1 February 1998
Source: http://www.access.gpo.gov/nara/cfr/index.html

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[Code of Federal Regulations]
[Title 32, Volume 6, Parts 800 to end]
[Revised as of July 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR2101]

[Page 490-496]
 
                        TITLE 32-NATIONAL DEFENSE
 
                 CHAPTER XXI--NATIONAL SECURITY COUNCIL
 
PART 2101--FREEDOM OF INFORMATION ACT REQUESTS FOR CLASSIFIED DOCUMENTS--PROCESSING, FEES, REPORTS, APPLICABLE MATERIAL, DECLASSIFICATION CRITERIA, PARTIAL RELEASE


                         Subpart A--Introduction

Sec.
2101.1  The amended Freedom of Information Act.
2101.2  Purpose of amended Act.

         Subpart B--Processing Requests for Classified Material

2101.11  Receipt of requests.
2101.12  Initial processing.
2101.13  Requests for time extensions.
2101.14  Initial review period.
2101.15  Initial reply to request.
2101.16  Processing of appeals to ``Head of Agency.''
2101.17  Appeals to Federal District Courts.

 Subpart C--Schedule of Fees and Method of Payment for Services Rendered

2101.21  Fees schedule.
2101.22  Fee payments.

                           Subpart D--Reports

2101.31  Quarterly Index of Publications.
2101.32  Annual Report to Congress.

                     Subpart E--Applicable Material

2101.41  Primary review by NSC staff.
2101.42  Recommendations to other agencies.

                  Subpart F--Declassification Criteria

2101.51  Criteria for denying a request for release of classified 
          material.
2101.52  Procedural criteria under E.O. 11652.
2101.53  Substantive criteria under E.O. 11652 for material under ten 
          years old.
2101.54  Substantive criteria under E.O. 11652 for material over ten 
          years old.

                       Subpart G--Partial Release

2101.61  Release of ``reasonably segregable portion'' of requested 
          classified material.
2101.62  Downgrading of classified material reviewed under the FOI Act.

    Authority: E.O. 11652, as amended by Pub. L. 93-502.

    Source: 40 FR 7316, Feb. 19, 1975, unless otherwise noted.

                         Subpart A--Introduction

Sec. 2101.1  The amended Freedom of Information Act.

    The amended Freedom of Information Act, Pub. L. 93-502 (5 U.S.C. 
552), provided, and to the extent, it is applicable to the National 
Security Council Staff, provides expanded opportunities for the public 
to secure the release of classified material under the control of, or of 
primary interest to, the NSC Staff. The amended Act sets more 
restrictive time periods within which requests must be processed, 
modifies the criteria upon which denials of such requests can be based, 
and permits appeals to district courts of denials of requests. As a 
result of these changes, modified procedures are required from those 
followed in the case of requests for the release of classified material 
over ten years old made under Executive Order 11652. These regulations 
are intended to guide the NSC Staff response to requests for classified 
material under the amended Freedom of Information Act, insofar as it is 
applicable.

Sec. 2101.2  Purpose of amended Act.

    The underlying purpose of the amended Freedom of Information Act is 
to insure that the public is informed to the fullest extent possible 
about governmental policies and actions, consistent with the requirement 
to protect certain categories of sensitive information. In the case of 
classified material, the Act is intended to protect the public against 
the improper classification of information, particularly to conceal 
inefficiency or administrative error or to prevent embarrassment to a 
person or department. These goals are fully consistent with the 
provisions of Executive Order 11652 and the implementing NSC Directive 
of May 17, 1972, which regulate and control the protection and 
management of national security information. The provisions of these 
documents relating to the criteria, authority and procedures for 
classifying and safeguarding national security material remain 
unaffected by the amended Act.

[[Page 491]]

         Subpart B--Processing Requests for Classified Material

Sec. 2101.11  Receipt of requests.

