BARACK OBAMA - THE WHITE HOUSE - December 29, 2009 .
EXECUTIVE ORDER 13526
President Obama issued Executive Order 13526 in December of 2009 calling for
the first ever comprehensive Fundamental Classification Guidance Review (FCGR)
of classification guidance across the Executive Branch of the government. These
reviews are conducted to ensure that classification guidance reflects current
circumstances as to what needs to remain classified and to identify classified
information that no longer needs protection and can be declassified.
This review is an investment in the future health of the
classification system. It provides a means for Agency heads to ensure the
proper protection of information that is vital to national security, while at
the same time providing the basis to avoid over classification and unnecessary
withholding of information from the public. These reviews will be conducted
every five years.
The Information Security Oversight Office (ISOO) of the
National Archives is responsible to the President of the United
States for policy and oversight of the
Government-wide security classification system. An open society in which the
American public is informed and holds our government accountable is a defining
factor of our democracy. Our ability to share information must be balanced by
the need to hold certain information in confidence for periods of time to
protect from harm our citizens, our democratic institutions, and our
participation in the community of nations. ISOO ensures the development and
application of policies which balance the disclosure, sharing, and protection
of information related to national security.
Executive Order 13526- Classified National Security
Information
This order prescribes a uniform system for classifying,
safeguarding, and declassifying national security information, including
information relating to defense against transnational terrorism.
Our
democratic principles require that the American people be informed of the
activities of their Government.
Also, our Nation's progress depends on
the free flow of information both within the Government and to the American
people.
Nevertheless, throughout our history, the national defense has
required that certain information be maintained in confidence in order to
protect our citizens, our democratic institutions, our homeland security, and
our interactions with foreign nations. Protecting information critical to
our Nation's security and demonstrating our commitment to open Government
through accurate and accountable application of classification standards and
routine, secure, and effective declassification are equally important
priorities.
PART 1 -- ORIGINAL CLASSIFICATION
Section 1.1. Classification Standards.
(a)
Information may be originally classified under the terms of this order only if
all of the following conditions are met:
(1) an original classification authority is
classifying the information;
(2) the information is owned by, produced by or for,
or is under the control of the United States Government;
(3) the information falls within one or more of the
categories of information listed in section 1.4 of this order; and
(4) the original classification authority determines
that the unauthorized disclosure of the information reasonably could be
expected to result in damage to the national security, which includes defense
against transnational terrorism, and the original classification authority is
able to identify or describe the damage.
(b) If there is significant doubt about the need to
classify information, it shall not be classified. This provision does
not:
(1) amplify or modify the substantive criteria or
procedures for classification; or
(2) create any substantive or procedural rights
subject to judicial review.
(c) Classified information shall not be declassified
automatically as a result of any unauthorized disclosure of identical or
similar information.
(d) The unauthorized disclosure of foreign government
information is presumed to cause damage to the national security.
Sec. 1.2. Classification Levels.
(a)
Information may be classified at one of the following three levels:
(1) "Top Secret" shall be applied to
information, the unauthorized disclosure of which reasonably could be expected
to cause exceptionally grave damage to the national security that the original
classification authority is able to identify or describe.
(2) "Secret" shall be applied to
information, the unauthorized disclosure of which reasonably could be expected
to cause serious damage to the national security that the original
classification authority is able to identify or describe.
(3) "Confidential" shall be applied to
information, the unauthorized disclosure of which reasonably could be expected
to cause damage to the national security that the original classification
authority is able to identify or describe.
(b) Except as otherwise provided by statute, no other
terms shall be used to identify United States
classified information.
(c) If there is significant doubt about the
appropriate level of classification, it shall be classified at the lower level.
Sec. 1.3. Classification
Authority.
(a) The authority to classify information
originally may be exercised only by:
(1) the President and the Vice President;
(2) agency heads and officials designated by the
President; and
(3) United States Government officials delegated this
authority pursuant to paragraph (c) of this section.
(b) Officials authorized to classify information at a
specified level are also authorized to classify information at a lower level.
(c) Delegation of original classification authority.
(1) Delegations of original classification authority
shall be limited to the minimum required to administer this order. Agency
heads are responsible for ensuring that designated subordinate officials have a
demonstrable and continuing need to exercise this authority.
(2) "Top Secret" original classification
authority may be delegated only by the President, the Vice President, or an
agency head or official designated pursuant to paragraph (a)(2) of this
section.
(3) "Secret" or "Confidential"
original classification authority may be delegated only by the President, the
Vice President, an agency head or official designated pursuant to paragraph
(a)(2) of this section, or the senior agency official designated under
section 5.4(d) of this order, provided that official has been delegated
"Top Secret" original classification authority by the agency head.
(4) Each delegation of original classification
authority shall be in writing and the authority shall not be redelegated except
as provided in this order. Each delegation shall identify the official by
name or position.
(5) Delegations of original classification authority
shall be reported or made available by name or position to the Director of the
Information Security Oversight Office.
(d) All original classification authorities must
receive training in proper classification (including the avoidance of
over-classification) and declassification as provided in this order and its
implementing directives at least once a calendar year. Such training must
include instruction on the proper safeguarding of classified information and on
the sanctions in section 5.5 of this order that may be brought against an
individual who fails to classify information properly or protect classified
information from unauthorized disclosure. Original classification
authorities who do not receive such mandatory training at least once within a
calendar year shall have their classification authority suspended by the agency
head or the senior agency official designated under section 5.4(d) of this
order until such training has taken place. A waiver may be granted by the
agency head, the deputy agency head, or the senior agency official if an
individual is unable to receive such training due to unavoidable
circumstances. Whenever a waiver is granted, the individual shall receive
such training as soon as practicable.
(e) Exceptional cases. When an employee,
government contractor, licensee, certificate holder, or grantee of an agency
who does not have original classification authority originates information
believed by that person to require classification, the information shall be
protected in a manner consistent with this order and its implementing
directives. The information shall be transmitted promptly as provided
under this order or its implementing directives to the agency that has
appropriate subject matter interest and classification authority with respect
to this information. That agency shall decide within 30 days whether to
classify this information.
Sec. 1.4. Classification
Categories.
Information shall not be considered for classification
unless its unauthorized disclosure could reasonably be expected to cause
identifiable or describable damage to the national security in accordance with
section 1.2 of this order, and it pertains to one or more of the following:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including covert action),
intelligence sources or methods, or cryptology;
(d) foreign relations or foreign activities of the United
States , including confidential sources;
(e) scientific, technological, or economic matters
relating to the national security;
(f) United States Government programs for safeguarding
nuclear materials or facilities;
(g) vulnerabilities or capabilities of systems,
installations, infrastructures, projects, plans, or protection services
relating to the national security; or
(h) the development, production, or use of weapons of
mass destruction.
Sec. 1.5. Duration of Classification. (a)
At the time of original classification, the original classification authority
shall establish a specific date or event for declassification based on the
duration of the national security sensitivity of the information. Upon
reaching the date or event, the information shall be automatically
declassified. Except for information that should clearly and demonstrably
be expected to reveal the identity of a confidential human source or a human
intelligence source or key design concepts of weapons of mass destruction, the
date or event shall not exceed the time frame established in paragraph (b) of
this section.
(b) If the original classification authority cannot
determine an earlier specific date or event for declassification, information
shall be marked for declassification 10 years from the date of the original
decision, unless the original classification authority otherwise determines
that the sensitivity of the information requires that it be marked for
declassification for up to 25 years from the date of the original decision.
(c) An original classification authority may extend
the duration of classification up to 25 years from the date of origin of the
document, change the level of classification, or reclassify specific
information only when the standards and procedures for classifying information
under this order are followed.
(d) No information may remain classified indefinitely.
Information marked for an indefinite duration of classification under
predecessor orders, for example, marked as "Originating Agency's
Determination Required," or classified information that contains
incomplete declassification instructions or lacks declassification instructions
shall be declassified in accordance with part 3 of this order.
Sec. 1.6. Identification and Markings.
