1 February 1998 Source: http://www.access.gpo.gov/nara/cfr/index.html ------------------------------------------------------------ [Code of Federal Regulations] [Title 32, Volume 6, Parts 800 to end] [Revised as of July 1, 1997] From the U.S. Government Printing Office via GPO Access [CITE: 32CFR2101] [Page 490-496] TITLE 32-NATIONAL DEFENSE CHAPTER XXI--NATIONAL SECURITY COUNCIL PART 2101--FREEDOM OF INFORMATION ACT REQUESTS FOR CLASSIFIED DOCUMENTS--PROCESSING, FEES, REPORTS, APPLICABLE MATERIAL, DECLASSIFICATION CRITERIA, PARTIAL RELEASE Subpart A--Introduction Sec. 2101.1 The amended Freedom of Information Act. 2101.2 Purpose of amended Act. Subpart B--Processing Requests for Classified Material 2101.11 Receipt of requests. 2101.12 Initial processing. 2101.13 Requests for time extensions. 2101.14 Initial review period. 2101.15 Initial reply to request. 2101.16 Processing of appeals to ``Head of Agency.'' 2101.17 Appeals to Federal District Courts. Subpart C--Schedule of Fees and Method of Payment for Services Rendered 2101.21 Fees schedule. 2101.22 Fee payments. Subpart D--Reports 2101.31 Quarterly Index of Publications. 2101.32 Annual Report to Congress. Subpart E--Applicable Material 2101.41 Primary review by NSC staff. 2101.42 Recommendations to other agencies. Subpart F--Declassification Criteria 2101.51 Criteria for denying a request for release of classified material. 2101.52 Procedural criteria under E.O. 11652. 2101.53 Substantive criteria under E.O. 11652 for material under ten years old. 2101.54 Substantive criteria under E.O. 11652 for material over ten years old. Subpart G--Partial Release 2101.61 Release of ``reasonably segregable portion'' of requested classified material. 2101.62 Downgrading of classified material reviewed under the FOI Act. Authority: E.O. 11652, as amended by Pub. L. 93-502. Source: 40 FR 7316, Feb. 19, 1975, unless otherwise noted. Subpart A--Introduction Sec. 2101.1 The amended Freedom of Information Act. The amended Freedom of Information Act, Pub. L. 93-502 (5 U.S.C. 552), provided, and to the extent, it is applicable to the National Security Council Staff, provides expanded opportunities for the public to secure the release of classified material under the control of, or of primary interest to, the NSC Staff. The amended Act sets more restrictive time periods within which requests must be processed, modifies the criteria upon which denials of such requests can be based, and permits appeals to district courts of denials of requests. As a result of these changes, modified procedures are required from those followed in the case of requests for the release of classified material over ten years old made under Executive Order 11652. These regulations are intended to guide the NSC Staff response to requests for classified material under the amended Freedom of Information Act, insofar as it is applicable. Sec. 2101.2 Purpose of amended Act. The underlying purpose of the amended Freedom of Information Act is to insure that the public is informed to the fullest extent possible about governmental policies and actions, consistent with the requirement to protect certain categories of sensitive information. In the case of classified material, the Act is intended to protect the public against the improper classification of information, particularly to conceal inefficiency or administrative error or to prevent embarrassment to a person or department. These goals are fully consistent with the provisions of Executive Order 11652 and the implementing NSC Directive of May 17, 1972, which regulate and control the protection and management of national security information. The provisions of these documents relating to the criteria, authority and procedures for classifying and safeguarding national security material remain unaffected by the amended Act. [[Page 491]] Subpart B--Processing Requests for Classified Material Sec. 2101.11 Receipt of requests. (a) Request for classified documents under the FOI Act should be addressed to: National Security Council ATTN: Staff Secretary Old Executive Office Building Washington, DC 20506 Oral requests received by the Staff Secretary or other members of the NSC Staff will be rejected and the requester informed that his request should be made in writing and directed to the Staff Secretary. (b) All time limits are based on the date of receipt by the NSC Staff of a request. Consequently, this ``key date'' must in all cases be accurately recorded. (c) If a request is misdirected to the NSC Staff, the requestor will be promptly notified in writing. (d) Requests for declassification of material forwarded by the National Archives and Records Service (or other Agencies) should be submitted with three copies of the requested material attached. Sec. 2101.12 Initial processing. (a) Requested material will be rapidly gathered (when not received with the request) screened, and disseminated to appropriate reviewing officers. (1) Initial dissemination of material to reviewing officers will be made by the Secretariat, with review by the Staff Secretary. (2) Material to be reviewed will be disseminated utilizing ``highly visible'' and clearly distinguishable orange folders. (3) Deadline for submitting recommendations will be indicated in all cases and must be adhered to. (b) Dissemination of material to other Agencies for comment will be made by the Staff Secretary to responsible officials of these Agencies. (c) Strict accounting of status and location of all material disseminated will be maintained by the Secretariat. Sec. 2101.13 Requests for time extensions. (a) Requestors will be promptly notified by the Staff Secretary