    (a) Request for classified documents under the FOI Act should be 
addressed to:

National Security Council
ATTN: Staff Secretary
Old Executive Office Building
Washington, DC 20506

Oral requests received by the Staff Secretary or other members of the 
NSC Staff will be rejected and the requester informed that his request 
should be made in writing and directed to the Staff Secretary.
    (b) All time limits are based on the date of receipt by the NSC 
Staff of a request. Consequently, this ``key date'' must in all cases be 
accurately recorded.
    (c) If a request is misdirected to the NSC Staff, the requestor will 
be promptly notified in writing.
    (d) Requests for declassification of material forwarded by the 
National Archives and Records Service (or other Agencies) should be 
submitted with three copies of the requested material attached.

Sec. 2101.12  Initial processing.

    (a) Requested material will be rapidly gathered (when not received 
with the request) screened, and disseminated to appropriate reviewing 
officers.
    (1) Initial dissemination of material to reviewing officers will be 
made by the Secretariat, with review by the Staff Secretary.
    (2) Material to be reviewed will be disseminated utilizing ``highly 
visible'' and clearly distinguishable orange folders.
    (3) Deadline for submitting recommendations will be indicated in all 
cases and must be adhered to.
    (b) Dissemination of material to other Agencies for comment will be 
made by the Staff Secretary to responsible officials of these Agencies.
    (c) Strict accounting of status and location of all material 
disseminated will be maintained by the Secretariat.

Sec. 2101.13  Requests for time extensions.

    (a) Requestors will be promptly notified by the Staff Secretary of a 
time extension (indicating the new date by which a determination will be 
dispatched) due to the following three ``unusual circumstances'':
    (1) Need to search for or collect records from field facilities or 
other establishments separate from the office of request;
    (2) Need to search for, collect and examine voluminous amounts of 
records;
    (3) Need to consult with other agencies because of their having 
substantial subject-matter interests.
    (b) Time extensions will not exceed ten working days in the 
aggregate, either solely in the initial or the review stage, or divided 
between them.
    (c) The Staff Secretary will authorize all time extensions.
    (d) Prior to requesting a court authorized time extension, 
requestors will be contacted by the Staff Secretary in an attempt to 
arrange informal agreement on a time extension (any verbal agreement 
will be quickly formalized in writing).
    (e) The Staff Secretary will authorize all requests to courts for 
time extensions based on ``exceptional circumstances'' and ``due 
diligence''. Formal approaches to courts for time extensions will be 
conducted by the Department of Justice.

Sec. 2101.14  Initial review period.

    (a) A total of ten working days is available for submitting an 
initial response to requests.
    (1) Time period allowed reviewing officers will be the maximum 
period consistent with time required for administrative processing and 
final review of recommendations and preparation of reply by Staff 
Secretary.
    (2) Reviewing officers will be periodically reminded of approaching 
due dates in order to insure recommendations are received in a timely 
manner.
    (b) Primary reviewing officers will delegate reviewing authority in 
the event they are unavailable to conduct reviews.

[[Page 492]]

Sec. 2101.15  Initial reply to request.

    (a) The Staff Secretary will review the recommendations of primary 
reviewing officers and approve initial replies.
    (b) An initial response will always be made even if processing has 
not been completed.
    (c) If processing has not been completed but an interim negative 
reply has been dispatched, processing will continue.
    (d) Accurate record of replies will be maintained by Secretariat.
    (e) If a negative or partial denial response is dispatched, 
requester will be notified of his right to appeal.
    (f) If some or all material is approved for release, the Staff 
Secretary will insure it is expeditiously dispatched to the requestor or 
grant authority to NARS or other Agency to release the material.

Sec. 2101.16  Processing of appeals to ``Head of Agency''.

    (a) Replies to appeals will be approved by the Assistant to the 
President for National Security Affairs, or the Deputy Assistant acting 
in the name of the Assistant to the President.
    (b) The Staff Secretary will be responsible for preparing material 
required by the above appeal review officer in making a final 
determination.
    (1) Views of primary reviewing officers will again be solicited.
    (2) Opinion of Office of the White House Counsel and/or Department 
of Justice on legal ramifications will be solicited.
    (c) Staff Secretary will insure replies to appeals are dispatched 
within 20 working days of receipt or before exhaustion of time of an 
authorized time extension.

