Amendment Substitute for S. 712, Government Secrecy Reform Act of 1998

6 July 1998
Source of Summary and Amendment: Fax from the Senate Committee on Governmental Affairs.
Thanks to DC, Hearings Clerk.

See original S.712: http://jya.com/s712.txt
Senate debate and meetings: http://jya.com/s712-more.txt

Excerpt from: http://jya.com/s712-sub.htm

NCC Washington Update, vol. 4, #25 July 1, 1998
[National Coordinating Committee for the Promotion of History]

Senate Committee Adopts Substitute Bill for
Moynihan's Government Secrecy Reform Act

Senate Committee Adopts Substitute Bill for Moynihan's Government
Secrecy Reform Act -- On June 17 the Senate Governmental Affairs Committee
met to consider a substitute bill for S.712, the Government Secrecy Reform
Act of 1998.  By voice vote, with no negative votes heard, the Committee
passed the substitute bill proposed by Senator Fred Thompson (R-TENN), the
chair of the Committee, and Senator Susan Collins (R-ME).  The original
bill had provided a framework for reform but had lacked the specifics
which this bill provides.

SUMMARY OF COMMITTEE SUBSTITUTE TO S. 712

1) Provides a statutory basis for national security information classification system by specifically authorizing the President to protect information from disclosure when there is a demonstrable need to do so in order to protect U.S. security (similar to underlying bill).

2) Authorizes the President to establish categories of information that may be classified; categories must be developed by notice and comment (similar to underlying bill).

3) Authorizes agencies to implement the Act and the President's categories by establishing standards and procedures for classifying and declassifying information (similar to underlying bill).

4) Limits classification only to cases in which the harm to national security reasonably expected from disclosure of the information outweighs the public interest in the disclosure of the information (similar to underlying bill).

5) Establishes criteria to guide agency classification decisions for conducting the balancing test between the harm to national security and the public interest in disclosure; the national security criteria are taken directly from the Clinton Executive Order and have been applied by agencies since 1995; the public interest criteria are newly developed for the substitute (these criteria are not in the underlying bill).

6) Mandates written justification for original and derivative classification decisions (similar to underlying bill).

7) Establishes procedures similar to those of the current Clinton Executive Order on declassification of information classified under the Act: the general rule is that information will be subject to declassification review 10 years after the classification; at that time, information will either be declassified or it can be protected for another 15 years. At 25 years, it will be subject to another declassification review and must be declassified at that time unless "extraordinary circumstances" require that it remain classified. Information that remains classified beyond 25 years will be subject to periodic review for declassification on a schedule established by the President. The bill also provides a procedure in which agencies can, at the time of classification, exempt information from the initial 10-year review if "there is no likely set of circumstances under which declassification would occur" at the 10-year review; such information would receive its initial declassification review at 25 years (this process is derived from the current Executive Order and builds on the provisions of the underlying bill, but is significantly more detailed).

8) Makes a conforming amendment to exemption 1 of the Freedom of Information Act (similar to underlying bill).

9) Transforms the Information Security Oversight Office from the Archives to the Executive Office of the President, changes the name to the Office of National Classification and Declassification Oversight, and beefs up its functions and oversight responsibilities (not in underlying bill).

10) Establishes a Classification and Declassification Review Board similar to the current interagency review panel established by the Clinton Executive Order to hear agency appeals from decisions of the Director of the Oversight Office (entirely new provision not in the underlying bill).

11) Provides for appeal of Review Board decisions to the President and precludes judicial review of agency classification and declassifications decisions (entirely new provisions).

12) Clarifies that nothing in the bill shall be construed as authorizing the withholding of information from Congress (similar to underlying bill).

[End 2-page summary]

[1]
AMENDMENT TO S.712 INTENDED TO BE

PROPOSED BY MR. THOMPSON

(for himself and Ms. Collins)

Strike out all after the enacting clause and insert in lieu thereof the following:
SECTION 1. SHORT TITLE.

This Act may be cited as the "Government Secrecy Reform Act of 1998".

SEC. 2. CLASSIFICATION AND DECLASSIFICATION OF INFORMATION.

(a) In General.-- The President may, in accordance with this Act, protect from unauthorized disclosure any information owned by, produced 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 Procedures for Classification and Declassification.--
(1) Government-wide 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).

