20 May 2006
Source: http://www.gpoaccess.gov/cfr/index.html
-----------------------------------------------------------------------
[Code of Federal Regulations]
[Title 28, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR17]
[Page 382-398]
TITLE 28--JUDICIAL ADMINISTRATION
CHAPTER I--DEPARTMENT OF JUSTICE
PART 17--CLASSIFIED NATIONAL SECURITY INFORMATION AND ACCESS TO CLASSIFIED INFORMATION
Sec.
17.1 Purpose.
17.2 Scope.
17.3 Definitions.
Subpart A--Administration
17.11 Authority of the Assistant Attorney General for Administration.
17.12 Component head responsibilities.
17.13 Office of Intelligence Policy and Review responsibilities;
interpretation of Executive Orders.
17.14 Department Review Committee.
17.15 Access Review Committee.
17.16 Violations of classified information requirements.
17.17 Judicial proceedings.
17.18 Prepublication review.
[[Page 383]]
Subpart B--Classified Information
17.21 Classification and declassification authority.
17.22 Classification of information; limitations.
17.23 Emergency classification requests.
17.24 Duration of classification.
17.25 Identification and markings.
17.26 Derivative classification.
17.27 Delcassification and downgrading.
17.28 Automatic declassification.
17.29 Documents of permanent historical value.
17.30 Classification challenges.
17.31 Mandatory review for declassification requests.
17.32 Notification of classification changes.
Subpart C--Access to Classified Information
17.41 Access to classified information.
17.42 Positions requiring financial disclosure.
17.43 Reinvestigation requirements.
17.44 Access eligibility.
17.45 Need-to-know.
17.46 Access by persons outside the Executive Branch.
17.47 Denial or revocation of eligibility for access to classified
information.
Authority: 28 U.S.C. 501, 509, 510, 515-519; 5 U.S.C. 301; E.O.
12958, 60 FR 7977; 3 CFR, 1995 Comp., p. 333 19825; E.O. 12968, 60 FR
40245, 3 CFR, 1995 Comp., p. 391; 32 CFR part 2001.
Source: Order No. 2091-97, 62 FR 36984, July 10, 1997, unless
otherwise noted.
Sec. 17.1 Purpose.
The purpose of this part is to ensure that information within the
Department of Justice (the ``Department'') relating to the national
security is classified, protected, and declassified pursuant to the
provisions of Executive Orders 12958 (3 CFR, 1995 Comp., p. 333) and
12968 (3 CFR, 1995 Comp., p. 391) and implementing directives from the
Information Security Oversight Office of the National Archives and
Records Administration (``ISOO''). Executive Orders 12958 and 12968 made
numerous substantive changes in the system of classification,
declassification, and downgrading of classified National Security
Information and the criteria for access to this information.
Accordingly, this part is a revision of the Department's classified
information security rules.
(a) Subpart A of this part prescribes the implementation of
Executive Orders 12958 and 12968 within the Department through the
Assistant Attorney General for Administration, as the senior responsible
agency official. Subpart A of this part also provides for certain
relationships within the Department between the Assistant Attorney
General for Administration, other component heads, and the Office of
Intelligence Policy and Review.
(b) Subpart B of this part prescribes an orderly and progressive
system for ensuring that every necessary safeguard and procedure is in
place to assure that information is properly classified and that
classified information is protected from unauthorized disclosure.
Subpart B of this part requires original classification authorities to
make classification decisions based on specific criteria; provides that
most newly created classified information be considered for
declassification after 10 years; provides that historically valuable
information that is more than 25 years old (including information
classified under prior Executive Orders) be automatically declassified,
with appropriate exceptions; and establishes procedures for authorized
holders of classified information to challenge the classification of
information.
(c) Subpart C of this part establishes substantive standards and
procedures for granting, denying, and revoking, and for appealing
decisions to deny access to classified information with an emphasis on
ensuring the consistent, cost-effective, and efficient protection of
classified information. Subpart C of this part provides a process that
is fair and equitable to those with whom classified information is
entrusted and, at the same time, assures the security of the classified
information.
Sec. 17.2 Scope.
(a) All employees, contractors, grantees, and others granted access
to classified information by the Department are governed by this part,
and by the standards in Executive Order 12958, Executive Order 12968,
and directives promulgated under those Executive Orders. If any portion
of this part conflicts with any portion of Executive Order 12958,
Executive Order 12968, or
[[Page 384]]
any successor Executive Order, the Executive Order shall apply. This
part supersedes the former rule and any Department internal operating
policy or directive that conflicts with any portion of this part.
(b) This part applies to non-contractor personnel outside of the
Executive Branch and to contractor personnel or employees who are
entrusted with classified national security information originated
within or in the custody of the Department. This part does not affect
the operation of the Department's participation in the National
Industrial Security Program under Executive Order 12829 (3 CFR, 1993
Comp., p. 570).
(c) This part is independent of and does not affect any
classification procedures or requirements of the Atomic Energy Act of
1954, as amended (42 U.S.C. 2011 et seq).
(d) This part does not, and is not intended to, create any right to
judicial review, or any other right or benefit or trust responsibility,
substantive or procedural, enforceable by a party against the United
States, its agencies or instrumentalities, its officers or employees, or
any other person. This part creates limited rights to administrative
review of decisions pursuant to Secs. 17.30, 17.31, and 17.47. This part
does not, and is not intended to, create any right to judicial review of
administrative action under Secs. 17.14, 17.15, 17.18, 17.27, 17.30,
17.31 and 17.50.
Sec. 17.3 Definitions.
The terms defined or used in Executive Order 12958 and Executive
Order 12968, and the implementing directives in 32 CFR 2001, are
applicable to this part.
Subpart A--Administration
Sec. 17.11 Authority of the Assistant Attorney General for
Administration.
(a) The Assistant Attorney General for Administration is designated
as the senior agency official as required by Sec. 5.6(c) of Executive
Order 12958, and Sec. 6.1(a) of Executive Order 12968 and, except as
specifically provided elsewhere in this part, is authorized to
administer the Department's national security information program
pursuant to Executive Order 12958. The Assistant Attorney General for
Administration shall appoint a Department Security Officer and may
delegate to the Department Security Officer those functions under
Executive Orders 12958 and 12968 that may be delegated by the senior
agency official. The Department Security Officer may redelegate such
functions when necessary to effectively implement this part.