of a time extension (indicating the new date by which a determination will be dispatched) due to the following three ``unusual circumstances'': (1) Need to search for or collect records from field facilities or other establishments separate from the office of request; (2) Need to search for, collect and examine voluminous amounts of records; (3) Need to consult with other agencies because of their having substantial subject-matter interests. (b) Time extensions will not exceed ten working days in the aggregate, either solely in the initial or the review stage, or divided between them. (c) The Staff Secretary will authorize all time extensions. (d) Prior to requesting a court authorized time extension, requestors will be contacted by the Staff Secretary in an attempt to arrange informal agreement on a time extension (any verbal agreement will be quickly formalized in writing). (e) The Staff Secretary will authorize all requests to courts for time extensions based on ``exceptional circumstances'' and ``due diligence''. Formal approaches to courts for time extensions will be conducted by the Department of Justice. Sec. 2101.14 Initial review period. (a) A total of ten working days is available for submitting an initial response to requests. (1) Time period allowed reviewing officers will be the maximum period consistent with time required for administrative processing and final review of recommendations and preparation of reply by Staff Secretary. (2) Reviewing officers will be periodically reminded of approaching due dates in order to insure recommendations are received in a timely manner. (b) Primary reviewing officers will delegate reviewing authority in the event they are unavailable to conduct reviews. [[Page 492]] Sec. 2101.15 Initial reply to request. (a) The Staff Secretary will review the recommendations of primary reviewing officers and approve initial replies. (b) An initial response will always be made even if processing has not been completed. (c) If processing has not been completed but an interim negative reply has been dispatched, processing will continue. (d) Accurate record of replies will be maintained by Secretariat. (e) If a negative or partial denial response is dispatched, requester will be notified of his right to appeal. (f) If some or all material is approved for release, the Staff Secretary will insure it is expeditiously dispatched to the requestor or grant authority to NARS or other Agency to release the material. Sec. 2101.16 Processing of appeals to ``Head of Agency''. (a) Replies to appeals will be approved by the Assistant to the President for National Security Affairs, or the Deputy Assistant acting in the name of the Assistant to the President. (b) The Staff Secretary will be responsible for preparing material required by the above appeal review officer in making a final determination. (1) Views of primary reviewing officers will again be solicited. (2) Opinion of Office of the White House Counsel and/or Department of Justice on legal ramifications will be solicited. (c) Staff Secretary will insure replies to appeals are dispatched within 20 working days of receipt or before exhaustion of time of an authorized time extension. Sec. 2101.17 Appeals to Federal District Courts. (a) Staff Secretary will coordinate the NSC Staff's support (to include background data, affidavits, etc.) to USG lawyers defending against court appeals for denied NSC classified documents. (b) If court judgment is against USG, Staff Secretary will arrange release of documents to litigant. Subpart C--Schedule of Fees and Method of Payment for Services Rendered Sec. 2101.21 Fees schedule. (a) Fees schedule for the search and reproduction of information available under the Freedom of Information Act (5 U.S.C. 552), as amended: (1) Search for records. $5.00 per hour when the search is conducted by a clerical employee. $8.00 per hour when the search is conducted by a professional employee. No charge for searches of less than 1 hour. (2) Duplication of records. Records will be duplicated at a rate of $.25 per page for all copying of 4 pages or more. There is no charge for duplicating documents of 3 or less pages or the first three pages of documents of greater length. (3) Other. When no specific fee has been established for a service, or the request for a service does not fall under one of the above categories due to the amount or type thereof, the Staff Secretary is authorized to establish an appropriate fee based on ``direct costs'' as provided in the Freedom of Information Act. Examples of services covered by this provision include searches involving computer time or special travel, transportation, or communications costs. (b) If records requested under the Act are stored elsewhere than the headquarters of the National Security Council Staff at Washington, DC, the special costs of returning such records to the headquarters for review will be added to the search costs. Search costs are due and payable even if the record which was requested cannot be located after all reasonable efforts have been made, or if the NSC Staff determines that a record which has been requested, but which is exempt from disclosure under the Act, is to be withheld. Processing of a request for records will not be undertaken until a requestor has paid in full for search and duplication charges for any previous document request under the Act. (c) Where it is anticipated that the fees chargeable under this section will amount to more than $25, and the requestor has not indicated in advance his willingness to pay fees as high as [[Page 493]] are anticipated, the requestor shall be promptly notified