1.This Act may be cited as the
Reducing Over-Classification Act of
2009
.
2.Congress finds the following:
(1)A key conclusion
in the Final Report of the National Commission on Terrorist Attacks Upon the
United States (commonly known as the 9/11 Commission
) was the
need to prevent over-classification by the Federal Government.
(2)The 9/11
Commission and others have observed that the over-classification of homeland
security information interferes with accurate, actionable, and timely homeland
security information sharing, increases the cost of information security, and
needlessly limits public access to information.
(3)The
over-classification problem, which has worsened since the 9/11 attacks, causes
considerable confusion about what information can be shared with whom both
internally at the Department of Homeland Security and with its external
partners. This problem negatively impacts the dissemination of homeland
security information to the Department's State, local, tribal, and territorial
homeland security and law enforcement partners, private sector customers, and
the public.
(4)Excessive
government secrecy stands in the way of a safer and more secure homeland. This
trend is antithetical to the creation and operation of the information sharing
environment established under section 1016 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (6 U.S.C. 485), and must be halted and
reversed.
(5)To do so, the
Department should start with the understanding that all departmental
information that is not properly classified, or marked as controlled
unclassified information and otherwise exempt from disclosure, should be made
available to members of the public pursuant to section 552 of title 5, United
States Code (commonly referred to as the Freedom of Information
Act
).
(6)The Department
should also develop and administer policies, procedures, and programs that
promote compliance with applicable laws, executive orders, and other
authorities pertaining to the proper use of classification markings and the
United States National Archives and Records Administration policies
implementing them.
3.Over-classification
prevention within the department of homeland securitySubtitle A of title II of the Homeland
Security Act of 2002 (6 U.S.C. 121 et seq.) is amended by adding at the end the
following new section:
210F.Over-classification
prevention program
(a)The Secretary shall develop and administer policies,
procedures, and programs within the Department to prevent the
over-classification of homeland security information, terrorism information,
weapons of mass destruction information, and other information within the scope
of the information sharing environment established under section 1016 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485) that
must be disseminated to prevent and to collectively respond to acts of
terrorism. The Secretary shall coordinate with the Archivist of the United
States and consult with representatives of State, local, tribal, and
territorial government and law enforcement, organizations with expertise in
civil rights, civil liberties, and government oversight, and the private
sector, as appropriate, to develop such policies, procedures, and
programs.
(b)Not
later than one year after the date of the enactment of the Reducing
Over-Classification Act of 2009, the Secretary, in administering the policies,
procedures, and programs required under subsection (a), shall—
(1)create, in
consultation with the Archivist of the United States, standard classified and
unclassified formats for finished intelligence products created by the
Department, consistent with any government-wide standards, practices or
procedures for similar products;
(2)require that all
finished intelligence products created by the Department be simultaneously
prepared in the standard unclassified format, provided that such an
unclassified product would reasonably be expected to be of any benefit to a
State, local, tribal or territorial government, law enforcement agency or other
emergency response provider, or the private sector, based on input provided by
the Interagency Threat Assessment and Coordination Group Detail established
under section 210D;
(3)ensure that such
policies, procedures, and programs protect the national security as well as the
information privacy rights and legal rights of United States persons pursuant
to all applicable law and policy, including the privacy guidelines for the
information sharing environment established pursuant to section 1016 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485), as
appropriate;
(4)establish an
ongoing auditing mechanism administered by the Inspector General of the
Department or other appropriate senior Department official that randomly
selects, on a periodic basis, classified information from each component of the
Department that generates finished intelligence products to—
(A)assess whether
applicable classification policies, procedures, rules, and regulations have
been followed;
(B)describe any
problems with the administration of the applicable classification policies,
procedures, rules, and regulations, including specific non-compliance
issues;
(C)recommend
improvements in awareness and training to address any problems identified in
subparagraph (B); and
(D)report at least
annually to the Committee on Homeland Security of the House of Representatives,
the Committee on Homeland Security and Governmental Affairs of the Senate, and
the public, in an appropriate format, on the findings of the Inspector
General's audits under this section;
(5)establish a
process whereby employees may challenge original classification decisions made
by Department employees or contractors and be rewarded with specific incentives
for successful challenges resulting in the removal of classification markings
or the downgrading of them;
(6)inform employees
and contractors that failure to comply with the policies, procedures, and
programs established under this section could subject them to a series of
penalties; and
(7)institute a series
of penalties for employees and contractors who repeatedly fail to comply with
the policies, procedures, and programs established under this section after
having received both notice of their noncompliance and appropriate training or
re-training to address such noncompliance.