(b) The Assistant Attorney General for Administration shall, among
other actions:
(1) Oversee and administer the Department's program established
under Executive Order No. 12958;
(2) Establish and maintain Department-wide security education and
training programs;
(3) Establish and maintain an ongoing self-inspection program
including the periodic review and assessment of the Department's
classified product;
(4) Establish procedures to prevent unnecessary access to classified
information, including procedures that:
(i) Require that a need for access to classified information is
established before initiating administrative procedures to grant access;
and
(ii) Ensure that the number of persons granted access to classified
information is limited to the minimum necessary for operational and
security requirements and needs;
(5) Develop special contingency plans for the safeguarding of
classified information used in or near hostile or potentially hostile
areas;
(6) Assure that the performance contract or other system used to
rate personnel performance includes the management of classified
information as a critical element or item to be evaluated in the rating
of:
(i) Original classification authorities;
(ii) Security managers or security specialists; and
(iii) All other personnel whose duties significantly involve the
creation or handling of classified information;
(7) Account for the costs associated with implementing this part and
report the cost to the Director of the ISOO;
(8) Assign in a prompt manner personnel to respond to any request,
appeal, challenge, complaint, or suggestion concerning Executive Order
12958
[[Page 385]]
that pertains to classified information that originated in a component
of the Department that no longer exists and for which there is no clear
successor in function;
(9) Cooperate, under the guidance of the Security Policy Board, with
other agencies to achieve practical, consistent, and effective
adjudicative training and guidelines;
(10) Conduct periodic evaluations of the Department's implementation
and administration of Executive Orders 12958 and 12968;
(11) Establish a plan for compliance with the automatic
declassification provisions of Executive Order 12958 and oversee the
implementation of that plan; and
(12) Maintain a list of specific files series of records exempted
from automatic declassification by the Attorney General pursuant to
section 3.4(c) of Executive Order 12958.
(c) The Department Security Officer may grant, deny, suspend, or
revoke employee access to classified information pursuant to and in
accordance with Executive Order 12968. The Department Security Officer
may delegate the authority under this paragraph to qualified Security
Programs Managers when the operational need justifies the delegation and
when the Department Security Officer is assured that such officials will
apply all access criteria in a uniform and correct manner in accord with
the provisions of Executive Order 12968 and subpart C of this part. The
fact that a delegation has been made pursuant to this section does not
waive the Department Security Officer's authority to make any
determinations that have been delegated.
(d) The Department Security Officer shall maintain a current list of
all officials authorized pursuant to this part to originally classify or
declassify documents.
(e) The Department Security Officer shall promulgate criteria and
security requirements for the marking and safeguarding of information,
transportation and transfer of information, preparation of
classification guides, reporting of communications related to national
security by persons granted access to classified information, reporting
of information that raises doubts as to whether another employee's
continued eligibility for access to classified information is clearly
consistent with the national security, and other matters necessary to
the administration of the Executive Orders, the implementing regulations
of the ISOO, and this part.
Sec. 17.12 Component head responsibilities.
The head of each component shall appoint and oversee a Security
Programs Manager to implement this regulation. The Security Programs
Managers shall:
(a) Observe, enforce, and implement security regulations or
procedures pertaining to the classification, declassification,
safeguarding, handling, and storage of classified national security
information;
(b) Report violations of the provisions of this regulation to the
Department Security Officer;
(c) Ensure that all employees acquire adequate security education
and training as required by the provisions of the Department security
regulations and procedures for classified information;
(d) Continuously review the requirements for personnel access to
classified information as a part of the continuous need-to-know
evaluation, and initiate action to administratively withdraw or reduce
the level of access authorized, as appropriate; and
(e) Cooperate fully with any request from the Department Security
Officer for assistance in the implementation of this part.
Sec. 17.13 Office of Intelligence Policy and Review responsibilities;
interpretation of Executive Orders.
(a) The Counsel for Intelligence Policy shall represent the Attorney
General at interagency meetings on matters of general interest
concerning national security information.
(b) The Counsel for Intelligence Policy shall provide advice and
interpretation on any issues that arise under Executive Orders 12958 and
12968 and shall refer such questions to the Office of Legal Counsel, as
appropriate.
(c) Any request for interpretation of Executive Order 12958 or
Executive
[[Page 386]]
Order 12968, pursuant to section 6.1(b) of Executive Order 12958, and
section 7.2(b) of Executive Order 12968, shall be referred to the
Counsel for Intelligence Policy, who shall refer such questions to the
Office of Legal Counsel, as appropriate.
Sec. 17.14 Department Review Committee.
(a) The Department Review Committee (DRC) is established to:
(1) Resolve all issues, except those related to the compromise of
classified information, that concern the implementation and
administration of Executive Order 12958, implementing directives from
the ISOO, and subpart B of this part, including those issues concerning
over-classification, failure to declassify, classification challenges,
and delays in declassification not otherwise resolved;
(2) Review all appeals from denials of requests for records made
under section 3.6 of Executive Order 12958 and the Freedom of
Information Act (5 U.S.C. 552), when the proposed denial is based on
their continued classification under Executive Order 12958;
(3) Recommend to the Attorney General appropriate administrative
sanctions to correct the abuse or violation of any provision of
Executive Order 12958, the implementing directives or subpart B of this
part, except as it relates to the compromise of classified national
security information; and
(4) Review, on appeal, challenges to classification actions and
mandatory review requests.
(b)(1) The DRC shall consist of a senior representative designated
by the:
(i) Deputy Attorney General;
(ii) Assistant Attorney General, Office of Legal Counsel;
(iii) Assistant Attorney General, Criminal Division;
(iv) Assistant Attorney General, Civil Division;
(v) Assistant Attorney General for Administration;
(vi) Director, Federal Bureau of Investigation; and
(vii) Counsel for Intelligence Policy.
(2) Each such official shall also designate in writing an alternate
to serve in the absence of his or her representative. Four
representatives shall constitute a quorum of the DRC. The Attorney
General shall designate the Chairman of the DRC from among its members.