Sec. 2101.17  Appeals to Federal District Courts.

    (a) Staff Secretary will coordinate the NSC Staff's support (to 
include background data, affidavits, etc.) to USG lawyers defending 
against court appeals for denied NSC classified documents.
    (b) If court judgment is against USG, Staff Secretary will arrange 
release of documents to litigant.

 Subpart C--Schedule of Fees and Method of Payment for Services Rendered

Sec. 2101.21  Fees schedule.

    (a) Fees schedule for the search and reproduction of information 
available under the Freedom of Information Act (5 U.S.C. 552), as 
amended:
    (1) Search for records. $5.00 per hour when the search is conducted 
by a clerical employee. $8.00 per hour when the search is conducted by a 
professional employee. No charge for searches of less than 1 hour.
    (2) Duplication of records. Records will be duplicated at a rate of 
$.25 per page for all copying of 4 pages or more. There is no charge for 
duplicating documents of 3 or less pages or the first three pages of 
documents of greater length.
    (3) Other. When no specific fee has been established for a service, 
or the request for a service does not fall under one of the above 
categories due to the amount or type thereof, the Staff Secretary is 
authorized to establish an appropriate fee based on ``direct costs'' as 
provided in the Freedom of Information Act. Examples of services covered 
by this provision include searches involving computer time or special 
travel, transportation, or communications costs.
    (b) If records requested under the Act are stored elsewhere than the 
headquarters of the National Security Council Staff at Washington, DC, 
the special costs of returning such records to the headquarters for 
review will be added to the search costs. Search costs are due and 
payable even if the record which was requested cannot be located after 
all reasonable efforts have been made, or if the NSC Staff determines 
that a record which has been requested, but which is exempt from 
disclosure under the Act, is to be withheld. Processing of a request for 
records will not be undertaken until a requestor has paid in full for 
search and duplication charges for any previous document request under 
the Act.
    (c) Where it is anticipated that the fees chargeable under this 
section will amount to more than $25, and the requestor has not 
indicated in advance his willingness to pay fees as high as

[[Page 493]]

are anticipated, the requestor shall be promptly notified of the amount 
of the anticipated fee or such portion thereof as can readily be 
estimated. In instances where the estimated fees will greatly exceed 
$25, an advance deposit may be required. The notice or request for an 
advance deposit shall extend an offer to the requestor to consult with 
knowledgeable NSC Staff personnel--designated by the Staff Secretary--in 
an attempt to reformulate the request in a manner which will reduce the 
fees and meet the needs of the requestor. Dispatch of such a notice or 
request shall suspend the running of the period for response by the NSC 
Staff until a reply is received from the requestor.
    (d) Fees must be paid in full prior to issuance of requested copies.

Sec. 2101.22  Fee payments.

    (a) Remittances shall be in the form either of a personal check or 
bank draft drawn on a bank in the United States, or a postal money 
order. Remittances shall be made payable to the Treasury of the United 
States and mailed to the Staff Secretary, National Security Council, 
Washington, DC 20506.
    (b) A receipt for fees paid will be given only upon request. Refund 
of fees paid for services actually rendered will not be made.
    (c) The Staff Secretary, National Security Council, may in 
accordance with the Freedom of Information Act, as amended, waive all or 
part of any fee provided for in this section when it is deemed to be in 
either the interest of the NSC Staff or of the general public.

                           Subpart D--Reports

Sec. 2101.31  Quarterly Index of Publications.