(a)
At the time of original classification, the following shall be indicated in a
manner that is immediately apparent:
(1) one of the three classification levels defined in
section 1.2 of this order;
(2) the identity, by name and position, or by personal
identifier, of the original classification authority;
(3) the agency and office of origin, if not otherwise
evident;
(4) declassification instructions, which shall
indicate one of the following:
(A) the date or event for declassification, as
prescribed in section 1.5(a);
(B) the date that is 10 years from the date of
original classification, as prescribed in section 1.5(b);
(C) the date that is up to 25 years from the date of
original classification, as prescribed in section 1.5(b); or
(D) in the case of information that should clearly and
demonstrably be expected to reveal the identity of a confidential human source
or a human intelligence source or key design concepts of weapons of mass
destruction, the marking prescribed in implementing directives issued pursuant
to this order; and
(5) a concise reason for classification that, at a
minimum, cites the applicable classification categories in section 1.4 of this
order.
(b) Specific information required in paragraph (a) of
this section may be excluded if it would reveal additional classified
information.
(c) With respect to each classified document, the
agency originating the document shall, by marking or other means, indicate
which portions are classified, with the applicable classification level, and
which portions are unclassified. In accordance with standards prescribed
in directives issued under this order, the Director of the Information Security
Oversight Office may grant and revoke temporary waivers of this
requirement. The Director shall revoke any waiver upon a finding of
abuse.
(d) Markings or other indicia implementing the
provisions of this order, including abbreviations and requirements to safeguard
classified working papers, shall conform to the standards prescribed in
implementing directives issued pursuant to this order.
(e) Foreign government information shall retain its
original classification markings or shall be assigned a U.S.
classification that provides a degree of protection at least equivalent to that
required by the entity that furnished the information. Foreign government
information retaining its original classification markings need not be assigned
a U.S.
classification marking provided that the responsible agency determines that the
foreign government markings are adequate to meet the purposes served by U.S.
classification markings.
(f) Information assigned a level of classification
under this or predecessor orders shall be considered as classified at that
level of classification despite the omission of other required markings.
Whenever such information is used in the derivative classification process or
is reviewed for possible declassification, holders of such information shall
coordinate with an appropriate classification authority for the application of
omitted markings.
(g) The classification authority shall, whenever
practicable, use a classified addendum whenever classified information
constitutes a small portion of an otherwise unclassified document or prepare a
product to allow for dissemination at the lowest level of classification
possible or in unclassified form.
(h) Prior to public release, all declassified records shall
be appropriately marked to reflect their declassification.
Sec. 1.7. Classification Prohibitions and
Limitations.
(a) In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(a) In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization,
or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that
does not require protection in the interest of the national security.
(b) Basic scientific research information not clearly
related to the national security shall not be classified.
(c) Information may not be reclassified after
declassification and release to the public under proper authority unless:
(1) the reclassification is personally approved in
writing by the agency head based on a document-by-document determination by the
agency that reclassification is required to prevent significant and
demonstrable damage to the national security;
(2) the information may be reasonably recovered
without bringing undue attention to the information;
(3) the reclassification action is reported promptly
to the Assistant to the President for National Security Affairs (National
Security Advisor) and the Director of the Information Security Oversight
Office; and
(4) for documents in the physical and legal custody of
the National Archives and Records Administration (National Archives) that have
been available for public use, the agency head has, after making the
determinations required by this paragraph, notified the Archivist of the United
States (Archivist), who shall suspend public access pending approval of the
reclassification action by the Director of the Information Security Oversight
Office. Any such decision by the Director may be appealed by the agency
head to the President through the National Security Advisor. Public
access shall remain suspended pending a prompt decision on the appeal.
(d) Information that has not previously been disclosed
to the public under proper authority may be classified or reclassified after an
agency has received a request for it under the Freedom of Information Act (5
U.S.C. 552), the Presidential Records Act, 44 U.S.C. 2204(c)(1), the Privacy
Act of 1974 (5 U.S.C. 552a), or the mandatory review provisions of section 3.5
of this order only if such classification meets the requirements of this order
and is accomplished on a document-by-document basis with the personal
participation or under the direction of the agency head, the deputy agency
head, or the senior agency official designated under section 5.4 of this
order. The requirements in this paragraph also apply to those situations
in which information has been declassified in accordance with a specific date or
event determined by an original classification authority in accordance with
section 1.5 of this order.
(e) Compilations of items of information that are
individually unclassified may be classified if the compiled information reveals
an additional association or relationship that: (1) meets the standards
for classification under this order; and (2) is not otherwise revealed in the
individual items of information.
Sec. 1.8. Classification
Challenges. (a) Authorized holders of information who, in good
faith, believe that its classification status is improper are encouraged and
expected to challenge the classification status of the information in
accordance with agency procedures established under paragraph (b) of this
section.
(b) In accordance with implementing directives issued
pursuant to this order, an agency head or senior agency official shall
establish procedures under which authorized holders of information, including
authorized holders outside the classifying agency, are encouraged and expected
to challenge the classification of information that they believe is improperly
classified or unclassified. These procedures shall ensure that:
(1) individuals are not subject to retribution for
bringing such actions;
(2) an opportunity is provided for review by an
impartial official or panel; and
(3) individuals are advised of their right to appeal
agency decisions to the Interagency Security Classification Appeals Panel
(Panel) established by section 5.3 of this order.
(c) Documents required to be submitted for
prepublication review or other administrative process pursuant to an approved
nondisclosure agreement are not covered by this section.
Sec. 1.9. Fundamental Classification Guidance Review.
(a) Agency heads shall complete on a periodic basis a comprehensive review of the agency's classification guidance, particularly classification guides, to ensure the guidance reflects current circumstances and to identify classified information that no longer requires protection and can be declassified. The initial fundamental classification guidance review shall be completed within 2 years of the effective date of this order.
(a) Agency heads shall complete on a periodic basis a comprehensive review of the agency's classification guidance, particularly classification guides, to ensure the guidance reflects current circumstances and to identify classified information that no longer requires protection and can be declassified. The initial fundamental classification guidance review shall be completed within 2 years of the effective date of this order.
(b) The classification guidance review shall include
an evaluation of classified information to determine if it meets the standards
for classification under section 1.4 of this order, taking into account an
up-to-date assessment of likely damage as described under section 1.2 of this
order.
(c) The classification guidance review shall include
original classification authorities and agency subject matter experts to ensure
a broad range of perspectives.
(d) Agency heads shall provide a report summarizing
the results of the classification guidance review to the Director of the
Information Security Oversight Office and shall release an unclassified version
of this report to the public.
PART 2 -- DERIVATIVE CLASSIFICATION
Sec. 2.1. Use of Derivative Classification.
(a) Persons who reproduce, extract, or summarize classified information,
or who apply classification markings derived from source material or as
directed by a classification guide, need not possess original classification
authority.
(b) Persons who apply derivative classification
markings shall:
(1) be identified by name and position, or by personal identifier, in a manner that is immediately apparent for each derivative classification action;
(1) be identified by name and position, or by personal identifier, in a manner that is immediately apparent for each derivative classification action;
(2) observe and respect original classification
decisions; and
(3) carry forward to any newly created documents the
pertinent classification markings. For information derivatively classified
based on multiple sources, the derivative classifier shall carry forward:
(A) the date or event for declassification that
corresponds to the longest period of classification among the sources, or the
marking established pursuant to section 1.6(a)(4)(D) of this order; and
(B) a listing of the source materials.
(c) Derivative classifiers shall, whenever
practicable, use a classified addendum whenever classified information
constitutes a small portion of an otherwise unclassified document or prepare a
product to allow for dissemination at the lowest level of classification
possible or in unclassified form.
(d) Persons who apply derivative classification
markings shall receive training in the proper application of the derivative
classification principles of the order, with an emphasis on avoiding
over-classification, at least once every 2 years. Derivative classifiers
who do not receive such training at least once every 2 years shall have their
authority to apply derivative classification markings suspended until they have
received such training. A waiver may be granted by the agency head, the
deputy agency head, or the senior agency official if an individual is unable to
receive such training due to unavoidable circumstances. Whenever a waiver
is granted, the individual shall receive such training as soon as practicable.
Sec. 2.2. Classification Guides.