(c)Finished
intelligence product definedThe term finished intelligence
product means a document in which an intelligence analyst has evaluated,
interpreted, integrated, or placed into context raw intelligence or
information.
.
4.Enforcement of
over-classification prevention within the department of homeland
securitySubtitle A of title
II of the Homeland Security Act of 2002 (6 U.S.C. 121 et seq.) is further
amended by adding at the end the following new section:
210G.Enforcement of
over-classification prevention programs
(a)The Secretary shall—
(1)assess the
technologies available or in use at the Department by which an electronic
personal identification number or other electronic identifying marker can be
assigned to each Department employee and contractor with original
classification authority in order to—
(A)track which
documents have been classified by a particular employee or contractor;
(B)determine the
circumstances when such documents have been shared;
(C)identify and
address over-classification problems, including the misapplication of
classification markings to documents that do not merit such markings;
and
(D)assess the
information sharing impact of any such problems or misuse;
(2)develop an
implementation plan for a Department standard for such technology with
appropriate benchmarks, a timetable for its completion, and cost estimate for
the creation and implementation of a system of electronic personal
identification numbers or other electronic identifying markers for all relevant
Department employees and contractors; and
(3)upon completion of
the implementation plan described in paragraph (2), or not later than 180 days
after the date of the enactment of the Reducing Over-Classification Act of
2009, whichever is earlier, the Secretary shall provide a copy of the plan to
the Committee on Homeland Security of the House of Representatives and the
Committee on Homeland Security and Governmental Affairs of the Senate.
(b)The
Secretary, in coordination with the Archivist of the United States,
shall—
(1)require annual
training for each Department employee and contractor with classification
authority or those responsible for analysis, dissemination, preparation,
production, receiving, publishing, or otherwise communicating written
classified information, including training to—
(A)educate each
employee and contractor about—
(i)the Department's
requirement that all classified finished intelligence products that they create
be simultaneously prepared in unclassified form in a standard format prescribed
by the Department, provided that the unclassified product would reasonably be
expected to be of any benefit to a State, local, tribal, or territorial
government, law enforcement agency, or other emergency response provider, or
the private sector, based on input provided by the Interagency Threat
Assessment and Coordination Group Detail established under section 210D;
(ii)the proper use of
classification markings, including portion markings; and
(iii)the consequences
of over-classification and other improper uses of classification markings,
including the misapplication of classification markings to documents that do
not merit such markings, and of failing to comply with the Department's
policies and procedures established under or pursuant to this section,
including the negative consequences for the individual's personnel evaluation,
homeland security, information sharing, and the overall success of the
Department's missions;
(B)serve as a
prerequisite, once completed successfully, as evidenced by an appropriate
certificate, for—
(i)obtaining
classification authority; and
(ii)renewing such
authority annually; and
(C)count as a
positive factor, once completed successfully, in the Department's employment,
evaluation, and promotion decisions; and
(2)ensure that such
program is conducted efficiently, in conjunction with any other security,
intelligence, or other training programs required by the Department to reduce
the costs and administrative burdens associated with the additional training
required by this section.
(c)The Secretary shall—
(1)implement a
Departmental detailee program to detail Departmental personnel to the National
Archives and Records Administration for one year, for the purpose of—
(A)training and
educational benefit for the Department personnel assigned so that they may
better understand the policies, procedures and laws governing original
classification authorities;
(B)bolstering the
ability of the National Archives and Records Administration to conduct its
oversight authorities over the Department and other Departments and agencies;
and
(C)ensuring that the
policies and procedures established by the Secretary remain consistent with
those established by the Archivist of the United States;
(2)ensure that the
program established under paragraph (1) includes at least one individual for
each Department office with delegated original classification authority;
and
(3)in coordination
with the Archivist of the United States, report to Congress not later than 90
days after the conclusion of the first year of the program established under
paragraph (1), on—
(A)the advisability
of expanding the program on a government-wide basis, whereby other departments
and agencies would send detailees to the National Archives and Records
Administration; and
(B)the administrative
and monetary costs of full compliance with this section.