    (a) The NSC Staff is required to publish and distribute to the 
public on a quarterly basis an index of the following material 
promulgated after July 4, 1967:
    (1) Final opinions, including concurring and dissenting opinions, as 
well as orders, made in the adjudication of cases;
    (2) Those statements of policy and interpretations which have been 
adopted and are not published in the Federal Register; and
    (3) Administrative staff manuals and instructions to staff that 
affect a member of the public.
    (b) A final order, opinion, statement of policy, interpretation, or 
staff manual or instruction that affects a member of the public may be 
relied on, used, or cited as precedent against a party other than an 
agency only if:
    (1) It has been indexed and either made available or published as 
provided by the Act; or
    (2) The party has actual and timely notice of the terms thereof.
    (c) The legislative history of this requirement indicated that only 
material having ``precedential significance'' are to be included in the 
Index.
    (d) Matters specifically excluded from release under the Freedom of 
Information Act are not required to be included in the Index. In the 
case of the NSC Staff, this particularly includes matters that are:
    (1) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense or 
foreign policy and are in fact properly classified pursuant to such 
Executive Order (see paragraph (d)(5) of this section);
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute (see part VII);
    (4) Inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (5) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy.
    (e) Because of the considerations outlined under paragraphs (c) and 
(d) of this section, it is anticipated that the NSC Staff will normally 
have little or nothing to report in its quarterly index.

Sec. 2101.32  Annual Report to Congress.

    (a) On or before March 1st of each calendar year, a report of the 
NSC Staff's activities over the preceding calendar year relating to the 
Freedom

[[Page 494]]

of Information Act will be submitted to the Speaker of the House of 
Representatives and the President of the Senate.
    (b) The above report will include:
    (1) The number of determinations made by the NSC Staff not to comply 
with requests for records made to it under the Act and the reasons for 
each such determination;
    (2) The number of appeals made by persons under the Act, the results 
of such appeals, and the reason for the action by the NSC Staff upon 
each appeal that results in a denial of information;
    (3) The names and titles or positions of each person responsible for 
the denial of records requested under the Act, and the number of 
instances of participation for each;
    (4) The results of each (Civil Service Commission) proceeding 
conducted pursuant to the Act, including a report of the disciplinary 
action taken against the officer or employee who was primarily 
responsible for improperly withholding records or an explanation of why 
disciplinary action was not taken;
    (5) A copy of every rule made by the NSC Staff regarding the Act;
    (6) A copy of the fee schedule and the total amount of fees 
collected by the NSC Staff for making records available under the Act; 
and
    (7) Such other information as indicates efforts by the NSC Staff to 
administer fully the Act. (This should include, to the extent possible, 
data on the costs to the NSC Staff of administering the Act.)
    (c) The NSC Staff, based in part on the information compiled for its 
annual report to Congress will provide--upon request--assistance to the 
Department of Justice in the preparation of its annual report (also due 
each March 1st) to Congress concerning judicial cases arising under the 
provisions of the Act.

                     Subpart E--Applicable Material

Sec. 2101.41  Primary review by NSC staff.

    (a) The NSC Staff will have primary and authoritative review 
responsibility for Freedom of Information Act requests for the following 
types of classified material.
    (1) Material originally classified by a properly authorized member 
of the NSC Staff and maintained under its control;
    (2) Material produced for and processed by the NSC Staff even if not 
originally classified by an authorized member of the Staff;
    (3) Material classified by a President, his White House Staff, the 
NSC Staff on his behalf, or special committee or commission appointed by 
him and which the Archivist of the United States has in his custody at 
any archival depository, including a Presidential Library, and which is 
concerned with ``national defense or foreign policy'' matters of 
``primary subject-matter interest'' to the NSC Staff;
    (4) Verbatim or extensively paraphrased NSC material appearing in 
documents originally classified by another agency.
    (b) Requests received by other agencies for the material described 
above should be forwarded to the NSC Staff for action.

Sec. 2101.42  Recommendations to other agencies.

    The NSC Staff will, at the request of another agency, make 
recommendations on the release of material concerning ``national defense 
or foreign policy'' originally classified by another agency but which is 
of significant subject-matter interest of the NSC Staff.

                  Subpart F--Declassification Criteria

Sec. 2101.51  Criteria for denying a request for release of classified 
          material.

