27 January 1999
Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html

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[DOCID: f:s22is.txt]

106th CONGRESS
  1st Session
                                 S. 22

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

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            January 19, 1999

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

_______________________________________________________________________

                                 A BILL


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

    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
1999''.

SEC. 2. CLASSIFICATION AND DECLASSIFICATION OF INFORMATION.

    (a) In General.--The President may, in accordance with the
provisions of 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
                paragraph (1) 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
        such modification.
            (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 the President under this
                section and otherwise to carry out the provisions of
                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) Guidance.--
                            (i) In general.--The President shall
                        require the head of each agency with original
                        classification authority to produce written
                        guidance on the classification and
                        declassification of information in order to
                        improve the classification and declassification
                        of information by such agency and the
                        derivative classification of information and
                        declassification of derivatively classified
                        information by such agency and other agencies.
                        Such guidance may be treated as classified
                        information under this Act.
                            (ii) Declassification period for certain
                        information.--
                                    (I) In general.--In producing
                                written guidance under clause (i), the
                                head of an agency may specify types and
                                categories of information that may
                                remain classified for up to 25 years
after the date of original classification.
                                    (II) Approval required.--The
                                specification of a type or category of
                                information under subclause (I) shall
                                be effective only with the approval of
                                the Director of the Office of National
                                Classification and Declassification
                                Oversight.
                    (C) Deadline.--Each agency head shall establish
                standards and procedures under subparagraph (A) and
                produce written guidance under subparagraph (B) 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 paragraph (1).
                    (D) Publication.--Each agency head shall publish in
                the Federal Register the standards and procedures
                established by such agency head under subparagraph (A).
    (c) Standard for Classification and Declassification Decisions.--
            (1) In general.--Subject to paragraph (2), 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) Factors in decisions.--
                    (A) In general.--The President shall prescribe the
                factors to be utilized in deciding for purposes of
                paragraph (1) whether the disclosure of information
                might reasonably be expected to harm national security
                or might serve the public interest.
                    (B) Guidance.--In prescribing factors under
                subparagraph (A), the President shall also prescribe
                guidance to be utilized in applying such factors. The
                guidance shall specify with reasonable detail the
                weight to be assigned each factor and the manner of
                balancing among opposing factors of similar or
                different weight.
                    (C) Process.--The President shall prescribe factors
                and guidance under this paragraph at the same time the
                President establishes categories and procedures under
                subsection (b)(1) and subject to the notice and comment
                procedures set forth under subsection (b)(2).
    (d) Written Justification for Classification.--
            (1) Original classification.--Each agency official who
        makes a decision to classify information not previously
        classified shall, at the time of such decision--
                    (A) identify himself or herself;
                    (B) provide in writing a detailed justification of
                that decision; and
                    (C) indicate the basis for the classification of
                the information with reference to the written guidance
                produced under subsection (b)(4)(B).
            (2) 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--
                    (A) identify himself or herself in that document;
                and
                    (B) provide a concise explanation of that decision.
    (e) Declassification of Information Classified Under Act.--
            (1) In general.--Except as provided in paragraphs (2), (3),
        and (4), information classified under this Act 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.--
                    (A) In general.--When classifying information under
                this Act, an agency official with original
                classification authority over the information may
                provide for the declassification of the information on
                a date that is up to 25 years after the date of
original classification in accordance with the guidance approved under
subsection (b)(4)(B)(ii).
                    (B) Postponement.--The actual date of the
                declassification of information referred to in
                subparagraph (A) may be postponed under paragraph
                (4)(D).
            (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 for
                such information otherwise provided for under paragraph
                (1) or (2), as the case may be, 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
                obtains the concurrence of the Director of the Office
                of National Classification and Declassification
                Oversight in 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) Procedures.--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) and (D)(ii)(I).
            (5) Approval required for declassification of
        information.--Except as provided in this Act, no information
        classified under this Act may be declassified or released
        without the approval of the agency that originally classified
        the information.
            (6) Specification of declassification date or event.--Each
        agency official making a decision to classify information under
        this subsection shall specify upon such information the date or
        event of its declassification.
    (f) 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 that paragraph
        that has remained classified for more than 25 years as of the
        effective date referred to in that paragraph.
            (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.
    (g) 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 1999 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 National
        Archives and Records Administration 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.
            (3) Policy guidance.--On behalf of the President, the
        Assistant to the President for National Security Affairs shall
        provide policy guidance to the Oversight Office.
