27 January 1999 Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html ----------------------------------------------------------------------- [DOCID: f:s22is.txt] 106th CONGRESS 1st Session S. 22 To provide for a system to classify information in the interests of national security and a system to declassify information, and for other purposes. _______________________________________________________________________ IN THE SENATE OF THE UNITED STATES January 19, 1999 Mr. Moynihan (for himself, Mr. Helms, Mr. Lott, Mr. Daschle, Mr. Thompson, Ms. Collins, and Mr. Schumer) introduced the following bill; which was read twice and referred to the Committee on Governmental Affairs _______________________________________________________________________ A BILL To provide for a system to classify information in the interests of national security and a system to declassify information, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Government Secrecy Reform Act of 1999''. SEC. 2. CLASSIFICATION AND DECLASSIFICATION OF INFORMATION. (a) In General.--The President may, in accordance with the provisions of this Act, protect from unauthorized disclosure any information owned by, produced by or for, or under the control of the executive branch when there is a demonstrable need to do so in order to protect the national security of the United States. (b) Establishment of Standards and Procedures for Classification and Declassification.-- (1) Governmentwide procedures.-- (A) Classification.--The President shall, to the extent necessary, establish categories of information that may be classified and procedures for classifying information under subsection (a). (B) Declassification.--At the same time the President establishes categories and procedures under subparagraph (A), the President shall establish procedures for declassifying information that was previously classified. (2) Notice and comment.-- (A) Notice.--The President shall publish in the Federal Register notice regarding the categories and procedures proposed to be established under paragraph (1). (B) Comment.--The President shall provide an opportunity for interested persons to submit comments on the categories and procedures covered by subparagraph (A). (C) Deadline.--The President shall complete the establishment of categories and procedures under paragraph (1) not later than 60 days after publishing notice in the Federal Register under subparagraph (A). Upon completion of the establishment of such categories and procedures, the President shall publish in the Federal Register notice regarding such categories and procedures. (3) Modification.--In the event the President determines to modify any categories or procedures established under paragraph (1), subparagraphs (A) and (B) of paragraph (2) shall apply to such modification. (4) Agency standards and procedures.-- (A) In general.--The head of each agency shall establish standards and procedures to permit such agency to classify and declassify information created by such agency in accordance with the categories and procedures established by the President under this section and otherwise to carry out the provisions of this Act. Such standards and procedures shall include mechanisms to minimize the risk of inadvertent or inappropriate declassification of previously classified information (including information classified by other agencies). (B) Guidance.-- (i) In general.--The President shall require the head of each agency with original classification authority to produce written guidance on the classification and declassification of information in order to improve the classification and declassification of information by such agency and the derivative classification of information and declassification of derivatively classified information by such agency and other agencies. Such guidance may be treated as classified information under this Act. (ii) Declassification period for certain information.-- (I) In general.--In producing written guidance under clause (i), the head of an agency may specify types and categories of information that may remain classified for up to 25 years after the date of original classification. (II) Approval required.--The specification of a type or category of information under subclause (I) shall be effective only with the approval of the Director of the Office of National Classification and Declassification Oversight. (C) Deadline.--Each agency head shall establish standards and procedures under subparagraph (A) and produce written guidance under subparagraph (B) not later than 60 days after the date on which the President publishes notice under paragraph (2)(C) of the categories and standards established by the President under paragraph (1). (D) Publication.--Each agency head shall publish in the Federal Register the standards and procedures established by such agency head under subparagraph (A). (c) Standard for Classification and Declassification Decisions.-- (1) In general.--Subject to paragraph (2), information may be classified under this Act, and classified information under review for declassification under this Act may remain classified, only if the harm to national security that might reasonably be expected from disclosure of such information outweighs the public interest in disclosure of such information. (2) Default rule.