(c) The Office of Information and Privacy (OIP) shall provide the
necessary administrative staff support for the DRC.
Sec. 17.15 Access Review Committee.
(a) The Access Review Committee (ARC) is hereby established to
review all appeals from denials or revocations of eligibility for access
to classified information under Executive Order 12968. Unless the
Attorney General requests recommendations from the ARC and personally
exercises appeal authority, the ARC's decisions shall be final.
(b) The ARC shall consist of the Deputy Attorney General or a
designee, the Counsel for Intelligence Policy or a designee, and the
Assistant Attorney General for Administration or a designee.
Designations must be approved by the Attorney General.
(c) The Department Security Officer shall provide the necessary
administrative staff support for the ARC.
Sec. 17.16 Violations of classified information requirements.
(a) Any person who suspects or has knowledge of a violation of this
part, including the known or suspected loss or compromise of national
security information, shall promptly report and confirm in writing the
circumstances to the Department Security Officer. Any person who makes
such a report to the Department Security Officer shall promptly furnish
a copy of such report:
(1) If the suspected violation involves a Department attorney
(including an Assistant United States Attorney or Special Assistant
United States Attorney) while engaged in litigation, grand jury
proceedings, or giving legal advice, or a law enforcement officer
assisting an attorney engaged in such activity, to the Office of
Professional Responsibility;
(2) If the suspected violation involves an employee of the Federal
Bureau of Investigation (FBI) or the Drug Enforcement Administration,
other than a law enforcement officer in paragraph (a)(1) of this
section, to the Office of Professional Responsibility in that component;
or
[[Page 387]]
(3) In any other circumstance, to the Office of the Inspector
General.
(b) Department employees, contractors, grantees, or consultants may
be reprimanded, suspended without pay, terminated from classification
authority, suspended from or denied access to classified information, or
subject to other sanctions in accordance with applicable law and
Department regulation if they:
(1) Knowingly, willfully, or negligently disclose to unauthorized
persons information classified under Executive Order 12958 or
predecessor orders;
(2) Knowingly, willfully, or negligently classify or continue the
classification of information in violation of Executive Order 12958 or
its implementing directives; or
(3) Knowingly, willfully, or negligently violate any other provision
of Executive Order 12958, or knowingly and wilfully grant eligibility
for, or allow access to, classified information in violation of
Executive Order 12968, or its implementing directives, this part, or
security requirements promulgated by the Department Security Officer.
Sec. 17.17 Judicial proceedings.
(a)(1) Any Department official or organization receiving an order or
subpoena from a federal or state court to produce classified
information, required to submit classified information for official
Department litigative purposes, or receiving classified information from
another organization for production of such in litigation, shall
immediately determine from the agency originating the classified
information whether the information can be declassified. If
declassification is not possible, the Department official or
organization and the assigned Department attorney in the case shall take
all appropriate action to protect such information pursuant to the
provisions of this section.
(2) If a determination is made to produce classified information in
a judicial proceeding in any manner, the assigned Department attorney
shall take all steps necessary to ensure the cooperation of the court
and, where appropriate, opposing counsel in safeguarding and retrieving
the information pursuant to the provisions of this regulation.
(b) The Classified Information Procedures Act (CIPA), Pub. L. 96-
456, 94 Stat. 2025, 18 U.S.C. App., and the ``Security Procedures
Established Pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief
Justice of the United States for the Protection of Classified
Information'' may be used in Federal criminal cases involving classified
information. (Available from the Security and Emergency Planning Staff,
Justice Management Division, Department of Justice, Washington, DC
20530.)
(c) In judicial proceedings other than Federal criminal cases where
CIPA is used, the Department, through its attorneys, shall seek
appropriate security safeguards to protect classified information from
unauthorized disclosure, including, but not limited to, consideration of
the following:
(1) A determination by the court of the relevance and materiality of
the classified information in question;
(2) An order that classified information shall not be disclosed or
introduced into evidence at a proceeding without the prior approval of
either the originating agency, the Attorney General, or the President;
(3) A limitation on attendance at any proceeding where classified
information is to be disclosed to those persons with appropriate
authorization to access classified information whose duties require
knowledge or possession of the classified information to be disclosed;
(4) A court facility that provides appropriate safeguarding for the
classified information as determined by the Department Security Officer;
(5) Dissemination and accountability controls for all classified
information offered for identification or introduced into evidence at
such proceedings;
(6) Appropriate marking to indicate classified portions of any and
any the maintenance of any classified under seal;
(7) Handling and storage of all classified information including
classified portions of any transcript in a manner consistent with the
provisions of this regulation and Department implementing directives;
[[Page 388]]
(8) Return at the conclusion of the proceeding of all classified
information to the Department or the originating agency, or placing the
classified information under court seal;
(9) Retrieval by Department employees of appropriate notes, drafts,
or any other documents generated during the course of the proceedings
that contain classified information and immediate transfer to the
Department for safeguarding and destruction as appropriate; and
(10) Full and complete advice to all persons to whom classified
information is disclosed during such proceedings as to the
classification level of such information, all pertinent safeguarding and
storage requirements, and their liability in the event of unauthorized
disclosure.
(d) Access to classified information by individuals involved in
judicial proceedings other than employees of the Department is governed
by Sec. 17.46(c).
Sec. 17.18 Prepublication review.
(a) All individuals with authorized access to Sensitive
Compartmented Information shall be required to sign nondisclosure
agreements containing a provision for prepublication review to assure
deletion of Sensitive Compartmented Information and other classified
information. Sensitive Compartmented Information is information that not
only is classified for national security reasons as Top Secret, Secret,
or Confidential, but also is subject to special access and handling
requirements because it involves or derives from particularly sensitive
intelligence sources and methods. The prepublication review provision
will require Department of Justice employees and other individuals who
are authorized to have access to Sensitive Compartmented Information to
submit certain material, described further in the agreement, to the
Department prior to its publication to provide an opportunity for
determining whether an unauthorized disclosure of Sensitive
Compartmented Information or other classified information would occur as
a consequence of it publication.