(d)Sunset of
detailee programExcept as otherwise provided by law, subsection
(c) shall cease to have effect on December 31, 2012.
(e)Finished
intelligence product definedThe term finished intelligence
product has the meaning given the term in section
210F(c).
.
5.The table of
contents in section 1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101(b))
is amended by adding after the item relating to section 210E the following new
items:
Sec. 210F. Over-classification
prevention program.
Sec. 210G. Enforcement of
over-classification prevention
programs.
.
1.This Act may be cited as the
Reducing Over-Classification
Act
.
2.Congress finds the following:
(1)The National Commission
on Terrorist Attacks Upon the United States (commonly known as the 9/11
Commission
) concluded that there is a need to prevent
over-classification of information by the Federal Government.
(2)The 9/11 Commission and
others have observed that the over-classification of information interferes
with accurate, actionable, and timely information sharing, increases the cost
of information security, and needlessly limits public access to
information.
(3)Over-classification of
information causes considerable confusion about what information may be shared
with whom, and negatively affects the dissemination of information within the
Federal Government and with State, local, and tribal entities, and the private
sector.
(4)Excessive government
secrecy stands in the way of a safer and more secure homeland.
Over-classification of information is antithetical to the creation and
operation of the information sharing environment established under 1016 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485).
(5)Federal departments or
agencies authorized to make original classification decisions or that perform
derivative classification of information are responsible for developing,
implementing, and administering policies, procedures, and programs that promote
compliance with applicable laws, executive orders, and other authorities
pertaining to the proper use of classification markings and the policies of the
National Archives and Records Administration.
3.Classified Information
Advisory Officer
(a)Subsection (d) of section 201 of the Homeland Security
Act of 2002 (6 U.S.C. 121) is amended by adding at the end the
following:
(26)To identify and
designate, acting through the Under Secretary for Intelligence and Analysis, a
Classified Information Advisory Officer to assist State, local, tribal, and
private sector entities that have responsibility for the security of critical
infrastructure, in matters related to classified materials, as described in
section
210F.
.
(b)Establishment and
responsibilities
(1)Subtitle A of title II of the Homeland Security Act of
2002 (6 U.S.C. 121 et seq.) is amended by adding at the end the
following:
210F.Classified
Information Advisory Officer
(a)The Secretary,
acting through the Under Secretary for Intelligence and Analysis, shall
identify and designate within the Department a Classified Information Advisory
Officer, as described in this section.
(b)The responsibilities of the Classified
Information Advisory Officer shall be as follows:
(1)To develop and
disseminate educational materials and to develop and administer training
programs to assist State, local, tribal, and private sector entities with
responsibility related to the security of critical infrastructure—
(A)in developing plans and
policies to respond to requests related to classified information without
communicating such information to individuals who lack appropriate security
clearances;
(B)regarding the appropriate
procedures for challenging classification designations of information received
by personnel of such entities; and
(C)on the means by which
such personnel may apply for security clearances.
(2)To inform the Under
Secretary for Intelligence and Analysis on policies and procedures that could
facilitate the sharing of classified information with such personnel, as
appropriate.
.
(2)The table of contents in section 1(b) of the Homeland
Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by inserting after the
item relating to section 210E the following:
Sec. 210F. Classified
Information Advisory
Officer.
.
4.Promotion of appropriate
access to informationSubsection (b) of section 102A of the
National Security Act of 1947 (50 U.S.C. 403–1) is amended—
(1)by inserting
(1)
before Unless
; and
(2)by adding at the end the
following new paragraph:
(2)The
Director of National Intelligence shall—
(A)consistent with paragraph
(1), have access to all intelligence information, including intelligence
reports, operational data, and other associated information, produced by any
element of the intelligence community; and
(B)consistent with the
protection of intelligence sources and methods, as determined by the
Director—
(i)ensure maximum access to
the intelligence information referenced in subparagraph (A) for an employee of
a department, agency, or other entity of the Federal Government or of a State,
local, or tribal government who has an appropriate security clearance;
and
(ii)provide a mechanism
within the Office of the Director of National Intelligence for the Director to
direct access to the information referenced in subparagraph (A) for an employee
referred to in clause
(i).
