
(I) In general.--In producing
written guidance under clause (i), the
head of an agency may specify types and
categories of information that may
remain classified for up to 25 years
after the date of original classification.
(II) Approval required.--The
specification of a type or category of
information under subclause (I) shall
be effective only with the approval of
the Director of the Office of National
Classification and Declassification
Oversight.
(C) Deadline.--Each agency head shall establish
standards and procedures under subparagraph (A) and
produce written guidance under subparagraph (B) 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 paragraph (1).
(D) Publication.--Each agency head shall publish in
the Federal Register the standards and procedures
established by such agency head under subparagraph (A).
(c) Standard for Classification and Declassification Decisions.--
(1) In general.--Subject to paragraph (2), 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) Factors in decisions.--
(A) In general.--The President shall prescribe the
factors to be utilized in deciding for purposes of
paragraph (1) whether the disclosure of information
might reasonably be expected to harm national security
or might serve the public interest.
(B) Guidance.--In prescribing factors under
subparagraph (A), the President shall also prescribe
guidance to be utilized in applying such factors. The
guidance shall specify with reasonable detail the
weight to be assigned each factor and the manner of
balancing among opposing factors of similar or
different weight.
(C) Process.--The President shall prescribe factors
and guidance under this paragraph at the same time the
President establishes categories and procedures under
subsection (b)(1) and subject to the notice and comment
procedures set forth under subsection (b)(2).
(d) Written Justification for Classification.--
(1) Original classification.--Each agency official who
makes a decision to classify information not previously
classified shall, at the time of such decision--
(A) identify himself or herself;
(B) provide in writing a detailed justification of
that decision; and
(C) indicate the basis for the classification of
the information with reference to the written guidance
produced under subsection (b)(4)(B).
(2) 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--
(A) identify himself or herself in that document;
and
(B) provide a concise explanation of that decision.
(e) Declassification of Information Classified Under Act.--
(1) In general.--Except as provided in paragraphs (2), (3),
and (4), information classified under this Act 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.--
(A) In general.--When classifying information under
this Act, an agency official with original
classification authority over the information may
provide for the declassification of the information on
a date that is up to 25 years after the date of
original classification in accordance with the guidance approved under
subsection (b)(4)(B)(ii).
(B) Postponement.--The actual date of the
declassification of information referred to in
subparagraph (A) may be postponed under paragraph
(4)(D).
(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 for
such information otherwise provided for under paragraph
(1) or (2), as the case may be, 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
obtains the concurrence of the Director of the Office
of National Classification and Declassification
Oversight in 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) Procedures.--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) and (D)(ii)(I).
(5) Approval required for declassification of
information.--Except as provided in this Act, no information
classified under this Act may be declassified or released
without the approval of the agency that originally classified
the information.
(6) Specification of declassification date or event.--Each
agency official making a decision to classify information under
this subsection shall specify upon such information the date or
event of its declassification.
(f) 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 that paragraph
that has remained classified for more than 25 years as of the
effective date referred to in that paragraph.
(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.
(g) 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 1999 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 National
Archives and Records Administration 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.
(3) Policy guidance.--On behalf of the President, the
Assistant to the President for National Security Affairs shall
provide policy guidance to the Oversight Office.
(4) Budget.--
(A) Consultation in preparation.--The Archivist of
the United States shall consult with the Assistant to
the President for National Security Affairs and the
Director of the Office of Management and Budget in
preparing the annual budget request for the Oversight
Office.
(B) Presentation.--The annual budget request for
the Oversight Office shall appear as a distinct item in
the annual budget request of the National Archives and
Records Administration.
(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
Archivist of the United States.
(4) Executive schedule.--Section 5315 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
provisions 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 order that information determined to
be classified in violation of this Act be declassified by the
agency that originated the classification;
(5) determine whether an agency determination to postpone
the declassification of information under section 2(e)(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) oversee special access programs consistent with its
other duties under this section;
(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.--
(1) In general.--Subject to the control and supervision of
the President, each agency shall provide the Oversight Office
such information and other cooperation as the Director of the
Oversight Office considers appropriate to permit the Oversight
Office to carry out its duties.