(a)
Agencies with original classification authority shall prepare classification
guides to facilitate the proper and uniform derivative classification of
information. These guides shall conform to standards contained in
directives issued under this order.
(b) Each guide shall be approved personally and in
writing by an official who:
(1) has program or supervisory responsibility over the
information or is the senior agency official; and
(2) is authorized to classify information originally
at the highest level of classification prescribed in the guide.
(c) Agencies shall establish procedures to ensure that
classification guides are reviewed and updated as provided in directives issued
under this order.
(d) Agencies shall incorporate original classification
decisions into classification guides on a timely basis and in accordance with
directives issued under this order.
(e) Agencies may incorporate exemptions from automatic
declassification approved pursuant to section 3.3(j) of this order into
classification guides, provided that the Panel is notified of the intent to
take such action for specific information in advance of approval and the
information remains in active use.
(f) The duration of classification of a document
classified by a derivative classifier using a classification guide shall not
exceed 25 years from the date of the origin of the document, except for:
(1) information that should clearly and demonstrably
be expected to reveal the identity of a confidential human source or a human
intelligence source or key design concepts of weapons of mass destruction; and
(2) specific information incorporated into
classification guides in accordance with section 2.2(e) of this order.
PART 3 -- DECLASSIFICATION AND
DOWNGRADING
Sec. 3.1. Authority for Declassification.
(a) Information shall be declassified as soon as it no longer meets the
standards for classification under this order.
(b) Information shall be declassified or downgraded
by:
(1) the official who authorized the original
classification, if that official is still serving in the same position and has
original classification authority;
(2) the originator's current successor in function, if
that individual has original classification authority;
(3) a supervisory official of either the originator or
his or her successor in function, if the supervisory official has original
classification authority; or
(4) officials delegated declassification authority in
writing by the agency head or the senior agency official of the originating
agency.
(c) The Director of National Intelligence (or, if
delegated by the Director of National Intelligence, the Principal Deputy
Director of National Intelligence) may, with respect to the Intelligence
Community, after consultation with the head of the originating Intelligence
Community element or department, declassify, downgrade, or direct the
declassification or downgrading of information or intelligence relating to
intelligence sources, methods, or activities.
(d) It is presumed that information that continues to
meet the classification requirements under this order requires continued
protection. In some exceptional cases, however, the need to protect such
information may be outweighed by the public interest in disclosure of the
information, and in these cases the information should be declassified.
When such questions arise, they shall be referred to the agency head or the
senior agency official. That official will determine, as an exercise of
discretion, whether the public interest in disclosure outweighs the damage to
the national security that might reasonably be expected from disclosure.
This provision does not:
(1) amplify or modify the substantive criteria or
procedures for classification; or
(2) create any substantive or procedural rights
subject to judicial review.
(e) If the Director of the Information Security
Oversight Office determines that information is classified in violation of this
order, the Director may require the information to be declassified by the
agency that originated the classification. Any such decision by the
Director may be appealed to the President through the National Security
Advisor. The information shall remain classified pending a prompt
decision on the appeal.
(f) The provisions of this section shall also apply to
agencies that, under the terms of this order, do not have original
classification authority, but had such authority under predecessor orders.
(g) No information may be excluded from
declassification under section 3.3 of this order based solely on the type of
document or record in which it is found. Rather, the classified
information must be considered on the basis of its content.
(h) Classified nonrecord materials, including
artifacts, shall be declassified as soon as they no longer meet the standards
for classification under this order.
(i) When making decisions under sections 3.3, 3.4, and
3.5 of this order, agencies shall consider the final decisions of the Panel.
Sec. 3.2. Transferred Records.
(a) In
the case of classified records transferred in conjunction with a transfer of
functions, and not merely for storage purposes, the receiving agency shall be
deemed to be the originating agency for purposes of this order.
(b) In the case of classified records that are not
officially transferred as described in paragraph (a) of this section, but that
originated in an agency that has ceased to exist and for which there is no
successor agency, each agency in possession of such records shall be deemed to
be the originating agency for purposes of this order. Such records may be
declassified or downgraded by the agency in possession of the records after
consultation with any other agency that has an interest in the subject matter
of the records.
(c) Classified records accessioned into the National
Archives shall be declassified or downgraded by the Archivist in accordance
with this order, the directives issued pursuant to this order, agency
declassification guides, and any existing procedural agreement between the
Archivist and the relevant agency head.
(d) The originating agency shall take all reasonable
steps to declassify classified information contained in records determined to
have permanent historical value before they are accessioned into the National
Archives. However, the Archivist may require that classified records be
accessioned into the National Archives when necessary to comply with the
provisions of the Federal Records Act. This provision does not apply to
records transferred to the Archivist pursuant to section 2203 of title 44,
United States Code, or records for which the National Archives serves as the
custodian of the records of an agency or organization that has gone out of
existence.
(e) To the extent practicable, agencies shall adopt a
system of records management that will facilitate the public release of
documents at the time such documents are declassified pursuant to the
provisions for automatic declassification in section 3.3 of this order.
Sec. 3.3. Automatic Declassification.
(a)
Subject to paragraphs (b)–(d) and (g)–(j) of this section, all classified
records that (1) are more than 25 years old and (2) have been determined to
have permanent historical value under title 44, United States Code, shall be
automatically declassified whether or not the records have been reviewed.
All classified records shall be automatically declassified on December 31 of
the year that is 25 years from the date of origin, except as provided in paragraphs
(b)–(d) and (g)–(i) of this section. If the date of origin of an
individual record cannot be readily determined, the date of original
classification shall be used instead.
(b) An agency head may exempt from automatic
declassification under paragraph (a) of this section specific information, the
release of which should clearly and demonstrably be expected to:
(1) reveal the identity of a confidential human
source, a human intelligence source, a relationship with an intelligence or
security service of a foreign government or international organization, or a
nonhuman intelligence source; or impair the effectiveness of an intelligence
method currently in use, available for use, or under development;
(2) reveal information that would assist in the development,
production, or use of weapons of mass destruction;
(3) reveal information that would impair U.S.
cryptologic systems or activities;
(4) reveal information that would impair the
application of state-of-the-art technology within a U.S.
weapon system;
(5) reveal formally named or numbered U.S.
military war plans that remain in effect, or reveal operational or tactical
elements of prior plans that are contained in such active plans;
(6) reveal information, including foreign government
information, that would cause serious harm to relations between the United
States and a foreign government, or to
ongoing diplomatic activities of the United
States ;
(7) reveal information that would impair the current
ability of United States Government officials to protect the President, Vice
President, and other protectees for whom protection services, in the interest
of the national security, are authorized;
(8) reveal information that would seriously impair
current national security emergency preparedness plans or reveal current
vulnerabilities of systems, installations, or infrastructures relating to the
national security; or
(9) violate a statute, treaty, or international
agreement that does not permit the automatic or unilateral declassification of
information at 25 years.
(c)(1) An agency head shall notify the Panel of any
specific file series of records for which a review or assessment has determined
that the information within that file series almost invariably falls within one
or more of the exemption categories listed in paragraph (b) of this section and
that the agency proposes to exempt from automatic declassification at 25 years.
(2) The notification shall include:
(A) a description of the file series;
(B) an explanation of why the information within the
file series is almost invariably exempt from automatic declassification and why
the information must remain classified for a longer period of time; and
(C) except when the information within the file series
almost invariably identifies a confidential human source or a human
intelligence source or key design concepts of weapons of mass destruction, a
specific date or event for declassification of the information, not to exceed
December 31 of the year that is 50 years from the date of origin of the records.
(3) The Panel may direct the agency not to exempt a
designated file series or to declassify the information within that series at
an earlier date than recommended. The agency head may appeal such a
decision to the President through the National Security Advisor.
(4) File series exemptions approved by the President
prior to December 31, 2008 ,
shall remain valid without any additional agency action pending Panel review by
the later of December 31, 2010 ,
or December 31 of the year that is 10 years from the date of previous approval.
(d) The following provisions shall apply to the onset
of automatic declassification:
(1) Classified records within an integral file block,
as defined in this order, that are otherwise subject to automatic
declassification under this section shall not be automatically declassified
until December 31 of the year that is 25 years from the date of the most recent
record within the file block.