of the amount of the anticipated fee or such portion thereof as can readily be estimated. In instances where the estimated fees will greatly exceed $25, an advance deposit may be required. The notice or request for an advance deposit shall extend an offer to the requestor to consult with knowledgeable NSC Staff personnel--designated by the Staff Secretary--in an attempt to reformulate the request in a manner which will reduce the fees and meet the needs of the requestor. Dispatch of such a notice or request shall suspend the running of the period for response by the NSC Staff until a reply is received from the requestor. (d) Fees must be paid in full prior to issuance of requested copies. Sec. 2101.22 Fee payments. (a) Remittances shall be in the form either of a personal check or bank draft drawn on a bank in the United States, or a postal money order. Remittances shall be made payable to the Treasury of the United States and mailed to the Staff Secretary, National Security Council, Washington, DC 20506. (b) A receipt for fees paid will be given only upon request. Refund of fees paid for services actually rendered will not be made. (c) The Staff Secretary, National Security Council, may in accordance with the Freedom of Information Act, as amended, waive all or part of any fee provided for in this section when it is deemed to be in either the interest of the NSC Staff or of the general public. Subpart D--Reports Sec. 2101.31 Quarterly Index of Publications. (a) The NSC Staff is required to publish and distribute to the public on a quarterly basis an index of the following material promulgated after July 4, 1967: (1) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (2) Those statements of policy and interpretations which have been adopted and are not published in the Federal Register; and (3) Administrative staff manuals and instructions to staff that affect a member of the public. (b) A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent against a party other than an agency only if: (1) It has been indexed and either made available or published as provided by the Act; or (2) The party has actual and timely notice of the terms thereof. (c) The legislative history of this requirement indicated that only material having ``precedential significance'' are to be included in the Index. (d) Matters specifically excluded from release under the Freedom of Information Act are not required to be included in the Index. In the case of the NSC Staff, this particularly includes matters that are: (1) Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive Order (see paragraph (d)(5) of this section); (2) Related solely to the internal personnel rules and practices of an agency; (3) Specifically exempted from disclosure by statute (see part VII); (4) Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (5) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. (e) Because of the considerations outlined under paragraphs (c) and (d) of this section, it is anticipated that the NSC Staff will normally have little or nothing to report in its quarterly index. Sec. 2101.32 Annual Report to Congress. (a) On or before March 1st of each calendar year, a report of the NSC Staff's activities over the preceding calendar year relating to the Freedom [[Page 494]] of Information Act will be submitted to the Speaker of the House of Representatives and the President of the Senate. (b) The above report will include: (1) The number of determinations made by the NSC Staff not to comply with requests for records made to it under the Act and the reasons for each such determination; (2) The number of appeals made by persons under the Act, the results of such appeals, and the reason for the action by the NSC Staff upon each appeal that results in a denial of information; (3) The names and titles or positions of each person responsible for the denial of records requested under the Act, and the number of instances of participation for each; (4) The results of each (Civil Service Commission) proceeding conducted pursuant to the Act, including a report of the disciplinary action taken against the officer or employee who was primarily responsible for improperly withholding records or an explanation of why disciplinary action was not taken; (5) A copy of every rule made by the NSC Staff regarding the Act; (6) A copy of the fee schedule and the total amount of fees collected by the NSC Staff for making records available under the Act; and (7) Such other information as indicates efforts by the NSC Staff to administer fully the Act. (This should include, to the extent possible, data on the costs to the NSC Staff of administering the Act.) (c) The NSC Staff, based in part on the information compiled for its annual report to Congress will provide--upon request--assistance to the Department of Justice in the preparation of its annual report (also due each March 1st) to Congress concerning judicial cases arising under the provisions of the Act. Subpart E--Applicable Material Sec. 2101.41 Primary review by NSC staff. (a) The NSC Staff will have primary and authoritative review responsibility for Freedom of Information Act requests for the following types of classified material. (1) Material originally classified by a properly authorized member of the NSC Staff and maintained under its control; (2) Material produced for and processed by the NSC Staff even if not originally classified by an authorized member of the Staff; (3) Material classified by a President, his White House Staff, the NSC Staff on his behalf, or special committee or commission appointed by him and which the Archivist of the United States has in