(b) Persons subject to these requirements are invited to discuss
their plans for public disclosures of information that may be subject to
these obligations with authorized Department representatives at an early
stage, or as soon as circumstances indicate these policies must be
considered. Except as provided in paragraph (j) of this section for FBI
personnel, all questions concerning these obligations should be
addressed to the Counsel for Intelligence Policy, Department of Justice,
10th & Constitution Avenue, NW., Washington, DC 20530. The official
views of the Department on whether specific materials require
prepublication review may be expressed only by the Counsel for
Intelligence Policy and persons should not act in reliance upon the
views of other Department personnel.
(c) Prepublication review is required only as expressly provided for
in a nondisclosure agreement. However, all persons who have had access
to classified information have an obligation to avoid unauthorized
disclosures of such information. Therefore, persons who have such access
but are not otherwise required to submit to prepublication review under
the terms of an employment or other nondisclosure agreement are
encouraged to submit material for prepublication review voluntarily if
they believe that such material may contain classified information.
(d) The nature and extent of the material that is required to be
submitted for prepublication review under nondisclosure agreements is
expressly provided for in those agreements. It should be clear, however,
that such requirements do not extend to any materials that exclusively
contain information lawfully obtained at a time when the author has no
employment, contract, or other relationship with the United States
Government or that contain information exclusively acquired outside the
scope of employment.
(e) A person's obligation to submit material for prepublication
review remains identical whether such person prepares the materials or
causes or assists another person (such as a ghost writer, spouse,
friend, or editor) in preparing the material. Material covered by a
nondisclosure agreement requiring prepublication review must be
submitted prior to discussing it with or showing it to a publisher, co-
author, or
[[Page 389]]
any other person who is not authorized to have access to it. In this
regard, it should be noted that a failure to submit such material for
prepublication review constitutes a breach of the obligation and exposes
the author to remedial action even in cases where the published material
does not actually contain Sensitive Compartmented Information or
classified information. See Snepp v. United States, 444 U.S. 507 (1980).
(f) The requirement to submit material for prepublication review is
not limited to any particular type of material or disclosure or methods
of production. Written materials include not only book manuscripts but
all other forms of written materials intended for public disclosure,
such as (but not limited to) newspaper columns, magazine articles,
letters to the editor, book reviews, pamphlets, scholarly papers, and
fictional material.
(g) Oral statements are also within the scope of a prepublication
review requirement when based upon written materials, such as an outline
of the statements to be made. There is no requirement to prepare written
materials for review, however, unless there is reason to believe in
advance that oral statements may contain Sensitive Compartmented
Information or other information required to be submitted for review
under the terms of the nondisclosure agreement. Thus, a person may
participate in an oral presentation where there is no opportunity for
prior preparation (e.g., news interview, panel discussion) without
violating the provisions of this paragraph.
(h) Material submitted for republication review will be reviewed
solely for the purpose of identifying and preventing the disclosure of
Sensitive Compartmented Information and other classified information.
This review will be conducted in an impartial manner without regard to
whether the material is critical of or favorable to the Department. No
effort will be made to delete embarrassing or critical statements that
are unclassified. Materials submitted for review will be disseminated to
other persons or agencies only to the extent necessary to identify
classified information.
(i) The Counsel for Intelligence Policy (or, in the case of FBI
employees, the FBI's Office of Congressional and Public Affairs) will
respond substantively to prepublication review requests within 30
working days of receipt of the submission. Priority shall be given to
reviewing speeches, newspaper articles, and other materials that the
author seeks to publish on an expedited basis. The Counsel's decisions
may be appealed to the Deputy Attorney General, who will process appeals
within 15 days of receipt of the appeal. The Deputy Attorney General's
decision is final and not subject to further administrative appeal.
Persons who are dissatisfied with the final administrative decision may
obtain judicial review either by filing an action for declaratory relief
or giving the Department notice of their intention to proceed despite
the Department's request for deletions of classified information, and a
reasonable opportunity (30 working days) to file a civil action seeking
a court order prohibiting disclosure. Employees and other affected
individuals remain obligated not to disclose or publish information
determined by the Government to be classified until any civil action is
resolved.
(j) The obligations of Department of Justice employees described in
this subpart apply with equal force to employees of the FBI with
following exceptions and provisos:
(1) Nothing in this subpart shall supersede or alter obligations
assumed under the basic FBI employment agreement.
(2) FBI employees required to sign nondisclosure agreements
containing a provision for prepublication review pursuant to this
subpart shall submit materials for review to the Assistant Director,
Office of Congressional and Public Affairs. Such individuals shall also
submit questions as to whether specific materials require prepublication
review under such agreements to that Office for resolution. Where such
questions raise policy questions or concern significant issues of
interpretation under such an agreement, the Assistant Director, Office
of Congressional and Public Affairs, shall consult with the Counsel for
Intelligence Policy prior to responding to the inquiry.
[[Page 390]]
(3) Decisions of the Assistant Director, Office of Congressional and
Public Affairs, concerning the deletion of classified information, may
be appealed to the Director, FBI, who will process appeals within 15
working days of receipt. Persons who are dissatisfied with the
Director's decision may, at their option, appeal further to the Deputy
Attorney General as provided in paragraph (i) of this section. Judicial
review, as set forth in that paragraph, is available following final
agency action in the form of a decision by the Director or, if the
appeal process in paragraph (i) of this section is pursued, the Deputy
Attorney General.
Subpart B--Classified Information
Sec. 17.21 Classification and declassification authority.
(a) Top Secret original classification authority may only be
exercised by the Attorney General, the Assistant Attorney General for
Administration, and officials to whom such authority is delegated in
writing by the Attorney General. No official who is delegated Top Secret
classification authority pursuant to this paragraph may redelegate such
authority.
(b) The Assistant Attorney General for Administration may delegate
original Secret and Confidential classification authority to subordinate
officials determined to have frequent need to exercise such authority.
No official who is delegated original classification authority pursuant
to this paragraph may redelegate such authority.
(c) Officials authorized to classify information at a specified
level are also authorized to classify information at a lower level. In
the absence of an official authorized to exercise classification
authority pursuant to this section, the person designated to act in lieu
of such official may exercise the official's classification authority.