(2) After consultation with the Director of the
National Declassification Center (the Center) established by section 3.7 of
this order and before the records are subject to automatic declassification, an
agency head or senior agency official may delay automatic declassification for
up to five additional years for classified information contained in media that
make a review for possible declassification exemptions more difficult or
costly.
(3) Other than for records that are properly exempted
from automatic declassification, records containing classified information that
originated with other agencies or the disclosure of which would affect the
interests or activities of other agencies with respect to the classified
information and could reasonably be expected to fall under one or more of the
exemptions in paragraph (b) of this section shall be identified prior to the
onset of automatic declassification for later referral to those agencies.
(A) The information of concern shall be referred by
the Center established by section 3.7 of this order, or by the centralized
facilities referred to in section 3.7(e) of this order, in a prioritized and
scheduled manner determined by the Center.
(B) If an agency fails to provide a final
determination on a referral made by the Center within 1 year of referral, or by
the centralized facilities referred to in section 3.7(e) of this order within 3
years of referral, its equities in the referred records shall be automatically
declassified.
(C) If any disagreement arises between affected
agencies and the Center regarding the referral review period, the Director of
the Information Security Oversight Office shall determine the appropriate
period of review of referred records.
(D) Referrals identified prior to the establishment of
the Center by section 3.7 of this order shall be subject to automatic
declassification only in accordance with subparagraphs (d)(3)(A)–(C) of this
section.
(4) After consultation with the Director of the
Information Security Oversight Office, an agency head may delay automatic
declassification for up to 3 years from the date of discovery of classified
records that were inadvertently not reviewed prior to the effective date of
automatic declassification.
(e) Information exempted from automatic
declassification under this section shall remain subject to the mandatory and
systematic declassification review provisions of this order.
(f) The Secretary of State shall determine when the
United States should commence negotiations with the appropriate officials of a
foreign government or international organization of governments to modify any treaty
or international agreement that requires the classification of information
contained in records affected by this section for a period longer than 25 years
from the date of its creation, unless the treaty or international agreement
pertains to information that may otherwise remain classified beyond 25 years
under this section.
(g) The Secretary of Energy shall determine when
information concerning foreign nuclear programs that was removed from the
Restricted Data category in order to carry out provisions of the National
Security Act of 1947, as amended, may be declassified. Unless otherwise
determined, such information shall be declassified when comparable information
concerning the United States
nuclear program is declassified.
(h) Not later than 3 years from the effective date of
this order, all records exempted from automatic declassification under
paragraphs (b) and (c) of this section shall be automatically declassified on
December 31 of a year that is no more than 50 years from the date of origin,
subject to the following:
(1) Records that contain information the release of
which should clearly and demonstrably be expected to reveal the following are
exempt from automatic declassification at 50 years:
(A) the identity of a confidential human source or a
human intelligence source; or
(B) key design concepts of weapons of mass
destruction.
(2) In extraordinary cases, agency heads may, within 5
years of the onset of automatic declassification, propose to exempt additional
specific information from declassification at 50 years.
(3) Records exempted from automatic declassification
under this paragraph shall be automatically declassified on December 31 of a
year that is no more than 75 years from the date of origin unless an agency
head, within 5 years of that date, proposes to exempt specific information from
declassification at 75 years and the proposal is formally approved by the
Panel.
(i) Specific records exempted from automatic
declassification prior to the establishment of the Center described in section
3.7 of this order shall be subject to the provisions of paragraph (h) of this
section in a scheduled and prioritized manner determined by the Center.
(j) At least 1 year before information is subject to
automatic declassification under this section, an agency head or senior agency
official shall notify the Director of the Information Security Oversight
Office, serving as Executive Secretary of the Panel, of any specific
information that the agency proposes to exempt from automatic declassification
under paragraphs (b) and (h) of this section.
(1) The notification shall include:
(A) a detailed description of the information, either
by reference to information in specific records or in the form of a
declassification guide;
(B) an explanation of why the information should be
exempt from automatic declassification and must remain classified for a longer
period of time; and
(C) a specific date or a specific and independently
verifiable event for automatic declassification of specific records that
contain the information proposed for exemption.
(2) The Panel may direct the agency not to exempt the
information or to declassify it at an earlier date than recommended. An
agency head may appeal such a decision to the President through the National Security
Advisor. The information will remain classified while such an appeal is
pending.
(k) For information in a file series of records
determined not to have permanent historical value, the duration of
classification beyond 25 years shall be the same as the disposition
(destruction) date of those records in each Agency Records Control Schedule or
General Records Schedule, although the duration of classification shall be
extended if the record has been retained for business reasons beyond the
scheduled disposition date.
Sec. 3.4. Systematic Declassification Review.
(a) Each agency that has originated classified information under this
order or its predecessors shall establish and conduct a program for systematic
declassification review for records of permanent historical value exempted from
automatic declassification under section 3.3 of this order. Agencies
shall prioritize their review of such records in accordance with priorities
established by the Center.
(b) The
Archivist shall conduct a systematic declassification review program for
classified records:
(1) accessioned into the National Archives;
(2)
transferred to the Archivist pursuant to 44 U.S.C. 2203; and
3) for which the
National Archives serves as the custodian for an agency or organization that
has gone out of existence.
Sec. 3.5. Mandatory Declassification
Review.
(a) Except as provided in paragraph (b) of this
section, all information classified under this order or predecessor orders
shall be subject to a review for declassification by the originating agency if:
(1) the request for a review describes the document or
material containing the information with sufficient specificity to enable the
agency to locate it with a reasonable amount of effort;
(2) the document or material containing the
information responsive to the request is not contained within an operational
file exempted from search and review, publication, and disclosure under 5
U.S.C. 552 in accordance with law; and
(3) the information is not the subject of pending
litigation.
(b) Information originated by the incumbent President
or the incumbent Vice President; the incumbent President's White House Staff or
the incumbent Vice President's Staff; committees, commissions, or boards
appointed by the incumbent President; or other entities within the Executive
Office of the President that solely advise and assist the incumbent President
is exempted from the provisions of paragraph (a) of this section.
However, the Archivist shall have the authority to review, downgrade, and declassify
papers or records of former Presidents and Vice Presidents under the control of
the Archivist pursuant to 44 U.S.C. 2107, 2111, 2111 note, or 2203.
Review procedures developed by the Archivist shall provide for consultation
with agencies having primary subject matter interest and shall be consistent
with the provisions of applicable laws or lawful agreements that pertain to the
respective Presidential papers or records. Agencies with primary subject
matter interest shall be notified promptly of the Archivist's decision.
Any final decision by the Archivist may be appealed by the requester or an
agency to the Panel. The information shall remain classified pending a
prompt decision on the appeal.
(c) Agencies conducting a mandatory review for
declassification shall declassify information that no longer meets the
standards for classification under this order. They shall release this
information unless withholding is otherwise authorized and warranted under
applicable law.
(d) If an agency has reviewed the requested
information for declassification within the past 2 years, the agency need not
conduct another review and may instead inform the requester of this fact and
the prior review decision and advise the requester of appeal rights provided
under subsection (e) of this section.
(e) In accordance with directives issued pursuant to
this order, agency heads shall develop procedures to process requests for the
mandatory review of classified information. These procedures shall apply
to information classified under this or predecessor orders. They also
shall provide a means for administratively appealing a denial of a mandatory
review request, and for notifying the requester of the right to appeal a final
agency decision to the Panel.
(f) After consultation with affected agencies, the
Secretary of Defense shall develop special procedures for the review of
cryptologic information; the Director of National Intelligence shall develop
special procedures for the review of information pertaining to intelligence sources,
methods, and activities; and the Archivist shall develop special procedures for
the review of information accessioned into the National Archives.
(g) Documents required to be submitted for
prepublication review or other administrative process pursuant to an approved
nondisclosure agreement are not covered by this section.
(h) This section shall not apply to any request for a
review made to an element of the Intelligence Community that is made by a
person other than an individual as that term is defined by 5 U.S.C. 552a(a)(2),
or by a foreign government entity or any representative thereof.
Sec. 3.6. Processing Requests and Reviews.