(2) Special access programs.--The head of an agency with
jurisdiction over special access programs may--
(A) limit access to such programs to not more than
the Director and one other employee of the Oversight
Office; and
(B) upon the concurrence of the President, deny
access by the Oversight Office to any such program if
the head of such agency determines that such access
would pose an exceptional risk to national security.
(f) Appeals from Certain Decisions.--
(1) In general.--An agency may appeal to the Classification
and Declassification Review Board any declassification order or
determination under paragraph (4) or (5) of subsection (d).
(2) Deadline.--An agency may appeal an order or
determination under paragraph (1) only if the agency submits
the appeal to the Board not later than 60 days after the date
of the order or determination, as the case may be.
(g) 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 shall include a requirement that the staff of the
Oversight Office possess security clearances appropriate for the
information considered and reviewed by the Oversight Office.
(h) 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 and Procedural Matters.--
(1) In general.--The Board shall consist of five members
appointed by the President, by and with the advice and consent
of the Senate, of whom--
(A) four shall be private citizens;
(B) two shall be officers or employees of the
Federal Government; and
(2) Qualifications.--
(A) Private citizens.--The members of the Board who
are private citizens shall be appointed from among
individuals who are distinguished historians, political
scientists, archivists, and other social scientists or
who otherwise have demonstrated expertise in matters
relating to the national security of the United States,
records management, or government information policy.
(B) Government employees.--The members of the Board
who are officers or employees of the Federal Government
shall be appointed from among such officers and
employees who have demonstrated expertise in matters
referred to in subparagraph (A).
(C) Change in employment.--Notwithstanding any
provision of paragraph (1), the commencement or
termination of service as an officer or employee of the
Federal Government of an individual appointed as a
member of the Board under that paragraph before such
commencement or termination shall not affect the
continuation of such individual as a member of the
Board.
(3) Nominations.--
(A) Consultation.--In nominating individuals for
appointment to the Board, the President shall consult
with the Secretary of Defense, Secretary of State,
Attorney General, Assistant to the President for
National Security Affairs, 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 has
previously served as a member of the Board.
(C) Initial nominations.--The President shall make
the first nominations of individuals for appointment to
the Board not later than 120 days after the effective
date of this Act.
(D) Bipartisan representation.--Of the members of
the Board appointed under paragraph (1)(A), not more
than two shall be of the same political party.
(4) Presiding officer.--The President shall designate a
member of the Board appointed under paragraph (1)(A) to serve
as the Presiding Officer of the Board.
(5) Term.--Members of the Board shall be appointed for a
term of 4 years, except that of the members first nominated for
appointment to the Board under paragraph (3)(C)--
(A) two shall be nominated for a 4-year term
(including the member who shall be the Presiding
Officer of the Board);
(B) two shall be nominated for a 3-year term; and
(C) two shall be nominated for a 2-year term.
(6) Vacancies.--An individual appointed to fill a vacancy
shall be appointed for the unexpired term of the member
replaced.
(7) Procedural matters.--
(A) Quorum.--A majority of the members of the Board
shall constitute a quorum, but a lesser number of
members may hold hearings.
(B) Rules and procedures.--
(i) 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.
(ii) Publication.--The Board shall publish
its rules and procedures in the Federal
Register.
(iii) Initial rules and procedures.--The
Board shall establish its initial rules and
procedures not later than 90 days after the
date of initial meeting of the Board.
(c) Powers and Duties.--The Board shall--
(1) decide on appeals by agencies which challenge a
declassification order 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 that Office 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) 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.
(e) Personnel Matters.--
(1) Compensation.--
(A) Compensation.--Each member of the Board who is
a private citizen 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 Presiding Officer 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.
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(g), 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 2(g) shall take effect
180 days after the date of the enactment of this Act.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S398-399)
Read twice and referred to the Committee on Governmental Affairs.
Star Print ordered on the bill.
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