Access to InformationExecutive Order 12958, ``Classified National Security Information,'' Provisions

DEPARTMENT OF STATE

22 CFR Part 171

[Public Notice 3053]

Access to Information--Executive Order 12958, ``Classified

National Security Information,'' Provisions

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Department of State is amending its regulations on

classified national security information. The rule describes how

members of the public, government employees or agencies may obtain

access to information in Department of State classified records and how

such requests are processed. The rule also explains the appeals process

available to requestors in the event a request for the declassification

of information in Department of State classified records is denied.

EFFECTIVE DATE: May 12, 1999.

FOR FURTHER INFORMATION CONTACT:

Questions regarding mandatory declassification review or other aspects

of Executive Order 12958 may be addressed to Margaret P. Grafeld,

Director, Office of IRM Programs and Services, Room 1239, Department of

State, 2201 C Street, NW, Washington, DC 20520-1239. Telephone: 292/

647-6620; FAX: 202/647-5159.

SUPPLEMENTARY INFORMATION: A notice of proposed rulemaking was

published in 61 FR 148 July 31, 1996 p. 39927 inviting interested

persons to submit comment concerning the proposed regulations

implementing Executive Order 12958 of April 17, 1995. Executive Order

12958 prescribes a uniform system for classifying, safeguarding, and

declassifying national security information. No comments were received.

Section 5.6 ( C) (2) of Executive Order 12958 requires agencies that

originate or handle classified information to publish in the Federal

Register implementing regulations that affect members of the public.

Accordingly, the Department of State is revising 22 CFR, part 171

subpart C, Secs. 171.20 through 171.26 to bring these rules into

conformity with Executive Order 12958. Covered under this revision are

definitions, access to records, processing requests and appeals. The

rule is not expected to have a significant impact on a substantial

number of small entities under the criteria of the Regulatory

Flexibility Act. In addition, the rule does not impose information

collection requirements under the provisions of the Paperwork Reduction

Act of 1980. The rule is exempt from review under Executive Order

12866, but has been reviewed internally by the Department to ensure

consistency with the objectives thereof.

List of Subjects in 22 CFR Part 171

Administrative practice and procedure, Appeals procedures,

Classified information, Conflict of interests, Confidential business

information, Freedom of Information, Privacy.

In consideration of the foregoing, amend 22 CFR part 171 as

follows:

PART 171--AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC

1. The authority citation for Part 171 continues to read as

follows:

Authority: The Freedom of Information Act, 5 U.S.C. 552; the

Privacy Act, 5 U.S.C. 552a; the Administrative Procedures Act, 5

U.S.C. 551 et seq.; the Ethics in Government Act, 5 U.S.C. App.201;

Executive Order 12958, 60 FR 19825; and Executive Order 12600, 52 FR

23781.

2. Subpart C, Secs. 171.20 through 171.26, is revised to read as

follows:

Subpart C--Executive Order 12958 Provisions

171.20 Definitions.

171.21 Access to records.

171.22 Determination in disputed cases.

171.23 Challenges to classification.

171.24 Access by historical researchers and former Presidential

appointees.

171.25 Exemptions.

Subpart C--Executive Order 12958 Provisions

Sec. 171.20 Definitions.

As used in this subpart, the following definitions shall apply:

[[Page 25431]]

(a) National security means the national defense or foreign

relations of the United States.

(b) Information means any knowledge that can be communicated or

documentary material, regardless of its physical form or

characteristics, that is owned by, produced by or for, or is under the

control of the United States Government.

(c) Control means the authority of the agency that originated the

information, or its successor in function, to regulate access to the

information.

(d) Classified national security information (hereafter classified

information means information that has been determined pursuant to this

Executive Order 12958 or any predecessor Order to require protection

against unauthorized disclosure and is marked to indicate its

classified status when in documentary form.

(e) Foreign government information means:

(1) Information provided to the United States Government by a

foreign government or governments, an international organization of

governments, or any element thereof, with the expectation that the

information, the source of the information, or both, are to be held in

confidence;

(2) Information produced by the United States pursuant to or as a

result of a joint arrangement with a foreign government or governments,

or an international organization of governments, or any element

thereof, requiring that the information, the arrangement, or both, are

to be held in confidence; or

(3) Information received and treated as ``foreign government

information'' under the terms of a predecessor Order.

(f) Classification means the act or process by which information is

determined to be classified information.

(g) Original classification means an initial determination that

information requires, in the interest of national security, protection

against unauthorized disclosure.

(h) Original classification authority means an individual

authorized in writing, either by the President, or by agency heads or

other officials designated by the President, to classify information in

the first instance.