Notwithstanding section 4.1(i) of this order, in response to a request for
information under the Freedom of Information Act, the Presidential Records Act,
the Privacy Act of 1974, or the mandatory review provisions of this order:
(a) An agency may refuse to confirm or deny the
existence or nonexistence of requested records whenever the fact of their
existence or nonexistence is itself classified under this order or its
predecessors.
(b) When an agency receives any request for documents
in its custody that contain classified information that originated with other
agencies or the disclosure of which would affect the interests or activities of
other agencies with respect to the classified information, or identifies such
documents in the process of implementing sections 3.3 or 3.4 of this order, it
shall refer copies of any request and the pertinent documents to the originating
agency for processing and may, after consultation with the originating agency,
inform any requester of the referral unless such association is itself
classified under this order or its predecessors. In cases in which the
originating agency determines in writing that a response under paragraph (a) of
this section is required, the referring agency shall respond to the requester
in accordance with that paragraph.
(c) Agencies may extend the classification of
information in records determined not to have permanent historical value or
nonrecord materials, including artifacts, beyond the time frames established in
sections 1.5(b) and 2.2(f) of this order, provided:
(1) the specific information has been approved
pursuant to section 3.3(j) of this order for exemption from automatic
declassification; and
(2) the extension does not exceed the date established
in section 3.3(j) of this order.
Sec. 3.7. National
Declassification Center
(a) There is established within the National Archives a National
Declassification Center
to streamline declassification processes, facilitate quality-assurance
measures, and implement standardized training regarding the declassification of
records determined to have permanent historical value. There shall be a
Director of the Center who shall be appointed or removed by the Archivist in
consultation with the Secretaries of State, Defense, Energy, and Homeland
Security, the Attorney General, and the Director of National Intelligence.
(b) Under the administration of the Director, the
Center shall coordinate:
(1) timely and appropriate processing of referrals in
accordance with section 3.3(d)(3) of this order for accessioned Federal records
and transferred presidential records.
(2) general interagency declassification activities
necessary to fulfill the requirements of sections 3.3 and 3.4 of this order;
(3) the exchange among agencies of detailed
declassification guidance to enable the referral of records in accordance with
section 3.3(d)(3) of this order;
(4) the development of effective, transparent, and
standard declassification work processes, training, and quality assurance
measures;
(5) the development of solutions to declassification
challenges posed by electronic records, special media, and emerging
technologies;
(6) the linkage and effective utilization of existing
agency databases and the use of new technologies to document and make public
declassification review decisions and support declassification activities under
the purview of the Center; and
(7) storage and related services, on a reimbursable
basis, for Federal records containing classified national security information.
(c) Agency heads shall fully cooperate with the
Archivist in the activities of the Center and shall:
(1) provide the Director with adequate and current
declassification guidance to enable the referral of records in accordance with
section 3.3(d)(3) of this order; and
(2) upon request of the Archivist, assign agency
personnel to the Center who shall be delegated authority by the agency head to
review and exempt or declassify information originated by their agency
contained in records accessioned into the National Archives, after consultation
with subject-matter experts as necessary.
(d) The Archivist, in consultation with
representatives of the participants in the Center and after input from the
general public, shall develop priorities for declassification activities under
the purview of the Center that take into account the degree of researcher
interest and the likelihood of declassification.
(e) Agency heads may establish such centralized
facilities and internal operations to conduct internal declassification reviews
as appropriate to achieve optimized records management and declassification
business processes. Once established, all referral processing of
accessioned records shall take place at the Center, and such agency facilities
and operations shall be coordinated with the Center to ensure the maximum
degree of consistency in policies and procedures that relate to records
determined to have permanent historical value.
(f) Agency heads may exempt from automatic
declassification or continue the classification of their own originally
classified information under section 3.3(a) of this order except that in the
case of the Director of National Intelligence, the Director shall also retain
such authority with respect to the Intelligence Community.
(g) The Archivist shall, in consultation with the
Secretaries of State, Defense, Energy, and Homeland Security, the Attorney
General, the Director of National Intelligence, the Director of the Central
Intelligence Agency, and the Director of the Information Security Oversight
Office, provide the National Security Advisor with a detailed concept of
operations for the Center and a proposed implementing directive under section
5.1 of this order that reflects the coordinated views of the aforementioned
agencies.
PART 4 – SAFEGUARDING
Sec. 4.1. General Restrictions on
Access.
(a) A person may have access to classified information
provided that:
(1) a favorable determination of eligibility for
access has been made by an agency head or the agency head's designee;
(2) the person has signed an approved nondisclosure
agreement; and
(3) the person has a need-to-know the information.
(b) Every person who has met the standards for access
to classified information in paragraph (a) of this section shall receive
contemporaneous training on the proper safeguarding of classified information
and on the criminal, civil, and administrative sanctions that may be imposed on
an individual who fails to protect classified information from unauthorized
disclosure.
(c) An official or employee leaving agency service may
not remove classified information from the agency's control or direct that
information be declassified in order to remove it from agency control.
(d) Classified information may not be removed from
official premises without proper authorization.
(e) Persons authorized to disseminate classified
information outside the executive branch shall ensure the protection of the
information in a manner equivalent to that provided within the executive
branch.
(f) Consistent with law, executive orders, directives,
and regulations, an agency head or senior agency official or, with respect to
the Intelligence Community, the Director of National Intelligence, shall
establish uniform procedures to ensure that automated information systems,
including networks and telecommunications systems, that collect, create,
communicate, compute, disseminate, process, or store classified information:
(1) prevent access by unauthorized persons;
(2) ensure the integrity of the information; and
(3) to the maximum extent practicable, use:
(A) common information technology standards,
protocols, and interfaces that maximize the availability of, and access to, the
information in a form and manner that facilitates its authorized use; and
(B) standardized electronic formats to maximize the
accessibility of information to persons who meet the criteria set forth in
section 4.1(a) of this order.
(g) Consistent with law, executive orders, directives,
and regulations, each agency head or senior agency official, or with respect to
the Intelligence Community, the Director of National Intelligence, shall
establish controls to ensure that classified information is used, processed,
stored, reproduced, transmitted, and destroyed under conditions that provide
adequate protection and prevent access by unauthorized persons.
(h) Consistent with directives issued pursuant to this
order, an agency shall safeguard foreign government information under standards
that provide a degree of protection at least equivalent to that required by the
government or international organization of governments that furnished the
information. When adequate to achieve equivalency, these standards may be
less restrictive than the safeguarding standards that ordinarily apply to U.S.
"Confidential" information, including modified handling and
transmission and allowing access to individuals with a need-to-know who have
not otherwise been cleared for access to classified information or executed an
approved nondisclosure agreement.
(i)(1) Classified information originating in one
agency may be disseminated to another agency or U.S. entity by any agency to
which it has been made available without the consent of the originating agency,
as long as the criteria for access under section 4.1(a) of this order are met,
unless the originating agency has determined that prior authorization is
required for such dissemination and has marked or indicated such requirement on
the medium containing the classified information in accordance with
implementing directives issued pursuant to this order.
(2) Classified information originating in one agency
may be disseminated by any other agency to which it has been made available to
a foreign government in accordance with statute, this order, directives
implementing this order, direction of the President, or with the consent of the
originating agency. For the purposes of this section, "foreign government"
includes any element of a foreign government, or an international organization
of governments, or any element thereof.
(3) Documents created prior to the effective date of
this order shall not be disseminated outside any other agency to which they
have been made available without the consent of the originating agency.
An agency head or senior agency official may waive this requirement for
specific information that originated within that agency.
(4) For purposes of this section, the Department of
Defense shall be considered one agency, except that any dissemination of
information regarding intelligence sources, methods, or activities shall be
consistent with directives issued pursuant to section 6.2(b) of this order.
(5) Prior consent of the originating agency is not
required when referring records for declassification review that contain
information originating in more than one agency.
Sec. 4.2. Distribution Controls.
(a) The
head of each agency shall establish procedures in accordance with applicable law
and consistent with directives issued pursuant to this order to ensure that
classified information is accessible to the maximum extent possible by
individuals who meet the criteria set forth in section 4.1(a) of this order.