Sec. 17.22 Classification of information; limitations.
(a) Information may be originally classified only if all of the
following standards are met:
(1) The information is owned by, produced by or for, or is under the
control of the United States Government;
(2) The information falls within one or more of the categories of
information specified in section 1.5 of Executive Order 12958; and
(3) The classifying official determines that the unauthorized
disclosure of the information reasonably could be expected to result in
damage to the national security and such official is able to identify or
describe the damage.
(b) Information may be classified as Top Secret, Secret, or
Confidential according to the standards established in section 1.3 of
Executive Order 12958. No other terms shall be used to identify United
States classified national security information except as otherwise
provided by statute.
(c) Information shall not be classified if there is significant
doubt about the need to classify the information. If there is
significant doubt about the appropriate level of classification with
respect to information that is being classified, it shall be classified
at the lower classification of the levels considered.
(d) Information shall not be classified in order to conceal
inefficiency, violations of law, or administrative error; to prevent
embarrassment to a person, organization, or agency; to restrain
competition; or to prevent or delay release of information that does not
require protection in the interest of national security. Information
that has been declassified and released to the public under proper
authority may not be reclassified.
(e) Information that has not previously been disclosed to the public
under proper authority may be classified or reclassified after the
Department has received a request for it under the Freedom of
Information Act (5 U.S.C. 552), the Privacy Act of 1974 (5 U.S.C. 552a),
or the mandatory review provisions of Sec. 17.31. When it is necessary
to classify or reclassify such information, it shall be forwarded to the
Department Security Officer and classified or reclassified only at the
direction of the Attorney General, the Deputy Attorney General, or the
Assistant Attorney General for Administration.
(f) Compilations of items of information that are individually
unclassified
[[Page 391]]
may be classified if the compiled information reveals an additional
association or relationship that meets the standards for classification
under Executive Order 12958 and that is not otherwise revealed in the
individual items of information.
Sec. 17.23 Emergency classification requests.
(a) Whenever any employee, contractor, licensee, certificate holder,
or grantee of the Department who does not have original classification
authority originates or develops information that requires immediate
classification and safeguarding, and no authorized classifier is
available, that person shall:
(1) Safeguard the information in a manner appropriate for its
classification level;
(2) Apply the appropriate overall classification markings; and
(3) Within five working days, securely transmit the information to
the organization that has appropriate subject matter interest and
classification authority.
(b) When it is not clear which Department organization would be the
appropriate original classifier, the information shall be sent to the
Department Security Officer to determine the appropriate organization.
(c) The organization with classification authority shall decide
within 30 days whether to classify information.
Sec. 17.24 Duration of classification.
(a) At the time of original classification, original classification
authorities shall attempt to establish a specific date or event for
declassification not more than 10 years from the date of the original
decision based on the duration of the national security sensitivity of
the information. If the original classification authority cannot
determine an earlier specific date or event for declassification, the
information shall be marked for declassification 10 years from the date
of the original decision.
(b) At the time of original classification, an original
classification authority may exempt specific information from
declassification within 10 years in accordance with section 1.6(d) of
Executive Order 12958.
(c) An original classification authority may extend the duration of
classification or reclassify specific information for successive periods
not to exceed 10 years at a time if such action is consistent with the
standards and procedures established under, and subject to the
limitations of, Executive Order 12958.
Sec. 17.25 Identification and markings.
(a) Classified information must be marked pursuant to the standards
set forth in section 1.7 of Executive Order 12958; ISOO implementing
directives in 32 CFR 2001, subpart B; and internal Department of Justice
direction provided by the Department Security Officer.
(b) Foreign government information shall be marked or classified at
a level equivalent to that level of classification assigned by the
originating foreign government.
(c) Information assigned a level of classification under predecessor
Executive Orders shall be considered as classified at that level of
classification.
Sec. 17.26 Derivative classification.
(a) Persons need not possess original classification authority to
derivatively classify information based on source documents or
classification guides.
(b) Persons who apply derivative classification markings shall
observe original classification decisions and carry forward to any newly
created documents the pertinent classification markings.
(c) Information classified derivatively from other classified
information shall be classified and marked in accordance with the
standards set forth in sections 2.1-2.3 of Executive Order 12958, the
ISOO implementing directives in 32 CFR 2001.22, and internal Department
directions provided by the Department Security Officer.
Sec. 17.27 Declassification and downgrading.
(a) Classified information shall be declassified as soon as it no
longer meets the standards for classification. Declassification and
downgrading is governed by Sec. 3.1-3.3 of Executive Order 12958,
implementing ISOO directives at 32 CFR 2001, subpart E, and applicable
internal
[[Page 392]]
Department of Justice direction provided by the Department Security
Officer.
(b) Information shall be declassified or downgraded by the official
who authorized the original classification if that official is still
serving in the same position, the originator's successor, or a
supervisory official of either, or by officials delegated such authority
in writing by the Attorney General or the Assistant Attorney General for
Administration.
(c) It is presumed that information that continues to meet the
classification requirements under Executive Order 12958 requires
continued protection. In some exceptional cases during declassification
reviews, the need to protect classified information may be outweighed by
the public interest in disclosure of the information, and in these cases
the information should be declassified. If it appears that the public
interest in disclosure of the information may outweigh the need to
protect the information, the declassification reviewing official shall
refer the case with a recommendation for decision to the DRC. The DRC
shall review the case and make a recommendation to the Attorney General
on whether the public interest in disclosure outweighs the damage to
national security that might reasonably be expected from disclosure. The
Attorney General shall decide whether to declassify the information. The
decision of the Attorney General shall be final. This provision does not
amplify or modify the substantive criteria or procedures for
classification or create any substantive or procedural rights subject to
judicial review.
(d) Each component shall develop schedules for declassification of
records in the National Archives. The Department shall cooperate with
the National Archives and Records Administration and the Presidential
Libraries to ensure that declassification is accomplished in a timely
manner.
Sec. 17.28 Automatic declassification.