.
5.Intelligence information
sharing
(a)Development of guidance
for intelligence productsParagraph (1) of section 102A(g) of the
National Security Act of 1947 (50 U.S.C. 403–1(g)) is amended—
(1)in subparagraph (E), by striking
and
at the end;
(2)in subparagraph (F), by
striking the period at the end and inserting a semicolon and
and
; and
(3)by adding at the end the
following:
(G)in accordance with
Executive Order No. 12958, as amended by Executive Order No. 13292 (68 Fed.
Reg. 15315; relating to classification of national security information) (or
any subsequent corresponding executive order), and parts 2001 and 2004 of title
32, Code of Federal Regulations (or any subsequent corresponding regulation),
establish—
(i)guidance to standardize,
in appropriate cases, the formats for classified and unclassified intelligence
products created by elements of the intelligence community for purposes of
promoting the sharing of intelligence products; and
(ii)policies and procedures
requiring the increased use, in appropriate cases, and including portion
markings, of the classification of portions of information within one
intelligence
product.
.
(b)Creation of
unclassified intelligence products as appropriate for State, local, tribal, and
private sector stakeholdersSubsection (g) of section 102A of the
National Security Act of 1947 (50 U.S.C. 403–1) is amended—
(1)by redesignating
paragraphs (3) and (4) as paragraphs (4) and (5), respectively; and
(2)by inserting after
paragraph (2) the following:
(3)(A)If the head of a
Federal department or agency determines that an intelligence product which
includes homeland security information, as defined in section 892(f) of the
Homeland Security Information Sharing Act (6 U.S.C. 482(f)), or terrorism
information, as defined in section 1016(a) of the Intelligence Reform and
Terrorism Prevention Act of 2004 (6 U.S.C. 485(a)), could likely benefit a
State, local, or tribal government, a law enforcement agency, or a private
sector entity with responsibility for the security of critical infrastructure,
such head shall share that intelligence product with the Interagency Threat
Assessment and Coordination Group established in section 210D(a) of the
Homeland Security Act of 2002 (6 U.S.C. 124k(a)).
(B)If the Interagency Threat
Assessment and Coordination Group determines that an intelligence product
referred to in subparagraph (A), or any other intelligence product that such
Group has access to, could likely benefit a State, local, or tribal government,
a law enforcement agency, or a private sector entity, the Group shall recommend
to the Under Secretary for Intelligence and Analysis of the Department of
Homeland Security that the Under Secretary produce an intelligence product that
is unclassified or that is classified at the lowest possible level—
(i)based on the intelligence
product referred to in subparagraph (A), in a manner consistent with the
guidance established under paragraph (1)(G)(i); and
(ii)provide such product to
the appropriate entity or agency.
(C)(i)The Secretary of
Homeland Security shall submit to the congressional intelligence committees,
the Committee on Homeland Security and Governmental Affairs of the Senate, and
the Committee on Homeland Security of the House of Representatives an annual
report on activities carried out under this paragraph. Each such report shall
include a description of—
(I)each recommendation made
to the Under Secretary for Intelligence and Analysis under subparagraph
(B);
(II)each such recommendation
that was carried out by the Under Secretary; and
(III)each such
recommendation that was not carried out by the Under Secretary.
(ii)The initial report
required under clause (i) shall be submitted not later than 270 days after the
date of the enactment of the Reducing
Over-Classification Act and no reports shall be required under
clause (i) after December 31,
2014.
.
(c)Interagency Threat
Assessment and Coordination Group annual report
modificationSubsection (c) of section 210D of the Homeland
Security Act of 2002 (6 U.S.C. 124k) is amended—
(1)in paragraph (1), by
striking and
at the end;
(2)in paragraph (2), by
striking the period at the end and inserting a semicolon and
and
; and
(3)by adding at the end the
following:
(3)in each report required
by paragraph (2) submitted after the date of the enactment of the
Reducing Over-Classification
Act, include a description of the progress made by the head of
each Federal department and agency to share information with the ITACG pursuant
to section 102A(g)(3)(A) of the National Security Act of 1947 (50 U.S.C.