            (4) Budget.--
                    (A) Consultation in preparation.--The Archivist of
                the United States shall consult with the Assistant to
                the President for National Security Affairs and the
                Director of the Office of Management and Budget in
                preparing the annual budget request for the Oversight
                Office.
                    (B) Presentation.--The annual budget request for
                the Oversight Office shall appear as a distinct item in
                the annual budget request of the National Archives and
                Records Administration.
    (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
        Archivist of the United States.
            (4) Executive schedule.--Section 5315 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
        provisions 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 order that information determined to
        be classified in violation of this Act be declassified by the
agency that originated the classification;
            (5) determine whether an agency determination to postpone
        the declassification of information under section 2(e)(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) oversee special access programs consistent with its
        other duties under this section;
            (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.--
            (1) In general.--Subject to the control and supervision of
        the President, each agency shall provide the Oversight Office
        such information and other cooperation as the Director of the
        Oversight Office considers appropriate to permit the Oversight
        Office to carry out its duties.
            (2) Special access programs.--The head of an agency with
        jurisdiction over special access programs may--
                    (A) limit access to such programs to not more than
                the Director and one other employee of the Oversight
                Office; and
                    (B) upon the concurrence of the President, deny
                access by the Oversight Office to any such program if
                the head of such agency determines that such access
                would pose an exceptional risk to national security.
    (f) Appeals from Certain Decisions.--
            (1) In general.--An agency may appeal to the Classification
        and Declassification Review Board any declassification order or
        determination under paragraph (4) or (5) of subsection (d).
            (2) Deadline.--An agency may appeal an order or
        determination under paragraph (1) only if the agency submits
        the appeal to the Board not later than 60 days after the date
        of the order or determination, as the case may be.
    (g) 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 shall include a requirement that the staff of the
Oversight Office possess security clearances appropriate for the
information considered and reviewed by the Oversight Office.
    (h) 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 and Procedural Matters.--
            (1) In general.--The Board shall consist of five members
        appointed by the President, by and with the advice and consent
        of the Senate, of whom--
                    (A) four shall be private citizens;
                    (B) two shall be officers or employees of the
                Federal Government; and
            (2) Qualifications.--
                    (A) Private citizens.--The members of the Board who
                are private citizens shall be appointed from among
                individuals who are distinguished historians, political
                scientists, archivists, and other social scientists or
                who otherwise have demonstrated expertise in matters
                relating to the national security of the United States,
                records management, or government information policy.
                    (B) Government employees.--The members of the Board
                who are officers or employees of the Federal Government
                shall be appointed from among such officers and
                employees who have demonstrated expertise in matters
                referred to in subparagraph (A).
                    (C) Change in employment.--Notwithstanding any
                provision of paragraph (1), the commencement or
                termination of service as an officer or employee of the
                Federal Government of an individual appointed as a
                member of the Board under that paragraph before such
                commencement or termination shall not affect the
                continuation of such individual as a member of the
                Board.
            (3) Nominations.--
                    (A) Consultation.--In nominating individuals for
                appointment to the Board, the President shall consult
                with the Secretary of Defense, Secretary of State,
                Attorney General, Assistant to the President for
                National Security Affairs, 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 has
                previously served as a member of the Board.
                    (C) Initial nominations.--The President shall make
                the first nominations of individuals for appointment to
                the Board not later than 120 days after the effective
                date of this Act.
                    (D) Bipartisan representation.--Of the members of
                the Board appointed under paragraph (1)(A), not more
                than two shall be of the same political party.
            (4) Presiding officer.--The President shall designate a
        member of the Board appointed under paragraph (1)(A) to serve
        as the Presiding Officer of the Board.
            (5) Term.--Members of the Board shall be appointed for a
        term of 4 years, except that of the members first nominated for
        appointment to the Board under paragraph (3)(C)--
                    (A) two shall be nominated for a 4-year term
                (including the member who shall be the Presiding
                Officer of the Board);
                    (B) two shall be nominated for a 3-year term; and
                    (C) two shall be nominated for a 2-year term.
            (6) Vacancies.--An individual appointed to fill a vacancy
        shall be appointed for the unexpired term of the member
        replaced.
            (7) Procedural matters.--
                    (A) Quorum.--A majority of the members of the Board
                shall constitute a quorum, but a lesser number of
                members may hold hearings.
                    (B) Rules and procedures.--
                            (i) 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.
                            (ii) Publication.--The Board shall publish
                        its rules and procedures in the Federal
                        Register.
                            (iii) Initial rules and procedures.--The
                        Board shall establish its initial rules and
                        procedures not later than 90 days after the
                        date of initial meeting of the Board.
    (c) Powers and Duties.--The Board shall--
            (1) decide on appeals by agencies which challenge a
        declassification order 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 that Office 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) 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.
    (e) Personnel Matters.--
            (1) Compensation.--
                    (A) Compensation.--Each member of the Board who is
                a private citizen 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 Presiding Officer 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.

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(g), 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 2(g) shall take effect
180 days after the date of the enactment of this Act.
                                 <all>