(a) Subject to paragraph (b) of this section, all classified
information contained in records that are more than 25 years old that
have been determined to have permanent historical value shall be
declassified automatically on April 17, 2000. Subsequently, all
classified information in such records shall be automatically
declassified not later than 25 years after the date of its original
classification with the exception of specific information exempt from
automatic declassification pursuant to section 3.4 (b) and (d) of
Executive Order 12958.
(b) At least 220 days before information is declassified
automatically under this section, the respective component head shall
notify the Assistant Attorney General for Administration through the
Department Security Officer of any specific information they propose to
exempt from automatic declassification. The notification shall include:
(1) A description of the information;
(2) An explanation of why the information is exempt from automatic
declassification and must remain classified for a longer period of time;
and
(3) A specific date or event for declassification of the information
whenever the information exempted does not identify a confidential human
source or human intelligence source.
(c) Proposed exemptions under this section shall be forwarded to the
DRC, which shall recommend a disposition of the exemption request to the
Assistant Attorney General for Administration. When the Assistant
Attorney General for Administration determines the exemption request is
consistent with this section, he or she will submit it to the Executive
Secretary of the Interagency Security Classification Appeals Panel.
(d) Declassification guides that narrowly and precisely define
exempted information may be used to exempt information from automatic
declassification. Declassification guides must include the exemption
notification information detailed in paragraph (b) of this section, and
be approved pursuant to paragraph (c) of this section.
Sec. 17.29 Documents of permanent historical value.
The original classification authority, to the greatest extent
possible, shall declassify classified information contained in records
determined to have permanent historical value under title 44 of the
United States Code before
[[Page 393]]
they are accessioned into the National Archives. The Department shall
cooperate with the National Archives and Records Administration in
carrying out an automatic declassification program involving accessioned
Department records, presidential papers, and historical materials under
the control of the Archivist of the United States.
Sec. 17.30 Classification challenges.
(a) Authorized holders of information classified by the Department
who, in good faith, believe that specific information is improperly
classified or unclassified are encouraged and expected to challenge the
classification status of that information pursuant to section 1.9 of
Executive Order 12958. Authorized holders may submit classification
challenges in writing to the DRC, through the Office of Information and
Privacy, United States Department of Justice, Washington, DC 20530. The
challenge need not be more specific than a question as to why the
information is or is not classified, or is classified at a certain
level.
(b) The DRC shall redact the identity of an individual challenging a
classification under paragraph (a) of this section and forward the
classification challenge to the original classification authority for
review and response.
(c) The original classification authority shall promptly, and in no
case later than 30 days, provide a written response to the DRC. The
original classification authority may classify or declassify the
information subject to challenge or state specific reasons why the
original classification determination was proper. If the original
classification authority is not able to response within 30 days, the DRC
shall inform the individual who filed the challenge in writing of that
fact, and the anticipated determination date.
(d) The DRC shall inform the individual challenging the
classification of the determination made by the original classification
authority and that individual may appeal this determination to the DRC.
Upon appeal, the DRC may declassify, or direct the classification of,
the information. If the DRC is not able to act on any appeal within 45
days of receipt, the DRC shall inform the individual who filed the
challenge in writing of that fact, and the anticipated determination
date.
(e) The DRC shall provide the individual who appeals a
classification challenge determination with a written explanation of the
basis for the DRC decision and a statement of his or her right to appeal
that determination to the Interagency Security Classification Appeals
Panel (ISCAP) pursuant to section 5.4 of Executive Order 12958 and the
rules issued by the ISCAP pursuant to section 5.4 of Executive Order
12958.
(f) Any individual who challenges a classification and believes that
any action has been taken against him or her in retribution because of
that challenge shall report the facts to the Office of the Inspector
General or the Office of Professional Responsibility, as appropriate.
(g) Requests for review of classified material for declassification
by persons other than authorized holders are governed by Sec. 17.31.
Sec. 17.31 Mandatory review for declassification requests.
(a) Any person may request classified information be reviewed for
declassification pursuant to the mandatory declassification review
provisions of section 3.6 of Executive Order 12958. After such a review,
the information or any reasonably segregable portion thereof that no
longer requires protection under this part shall be declassified and
released to the requester unless withholding is otherwise warranted
under applicable law. If the information, although declassified, is
withheld, the requester shall be given a brief statement as to the
reasons for denial and a notice of the right to appeal the determination
to the Director, Office of Information and Privacy (OIP), United States
Department of Justice, Washington, DC 20530. If the mandatory review for
declassification request relates to the classification of information
that has been reviewed for declassification within the past two years or
that is the subject of pending litigation, the requester shall be
informed of that fact and the administrative appeal rights.
(b) Request for mandatory review for declassification and any
subsequent appeal to the DRC shall be submitted to
[[Page 394]]
the Director, Office of Information and Privacy, United States
Department of Justice, Washington, DC 20530, describing the document or
material containing the information with sufficient specificity to
enable the Department to locate that information with a reasonable
amount of effort. The OIP shall promptly forward the request to the
component that originally classified the information, or the DRC in the
case of an appeal, and provide the requester with an acknowledgement of
receipt of the request.
(c) When the description of the information in a request is
deficient, the component shall solicit as much additional identifying
information as possible from the requestor. Before denying a request on
the basis that the information or material is not obtainable with a
reasonable amount of effort, the component shall ask the requestor to
limit the request to information or material that is reasonably
obtainable. If the information or material requested cannot be described
in sufficient particularity, or if it cannot be obtained with a
reasonable amount of effort, the component shall provide the requestor
with written notification of the reasons why no action will be taken and
the right to appeal the decision to the DRC.
(d) The component that originally classified the information shall
provide a written response to requests for mandatory review within 60
days whenever possible, or shall inform the requester in writing why
additional time is needed. Unless there are unusual circumstances, the
additional time needed by the component originally classifying the
information shall not extend beyond 180 days from the receipt of the
request. If no determination has been made at the end of the 180 day
period, the requester may apply to the DRC for a determination.
(e) If the component that originally classified the information
determines that continued classification is warranted, it shall notify
the requester in writing of the decision and the right to appeal the
decision to the DRC no later that 60 days after receipt of the
notification of the decision.