403–1(g)(3)(A)).
.
6.Promotion of accurate
classification of information
(a)Derivative
classification and original classification definedIn this
section, the terms derivative classification
and original
classification
have the meaning given those terms in Executive Order
No. 12958, as amended by Executive Order No. 13292 (68 Fed. Reg. 15315;
relating to classification of national security information) (or any subsequent
corresponding executive order).
(b)Incentives for accurate
classificationsThe head of each department or agency of the
United States with an officer or employee who is authorized to make original
classification decisions or derivative classification decisions shall consider
such officer’s or employee’s consistent and proper classification of
information in determining whether to award any personnel incentive to the
officer or employee.
(c)Inspector general
evaluations
(1)Requirement for
evaluationsNot less frequently than once each year until
December 31, 2014, the inspector general of each department or agency of the
United States with an officer or employee who is authorized to make original
classifications shall carry out an evaluation of that department or agency or a
component of the department or agency—
(A)to assess whether
applicable classification policies, procedures, rules, and regulations have
been adopted, followed, and effectively administered within such department,
agency, or component; and
(B)to identify policies,
procedures, rules, regulations, or management practices that may be
contributing to persistent misclassification of material within such
department, agency or component.
(2)
(A)Each
inspector general who is required to carry out an evaluation under paragraph
(1) shall submit to the appropriate entities a report on each such
evaluation.
(B)Each
report submitted under subparagraph (A) shall include a description of—
(i)the policies, procedures,
rules, regulations, or management practices, if any, identified by the
inspector general under paragraph (1)(B); and
(ii)the recommendations, if
any, of the inspector general to address any such identified policies,
procedures, rules, regulations, or management practices.
(C)The
inspectors general who are required to carry out evaluations under paragraph
(1) shall coordinate with each other to ensure that evaluations follow a
consistent methodology, as appropriate, that allows for cross-agency
comparisons.
(3)Appropriate entities
definedIn this paragraph, the term appropriate
entities
means—
(A)the Committee on Homeland
Security and Governmental Affairs and the Select Committee on Intelligence of
the Senate;
(B)the Committee on Homeland
Security, the Committee on Oversight and Government Reform, and the Permanent
Select Committee on Intelligence of the House of Representatives;
(C)any other committee of
Congress with jurisdiction over a department or agency referred to in paragraph
(1);
(D)the head of a department
or agency referred to in paragraph (1); and
(E)the Director of the
Information Security Oversight Office.
7.Classification training
program
(a)Intelligence community
definedIn this section, the term intelligence
community
has the meaning given that term in section 3(4) of the
National Security Act of 1947 (50 U.S.C. 401a(4)).
(b)
(1)The Director of National Intelligence, in accordance with
Executive Order No. 12958, as amended by Executive Order No. 13292 (68 Fed.
Reg. 15315; relating to classification of national security information) (or
any subsequent corresponding executive order), shall require annual training
for each employee of an element of the intelligence community and appropriate
personnel of each contractor to an element of the intelligence community who
has original classification authority, performs derivative classification, or
is responsible for analysis, dissemination, preparation, production, receiving,
publishing, or otherwise communicating written classified information that
includes training—
(A)to educate the employee
and contractor personnel regarding—
(i)the guidance established
under subparagraph (G)(i) of section 102A(g)(1) of the National Security Act of
1947 (50 U.S.C. 403–1(g)(1)), as added by section 5(a)(3), regarding the
formatting of finished intelligence products;
(ii)the proper use of
classification markings, including portion markings that indicate the
classification of portions of information within one intelligence product;
and
(iii)any incentives and
penalties related to the proper classification of intelligence information;
and
(B)that is one of the
prerequisites, once completed successfully, as evidenced by an appropriate
certificate or other record, for—
(i)obtaining original
classification authority or derivatively classifying information; and
(ii)maintaining such
authority.
(2)Relationship to other
programsThe Director of National Intelligence shall ensure that
the training required by paragraph (1) is conducted efficiently and in
conjunction with any other security, intelligence, or other training programs
required by elements of the intelligence community to reduce the costs and
administrative burdens associated with carrying out the training required by
paragraph (1).
May 27 (legislative day, May 26), 2010
Reported with an amendment