Calendar No. 489

105th CONGRESS

  2d Session

                                 S. 712

                          [Report No. 105-258]

_______________________________________________________________________

                                 A BILL

  To provide for a system to classify information in the interests of
     national security and a system to declassify such information.

_______________________________________________________________________

                             July 22. 1998

                       Reported with an amendment





                                                       Calendar No. 489
105th CONGRESS
  2d Session
                                 S. 712

                          [Report No. 105-258]

  To provide for a system to classify information in the interests of
     national security and a system to declassify such information.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 7, 1997

   Mr. Moynihan (for himself, Mr. Helms, Mr. Roth, Mr. Lott, and Mr.
   Daschle) introduced the following bill; which was read twice and
           referred to the Committee on Governmental Affairs

                              July 22, 1998

              Reported by Mr. Thompson, with an amendment

_______________________________________________________________________

                                 A BILL



  To provide for a system to classify information in the interests of
     national security and a system to declassify such information.

    Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the "Government Secrecy Reform Act of
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
by or for, or under the control of the executive branch when there is a
demonstrable need to do so in order to protect the national security of
the United States.
    (b) Establishment of Standards and Procedures for Classification
and Declassification.--
            (1) Governmentwide procedures.--
                    (A) Classification.--The President shall, to the
                extent necessary, establish categories of information
                that may be classified and procedures for classifying
                information under subsection (a).
                    (B) Declassification.--At the same time the
                President establishes categories and procedures under
                subparagraph (A), the President shall establish
                procedures for declassifying information that was
                previously classified.
            (2) Notice and comment.--
                    (A) Notice.--The President shall publish in the
                Federal Register notice regarding the categories and
                procedures proposed to be established under paragraph
                (1).
                    (B) Comment.--The President shall provide an
                opportunity for interested persons to submit comments
                on the categories and procedures covered by
                subparagraph (A).
                    (C) Deadline.--The President shall complete the
                establishment of categories and procedures under 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 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 the 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.
                    (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 if the harm to national security
        that might reasonably be expected from disclosure of such
        information outweighs the public interest in disclosure of such
        information.
            (2) Default rule.--In the event of significant doubt
        whether the harm to national security that might reasonably be
        expected from the disclosure of information would outweigh the
        public interest in the disclosure of such information, such
        information shall not be classified or, in the case of
        classified information under review for declassification,
        declassified.
            (3) 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 national security
                        interests of the United States;
                            (ii) reveal information that would assist
                        in the development or use of weapons of mass
                        destruction;
                            (iii) reveal information that would impair
                        United States cryptologic systems or
                        activities;
                            (iv) reveal information that would impair
                        the application of 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
                        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
                        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
                        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.--
            (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.
            (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 classified not longer than 15
                years after the date of the postponement.
                    (D) Extended duration of postponement.--
                            (i) In general.--Subject to clauses (ii)
                        and (iii), the declassification of any
                        information that would otherwise be
                        declassified under subparagraph (C) or
                        paragraph (3) may be postponed if an official
                        of the agency with original classification
                        authority over the information determines that
                        extraordinary circumstances require that the
                        information remain classified.
                            (ii) 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 information
                        the declassification of which is postponed
                        under this subparagraph. Such information shall
                        be declassified at the earliest possible time
                        after the termination of the circumstances with
                        respect to such information referred to in
                        clause (i).
                    (E) Concurrences.--A concurrence at the direction
                of the Classification and Declassification Review Board
                on appeal under section 4(c)(2) and a concurrence at
                the direction of the President on appeal under section
                5(a) shall be treated as a concurrence of the Director
                of the Office of National Classification and
                Declassification Oversight for purposes of
                subparagraphs (B)(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 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 procedures shall, to the
        maximum extent practicable, be consistent with the provisions
        of this section.
            (2) Automatic declassification.--The procedures established
        under paragraph (1) shall include procedures for the automatic
        declassification of information referred to in paragraph (1)
        that has remained classified for more than 25 years as of such
        date.
            (3) Notice and comment.--
                    (A) Notice.--The President shall publish notice in
                the Federal Register of the procedures proposed to be
                established under this subsection.
                    (B) Comment.--The President shall provide an
                opportunity for interested persons to submit comments
                on the procedures covered by subparagraph (A).
                    (C) Deadline.--The President shall complete the
                establishment of procedures under this subsection not
                later than 60 days after publishing notice in the
                Federal Register under subparagraph (A). Upon
                completion of the establishment of such procedures, the
                President shall publish in the Federal Register notice
                regarding such procedures.
    (f) Conforming Amendment to FOIA.--Section 552(b)(1) of title 5,
United States Code, is amended to read as follows:
            "(1)(A) specifically authorized to be classified under the
        Government Secrecy Reform Act of 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;".

