Short title; table of contents

(a)

Short title

This Act may be cited as the

Sensible Classification Act of 2023

.(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

Sec. 3. Findings and sense of the Senate.

Sec. 4. Classification authority.

Sec. 5. Promoting efficient declassification review.

Sec. 6. Training to promote sensible classification.

Sec. 7. Improvements to Public Interest Declassification Board.

Sec. 8. Implementation of technology for classification and declassification.

Sec. 9. Studies and recommendations on necessity of security clearances.

Definitions

In this Act:(1)

Agency

The term agency has the meaning given the term Executive agency in section 105 of title 5, United States Code.(2)

Classified information

The term classified information means information that has been determined pursuant to Executive order 12958 (50 U.S.C. 3161 note; relating to classified national security information), or successor order, to require protection against unauthorized disclosure and is marked to indicate its classified status when in documentary form.(3)

Classification

The term classification means the act or process by which information is determined to be classified information.(4)

Declassification

The term declassification means the authorized change in the status of information from classified information to unclassified information.(5)

Document

The term document means any recorded information, regardless of the nature of the medium or the method or circumstances of recording.(6)

Downgrade

The term downgrade means a determination by a declassification authority that information classified and safeguarded at a specified level shall be classified and safeguarded at a lower level.(7)

Information

The term information means any knowledge that can be communicated or documentary material, regardless of its physical form or characteristics, that is owned by, is produced by or for, or is under the control of the United States Government.(8)

Originate, originating, and originated

The term originate, originating, and originated, with respect to classified information and an authority, means the authority that classified the information in the first instance.(9)

Records

The term records means the records of an agency and Presidential papers or Presidential records, as those terms are defined in title 44, United States Code, including those created or maintained by a government contractor, licensee, certificate holder, or grantee that are subject to the sponsoring agency’s control under the terms of the contract, license, certificate, or grant.(10)

Security clearance

The term security clearance means an authorization to access classified information.(11)

Unauthorized disclosure

The term unauthorized disclosure means a communication or physical transfer of classified information to an unauthorized recipient.(12)

Unclassified information

The term unclassified information means information that is not classified information.

Findings and sense of the Senate

(a)

Findings

The Senate makes the following findings:(1)According to a report released by the Office of the Director of Intelligence in 2020 titled Fiscal Year 2019 Annual Report on Security Clearance Determinations, more than 4,000,000 individuals have been granted eligibility for a security clearance.(2)At least 1,300,000 of such individuals have been granted access to information classified at the Top Secret level.(b)

Sense of the Senate

It is the sense of the Senate that—(1)the classification system of the Federal Government is in urgent need of reform;(2)the number of people with access to classified information is exceedingly high and must be justified or reduced;(3)reforms are necessary to reestablish trust between the Federal Government and the people of the United States; and(4)classification should be limited to the minimum necessary to protect national security while balancing the public’s interest in disclosure.

Classification authority

(a)

In general

The authority to classify information originally may be exercised only by—(1)the President and, in the performance of executive duties, the Vice President;(2)the head of an agency or an official of any agency authorized by the President pursuant to a designation of such authority in the Federal Register; and(3)an official of the Federal Government to whom authority to classify information originally has been delegated pursuant to subsection (c).(b)

Scope of authority

An individual authorized by this section to classify information originally at a specified level may also classify the information originally at a lower level.(c)

Delegation of original classification authority

An official of the Federal Government may be delegated original classification authority subject to the following:(1)Delegation of original classification authority shall be limited to the minimum required to administer this section. Agency heads shall be responsible for ensuring that designated subordinate officials have a demonstrable and continuing need to exercise this authority.(2)Authority to originally classify information at the level designated as Top Secret may be delegated only by the President, in the performance of executive duties, the Vice President, or an agency head or official designated pursuant to subsection (a)(2).(3)Authority to originally classify information at the level designated as Secret or Confidential may be delegated only by the President, in the performance of executive duties, the Vice President, or an agency head or official designated pursuant to subsection (a)(2), or the senior agency official described in section 5.4(d) of Executive Order 13526 (50 U.S.C. 3161 note; relating to classified national security information), or successor order, provided that official has been delegated Top Secret original classification authority by the agency head.(4)Each delegation of original classification authority shall be in writing and the authority shall not be redelegated except as provided by paragraph (1), (2), and (3). Each delegation shall identify the official by name or position title.(d)

Training required

(1)

In general

An individual may not be delegated original classification authority under this section unless the individual has first received training described in paragraph (2).(2)

Training described

Training described in this paragraph is training on original classification that includes instruction on the proper safeguarding of classified information and of the criminal, civil, and administrative sanctions that may be brought against an individual who fails to protect classified information from unauthorized disclosure.(e)

Exceptional cases

(1)

In general

When an employee, Government contractor, licensee, certificate holder, or grantee of an agency who does not have original classification authority originates information believed by that employee, contractor, licensee, certificate holder, or grantee to require classification, the information shall be protected in a manner consistent with Executive Order 13526 (50 U.S.C. 3161 note; relating to classified national security information), or successor order.(2)

Transmittal

An employee, contractor, licensee, certificate holder, or grantee described in paragraph (1), who originates information described in such paragraph, shall promptly transmit such information to—(A)the agency that has appropriate subject matter interest and classification authority with respect to this information; or(B)if it is not clear which agency has appropriate subject matter interest and classification authority with respect to the information, to the Director of the Information Security Oversight Office. (3)

Agency decisions

An agency that receives information pursuant to paragraph (2)(A) or (4) shall decide within 30 days whether to classify this information.(4)

Information Security Oversight Office action

If the Director of the Information Security Oversight Office receives information under paragraph (2)(B), the Director shall determine the agency having appropriate subject matter interest and classification authority and forward the information, with appropriate recommendations, to that agency for a classification determination.