(f) The DRC shall determine the appeals of the components' mandatory
declassification review decisions within 60 days after receipt of the
appeal, or notify the requester why additional time is needed. In making
its determinations concerning requests for declassification of
classified information, the DRC, for administrative purposes, shall
impose the burden of proof on the originating component to show that
continued classification is warranted. The DRC shall provide the
requester with a written statement of reasons for its decisions.
(g) If the individual requesting review of a classification is not
satisfied with the DRC's decision, he or she may appeal to the ISCAP
pursuant to section 5.4 of Executive Order 12958 and rules issued by the
ISCAP pursuant to that section.
Sec. 17.32 Notification of classification changes.
All known holders of information affected by unscheduled
classification changes actions shall be notified promptly of such
changes by the original classifier or the authority making the change in
classification.
Subpart C--Access to Classified Information
Sec. 17.41 Access to classified information.
(a) No person may be given access to classified information or
material originated by, in the custody, or under the control of the
Department, unless the person--
(1) Has been determined to be eligible for access in accordance with
sections 3.1-3.3 of Executive Order 12968;
(2) Has a demonstrated need-to-know; and
(3) Has signed an approved nondisclosure agreement.
(b) Eligibility for access to classified information is limited to
United States citizens for whom an appropriate investigation of their
personal and professional history affirmatively indicated loyalty to the
United States, strength of character, trustworthiness, honesty,
reliability, discretion, and sound judgment, as well as freedom from
conflicting allegiances and potential for coercion, and willingness and
ability to abide by regulations governing the use,
[[Page 395]]
handling, and protection of classified information. A determination of
eligibility for access to classified information is a discretionary
security decision based on judgments by appropriately trained
adjudicative personnel. Eligibility shall be granted only where facts
and circumstances indicate access to classified information is clearly
consistent with the national security interests of the United States and
any doubt shall be resolved in favor of the national security. Sections
2.6 and 3.3 of Executive Order 12968 provide only limited exceptions to
these requirements.
(c) The Department of Justice does not discriminate on the basis of
race, color, religion, sex, national origin, disability, or sexual
orientation in granting access to classified information. However, the
Department may investigate and consider any matter that relates to the
determination of whether access is clearly consistent with the interests
of national security. No negative inferences concerning the standards
for access may be raised solely on the basis of the sexual orientation
of the employee or mental health counseling.
(d) An employee granted access to classified information may be
investigated at any time to ascertain whether he or she continues to
meet the requirements for access.
(e) An employee granted access to classified information shall
provide to the Department written consent permitting access by an
authorized investigative agency, for such time as access to classified
information is maintained and for a period of three years thereafter,
to:
(1) Financial records maintained by a financial institution as
defined in 31 U.S.C. 5312(a) or by a holding company as defined in 12
U.S.C. 3401;
(2) Consumer reports under the Fair Credit Reporting Act (15 U.S.C.
1681 et seq.); and
(3) Records maintained by commercial entities within the United
States pertaining to any travel by the employee outside the United
States.
(f) Information may be requested pursuant to the employee consent
obtained under paragraph (e) of this section only where:
(1) There are reasonable grounds to believe, based on credible
information, that the employee or former employee is, or may be,
disclosing classified information in an unauthorized manner to a foreign
power or agent of a foreign power;
(2) Information the Department deems credible indicates the employee
or former employee has incurred excessive indebtedness or has acquired a
level of affluence that cannot be explained by other information; or
(3) Circumstances indicate that the employee or former employee had
the capability and opportunity to disclose classified information that
is known to have been lost or compromised to a foreign power or an agent
of a foreign power.
Sec. 17.42 Positions requiring financial disclosure.
(a) The Assistant Attorney General for Administration, in
consultation with the Counsel for Intelligence Policy, shall designate
each employee, by position or category where possible, who has a regular
need for access to any of the categories of classified information
described in section 1.3(a) of Executive Order 12968.
(b) An employee may not hold a position designated as requiring a
regular need for access to categories of classified information
described in section 1.3(a) of Executive Order 12968 unless, as a
condition of access to such information, the employee files with the
Department Security Officer:
(1) A financial disclosure form developed pursuant to section 1.3(c)
of Executive Order 12968 as part of all background investigations or
reinvestigations;
(2) The same financial disclosure form, if selected by the
Department Security Officer on a random basis; and
(3) Relevant information concerning foreign travel, as determined by
the Department Security Officer.
Sec. 17.43 Reinvestigation requirements.
Employees who are eligible for access to classified information
shall be subject to periodic reinvestigations and may also be
reinvestigated if, at any time, there is reason to believe that
[[Page 396]]
they may no longer meet the standards for access.
Sec. 17.44 Access eligibility.
(a) Determinations of eligibility for access to classified
information are separate from suitability determinations with respect to
the hiring or retention of persons for employment by the Department or
any other personnel actions.
(b) The number of employees eligible for access to classified
information shall be kept to the minimum required for the conduct of
Department functions.
(c) Eligibility for access to classified information shall be
limited to classification levels for which there is a need for access.
No person shall be granted eligibility higher than his or her need.
Sec. 17.45 Need-to-know.
No person shall be granted access to specific classified information
unless that person has an actual need-to-know that classified
information, pursuant to section 2.5 of Executive Order 12968.
Sec. 17.46 Access by persons outside the Executive Branch.
(a) Classified information shall not be disseminated outside the
Executive Branch except under conditions that ensure that the
information will be given protection equivalent to that afforded within
the Executive Branch.
(b) Classified information originated by or in the custody of the
Department may be made available to individuals or agencies outside the
Executive Branch provided that such information is necessary for
performance of a function from which the Federal Government will derive
a benefit or advantage and that the release is not prohibited by the
originating department or agency (or foreign government in the case of
Foreign Government Information). Before such a release is made, the head
of the Office, Board, Division, or Bureau making the release shall
determine the propriety of such action, in the interest of the national
security, and must approve the release. Prior to the release, the
Department Security Officer must confirm that the recipient is eligible
for access to the classified information involved and agrees to
safeguard the information in accordance with the provisions of this
part.