--In the event of significant doubt whether the harm to national security that might reasonably be expected from the disclosure of information would outweigh the public interest in the disclosure of such information, such information shall not be classified or, in the case of classified information under review for declassification, declassified. (3) Factors in decisions.-- (A) In general.--The President shall prescribe the factors to be utilized in deciding for purposes of paragraph (1) whether the disclosure of information might reasonably be expected to harm national security or might serve the public interest. (B) Guidance.--In prescribing factors under subparagraph (A), the President shall also prescribe guidance to be utilized in applying such factors. The guidance shall specify with reasonable detail the weight to be assigned each factor and the manner of balancing among opposing factors of similar or different weight. (C) Process.--The President shall prescribe factors and guidance under this paragraph at the same time the President establishes categories and procedures under subsection (b)(1) and subject to the notice and comment procedures set forth under subsection (b)(2). (d) Written Justification for Classification.-- (1) Original classification.--Each agency official who makes a decision to classify information not previously classified shall, at the time of such decision-- (A) identify himself or herself; (B) provide in writing a detailed justification of that decision; and (C) indicate the basis for the classification of the information with reference to the written guidance produced under subsection (b)(4)(B). (2) Derivative classification.--In any case in which an agency official or contractor employee classifies a document on the basis of information previously classified that is included or referenced in the document, the official or employee, as the case may be, shall-- (A) identify himself or herself in that document; and (B) provide a concise explanation of that decision. (e) Declassification of Information Classified Under Act.-- (1) In general.--Except as provided in paragraphs (2), (3), and (4), information classified under this Act may not remain classified under this Act after the date that is 10 years after the date of the original classification of the information. (2) Earlier declassification.--When classifying information under this Act, an agency official may provide for the declassification of the information as of a date or event that is earlier than the date otherwise provided for under paragraph (1). (3) Later declassification.-- (A) In general.--When classifying information under this Act, an agency official with original classification authority over the information may provide for the declassification of the information on a date that is up to 25 years after the date of original classification in accordance with the guidance approved under subsection (b)(4)(B)(ii). (B) Postponement.--The actual date of the declassification of information referred to in subparagraph (A) may be postponed under paragraph (4)(D). (4) Postponement of declassification.-- (A) In general.--The declassification of any information or category of information that would otherwise be declassified under paragraph (1) or (2) may be postponed if an official of the agency with original classification authority over the information or category of information, as the case may be, determines, before the time of declassification for such information otherwise provided for under paragraph (1) or (2), as the case may be, that the information or category of information, as the case may be, should remain classified. (B) Procedure.--An official may not implement a determination under subparagraph (A) until the official obtains the concurrence of the Director of the Office of National Classification and Declassification Oversight in the determination. (C) General duration of postponement.--Except as provided in subparagraph (D), information the declassification of which is postponed under this paragraph may remain classified not longer than 15 years after the date of the postponement. (D) Extended duration of postponement.-- (i) In general.--Subject to clauses (ii) and (iii), the declassification of any information that would otherwise be declassified under subparagraph (C) or paragraph (3) may be postponed if an official of the agency with original classification authority over the information determines that extraordinary circumstances require that the information remain classified. (ii) Procedures.--An official may not implement a determination under clause (i) until the official-- (I) obtains the concurrence of the Director of the Office of National Classification and Declassification Oversight in the determination; and (II) submits to the President a certification of the determination. (iii) Review.--The President shall establish a schedule for the review of the need for continued classification of any information the declassification of which is postponed under this subparagraph. Such information shall be declassified at the earliest possible time after the termination of the circumstances with respect to such information referred to in clause (i). (E) Concurrences.--A concurrence at the direction of the Classification and Declassification Review Board on appeal under section 4(c)(2) and a concurrence at the direction of the President on appeal under section 5(a) shall be treated as a concurrence of the Director of the Office of National Classification and Declassification Oversight for purposes of subparagraphs (B) and (D)(ii)(I). (5) Approval required for declassification of information.