§ 159a.15 - Classification principles, criteria, and considerations.

(a) Reasoned Judgment. Reasoned judgment shall be exercised in making classification decisions. A positive basis must exist for classification. Both advantages and disadvantages of classification must be weighed. If, after consideration of the provisions of this section, there is reasonable doubt, the provisions of § 159a.10(a)(2) apply.

(b) Identification of Specific Information. Before a classification determination is made, each item of information that may require protection shall be identified. This requires identification of that specific information that comprises the basis for a particular national advantage or advantages that, if the information were compromised, would or could be damaged, minimized, or lost, thereby adversely affecting national security.

(c) Specific Classifying Criteria. A determination to classify shall be made only by an original classification authority when, first, the information is within paragraphs (c) (1) through (10) of this section; and second, the unauthorized disclosure of the information, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security. The determination involved in the first step is separate and distinct from that in the second. Except as provided in paragraph (d) of this section, the fact that the information falls under one or more of the criteria shall not mean that the information automatically meets the damage criteria. Information shall be considered for classification if it concerns:

(1) Military plans, weapons, or operations;

(2) Vulnerabilities or capabilities of systems, installations, projects, or plans relating to the national security;

(3) Foreign government information;

(4) Intelligence activities including special activities, or intelligence sources or methods;

(5) Foreign relations or foreign activities of the United States;

(6) Scientific, technological, or economic matters relating to the national security;

(7) U.S. Government programs for safeguarding nuclear materials or facilities;

(8) Cryptology;

(9) A confidential source; or

(10) Other categories of information that are related to national security and that require protection against unauthorized disclosure as determined by the Secretary of Defense or Secretaries of the Military Departments. Recommendations concerning the need to designate additional categories of information that may be considered for classification shall be forwarded through channels to the appropriate Secretary for determination. Each such determination shall be reported promptly to the Director of Security Plans and Programs, ODUSD(P), for promulgation in an Appendix to this part and reporting to the Director, ISOO.

(d) Presumption of Damage. Unauthorized disclosure of foreign government information, the identity of a confidential foreign source, or intelligence sources or methods is presumed to cause damage to the national security.

(e) Limitations on Classification. (1) classification may not be used to conceal violations of law, inefficiency, or administrative error, to prevent embarrassment to a person, organization or agency, or to restrain competition.

(2) Basic scientific research information not clearly related to national security may not be classified.

(3) A product of nongovernment research and development that does not incorporate or reveal classified information to which the producer or developer was given prior access may not be classified until and unless the government acquires a proprietary interest in the product. This prohibition does not affect the provisions of the Patent Secrecy Act of 1952.

(4) References to classified documents that do not reveal classified information may not be classified or used as a basis for classification.

(5) Classification may not be used to limit dissemination of information that is not classifiable under the provisions of E.O. 12356 or this part or to prevent or delay public release of such information.

(6) Information may be classified or reclassified after receiving a request for it under the Freedom of Information Act, the Privacy Act, or the mandatory review provisions of this part (§ 159a.26) if such classification is consistent with this part and is accomplished personally and on a document-by-document basis, except as provided in paragraph (e)(7) of this section, by the Secretary or Deputy Secretary of Defense, by the Secretaries or Under Secretaries of the Military Departments, by the senior official designated by each Secretary under § 5.3(a) of E.O. 12356, or by an official with original Top Secret classification authority.

(7) The Secretary of Defense and the Secretaries of the Military Departments may reclassify information previously declassified and disclosed, and they may classify unclassified information that has been disclosed, if they determine in writing that the information requires protection in the interest of national security and the information may reasonably be recovered. Any such reclassification or classification shall be reported to the DUSD(P) for subsequent reporting to the Director, ISOO.

(f) Classifying Scientific Research Data. Ordinarily, except for information that meets the definition of Restricted Data, basic scientific research or its results shall not be classified. However, classification would be appropriate if the information concerns an unusually significant scientific breakthrough and there is sound reason to believe that it is not known or within the state-of-the-art of other nations, and it supplies the United States with an advantage directly related to national security.