(c) Members of Congress, Justices of the United States Supreme
Court, and Judges of the United States Courts of Appeal and District
Courts do not require a determination of their eligibility for access to
classified information by the Department. Federal Magistrate Judges must
be determined eligible for access to classified information by the
Department Security Officer pursuant to procedures approved by the
Assistant Attorney General for Administration in consultation with the
Judicial Conference of the United States. All other Legislative and
Judicial personnel including, but not limited to, congressional staff,
court reporters, typists, secretaries, law clerks, and translators who
require access to classified information must be determined eligible by
the Department Security Officer consistent with standards established in
this regulation.
(d) When other persons outside the Executive Branch who are not
subject to the National Industrial Security Program require access to
classified information originated by or in the custody of the
Department, but do not otherwise possess a proper access authorization,
an appropriate background investigation must be completed to allow the
Department Security Officer to determine their eligibility for access to
classified information. The length of time it generally takes to
complete an expedited background investigation is 90 days. Therefore,
all persons requiring access to classified information to participate in
congressional or judicial proceedings should be identified and the
background investigation initiated far enough in advance to ensure a
minimum impact on such proceedings.
(e) Personnel who are subject to a Department contract or grant or
who are rendering consultant services to the Department and require
access to classified information originated by or in the custody of the
Department shall be processed for such access pursuant to procedures
approved by the Assistant Attorney General for Administration.
(f)(1) The requirement that access to classified information may be
granted
[[Page 397]]
only as is necessary for the performance of official duties may be
waived, pursuant to section 4.5(a) of Executive Order 12958, for persons
who:
(i) Are engaged in historical research projects; or
(ii) Have previously occupied policymaking positions to which they
were appointed by the President.
(2) All persons receiving access pursuant to this paragraph (f) must
have been determined to be trustworthy by the Department Security
Officer as a precondition before receiving access. Such determinations
shall be based on such investigation as the Department Security Officer
deems appropriate. Historical researchers and former presidential
appointees shall not have access to Foreign Government Information
without the written permission from an appropriate authority of the
foreign government concerned.
(3) Waivers of the ``need-to-know'' requirement under this paragraph
(f) may be granted by the Department Security Officer provided that the
Security Programs Manager of the Office, Board, Division, or Bureau with
classification jurisdiction over the information being sought:
(i) Makes a written determination that such access is consistent
with the interest of national security;
(ii) Limits such access to specific categories of information over
which the Department has classification jurisdiction;
(iii) Maintains custody of the classified information at a
Department facility;
(iv) Obtains the recipient's written and signed agreement to
safeguard the information in accordance with the provisions of this
regulation and to authorize a review of any notes and manuscript for
determination that no classified information is contained therein; and
(v) In the case of former presidential appointees, limits their
access to items that such former appointees originated, reviewed,
signed, or received while serving as a presidential appointee and
ensures that such appointee does not remove or cause to be removed any
classified information reviewed.
(4) If access requested by historical researchers and former
presidential appointees requires the rendering of services for which
fair and equitable fees may be charged pursuant to 31 U.S.C. 9701, the
requester shall be so notified and fees may be imposed.
Sec. 17.47 Denial or revocation of eligibility for access to classified
information.
(a) Applicants and employees who are determined to not meet the
standards for access to classified information established in section
3.1 of Executive order 12968 shall be:
(1) Provided with a comprehensive and detailed written explanation
of the basis for that decision as the national security interests of the
United States and other applicable law permit and informed of their
right to be represented by counsel or other representative at their own
expense;
(2) Permitted 30 days from the date of the written explanation to
request any documents, records, or reports including the entire
investigative file upon which a denial or revocation is based; and
(3) Provided copies of documents requested pursuant to this
paragraph (a) within 30 days of the request to the extent such documents
would be provided if requested under the Freedom of Information Act (5
U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C. 552a), and as the
national security interests and other applicable law permit.
(b) An applicant or employee may file a written reply and request
for review of the determination within 30 days after written
notification of the determination or receipt of the copies of the
documents requested pursuant to this subpart, whichever is later.
(c) An applicant or employee shall be provided with a written notice
of and reasons for the results of the review, the identity of the
deciding authority, and written notice of the right to appeal.
(d) Within 30 days of receipt of a determination under paragraph (c)
of this section, the applicant or employee may appeal that determination
in writing to the ARC, established under Sec. 17.15. The applicant or
employee may request an opportunity to appear personally
[[Page 398]]
before the ARC and to present relevant documents, materials, and
information.
(e) An applicant or employee may be represented in any such appeal
by an attorney or other representative of his or her choice, at his or
her expense. Nothing in this section shall be construed as requiring the
Department to grant such attorney or other representative eligibility
for access to classified information, or to disclose to such attorney or
representative, or permit the applicant or employee to disclose to such
attorney or representative, classified information.
(f) A determination of eligibility for access to classified
information by the ARC is a discretionary security decision. Decisions
of the ARC shall be in writing and shall be made as expeditiously as
possible. Access shall be granted only where facts and circumstances
indicate that access to classified information is clearly consistent
with the national security interest of the United States, and any doubt
shall be resolved in favor of the national security.
(g) The Department Security Officer shall have an opportunity to
present relevant information in writing or, if the applicant or employee
appears personally, in person. Any such written submissions shall be
made part of the applicant's or employee's security record and, as the
national security interests of the United States and other applicable
law permit, shall also be provided to the applicant or employee. Any
personal presentations shall be, to the extent consistent with the
national security and other applicable law, in the presence of the
applicant or employee.
(h) When the Attorney General or Deputy Attorney General personally
certifies that a procedure set forth in this section cannot be made
available in a particular case without damaging the national security
interests of the United States by revealing classified information, the
particular procedure shall not be made available. This is a
discretionary and final decision not subject to further review.
(i) This section does not limit the authority of the Attorney
General pursuant to any other law or Executive Order to deny or
terminate access to classified information if the national security so
requires and the Attorney General determines that the appeal procedures
set forth in this section cannot be invoked in a manner that is
consistent with the national security. Nothing in this section requires
that the Department provide any procedures under this section to an
applicant where a conditional offer of employment is withdrawn for
reasons of suitability or any reason other than denial of eligibility
for access to classified information. Suitability determinations shall
not be used for the purpose of denying an applicant or employee the
review proceedings of this section where there has been a denial or
revocation of eligibility for access to classified information.