--Except as provided in this Act, no information classified under this Act may be declassified or released without the approval of the agency that originally classified the information. (6) Specification of declassification date or event.--Each agency official making a decision to classify information under this subsection shall specify upon such information the date or event of its declassification. (f) Declassification of Current Classified Information.-- (1) Procedures.--The President shall establish procedures for declassifying information that was classified before the effective date of this Act. Such procedures shall, to the maximum extent practicable, be consistent with the provisions of this section. (2) Automatic Declassification.--The procedures established under paragraph (1) shall include procedures for the automatic declassification of information referred to in that paragraph that has remained classified for more than 25 years as of the effective date referred to in that paragraph. (3) Notice and comment.-- (A) Notice.--The President shall publish notice in the Federal Register of the procedures proposed to be established under this subsection. (B) Comment.--The President shall provide an opportunity for interested persons to submit comments on the procedures covered by subparagraph (A). (C) Deadline.--The President shall complete the establishment of procedures under this subsection not later than 60 days after publishing notice in the Federal Register under subparagraph (A). Upon completion of the establishment of such procedures, the President shall publish in the Federal Register notice regarding such procedures. (g) Conforming Amendment to FOIA.--Section 552(b)(1) of title 5, United States Code, is amended to read as follows: ``(1)(A) specifically authorized to be classified under the Government Secrecy Reform Act of 1999 or specifically authorized under criteria established by an Executive order to be kept secret in the interest of national security and (B) are in fact properly classified pursuant to that Act or Executive order;''. SEC. 3. OFFICE OF NATIONAL CLASSIFICATION AND DECLASSIFICATION OVERSIGHT. (a) Establishment.-- (1) In general.--There is established within the National Archives and Records Administration an office to be known as the Office of National Classification and Declassification Oversight (in this section referred to as the ``Oversight Office''). (2) Purpose.--The purpose of the Oversight Office is to standardize the policies and procedures used by agencies to assess information for initial classification and to review information for declassification. (3) Policy guidance.--On behalf of the President, the Assistant to the President for National Security Affairs shall provide policy guidance to the Oversight Office. (4) Budget.-- (A) Consultation in preparation.--The Archivist of the United States shall consult with the Assistant to the President for National Security Affairs and the Director of the Office of Management and Budget in preparing the annual budget request for the Oversight Office. (B) Presentation.--The annual budget request for the Oversight Office shall appear as a distinct item in the annual budget request of the National Archives and Records Administration. (b) Director.-- (1) In general.--There shall be a Director of the Office of National Classification and Declassification Oversight who shall be appointed by the President, by and with the advice and consent of the Senate. The Director shall be the head of the Oversight Office. (2) Qualifications.--To the maximum extent practicable, the President shall nominate for appointment as Director individuals who have experience in policy relating to classification and declassification of information, records management, and information technology. (3) Supervision.--The Director shall report directly to the Archivist of the United States. (4) Executive schedule.--Section 5315 of title 5, United States Code, is amended by adding at the end the following: ``Director, Office of National Classification and Declassification Oversight.''. (c) Personnel and Resources.-- (1) Transfer.--All personnel, funds, and other resources of the Information Security Oversight Office are hereby transferred to the Oversight Office and shall constitute the personnel, funds, and other resources of the Oversight Office. (2) Interim director.--The Director of the Information Security Oversight Office shall serve as acting Director of the Oversight Office until a Director of the Oversight Office is appointed under subsection (b)(1). (d) Duties.