[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 22 Introduced in Senate (IS)]







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.
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