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(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 this subsection 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

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established under paragraph (1), subparagraphs (A) and (B) of paragraph 2 shall apply to the modification of such categories or procedures.
(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 this President under this section and otherwise to carry out this Act. Such standards and procedures shall include mechanisms to minimize risk of inadvertent or inappropriate declassification of previously classified information (including information classified by other agencies).
(B) Requirement for certain agencies.--The President shall require each agency head with original classification authority to produce written guidance on classification and declassification of information in order to minimize the derivative classification process and to improve the subsequent declassification process. Such written guidance may be treated as classified information under this Act.

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(C) Deadline.--Each agency head shall establish standards and procedures under subparagraph (A) 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 this subsection.
(D) Publication.--Each agency head shall publish in the Federal Register the standards and procedures established by such agency head under this paragraph.

(c) Standard for Classification and Declassification.--
(1) In General.-- Subject to paragraphs (2) and (3), information may be classified under this Act, and classified information under review for declassification under this Act may remain classified, only in 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

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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) Criteria.-- For purposes of this subsection, in determining the harm to national security that might reasonably be expected from disclosure of information, and the public interest in the disclosure of information, the official making the determination shall consider the following:
(A) With regard to the harm to national security that might reasonably be expected from disclosure of information, whether or not disclosure of the information would--
(i) reveal the identity of a confidential human source, or reveal information about the application of an intelligence source or method, or reveal the identity of a human intelligence source when the unauthorized disclosure of that source would clearly and demonstrably damage the security of the United States;
(ii) reveal information that would assist in the development or use of weapons of mass destruction;

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(iii) reveal information that would impair United States cryptologic systems or activities;
(iv) reveal information that would impair the application of the state of the art technology within a United States weapons system;
(v) reveal actual United States military war plans that remain in effect;
(vi) reveal information that would seriously and demonstrably impair relations between the United States and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the United States;
(vii) reveal information that would clearly and demonstrably impair the current ability of the United States Government officials to protect the President, Vice President, and other officials for whom protection services, in the interest of national security, are authorized;
(viii) reveal information that would seriously and demonstrably impair current

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national security emergency preparedness plans; or
(ix) violate a statute, treaty, or international agreement.

(B) With regard to the public interest in disclosure of information--
(i) whether or not disclosure of the information would better enable United States citizens to hold Government officials accountable for their actions and policies;
(ii) whether or not disclosure of the information would assist the United States criminal justice system in holding persons responsible for criminal acts or acts contrary to the Constitution;
(iii) whether or not disclosure of the information would assist Congress, or any committee or subcommittee thereof, in carrying out its oversight responsibilities with regard to the executive branch or in adequately informing itself of executive branch policies and activities in order to carry out its legislative responsibilities; or
(iv) whether or not disclosure of the information would bring about any other

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significant benefit, including an increase in public awareness or understanding of Government activities or an enhancement of Government efficiency.

(4) Written justification for classification.--
(A) Original classification.-- EAch agency official who makes a decision to classify information not previously classified shall, at the time of the classification decision--
(i) identify himself or herself; and
(ii) provide in writing a detailed justification of that decision.

(B) 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--
(i) identify himself or herself in that document; and
(ii) provide a concise explanation of that decision.

(d) Declassification of Information Classified Under Act.--

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(1) In general.-- Except as provided in paragraphs (2), (3), and (4), information 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.-- When classifying information under this Act, an agency official may provide for the declassification of the information on the date that is 25 years after the date of the classification if the head of the agency--
(A) determines that there is no likely set of circumstances under which declassification would occur within the time otherwise provided for under paragraph (1);
(B) obtains the concurrence of the Director of the Office of National Classification and Declassification Oversight in the determination; and
(C) submits to the President a certification of the determination.

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(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 under such paragraph, 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--
(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.

(C) General duration of postponement.-- Except as provided in subparagraph (D), information the declassification of which is postponed under this paragraph may remain

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classified not longer than 15 years after the ate 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) Procedure.-- 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

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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 subparagraph (B)(i) and (D)(i).

(5) Approval required for declassification of certain information.-- Except as provided in this Act, no information may be declassified or released without the approval of the agency that originated the information.
(6) Basis for determinations.-- An agency official making a determination under this subsection with respect to the duration of classification of information, or the declassification of information, shall make the determination required under

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subsection(c) with respect to classification or declassification in accordance with an assessment of the criteria specified in paragraph (3) of such subsection (c) that is current as of the determination.
(7) Specification of declassification date.-- Each agency official making a decision to classify information shall specify upon such information the date or event of its declassification under this subsection.