    (a) The amended Freedom of Information Act does not apply to matters 
that are:
    (1) Specifically authorized under criteria established by an 
Executive Order (E.O. 11652) to be kept secret in the interest of 
national defense or foreign policy;
    (2) Are in fact properly classified pursuant to (both procedural and 
substantive criteria contained in) such Executive Order;
    (3) Or, are specifically exempted from disclosure by statute.

[[Page 495]]

Sec. 2101.52  Procedural criteria under E.O. 11652.

    (a) The material must have been classified by a properly authorized 
individual;
    (b) The material must have been properly marked. For documents 
prepared after the effective date of Executive Order 11652 (June 1, 
1972), this must especially include its classification, whether it is 
subject to or exempt from the General Declassification Schedule, and the 
highest level individual that authorized classification in each case. 
Documents prepared prior to June 1, 1972, must have been properly marked 
pursuant to the rules of the appropriate Executive Order then 
applicable.

Sec. 2101.53  Substantive criteria under E.O. 11652 for material under 
          ten years old.

    (a) Material must be classified ``solely on the basis of national 
security considerations. In no case (may material be classified) in 
order to conceal inefficiency or administrative error, to prevent 
embarrassment to a person or Department, to restrain competition or 
independent initiative, or to prevent for any other reason the release 
of information which does not require protection in the interest of 
national security.''
    (b) To be classified ``Top Secret,'' it must reasonably be expected 
that unauthorized disclosure of the material would ``cause exceptionally 
grave damage to the national security.'' Examples are:
    (1) Armed hostilities against the United States or its allies;
    (2) Disruption of foreign relations vitally affecting the national 
security;
    (3) The compromise of vital national defense plans or complex 
cryptologic and communications intelligence systems;
    (4) The revelation of sensitive intelligence operations; and
    (5) The disclosure of scientific or technological developments vital 
to the national security.
    (c) To be classified ``Secret,'' it must reasonably be expected that 
unauthorized disclosure of the material would ``cause serious damage to 
the national security.'' Examples are:
    (1) Disruption of foreign relations significantly affecting the 
national security;
    (2) Significant impairment of a program or policy directly related 
to the national security;
    (3) Revelation of significant military plans or intelligence 
operations; and
    (4) Compromise of significant scientific or technological 
developments relating to national security.
    (d) To be classified ``Confidential,'' it must be reasonably 
expected that unauthorized disclosure of the material would ``cause 
damage to the national security.''
    (e) Examples of material exempt from release because it is 
classified pursuant to a statute are:
    (1) Restricted Data (42 U.S.C. 2162);
    (2) Communication information (18 U.S.C. 798);
    (3) Material relating to intelligence sources and methods (50 U.S.C. 
403(d) (3) and (9)).

Sec. 2101.54  Substantive criteria under E.O. 11652 for material over 
          ten years old.

    (a) Classified information or material furnished by foreign 
governments or international organizations and held by the United States 
on the understanding that it be kept in confidence;
    (b) Classified information or material specifically covered by 
statute, or pertaining to cryptography, or disclosing intelligence 
sources or methods;
    (c) Classified information or material disclosing a system, plan, 
installation, project or specific foreign relations matter the 
continuing protection of which is essential to the national security;
    (d) Classified information or material the disclosure of which would 
place a person in immediate jeopardy.

                       Subpart G--Partial Release

Sec. 2101.61  Release of ``reasonably segregable portion'' of requested 
          classified material.

    (a) The amended Freedom of Information Act requires that ``any 
reasonably segregable portion of a record shall be provided * * * after 
deletion of the portions which are exempt.''

[[Page 496]]

    (b) Determination of which portion(s) of classified material are to 
be released, and what portion(s) are to remain classified, will be made 
on the basis of the criteria outlined in subpart F of this part.

Sec. 2101.62  Downgrading of classified material reviewed under the FOI 
          Act.

    (a) Classified material reviewed for release under the Freedom of 
Information Act which no longer meets the criteria established for its 
original classification should be recommended for downgrading to a lower 
classification if appropriate.
    (b) Downgraded material which retains a classification will be 
exempted from release.