(b) In an emergency, when necessary to respond to an
imminent threat to life or in defense of the homeland, the agency head or any
designee may authorize the disclosure of classified information (including
information marked pursuant to section 4.1(i)(1) of this order) to an individual
or individuals who are otherwise not eligible for access. Such actions
shall be taken only in accordance with directives implementing this order and
any procedure issued by agencies governing the classified information, which
shall be designed to minimize the classified information that is disclosed
under these circumstances and the number of individuals who receive it.
Information disclosed under this provision or implementing directives and
procedures shall not be deemed declassified as a result of such disclosure or
subsequent use by a recipient. Such disclosures shall be reported
promptly to the originator of the classified information. For purposes of
this section, the Director of National Intelligence may issue an implementing
directive governing the emergency disclosure of classified intelligence
information.
(c) Each agency shall update, at least annually, the
automatic, routine, or recurring distribution mechanism for classified
information that it distributes. Recipients shall cooperate fully with
distributors who are updating distribution lists and shall notify distributors
whenever a relevant change in status occurs.
Sec. 4.3. Special Access
Programs.
(a) Establishment of special access programs.
Unless otherwise authorized by the President, only the Secretaries of State,
Defense, Energy, and Homeland Security, the Attorney General, and the Director
of National Intelligence, or the principal deputy of each, may create a special
access program. For special access programs pertaining to intelligence
sources, methods, and activities (but not including military operational,
strategic, and tactical programs), this function shall be exercised by the
Director of National Intelligence. These officials shall keep the number
of these programs at an absolute minimum, and shall establish them only when
the program is required by statute or upon a specific finding that:
(1) the vulnerability of, or threat to, specific
information is exceptional; and
(2) the normal criteria for determining eligibility
for access applicable to information classified at the same level are not
deemed sufficient to protect the information from unauthorized disclosure.
(b) Requirements and limitations. (1)
Special access programs shall be limited to programs in which the number of
persons who ordinarily will have access will be reasonably small and
commensurate with the objective of providing enhanced protection for the
information involved.
(2) Each agency head shall establish and maintain a
system of accounting for special access programs consistent with directives
issued pursuant to this order.
(3) Special access programs shall be subject to the
oversight program established under section 5.4(d) of this order. In
addition, the Director of the Information Security Oversight Office shall be
afforded access to these programs, in accordance with the security requirements
of each program, in order to perform the functions assigned to the Information
Security Oversight Office under this order. An agency head may limit access
to a special access program to the Director of the Information Security
Oversight Office and no more than one other employee of the Information
Security Oversight Office or, for special access programs that are
extraordinarily sensitive and vulnerable, to the Director only.
(4) The agency head or principal deputy shall review
annually each special access program to determine whether it continues to meet
the requirements of this order.
(5) Upon request, an agency head shall brief the
National Security Advisor, or a designee, on any or all of the agency's special
access programs.
(6) For the purposes of this section, the term
"agency head" refers only to the Secretaries of State, Defense,
Energy, and Homeland Security, the Attorney General, and the Director of
National Intelligence, or the principal deputy of each.
(c) Nothing in this order shall supersede any
requirement made by or under 10 U.S.C. 119.
Sec. 4.4. Access by Historical Researchers and Certain
Former Government Personnel.
(a) The requirement in section
4.1(a)(3) of this order that access to classified information may be granted
only to individuals who have a need to-know the information may be waived for
persons who:
(1) are engaged in historical research projects;
(2) previously have occupied senior policy-making
positions to which they were appointed or designated by the President or the
Vice President; or
(3) served as President or Vice President.
(b) Waivers under this section may be granted only if
the agency head or senior agency official of the originating agency:
(1) determines in writing that access is consistent
with the interest of the national security;
(2) takes appropriate steps to protect classified
information from unauthorized disclosure or compromise, and ensures that the
information is safeguarded in a manner consistent with this order; and
(3) limits the access granted to former Presidential
appointees or designees and Vice Presidential appointees or designees to items
that the person originated, reviewed, signed, or received while serving as a
Presidential or Vice Presidential appointee or designee.
PART 5 -- IMPLEMENTATION AND
REVIEW
Sec. 5.1. Program Direction.
(a) The
Director of the Information Security Oversight Office, under the direction of
the Archivist and in consultation with the National Security Advisor, shall
issue such directives as are necessary to implement this order. These
directives shall be binding on the agencies. Directives issued by the
Director of the Information Security Oversight Office shall establish standards
for:
(1) classification, declassification, and marking
principles;
(2) safeguarding classified information, which shall
pertain to the handling, storage, distribution, transmittal, and destruction of
and accounting for classified information;
(3) agency security education and training programs;
(4) agency self-inspection programs; and
(5) classification and declassification guides.
(b) The Archivist shall delegate the implementation
and monitoring functions of this program to the Director of the Information
Security Oversight Office.
(c) The Director of National Intelligence, after
consultation with the heads of affected agencies and the Director of the
Information Security Oversight Office, may issue directives to implement this
order with respect to the protection of intelligence sources, methods, and
activities. Such directives shall be consistent with this order and
directives issued under paragraph (a) of this section.
Sec. 5.2. Information Security Oversight Office.
(a) There is established within the National Archives an Information
Security Oversight Office. The Archivist shall appoint the Director of
the Information Security Oversight Office, subject to the approval of the
President.
(b) Under the direction of the Archivist, acting in
consultation with the National Security Advisor, the Director of the
Information Security Oversight Office shall:
(1) develop directives for the implementation of this
order;
(2) oversee agency actions to ensure compliance with
this order and its implementing directives;
(3) review and approve agency implementing regulations
prior to their issuance to ensure their consistency with this order and
directives issued under section 5.1(a) of this order;
(4) have the authority to conduct on-site reviews of
each agency's program established under this order, and to require of each
agency those reports and information and other cooperation that may be
necessary to fulfill its responsibilities. If granting access to specific
categories of classified information would pose an exceptional national
security risk, the affected agency head or the senior agency official shall
submit a written justification recommending the denial of access to the
President through the National Security Advisor within 60 days of the request
for access. Access shall be denied pending the response;
(5) review requests for original classification
authority from agencies or officials not granted original classification
authority and, if deemed appropriate, recommend Presidential approval through
the National Security Advisor;
(6) consider and take action on complaints and
suggestions from persons within or outside the Government with respect to the
administration of the program established under this order;
(7) have the authority to prescribe, after
consultation with affected agencies, standardization of forms or procedures
that will promote the implementation of the program established under this
order;
(8) report at least annually to the President on the implementation
of this order; and
(9) convene and chair interagency meetings to discuss
matters pertaining to the program established by this order.
Sec. 5.3. Interagency Security Classification Appeals
Panel.
(a) Establishment and administration.
(1) There is established an Interagency Security
Classification Appeals Panel. The Departments of State, Defense, and
Justice, the National Archives, the Office of the Director of National
Intelligence, and the National Security Advisor shall each be represented by a
senior-level representative who is a full-time or permanent part-time Federal
officer or employee designated to serve as a member of the Panel by the
respective agency head. The President shall designate a Chair from among
the members of the Panel.
(2) Additionally, the Director of the Central
Intelligence Agency may appoint a temporary representative who meets the
criteria in paragraph (a)(1) of this section to participate as a voting member
in all Panel deliberations and associated support activities concerning
classified information originated by the Central Intelligence Agency.
(3) A vacancy on the Panel shall be filled as quickly
as possible as provided in paragraph (a)(1) of this section.
(4) The Director of the Information Security Oversight
Office shall serve as the Executive Secretary of the Panel. The staff of
the Information Security Oversight Office shall provide program and
administrative support for the Panel.
(5) The members and staff of the Panel shall be
required to meet eligibility for access standards in order to fulfill the
Panel's functions.
(6) The Panel shall meet at the call of the
Chair. The Chair shall schedule meetings as may be necessary for the
Panel to fulfill its functions in a timely manner.
(7) The Information Security Oversight Office shall
include in its reports to the President a summary of the Panel's activities.