(i) Unauthorized disclosure means a communication or physical

transfer of classified information to an unauthorized recipient.

(j) Agency means any ``executive agency'' as defined in 5 U.S.C.

105, and any other entity within the executive branch that comes into

the possession of classified information.

(k) Senior agency official means the official designated by the

agency head under section 5.6(C) of this Executive Order 12958 to

direct and administer the agency's program under which information is

classified, safeguarded, and declassified.

(l) Confidential source means any individual or organization that

has provided, or that may reasonably be expected to provide information

to the United States on matters pertaining to the national security

with the expectation that the information or relationship, or both, are

to be held in confidence.

(m) Damage to the national security means harm to the national

defense or foreign relations of the United States from the unauthorized

disclosure of information, to include the sensitivity, value and

utility of that information.

(n) Presidential appointees includes former officials of the

Department of State or other U.S. Government agencies who held policy

positions and were appointed by the President, by and with the advice

and consent of the Senate, at the level of Ambassador, Assistant

Secretary of State or above. It does not include Foreign Service

Officers as a class or persons who merely received assignment

commissions as Foreign Service Officers, Foreign Service Reserve

Officers, Foreign Service Staff Officers and employees.

Sec. 171.21 Access to records.

(a) Request for mandatory classification review. For a request for

classified records to be processed under section 3.6 of E.O. 12958, it

must describe the record(s) with sufficient specificity to enable the

agency to locate the record(s) with a reasonable amount of effort.

Whenever a request does not reasonably describe the record(s), the

Department shall notify the requester that no further action will be

taken unless additional information is provided, or the scope of the

request is narrowed.

(b) Mandatory review. A request for declassification under the

Executive Order 12958 is termed a mandatory review; it is separate from

and different than a request made under the Freedom of Information Act

(FOIA). When a requester submits a request under both mandatory review

and FOIA, the Department shall require the requester to elect one or

the other. If the requester fails to elect one or the other, the

request will be treated as a FOIA request unless the materials

requested are subject only to mandatory review.

(c) Scope. All information classified under this or predecessor

orders shall be subject to declassification review upon request by a

member of the public, a government employee or agency, with the

following exceptions:

(1) Information exempted from search and review under the Central

Intelligence Information Act;

(2) Information which is the subject of pending litigation;

(3) Information which has been reviewed and withheld within the

past two years;

(4) Information originated by the incumbent President; the

incumbent President's White House staff; committees, commissions or

boards appointed by the incumbent President; or other entities within

the Executive Office of the President that solely advise and assist the

incumbent President. If the information requested is the subject of

pending litigation, or has been reviewed for declassification and

withheld within the past two years, the Department will inform the

requester of these facts and of the requester's appeal rights. The

Archivist of the United States shall establish procedures for the

declassification of Presidential or White House materials accessioned

into the National Archives or maintained in the Presidential libraries.

(d) The Department may refuse to confirm or deny the existence or

nonexistence of requested information whenever the fact of its

existence or nonexistence is itself classified.

(e) Processing. In responding to mandatory review requests, the

Department shall either make a prompt declassification determination

and notify the requester accordingly, or inform the requester of the

additional time needed to process the request. The Department shall

ordinarily make a final determination within 180 days from the date of

receipt. When information cannot be declassified in its entirety, the

Department will make reasonable efforts to release those declassified

portions of the requested information that constitute a coherent

segment.

(f) Other agency records. When the Department receives a request

for records in its possession that were originated by another agency,

it shall refer the request and the pertinent records to the originating

agency unless that agency has agreed that the Department may review the

records in accordance with declassification guides or guidelines

provided by the originating agency. The originating agency shall

communicate its declassification determination to the Department.

(g) Foreign government information. When foreign government

information is being considered for declassification, the declassifying

agency is the agency

[[Page 25432]]

that originally received or classified the information. The

declassifying agency shall:

(1) Determine whether the information is subject to a treaty or

international agreement that would prevent its declassification;

(2) Determine whether the information is subject to section 1.6(d)

(5), (6) or (8) of the Executive Order 12958;

(3) Consult with any other concerned agencies;

(4) Consult with the Department and/or the foreign government, as

appropriate.

(h) Cryptologic and intelligence information. Mandatory

declassification review requests for cryptologic information and

information concerning intelligence activities or intelligence sources

or methods shall be processed solely in accordance with special

procedures established by the Secretary of Defense and the Director of

Central Intelligence, respectively.

(i) Appeals. Upon denial of an initial request in whole or in part,

the Department shall notify the requester of the right of an

administrative appeal, which must be filed within 60 days of receipt of

the denial. The Department shall normally make a determination within

60 days following receipt of an appeal. If additional time is needed to

make a determination, the Department shall notify the requester of the

additional time needed and provide the requester with a reason for

extension. The Department shall notify the requester in writing of the

final determination and of the reasons for any denial.