(g) Classifying Documents. Each document and portion thereof shall be classified on the basis of the information it contains or reveals. The fact that a document makes reference to a classified document is not a basis for classification unless the reference citation, standing alone, reveals classified information. The overall classification of a document or group of physically-connected documents shall be at least as high as that of the most highly classified component. The subject or title of a classified document normally should be unclassified. When the information revealed by a subject or title warrants classification, an unclassified short title should be added for reference purposes.

(h) Classifying Material Other Than Documents. (1) Items of equipment or other physical objects shall be classified only when classified information may be derived from them by visual observation of their internal or external appearance or structure, or by their operation, test, application, or use. The overall classification assigned to end items of equipment or objects shall be at least as high as the highest classification of any of its integrated parts.

(2) If mere knowledge of the existence of the item of equipment or object would compromise or nullify its national security advantage, its existence would warrant classification.

(i) State of the Art and Intelligence. Classification requires consideration of the information available from intelligence sources concerning the extent to which the same or similar information is known or is available to others. It is also important to consider whether it is known, publicly or internationally, that the United States has the information or even is interested in the subject matter. The state-of-the-art in other nations may often be a vital consideration.

(j) Effect of Open Publication. Classified information shall not be declassified automatically as a result of any unofficial publication or inadvertent or unauthorized disclosure in the United States or abroad of identical or similar information. Appearance in the public domain of information currently classified or being considered for classification does not preclude initial or continued classification. However, such disclosures require immediate determination of the degree of damage to the national security and reevaluation of the information to determine whether the publication has so compromised the information that downgrading or declassification is warranted. Similar consideration must be given to related items of information in all programs, projects, or items incorporating or pertaining to the compromised items of information. Holders should continue classification until advised to the contrary by a competent government authority.

(k) Reevaluation of Classification Because of Compromise. Classified information, and information related thereto, that has been lost or possibly compromised, shall be reevaluated and acted upon as follows:

(1) The original classifying authority, upon learning that a loss or possible compromise of specific classified information has occurred, shall prepare a written damage assessment and;

(i) Reevaluate the information involved and determine whether (A) Its classification should be continued without change; (B) The specific information, or parts therof, should be modified to minimize or nullify the effects of the reported compromise and the classification retained; (C) Declassification, downgrading, or upgrading is warranted; and (D) Counter-measures are appropriate and feasible to negate or minimize the effect of the compromise.

(ii) Give prompt notice to all holders of such information when the determination is within categories (A), (C), or (D) of paragraph (k)(1)(i) of this section.

(2) Upon learning that a compromise or probable compromise has occurred, any official having original classification jurisdiction over related information shall reevaluate the related information and determine whether one of the courses of action enumerated in paragraph (k)(1)(i) of this section should be taken or, instead, whether upgrading of the related information is warranted. When such a determination is within categories (B), (C), or (D) of paragraph (k)(1)(i) of this section, that upgrading of the related items is warranted, prompt notice of the determination shall be given to all holders of the related information.

(l) Compilation of Information. Certain information that would otherwise be unclassified may require classification when combined or associated with other unclassified information. However, a compilation of unclassified items of information should normally not be classified. In unusual circumstances, classification may be required if the combination of unclassified items of information provides an added factor that warrants classification under paragraph (c) of this section. Classification on this basis shall be fully supported by a written explanation that will be provided with the material so classified.

(m) Extracts of Information. Information extracted from a classified source shall be derivatively classified or not classified in accordance with the classification markings shown in the source. The overall and internal markings of the source should supply adequate classification guidance. If internal markings or classification guidance are not found in the source, and no reference is made to an applicable and available classification guide, the extracted information shall be classified according either to the overall marking of the source, or guidance obtained from the classifier of the source material.