(e) 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 procedure 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 paragraph (1) that has remained classified for more than 25 years as of such date.
(3) Notice and comment.--

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(A) Notice.-- The President shall publish in the Federal Register notice 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.

(f) Conforming Amendment of 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 1998, 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;".

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SEC. 3. OFFICE OF NATIONAL CLASSIFICATION AND DECLASSIFICATION OVERSIGHT.

(a) Establishment.--
(1) In general.-- There is established within the Executive Office of the President 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.

(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.

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(3) Supervision.-- The Director shall report directly to the President.
(4) Executive schedule.-- Section 5314 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 of agencies in order to ensure the compliance of such policies and procedures with the requirements of this Act;

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(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 direct that information determined to be classified in violation of this Act be declassified by the agency that originated the classification;
(5) determine whether the concurrence of the Director in an agency determination to postpone the declassification of information under section 2(d)(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) subject to the supervision and control of the President, oversee special access programs;

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(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.-- Subject to the control and supervision of the President, each agency shall provide the Oversight Office with such information and other cooperation as the Director of the Oversight Office considers appropriate to permit the Oversight Office to carry out its duties.
(f) 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 may include a requirement that the staff of the Oversight Office possess security clearances appropriate for the information considered and reviewed by the Oversight Office.
(g) 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.

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(2) Elements.-- Each report under paragraph (1) shall--
(A) include a summary of the extent of 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 index.
(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.--
(1) In general.-- The Board shall consist of five members appointed by the President, by and

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with the advice and consent of the Senate, from among individuals who are distinguished historians, political scientists, archivists, and other social scientists, and from among members of the public with demonstrated expertise in matters relating to the national security of the United States, records management, or government information policy.
(2) Nomination.--
(A) Consultation.-- In nominating individuals for appointment to the Board, the President shall consult with the Secretary of the Defense, Secretary of State, Attorney General, National Security Advisor, 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 is currently an officer or employee of the United States or who has previously served as a member of the Board.
(C) Initial nominations.-- The President shall make the first nominations of members for appointment to the Board not later

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than 120 days after the effective date of this Act.
(3) 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 (2)(C)--
(A) two shall be nominated for a 4-year term (including the member who shall be the Director of the Board);
(B) two shall be nominated for a 3-year term; and
(C) one shall be nominated for a 2-year term.

(4) Vacancies.-- An individual appointed to fill a vacancy shall be appointed for the unexpired term of the member replaced.
(5) Limitation on employment.-- No member of the Board may, while serving as a member of the Board, serve as an officer or employee of the Federal Government in any other capacity.

(c) Powers and Duties.-- The Board shall--
(1) decide on appeals by agencies which challenge a declassification order of the Director of the Office of National Classification and Declassification Oversight under section 3(d)(4);

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(2) decide on appeals by agencies which challenge a determination of the Director 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) Deadlines for Certain Appeals.-- An agency may appeal a declassification order or determination under subsection (c) only if the agency submits the appeal to the Board not later than 60 days after the date of the declassification order or determination, as the case may be.
(e) Protection of Information.-- The Board shall take appropriate actions to prevent the disclosure to the public 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.
(f) Personnel Matters.--
(1) Compensation.--
(A) Compensation of members.-- Each member of the Board shall be compensated at a rate equivalent of the

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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 Director 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.

(g) Rules and Procedures.--

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(1) 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.
(2) Publication.-- The Board shall publish its rules and procedures in the Federal Register.
(3) Initial rules and procedures.-- The Board shall establish its initial rules and procedures not later than 270 days after the date of enactment of this Act.

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 teh decision or other action concerned.
(c) Finality.-- A decision of the President on an appeal under subsection (a) shall be final.

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SEC.6. PROHIBITIONS.

(a) Withholding Information From Congress.-- Nothing in this Act shall be construed to authorize 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(f), 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 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

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no longer require protection from unauthorized disclosure pursuant to this Act.

SEC. 8. EFFECTIVE DATE.

This Act and the amendment made by section 3(f) shall take effect 180 days after the date of enactment of this Act.
[End Amendment]

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