(j) Appeals to the Interagency Security Classification Appeals

Panel. The Interagency Security Classification Appeals Panel shall

publish in the Federal Register the rules and procedures for bringing

mandatory declassification appeals before it.

Sec. 171.22 Determination in disputed cases.

(a) It is presumed that information that continues to meet the

classification requirements under this Executive Order 12958 requires

continued protection. In some exceptional cases, however, the need to

protect such information may be outweighed by the public interest in

disclosure of the information, and in these cases the information

should be declassified. When such questions arise, they shall be

referred to the Secretary of State or the Department's senior agency

official. That official will determine, as an exercise of discretion,

whether the public interest in disclosure outweighs the damage to

national security that might reasonably be expected from disclosure.

(b) This provision does not:

(1) Amplify or modify the substantive criteria or procedures for

classification; or

(2) Create any substantive or procedural rights subject to judicial

review.

Sec. 171.23 Challenges to classification.

(a) Authorized holders of information who, in good faith, believe

that its classification status is improper are encouraged and expected

to challenge the classification status of the information. An

authorized holder is any individual, including an individual external

to the Department, who has been granted access to specific classified

information in accordance with section 4.2(g) of the Executive Order

12958.

(b) Challenges shall be presented to an original classification

authority with jurisdiction over the information. A formal challenge

under section 1.9 of the Executive Order 12958 must be in writing, but

need not be any more specific than to question why information is or is

not classified, or is classified at a certain level. The classification

challenge provision is not intended to prevent an authorized holder

from informally questioning the classification status of particular

information. Such informal inquiries are encouraged in order to limit

the number of formal challenges.

(c) Whenever the Department receives a classification challenge to

information that has been the subject of a challenge within the past

two years, or that is the subject of pending litigation, it is not

required to process the challenge beyond informing the challenger of

this fact and of the challenger's appeal rights, if any.

(d) Challenges, responses and appeals shall, if possible, be

unclassified. However, classified information contained in a challenge,

a response from the department or an appeal shall be handled and

protected in accordance with this Executive Order 12958 and its

implementing directives.

(e) Information being challenged for classification shall remain

classified unless and until a decision is made to declassify it.

(f) The Secretary of State or the senior agency official of the

Department shall establish procedures under which authorized holders of

classified information may make such challenges. These procedures shall

assure that:

(1) No retribution is taken against an authorized holder bringing a

challenge in good faith;

(2) An opportunity is provided for review by an impartial official

or panel; and

(3) Classification challenges shall be considered separately from

FOIA or other access requests.

(g) Processing an initial written response to a challenge shall be

provided within 60 days. If the Department is unable to respond to the

challenge within 60 days, it must acknowledge the challenge in writing

and provide a date by which it will respond. The Department's

acknowledgement must state that if no response is received within 120

days, the challenger has the right to forward the challenge to the

Interagency Security Classification Appeals Panel. The challenger may

also forward the challenge to the Interagency Security Classification

Appeals Panel if the Department has not responded to an internal appeal

within 90 days after receiving the appeal. Responses to challenges

denied by the Department shall also include the challenger's appeal

rights to the Interagency Security Classification Appeals Panel.

Sec. 171.24 Access by historical researchers and former Presidential

appointees.

(a) Section 4.2(a)(3) of this Executive Order 12958 restricts

access to classified information to individuals who have a need-to-know

the information. This may be waived for persons who are engaged in

historical research projects or previously occupied policy-making

positions to which they were appointed by the President. Access

requests made under this provision must be submitted in writing and

must include a general description of the records and the time period

covered by the request.

(b) Access may be granted only if the Secretary of State or the

senior agency official of the Department:

(1) Determines in writing that access is consistent with the

interest of national security;

(2) Takes appropriate steps to protect classified information from

unauthorized disclosure or compromise; and

(3) Ensures that the information is safeguarded in a manner

consistent with the Executive Order 12958.

(c) Access granted to former Presidential appointees shall be

limited to items the individual originated, reviewed, signed or

received while serving as a Presidential appointee.

Sec. 171.25 Exemptions.

The Freedom of Information and Privacy Acts exemptions and any

other exemptions under applicable law may be invoked by the Department

to deny

[[Page 25433]]

material on grounds other than classification.

Date: May 5, 1999.

Patrick F. Kennedy,

Assistant Secretary, Bureau of Administration.

[FR Doc. 99-12029 Filed 5-11-99; 8:45 am]

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