(b) Functions. The Panel shall:
(1) decide on appeals by persons who have filed
classification challenges under section 1.8 of this order;
(2) approve, deny, or amend agency exemptions from
automatic declassification as provided in section 3.3 of this order;
(3) decide on appeals by persons or entities who have
filed requests for mandatory declassification review under section 3.5 of this
order; and
(4) appropriately inform senior agency officials and
the public of final Panel decisions on appeals under sections 1.8 and 3.5 of
this order.
(c) Rules and procedures. The Panel shall issue
bylaws, which shall be published in the Federal Register. The bylaws
shall establish the rules and procedures that the Panel will follow in
accepting, considering, and issuing decisions on appeals. The rules and
procedures of the Panel shall provide that the Panel will consider appeals only
on actions in which:
(1) the appellant has exhausted his or her
administrative remedies within the responsible agency;
(2) there is no current action pending on the issue
within the Federal courts; and
(3) the information has not been the subject of review
by the Federal courts or the Panel within the past 2 years.
(d) Agency heads shall cooperate fully with the Panel
so that it can fulfill its functions in a timely and fully informed
manner. The Panel shall report to the President through the National
Security Advisor any instance in which it believes that an agency head is not
cooperating fully with the Panel.
(e) The Panel is established for the sole purpose of
advising and assisting the President in the discharge of his constitutional and
discretionary authority to protect the national security of the United
States . Panel decisions are committed
to the discretion of the Panel, unless changed by the President.
(f) An agency head may appeal a decision of the Panel
to the President through the National Security Advisor. The information
shall remain classified pending a decision on the appeal.
Sec. 5.4. General Responsibilities.
Heads of
agencies that originate or handle classified information shall:
(a) demonstrate personal commitment and commit senior
management to the successful implementation of the program established under
this order;
(b) commit necessary resources to the effective
implementation of the program established under this order;
(c) ensure that agency records systems are designed
and maintained to optimize the appropriate sharing and safeguarding of
classified information, and to facilitate its declassification under the terms
of this order when it no longer meets the standards for continued
classification; and
(d) designate a senior agency official to direct and
administer the program, whose responsibilities shall include:
(1) overseeing the agency's program established under
this order, provided an agency head may designate a separate official to
oversee special access programs authorized under this order. This
official shall provide a full accounting of the agency's special access
programs at least annually;
(2) promulgating implementing regulations, which shall
be published in the Federal Register to the extent that they affect members of the
public;
(3) establishing and maintaining security education
and training programs;
(4) establishing and maintaining an ongoing self
inspection program, which shall include the regular reviews of representative
samples of the agency's original and derivative classification actions, and
shall authorize appropriate agency officials to correct misclassification
actions not covered by sections 1.7(c) and 1.7(d) of this order; and reporting
annually to the Director of the Information Security Oversight Office on the
agency's self-inspection program;
(5) establishing procedures consistent with directives
issued pursuant to this order to prevent unnecessary access to classified
information, including procedures that:
(A) require that a need for access to classified
information be established before initiating administrative clearance
procedures; and
(B) ensure that the number of persons granted access
to classified information meets the mission needs of the agency while also
satisfying operational and security requirements and needs;
(6) developing special contingency plans for the
safeguarding of classified information used in or near hostile or potentially
hostile areas;
(7) ensuring that the performance contract or other
system used to rate civilian or military personnel performance includes the
designation and management of classified information as a critical element or
item to be evaluated in the rating of:
(A) original classification authorities;
(B) security managers or security specialists; and
(C) all other personnel whose duties significantly
involve the creation or handling of classified information, including personnel
who regularly apply derivative classification markings;
(8) accounting for the costs associated with the
implementation of this order, which shall be reported to the Director of the
Information Security Oversight Office for publication;
(9) assigning in a prompt manner agency personnel to
respond to any request, appeal, challenge, complaint, or suggestion arising out
of this order that pertains to classified information that originated in a
component of the agency that no longer exists and for which there is no clear
successor in function; and
(10) establishing a secure capability to receive
information, allegations, or complaints regarding over-classification or
incorrect classification within the agency and to provide guidance to personnel
on proper classification as needed.
Sec. 5.5. Sanctions.
(a) If the Director
of the Information Security Oversight Office finds that a violation of this
order or its implementing directives has occurred, the Director shall make a
report to the head of the agency or to the senior agency official so that
corrective steps, if appropriate, may be taken.
(b) Officers and employees of the United States
Government, and its contractors, licensees, certificate holders, and grantees
shall be subject to appropriate sanctions if they knowingly, willfully, or
negligently:
(1) disclose to unauthorized persons information
properly classified under this order or predecessor orders;
(2) classify or continue the classification of
information in violation of this order or any implementing directive;
(3) create or continue a special access program
contrary to the requirements of this order; or
(4) contravene any other provision of this order or
its implementing directives.
(c) Sanctions may include reprimand, suspension
without pay, removal, termination of classification authority, loss or denial
of access to classified information, or other sanctions in accordance with
applicable law and agency regulation.
(d) The agency head, senior agency official, or other
supervisory official shall, at a minimum, promptly remove the classification
authority of any individual who demonstrates reckless disregard or a pattern of
error in applying the classification standards of this order.
(e) The agency head or senior agency official shall:
(1) take appropriate and prompt corrective action when
a violation or infraction under paragraph (b) of this section occurs; and
(2) notify the Director of the Information Security
Oversight Office when a violation under paragraph (b)(1), (2), or (3) of this
section occurs.
PART 6 -- GENERAL PROVISIONS
Sec. 6.1. Definitions. For purposes of this
order:
(a) "Access" means the ability or
opportunity to gain knowledge of classified information.
(b) "Agency" means any "Executive
agency," as defined in 5 U.S.C. 105; any "Military department"
as defined in 5 U.S.C. 102; and any other entity within the executive branch
that comes into the possession of classified information.
(c) "Authorized holder" of classified
information means anyone who satisfies the conditions for access stated in
section 4.1(a) of this order.
(d) "Automated information system" means an
assembly of computer hardware, software, or firmware configured to collect,
create, communicate, compute, disseminate, process, store, or control data or
information.
(e) "Automatic declassification" means the
declassification of information based solely upon:
(1) the occurrence of a specific date or event as
determined by the original classification authority; or
(2) the expiration of a maximum time frame for
duration of classification established under this order.
(f) "Classification" means the act or
process by which information is determined to be classified information.
(g) "Classification guidance" means any
instruction or source that prescribes the classification of specific
information.
(h) "Classification guide" means a
documentary form of classification guidance issued by an original
classification authority that identifies the elements of information regarding
a specific subject that must be classified and establishes the level and
duration of classification for each such element.
(i) "Classified national security
information" or "classified information" means information that
has been determined pursuant to this order or any predecessor order to require
protection against unauthorized disclosure and is marked to indicate its
classified status when in documentary form.
(j) "Compilation" means an aggregation of
preexisting unclassified items of information.
(k) "Confidential source" means any
individual or organization that has provided, or that may reasonably be
expected to provide, information to the United
States on matters pertaining to the national
security with the expectation that the information or relationship, or both,
are to be held in confidence.
(l) "Damage to the national security" means
harm to the national defense or foreign relations of the United
States from the unauthorized disclosure of
information, taking into consideration such aspects of the information as the
sensitivity, value, utility, and provenance of that information.
(m) "Declassification" means the authorized
change in the status of information from classified information to unclassified
information.
(n) "Declassification guide" means written
instructions issued by a declassification authority that describes the elements
of information regarding a specific subject that may be declassified and the
elements that must remain classified.
(o) "Derivative classification" means the
incorporating, paraphrasing, restating, or generating in new form information
that is already classified, and marking the newly developed material consistent
with the classification markings that apply to the source information.
Derivative classification includes the classification of information based on
classification guidance. The duplication or reproduction of existing
classified information is not derivative classification.
(p) "Document" means any recorded
information, regardless of the nature of the medium or the method or
circumstances of recording.
(q) "Downgrading" means a determination by a
declassification authority that information classified and safeguarded at a
specified level shall be classified and safeguarded at a lower level.
(r) "File series" means file units or
documents arranged according to a filing system or kept together because they
relate to a particular subject or function, result from the same activity,
document a specific kind of transaction, take a particular physical form, or
have some other relationship arising out of their creation, receipt, or use,
such as restrictions on access or use.