his custody at any archival depository, including a Presidential Library, and which is concerned with ``national defense or foreign policy'' matters of ``primary subject-matter interest'' to the NSC Staff; (4) Verbatim or extensively paraphrased NSC material appearing in documents originally classified by another agency. (b) Requests received by other agencies for the material described above should be forwarded to the NSC Staff for action. Sec. 2101.42 Recommendations to other agencies. The NSC Staff will, at the request of another agency, make recommendations on the release of material concerning ``national defense or foreign policy'' originally classified by another agency but which is of significant subject-matter interest of the NSC Staff. Subpart F--Declassification Criteria Sec. 2101.51 Criteria for denying a request for release of classified material. (a) The amended Freedom of Information Act does not apply to matters that are: (1) Specifically authorized under criteria established by an Executive Order (E.O. 11652) to be kept secret in the interest of national defense or foreign policy; (2) Are in fact properly classified pursuant to (both procedural and substantive criteria contained in) such Executive Order; (3) Or, are specifically exempted from disclosure by statute. [[Page 495]] Sec. 2101.52 Procedural criteria under E.O. 11652. (a) The material must have been classified by a properly authorized individual; (b) The material must have been properly marked. For documents prepared after the effective date of Executive Order 11652 (June 1, 1972), this must especially include its classification, whether it is subject to or exempt from the General Declassification Schedule, and the highest level individual that authorized classification in each case. Documents prepared prior to June 1, 1972, must have been properly marked pursuant to the rules of the appropriate Executive Order then applicable. Sec. 2101.53 Substantive criteria under E.O. 11652 for material under ten years old. (a) Material must be classified ``solely on the basis of national security considerations. In no case (may material be classified) in order to conceal inefficiency or administrative error, to prevent embarrassment to a person or Department, to restrain competition or independent initiative, or to prevent for any other reason the release of information which does not require protection in the interest of national security.'' (b) To be classified ``Top Secret,'' it must reasonably be expected that unauthorized disclosure of the material would ``cause exceptionally grave damage to the national security.'' Examples are: (1) Armed hostilities against the United States or its allies; (2) Disruption of foreign relations vitally affecting the national security; (3) The compromise of vital national defense plans or complex cryptologic and communications intelligence systems; (4) The revelation of sensitive intelligence operations; and (5) The disclosure of scientific or technological developments vital to the national security. (c) To be classified ``Secret,'' it must reasonably be expected that unauthorized disclosure of the material would ``cause serious damage to the national security.'' Examples are: (1) Disruption of foreign relations significantly affecting the national security; (2) Significant impairment of a program or policy directly related to the national security; (3) Revelation of significant military plans or intelligence operations; and (4) Compromise of significant scientific or technological developments relating to national security. (d) To be classified ``Confidential,'' it must be reasonably expected that unauthorized disclosure of the material would ``cause damage to the national security.'' (e) Examples of material exempt from release because it is classified pursuant to a statute are: (1) Restricted Data (42 U.S.C. 2162); (2) Communication information (18 U.S.C. 798); (3) Material relating to intelligence sources and methods (50 U.S.C. 403(d) (3) and (9)). Sec. 2101.54 Substantive criteria under E.O. 11652 for material over ten years old. (a) Classified information or material furnished by foreign governments or international organizations and held by the United States on the understanding that it be kept in confidence; (b) Classified information or material specifically covered by statute, or pertaining to cryptography, or disclosing intelligence sources or methods; (c) Classified information or material disclosing a system, plan, installation, project or specific foreign relations matter the continuing protection of which is essential to the national security; (d) Classified information or material the disclosure of which would place a person in immediate jeopardy. Subpart G--Partial Release Sec. 2101.61 Release of ``reasonably segregable portion'' of requested classified material. (a) The amended Freedom of Information Act requires that ``any reasonably segregable portion of a record shall be provided * * * after deletion of the portions which are exempt.'' [[Page 496]] (b) Determination of which portion(s) of classified material are to be released, and what portion(s) are to remain classified, will be made on the basis of the criteria outlined in subpart F of this part. Sec. 2101.62 Downgrading of classified material reviewed under the FOI Act. (a) Classified material reviewed for release under the Freedom of Information Act which no longer meets the criteria established for its original classification should be recommended for downgrading to a lower classification if appropriate. (b) Downgraded material which retains a classification will be exempted from release.