[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Proposed Rules]
[Pages 39926-39929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15513]
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DEPARTMENT OF STATE
Office of Freedom of Information, Privacy and Classification Review
22 CFR Part 171
[Public Notice 2405]
Access to Information--Executive Order 12958, ``Classified
National Security Information,'' Provisions
AGENCY: Office of Freedom of Information, Privacy and Classification
Review, Department of State.
ACTION: Proposed rule.
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SUMMARY: The Department of State proposes to amend 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.
DATES: Comments must be submitted on or before September 30, 1996.
ADDRESSES: Written comments may be mailed or delivered to Margaret P.
Grafeld, Chief, Privacy, Plans and Appeals Divisions, Office of Freedom
of Information, Privacy and Classification Review, Room 1239,
Department of State, 2201 C Street, NW, Washington, DC 20520-1239.
FOR FURTHER INFORMATION CONTACT:
Questions regarding mandatory declassification review or other aspects
of Executive Order 12958 may be addressed to Margaret P. Grafeld,
Chief, Privacy, Plans and Appeals Division, Office of Freedom of
Information, Privacy and Classification Review, Room 1239, Department
of State, 2201 C Street, NW., Washington, DC 20520-1239. Telephone:
202/627-6620; FAX: 202/647-5159.
SUPPLEMENTARY INFORMATION: Executive Order 12958 of April 17, 1995,
prescribes a uniform system for classifying, safeguarding, and
declassifying national security information. 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 has revised 22 CFR, Parts 171.20 through 171.26
(Subpart C) 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 E.O. 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.
PART 171--AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC
For the reasons set forth in the preamble, 22 CFR Part 171 is
amended as follows.
1. The authority citation for Part 171 is revised to read as
follows:
Authority: 5 U.S.C. 551 et seq., 552, 552a, and App. 201;
Executive Order 12958, 3 CFR, 1995 Comp., p. 333; and Executive
Order 12600, 3 CFR, 1987 Comp., p. 235.
2. Subpart C is revised to read as follow:
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.
(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.
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(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 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
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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
form 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 an 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 material on grounds other than classification.
Patrick F. Kennedy,
Assistant Secretary for the Bureau of Administration.
[FR Doc. 96-15513 Filed 7-30-96; 8:45 am]
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