(s) "Foreign government information" means:
(1) information provided to the United States Government by a foreign government or governments,
an international organization of governments, or any element thereof, with the expectation that the information, the source of the information, or both, are to be held in confidence;
(1) information provided to the United States Government by a foreign government or governments,
an international organization of governments, or any element thereof, with the expectation that the information, the source of the information, or both, are to be held in confidence;
(2) information produced by the United States
Government pursuant to or as a result of a joint arrangement with a foreign
government or governments, or an international organization of governments, or
any element thereof, requiring that the information, the arrangement, or both,
are to be held in confidence; or
(3) information received and treated as "foreign
government information" under the terms of a predecessor order.
(t) "Information" means any knowledge that
can be communicated or documentary material, regardless of its physical form or
characteristics, that is owned by, is produced by or for, or is under the
control of the United States Government.
(u) "Infraction" means any knowing, willful,
or negligent action contrary to the requirements of this order or its
implementing directives that does not constitute a "violation," as
defined below.
(v) "Integral file block" means a distinct
component of a file series, as defined in this section, that should be
maintained as a separate unit in order to ensure the integrity of the
records. An integral file block may consist of a set of records covering
either a specific topic or a range of time, such as a Presidential
administration or a 5-year retirement schedule within a specific file series
that is retired from active use as a group. For purposes of automatic
declassification, integral file blocks shall contain only records dated within 10 years of the oldest record in the file block.
declassification, integral file blocks shall contain only records dated within 10 years of the oldest record in the file block.
(w) "Integrity" means the state that exists
when information is unchanged from its source and has not been accidentally or
intentionally modified, altered, or destroyed.
(x) "Intelligence" includes foreign
intelligence and counterintelligence as defined by Executive Order 12333 of December 4, 1981 , as amended, or by a
successor order.
(y) "Intelligence activities" means all
activities that elements of the Intelligence Community are authorized to
conduct pursuant to law or Executive Order 12333, as amended, or a successor
order.
(z) "Intelligence Community" means an
element or agency of the U.S. Government identified in or designated pursuant
to section 3(4) of the National Security Act of 1947, as amended, or section
3.5(h) of Executive Order 12333, as amended.
(aa) "Mandatory declassification review"
means the review for declassification of classified information in response to
a request for declassification that meets the requirements under section 3.5 of
this order.
(bb) "Multiple sources" means two or more
source documents, classification guides, or a combination of both.
(cc) "National security" means the national
defense or foreign relations of the United
States .
(dd) "Need-to-know" means a determination
within the executive branch in accordance with directives issued pursuant to
this order that a prospective recipient requires access to specific classified
information in order to perform or assist in a lawful and authorized
governmental function.
(ee) "Network" means a system of two or more
computers that can exchange data or information.
(ff) "Original classification" means an
initial determination that information requires, in the interest of the
national security, protection against unauthorized disclosure.
(gg) "Original classification authority"
means an individual authorized in writing, either by the President, the Vice
President, or by agency heads or other officials designated by the President,
to classify information in the first instance.
(hh) "Records" means the records of an
agency and Presidential papers or Presidential records, as those terms are
defined in title 44, United States Code, including those created or maintained
by a government contractor, licensee, certificate holder, or grantee that are
subject to the sponsoring agency's control under the terms of the contract,
license, certificate, or grant.
(ii) "Records having permanent historical
value" means Presidential papers or Presidential records and the records
of an agency that the Archivist has determined should be maintained permanently
in accordance with title 44, United States Code.
(jj) "Records management" means the
planning, controlling, directing, organizing, training, promoting, and other
managerial activities involved with respect to records creation, records
maintenance and use, and records disposition in order to achieve adequate and
proper documentation of the policies and transactions of the Federal Government
and effective and economical management of agency operations.
(kk) "Safeguarding" means measures and
controls that are prescribed to protect classified information.
(ll) "Self-inspection" means the internal
review and evaluation of individual agency activities and the agency as a whole
with respect to the implementation of the program established under this order
and its implementing directives.
(mm) "Senior agency official" means the
official designated by the agency head under section 5.4(d) of this order to
direct and administer the agency's program under which information is
classified, safeguarded, and declassified.
(nn) "Source document" means an existing
document that contains classified information that is incorporated,
paraphrased, restated, or generated in new form into a new document.
(oo) "Special access program" means a
program established for a specific class of classified information that imposes
safeguarding and access requirements that exceed those normally required for
information at the same classification level.
(pp) "Systematic declassification review"
means the review for declassification of classified information contained in
records that have been determined by the Archivist to have permanent historical
value in accordance with title 44, United States Code.
(qq) "Telecommunications" means the
preparation, transmission, or communication of information by electronic means.
(rr) "Unauthorized disclosure" means a
communication or physical transfer of classified information to an unauthorized
recipient.
(ss) "U.S.
entity" includes:
(1) State, local, or tribal governments;
(2) State, local, and tribal law enforcement and firefighting
entities;
(3) public health and medical entities;
(4) regional, state, local, and tribal emergency
management entities, including State Adjutants General and other appropriate
public safety entities; or
(5) private sector entities serving as part of the
nation's Critical Infrastructure/Key Resources.
(tt) "Violation" means:
(1) any knowing, willful, or negligent action that
could reasonably be expected to result in an unauthorized disclosure of
classified information;
(2) any knowing, willful, or negligent action to
classify or continue the classification of information contrary to the
requirements of this order or its implementing directives; or
(3) any knowing, willful, or negligent action to
create or continue a special access program contrary to the requirements of
this order.
(uu) "Weapons of mass destruction" means any
weapon of mass destruction as defined in 50 U.S.C. 1801(p).
Sec. 6.2. General Provisions. (a)
Nothing in this order shall supersede any requirement made by or under the
Atomic Energy Act of 1954, as amended, or the National Security Act of 1947, as
amended. "Restricted Data" and "Formerly Restricted
Data" shall be handled, protected, classified, downgraded, and
declassified in conformity with the provisions of the Atomic Energy Act of
1954, as amended, and regulations issued under that Act.
(b) The Director of National Intelligence may, with
respect to the Intelligence Community and after consultation with the heads of
affected departments and agencies, issue such policy directives and guidelines
as the Director of National Intelligence deems necessary to implement this
order with respect to the classification and declassification of all
intelligence and intelligence-related information, and for access to and dissemination
of all intelligence and intelligence-related information, both in its final
form and in the form when initially gathered. Procedures or other
guidance issued by Intelligence Community element heads shall be in accordance
with such policy directives or guidelines issued by the Director of National
Intelligence. Any such policy directives or guidelines issued by the
Director of National Intelligence shall be in accordance with directives issued
by the Director of the Information Security Oversight Office under section
5.1(a) of this order.
(c) The Attorney General, upon request by the head of
an agency or the Director of the Information Security Oversight Office, shall
render an interpretation of this order with respect to any question arising in
the course of its administration.
(d) Nothing in this order limits the protection
afforded any information by other provisions of law, including the
Constitution, Freedom of Information Act exemptions, the Privacy Act of 1974,
and the National Security Act of 1947, as amended. This order is not
intended to and does not create any right or benefit, substantive or
procedural, enforceable at law by a party against the United States, its
departments, agencies, or entities, its officers, employees, or agents, or any
other person. The foregoing is in addition to the specific provisos set
forth in sections 1.1(b), 3.1(c) and 5.3(e) of this order.
(e) Nothing in this order shall be construed to
obligate action or otherwise affect functions by the Director of the Office of
Management and Budget relating to budgetary, administrative, or legislative
proposals.
(f) This order shall be implemented subject to the
availability of appropriations.
(g) Executive Order 12958 of April 17, 1995 , and amendments thereto, including
Executive Order 13292 of March 25,
2003 , are hereby revoked as of the effective date of this order.
Sec. 6.3. Effective Date.
This order is
effective 180 days from the date of this order, except for sections 1.7, 3.3,
and 3.7, which are effective immediately.
Sec. 6.4. Publication.
The Archivist of the
United States
shall publish this Executive Order in the Federal Register.
BARACK OBAMA
THE WHITE HOUSE,
December 29, 2009 .
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