2016-15896. Special Procedures for Discretionary Access to Classified Historical Central Intelligence Agency Records Requested by Other Federal Agencies in Furtherance of Historical Research

AGENCY:

Central Intelligence Agency.

ACTION:

Final rule.

SUMMARY:

Consistent with the National Security Act of 1947, as amended, the Central Intelligence Agency Act of 1949, as amended, and Executive Order 13526, as amended (or successor Orders), and section 1.6 of Executive Order 12333, as amended (or successor Orders), CIA is providing greater clarity about the procedures under which, as a matter of discretion, it may provide access to classified historical CIA records requested by other Federal agencies in furtherance of historical research when such access is not expressly required by statute. This rule is being issued as a final rule without prior notice of proposed rulemaking as allowed by the Administrative Procedure Act for rules of agency procedure and interpretation.

DATES:

Effective August 9, 2016.

FOR FURTHER INFORMATION CONTACT:

Joseph W. Lambert, [phone].

SUPPLEMENTARY INFORMATION:

Consistent with the National Security Act of 1947, as amended, the Central Intelligence Agency Act of 1949, as amended, Executive Order 13526, as amended (or successor Orders), and section 1.6 of Executive Order 12333, as amended (or successor Orders), the CIA has revised its regulations to more clearly set forth the procedures used to provide, as a matter of discretion, access to classified historical CIA records requested by other Federal agencies in furtherance of historical research and when such access is not expressly required by statute. This rule is being issued as a final rule without prior notice of proposed rulemaking as allowed by the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(A) for rules of agency procedure and interpretation.

List of Subjects in 32 CFR Part 1911

• Archives and records
• Classified information
• Historical records

Accordingly, the CIA is adding a new 32 CFR part 1911 to read as follows:

PART 1911—SPECIAL PROCEDURES FOR DISCRETIONARY ACCESS TO CLASSIFIED HISTORICAL CENTRAL INTELLIGENCE AGENCY RECORDS REQUESTED BY OTHER FEDERAL AGENCIES

1911.1

Authority and purpose.

1911.2

Definitions.

1911.3

Applicability.

1911.4

Federal agency requests for access and processing procedures.

Authority: 50 U.S.C. 3001 et seq.; 50 U.S.C. 3141 et seq.; Executive Order 13526, 75 FR 707, 3 CFR 2010 Comp., p. 298-327, (or successor Orders); Executive Order 12333, 40 FR 235, 3 CFR 1981 Comp., p. 200 (or successor Orders).

§ 1911.1

Authority and purpose.

(a) Authority. This part is issued under the authority of the National Security Act of 1947, as amended, the Central Intelligence Agency Act of 1949, as amended, Executive Order 13526 (or successor Orders), and section 1.6 of Executive Order 12333, as amended (or successor Orders).

(b) Purpose. This part prescribes procedures for providing, as a matter of discretion, appropriately cleared staff and contractor personnel of other Federal agencies with access to classified historical CIA records that their agency has requested when such access is not expressly required by statute.

§ 1911.2

Definitions.

As used in this part:

Agency Release Panel (ARP) means the CIA Agency Release Panel set forth in part 1900 of this chapter.

CIA means the United States Central Intelligence Agency.

Control means ownership or the authority of the CIA pursuant to Federal statute or privilege to regulate official or public access to records.

Federal agency means any executive department, military department or other establishment or entity included in the definition of agency in 5 U.S.C. 552(f).

Information means any knowledge that can be communicated or documentary material, regardless of its physical form that is owned by, produced by or for, or is under the control of the United States Government.

Interested party means any official in the executive, military, congressional, or judicial branches of government, United States or foreign, or under U.S. Government contract who, in the sole discretion of the CIA, has a subject matter or physical interest in the documents or information at issue.

Records mean records as defined by 44 U.S.C. 3301.

§ 1911.3

Applicability.

This part does not apply to requests for access to current information or finished intelligence that is routinely disseminated to other Federal agencies in support of the CIA's intelligence, counterintelligence, or special activities responsibilities, or for administrative purposes. This part applies to special requests for access to classified historical CIA records in furtherance of historical research and not expressly required by statute that fall outside of the regular channels and procedures that CIA has already established to provide information to U.S. Government customers. Examples include, but are not limited to, a Federal agency, including a branch of the military, conducting research in preparation for the production of a set of historical studies, an official agency history, or a review of past military activities, that require access to classified historical CIA records.

§ 1911.4

Federal agency requests for access and processing procedures.

(a) Federal agency requests. Cleared staff and contractor personnel, working for a Federal agency, and seeking access to classified CIA historical records in an official capacity, shall send the request to the CIA Information and Privacy Coordinator (Coordinator) identifying the particular records needed, the purpose for which the records are needed, whether declassification of the information contained in the records will be required, and the position and security clearances or security approvals held by the requester.

(b) Special procedures. The Coordinator shall review the request and solicit input from the Director of the Center for the Study of Intelligence and other interested parties concerning whether or not the required determinations set forth in paragraph (c) of this section can be made. After considering any input received, the Coordinator will either make or not make the determinations set forth in paragraph (c), in consultation with the ARP, and forward the request and the Coordinator's recommendation to the Chief, Information Review and Release Group (IRRG), Information Management Services for decision on whether or not to provide the access requested. A negative determination by the Chief of IRRG shall be reviewed by the Director, Information Management Services, who shall issue the final CIA decision whether or not to grant the request for access.

(c) Determinations. As a condition precedent for access, the Coordinator must make all of the following determinations with respect to each request:

(1) That the requester is a current staff employee or contractor of the U.S. Government;

(2) That the requester is currently cleared, or security approved, for access to classified information and that the specific clearance or security approval and access levels of that individual has been officially recorded;

(3) That the scope of the request for information is clearly delineated;

(4) That the information requested is reasonably accessible and can be located and compiled with a reasonable effort;

(5) That a nondisclosure agreement with a prepublication review clause has been executed by the requester;

(6) That all notes and any resulting document will be appropriately safeguarded, that further access will be appropriately limited, and that no further dissemination of information such as that marked ORCON (Dissemination and Extraction of Information Controlled by Originator) or HUMINT (Human Intelligence) shall be made beyond the requesting agency unless CIA permission is obtained;

(7) That if the resulting document containing CIA information or equities is intended to be declassified, the document will be submitted to the Coordinator for declassification review;

(8) That the information and documents will remain classified until a final declassification review and release decision is made by CIA; and,

(9) That the request for access is an official agency request, made in the requester's official capacity on behalf of the requester's agency.

(d) Limitations. (1) With respect to requests for access to CIA information and equities residing outside of CIA, upon a favorable CIA determination in accordance with paragraph (c) of this section, the CIA will notify both the requester and the agency holding the records with CIA equities. The requester will need to follow the access requirements of the agency holding the records in addition to any access requirements mandated by CIA.

(2) If access to classified historical CIA records is granted, as a rule, such access shall be provided on CIA premises only. No copies of any classified historical CIA records shall be provided to the requester for reference and use on requester premises without the express approval of the Director, Information Management Services. In exceptional cases, if the provision of classified CIA historical records to the requester for reference and use on requester premises is permitted, the classified CIA historical records provided shall not be disclosed or disseminated beyond the requesting agency, and shall be returned to CIA or destroyed when use of the records has ended. Similarly, any notes taken that are derived from classified historical CIA records that have been accessed in accordance with this part shall not be disclosed or disseminated beyond the requesting agency.

Dated: June 10, 2016.

Joseph W. Lambert,

Director, Information Management Services.