--The Oversight Office shall-- (1) coordinate and oversee the classification and declassification policies and practices of agencies in order to ensure the compliance of such policies and procedures with the provisions of this Act; (2) develop and issue directives, instructions, and educational aids and forms to assist in the implementation of the provisions of this Act; (3) develop a program of research and development of technologies to improve the efficiency of classification and declassification processes under this Act; (4) determine whether or not information is classified in violation of this Act and order that information determined to be classified in violation of this Act be declassified by the agency that originated the classification; (5) determine whether an agency determination to postpone the declassification of information under section 2(e)(4) is consistent with the provisions of this Act; (6) review the proposed budgets of agencies for classification and declassification programs and make recommendations to the Office of Management and Budget as to means of ensuring that such budgets provide sufficient funds to permit agencies to comply with the requirements of this Act; (7) oversee special access programs consistent with its other duties under this section; (8) conduct audits and on-site reviews of agency classification and declassification programs; and (9) establish and maintain a Government-wide database on the declassification activities of the Government, including an unclassified version of the database available to the public. (e) Agency Cooperation.-- (1) In general.--Subject to the control and supervision of the President, each agency shall provide the Oversight Office such information and other cooperation as the Director of the Oversight Office considers appropriate to permit the Oversight Office to carry out its duties. (2) Special access programs.--The head of an agency with jurisdiction over special access programs may-- (A) limit access to such programs to not more than the Director and one other employee of the Oversight Office; and (B) upon the concurrence of the President, deny access by the Oversight Office to any such program if the head of such agency determines that such access would pose an exceptional risk to national security. (f) Appeals from Certain Decisions.-- (1) In general.--An agency may appeal to the Classification and Declassification Review Board any declassification order or determination under paragraph (4) or (5) of subsection (d). (2) Deadline.--An agency may appeal an order or determination under paragraph (1) only if the agency submits the appeal to the Board not later than 60 days after the date of the order or determination, as the case may be. (g) Protection of Information.--The Director of the Oversight Office shall take appropriate actions to prevent disclosure to the public of classified information that is provided to the Oversight Office. Such actions shall include a requirement that the staff of the Oversight Office possess security clearances appropriate for the information considered and reviewed by the Oversight Office. (h) Annual Report.-- (1) Requirement.--Not later than March 31 each year, the Director of the Oversight Office shall submit to Congress and to the President a report on the compliance of agencies with the requirements of this Act. (2) Elements.--Each report under paragraph (1) shall-- (A) include a summary of the extent of the compliance of agencies Government-wide with the requirements of this Act as of the date of such report; and (B) set forth an assessment of the compliance of each agency with such requirements as of that date. (3) Form.--Each report under paragraph (1) shall be submitted in unclassified form, but may include a classified annex. (4) Availability.--The Oversight Office shall make available to the public the unclassified form of each report under paragraph (1) on an Internet Web site maintained by the Oversight Office. SEC. 4. CLASSIFICATION AND DECLASSIFICATION REVIEW BOARD. (a) Establishment.--There is established within the Executive Office of the President a board to be known as the Classification and Declassification Review Board (in this section referred to as the ``Board''). (b) Membership and Procedural Matters.-- (1) In general.--The Board shall consist of five members appointed by the President, by and with the advice and consent of the Senate, of whom-- (A) four shall be private citizens; (B) two shall be officers or employees of the Federal Government; and (2) Qualifications.-- (A) Private citizens.--The members of the Board who are private citizens shall be appointed from among individuals who are distinguished historians, political scientists, archivists, and other social scientists or who otherwise have demonstrated expertise in matters relating to the national security of the United States, records management, or government information policy. (B) Government employees.--The members of the Board who are officers or employees of the Federal Government shall be appointed from among such officers and employees who have demonstrated expertise in matters referred to in subparagraph (A). (C) Change in employment.--Notwithstanding any provision of paragraph (1), the commencement or termination of service as an officer or employee of the Federal Government of an individual appointed as a member of the Board under that paragraph before such commencement or termination shall not affect the continuation of such individual as a member of the Board. (3) Nominations.-- (A) Consultation.--In nominating individuals for appointment to the Board, the President shall consult with the Secretary of Defense, Secretary of State, Attorney General, Assistant to the President for National Security Affairs, Director of Central Intelligence, Archivist of the United States, and Director of the Office of Management and Budget. (B) Limitation.--The President may not nominate for appointment to the Board any individual who has previously served as a member of the Board. (C) Initial nominations.