Promoting efficient declassification review

(a)

In general

Whenever an agency is processing a request pursuant to section 552 of title 5, United States Code (commonly known as the Freedom of Information Act) or the mandatory declassification review provisions of Executive Order 13526 (50 U.S.C. 3161 note; relating to classified national security information), or successor order, and identifies responsive classified records that are more than 25-years-of-age as of December 31 of the year in which the request is received, the head of the agency shall review the record and process the record for declassification and release by the National Declassification Center of the National Archives and Records Administration.(b)

Application

Subsection (a) shall apply—(1)regardless of whether or not the record described in such subsection is in the legal custody of the National Archives and Records Administration; and(2)without regard for any other provisions of law or existing agreements or practices between agencies.

Training to promote sensible classification

(a)

Definitions

In this section:(1)

Over-classification

The term over-classification means classification at a level that exceeds the minimum level of classification that is sufficient to protect the national security of the United States.(2)

Sensible classification

The term sensible classification means classification at a level that is the minimum level of classification that is sufficient to protect the national security of the United States.(b)

Training required

Each head of an agency with classification authority shall conduct training for employees of the agency with classification authority to discourage over-classification and to promote sensible classification.

Improvements to Public Interest Declassification Board

Section 703 of the Public Interest Declassification Act of 2000 (50 U.S.C. 3355a) is amended—(1)in subsection (c), by adding at the end the following:

(5)A member of the Board whose term has expired may continue to serve until a successor is appointed and sworn in.

; and

(2)in subsection (f)—(A)by inserting (1) before Any employee; and (B)by adding at the end the following:

(2)(A)In addition to any employees detailed to the Board under paragraph (1), the Board may hire not more than 12 staff members.(B)There are authorized to be appropriated to carry out subparagraph (A) such sums as are necessary for fiscal year 2024 and each fiscal year thereafter.

Implementation of technology for classification and declassification

(a)

In general

Not later than 1 year after the date of the enactment of this Act, the Administrator of the Office of Electronic Government (in this section referred to as the Administrator) shall, in consultation with the Secretary of Defense, the Director of the Central Intelligence Agency, the Director of National Intelligence, the Public Interest Declassification Board, the Director of the Information Security Oversight Office, and the head of the National Declassification Center of the National Archives and Records Administration—(1)research a technology-based solution—(A)utilizing machine learning and artificial intelligence to support efficient and effective systems for classification and declassification; and(B)to be implemented on an interoperable and federated basis across the Federal Government; and(2)submit to the President a recommendation regarding a technology-based solution described in paragraph (1) that should be adopted by the Federal Government.(b)

Staff

The Administrator may hire sufficient staff to carry out subsection (a).(c)

Report

Not later than 540 days after the date of the enactment of this Act, the President shall submit to Congress a classified report on the technology-based solution recommended by the Administrator under subsection (a)(2) and the President’s decision regarding its adoption.

Studies and recommendations on necessity of security clearances

(a)

Agency studies on necessity of security clearances

(1)

Studies required

The head of each agency that grants security clearances to personnel of such agency shall conduct a study on the necessity of such clearances.(2)

Reports required

(A)

In general

Not later than 1 year after the date of the enactment of this Act, each head of an agency that conducts a study under paragraph (1) shall submit to Congress a report on the findings of the agency head with respect to such study, which the agency head may classify as appropriate.(B)

Required elements

Each report submitted by the head of an agency under subparagraph (A) shall include, for such agency, the following:(i)The number of personnel eligible for access to information up to the Top Secret level.(ii)The number of personnel eligible for access to information up to the Secret level.(iii)Information on the any reduction in the number of personnel eligible for access to classified information based on the study conducted under paragraph (1). (iv)A description of how the agency head will ensure that the number of security clearances granted by such agency will be kept to the minimum required for the conduct of agency functions, commensurate with the size, needs, and mission of the agency.(3)

Industry

This subsection shall apply to the Secretary of Defense in the Secretary's capacity as the Executive Agent for the National Industrial Security Program and the Secretary shall treat contractors, licensees, and grantees as personnel of the Department of Defense for purposes of the studies and reports required by this subsection.(b)

Director of National Intelligence review of sensitive compartmented information

The Director of National Intelligence shall—(1)review the number of personnel eligible for access to sensitive compartmented information; and(2)submit to Congress a report on how the Director will ensure that the number of such personnel is limited to the minimum required.(c)

Agency review of special access programs

Each head of an agency who is authorized to establish a special access program by Executive Order 13526 (50 U.S.C. 3161 note; relating to classified national security information), or successor order, shall—(1)review the number of personnel of the agency eligible for access to such special access programs; and(2)submit to Congress a report on how the agency head will ensure that the number of such personnel is limited to the minimum required.(d)

Secretary of Energy review of Q and L clearances

The Secretary of Energy shall—(1)review the number of personnel of the Department of Energy granted Q and L access; and(2)submit to Congress a report on how the Secretary will ensure that the number of such personnel is limited to the minimum required.(e)

Independent reviews

Not later than 180 days after the date on which a study is completed under subsection (a) or a review is completed under subsections (b) through (d), the Director of the Information Security Oversight Office of the National Archives and Records Administration, the Director of National Intelligence, and the Public Interest Declassification Board shall each review the study or review, as the case may be.