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.
            (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 and practices of agencies in order to
        ensure the compliance of such policies and procedures with the
        requirements of this Act;
            (2) develop and issue directives, instructions, and
        educational aids and forms to assist in the implementation of
        the provisions of this Act;
            (3) develop a program of research and development of
        technologies to improve the efficiency of classification and
        declassification processes under this Act;
            (4) determine whether or not information is classified in
        violation of this Act and 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;
            (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.
            (2) Elements.--Each report under paragraph (1) shall--
                    (A) include a summary of the extent of the
                compliance of agencies Government-wide with the
                requirements of this Act as of the date of such report;
                and
                    (B) set forth an assessment of the compliance of
                each agency with such requirements as of that date.
            (3) Form.--Each report under paragraph (1) shall be
        submitted in unclassified form, but may include a classified
        annex.
            (4) Availability.--The Oversight Office shall make
        available to the public the unclassified form of each report
        under paragraph (1) on an Internet Web site maintained by the
        Oversight Office.

SEC. 4. CLASSIFICATION AND DECLASSIFICATION REVIEW BOARD.

    (a) Establishment.--There is established within the Executive
Office of the President a board to be known as the Classification and
Declassification Review Board (in this section referred to as the
"Board").
    (b) Membership.--
            (1) In general.--The Board shall consist of five members
        appointed by the President, by and 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 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 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, expect 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);
            (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 of classified
information that is provided to the Board. Such actions shall include a
requirement that the members and staff of the Board possess security
clearances appropriate for the information considered and reviewed by
the Board.
    (f) Personnel Matters.--
            (1) Compensation.--
                    (A) Compensation of members.--Each member of the
                Board shall be compensated at a rate equal to the daily
                equivalent of the annual rate of basic pay prescribed
                for level IV of the Executive Schedule under section
                5315 of title 5, United States Code, for each day
                (including travel time) during which such member is
                engaged in the performance of the duties of the Board.
                    (B) Travel expenses.--The members of the Board
                shall be allowed travel expenses, including per diem in
                lieu of subsistence, at rates authorized for employees
                of agencies under subchapter I of chapter 57 of title
                5, United States Code, while away from their homes or
                regular places of business in the performance of
                services for the Board.
            (2) Staff.--The 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.--
            (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 the decision or
other action concerned.
    (c) Finality.--A decision of the President on an appeal under
subsection (a) shall be final.

SEC. 6. PROHIBITIONS.

    (a) Withholding Information From Congress.--Nothing in this Act
shall be construed to authorize the withholding of information from
Congress.
    (b) Judicial Review.--Except in the case of the amendment to
section 552 of title 5, United States Code, made by section 2(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 as
        defined in section 105 of title 5, United States Code, any
        military department as defined in section 102 of such title,
        and any other entity in the executive branch of the Government
        that comes into the possession of classified information.
            (2) The terms "classify", "classified", and
        "classification" refer to the process by which information is
        determined to require protection from unauthorized disclosure
        pursuant to this Act in order to protect the national security
        of the United States.
            (3) The terms "declassify", "declassified", and
        "declassification" refer to the process by which information
        that has been classified is determined to no longer require
        protection from unauthorized disclosure pursuant to this Act.

SEC. 8. EFFECTIVE DATE.

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