--The President shall make the first nominations of individuals for appointment to the Board not later than 120 days after the effective date of this Act. (D) Bipartisan representation.--Of the members of the Board appointed under paragraph (1)(A), not more than two shall be of the same political party. (4) Presiding officer.--The President shall designate a member of the Board appointed under paragraph (1)(A) to serve as the Presiding Officer of the Board. (5) Term.--Members of the Board shall be appointed for a term of 4 years, except that of the members first nominated for appointment to the Board under paragraph (3)(C)-- (A) two shall be nominated for a 4-year term (including the member who shall be the Presiding Officer of the Board); (B) two shall be nominated for a 3-year term; and (C) two shall be nominated for a 2-year term. (6) Vacancies.--An individual appointed to fill a vacancy shall be appointed for the unexpired term of the member replaced. (7) Procedural matters.-- (A) Quorum.--A majority of the members of the Board shall constitute a quorum, but a lesser number of members may hold hearings. (B) Rules and procedures.-- (i) Requirement.--The Board shall establish, and may from time to time modify, such rules and procedures as the Board considers appropriate to carry out its duties. Such rules and procedures shall provide that a decision of the Board requires a vote of a majority of the members of the Board. (ii) Publication.--The Board shall publish its rules and procedures in the Federal Register. (iii) Initial rules and procedures.--The Board shall establish its initial rules and procedures not later than 90 days after the date of initial meeting of the Board. (c) Powers and Duties.--The Board shall-- (1) decide on appeals by agencies which challenge a declassification order of the Office of National Classification and Declassification Oversight under section 3(d)(4); (2) decide on appeals by agencies which challenge a determination of that Office not to concur in the postponement of the declassification of information under section 3(d)(5); and (3) decide on appeals by persons or entities who have filed requests for mandatory declassification review. (d) Protection of Information.--The Board shall take appropriate actions to prevent the disclosure to the public of classified information that is provided to the Board. Such actions shall include a requirement that the members and staff of the Board possess security clearances appropriate for the information considered and reviewed by the Board. (e) Personnel Matters.-- (1) Compensation.-- (A) Compensation.--Each member of the Board who is a private citizen shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay prescribed for level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day (including travel time) during which such member is engaged in the performance of the duties of the Board. (B) Travel expenses.--The members of the Board shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of services for the Board. (2) Staff.--The Presiding Officer of the Board may, with the concurrence of the Board, appoint such staff, including an executive secretary, as the Board requires to carry out its duties. (3) Detail of government employees.--Any Federal Government employee may be detailed to the Board without reimbursement, and such detail shall be without interruption or loss of civil service status or privilege. SEC. 5. APPEAL OF DETERMINATIONS OF CLASSIFICATION AND DECLASSIFICATION REVIEW BOARD. (a) Appeal.--Subject to subsection (c), any agency may appeal to the President a decision or other action of the Classification and Declassification Review Board under section 4(c). (b) Deadline.--An agency may appeal a decision or other action under subsection (a) only if the agency submits the appeal to the President not later than 60 days after the date of the decision or other action concerned. (c) Finality.--A decision of the President on an appeal under subsection (a) shall be final. SEC. 6. PROHIBITIONS. (a) Withholding Information from Congress.--Nothing in this Act shall be construed to authorize the withholding of information from Congress. (b) Judicial Review.--Except in the case of the amendment to section 552 of title 5, United States Code, made by section 2(g), no person may seek or obtain judicial review of any provision of this Act or any action taken under a provision of this Act. SEC. 7. DEFINITIONS. In this Act: (1) The term ``agency'' means any executive agency as defined in section 105 of title 5, United States Code, any military department as defined in section 102 of such title, and any other entity in the Executive Branch of the Government that comes into the possession of classified information. (2) The terms ``classify'', ``classified'', and ``classification'' refer to the process by which information is determined to require protection from unauthorized disclosure pursuant to this Act in order to protect the national security of the United States. (3) The terms ``declassify'', ``declassified'', and ``declassification'' refer to the process by which information that has been classified is determined to no longer require protection from unauthorized disclosure pursuant to this Act. SEC. 8. EFFECTIVE DATE. This Act and the amendment made by section 2(g) shall take effect 180 days after the date of the enactment of this Act.