Collapse to view only § 2001.32 - Declassification guides.

§ 2001.30 - Automatic declassification.

(a) General. All departments and agencies that have original classification authority or previously had original classification authority, or maintain records determined to be permanently valuable that contain classified national security information, shall comply with the automatic declassification provisions of the Order. All agencies with original classification authority shall cooperate with NARA in managing automatic declassification of accessioned Federal records, presidential papers and records, and donated historical materials under the control of the Archivist.

(b) Presidential papers, materials, and records. The Archivist shall establish procedures for the declassification of presidential, vice-presidential, or White House materials transferred to the legal custody of NARA or maintained in the presidential libraries.

(c) Classified information in the custody of contractors, licensees, certificate holders, or grantees. Pursuant to the provisions of the National Industrial Security Program, agencies must provide security classification/declassification guidance to such entities or individuals who possess classified information. Agencies must also determine if classified Federal records are held by such entities or individuals, and if so, whether they are permanent records of historical value and thus subject to section 3.3 of the Order. Until such a determination has been made by an appropriate agency official, such records shall not be subject to automatic declassification, or destroyed, and shall be safeguarded in accordance with the most recent security classification/declassification guidance provided by the agency.

(d) Transferred information. In the case of classified information transferred in conjunction with a transfer of functions, and not merely for storage, the receiving agency shall be deemed to be the originating agency.

(e) Unofficially transferred information. In the case of classified information that is not officially transferred as described in paragraph (d) of this section but that originated in an agency that has ceased to exist and for which there is no successor agency, the agency in possession shall serve as the originating agency and shall be responsible for actions for those records in accordance with section 3.3 of the Order and in consultation with the Director of the National Declassification Center (NDC).

(f) Processing records originated by another agency. When an agency uncovers classified records originated by another agency that appear to meet the criteria for referral according to section 3.3(d) of the Order, the finding agency shall identify those records for referral to the originating agency as described in § 2001.34.

(g) Unscheduled records. Classified information in records that have not been scheduled for disposal or retention by NARA is not subject to section 3.3 of the Order. Classified information in records that become scheduled as permanently valuable when that information is already more than 20 years old shall be subject to the automatic declassification provisions of section 3.3 of the Order five years from the date the records are scheduled. Classified information in records that become scheduled as permanently valuable when that information is less than 20 years old shall be subject to the automatic declassification provisions of section 3.3 of the Order at 25 years.

(h) Temporary records and non-record materials. Classified information contained in records determined not to be permanently valuable or non-record materials shall be processed in accordance with section 3.6(c) of the Order.

(i) Foreign government information. The declassifying agency is the agency that initially received or classified the information. When foreign government information appears to be subject to automatic declassification, the declassifying agency shall determine whether the information is subject to a treaty or international agreement that does not permit automatic or unilateral declassification. The declassifying agency shall also determine if another exemption under section 3.3(b) of the Order, such as the exemption that pertains to United States foreign relations, may apply to the information. If the declassifying agency believes such an exemption may apply, it should consult with any other concerned agencies in making its declassification determination. The declassifying agency or the Department of State, as appropriate, may consult with the foreign government prior to declassification.

(j) Assistance to the Archivist of the United States. Agencies shall consult with the Director of the NDC established in section 3.7 of the Order concerning their automatic declassification programs. At the request of the Archivist, agencies shall cooperate with the Director of the NDC in developing priorities for the declassification of records to ensure that declassification is accomplished efficiently and in a timely manner. Agencies shall consult with NARA and the Director of the NDC before reviewing records in their holdings to ensure that appropriate procedures are established for maintaining the integrity of the records and that NARA receives accurate and sufficient information about agency declassification actions, including metadata and other processing information, when records are accessioned by NARA. This data shall include certification by the agency that the records have been reviewed in accordance with Public Law 105-261, section 3161 governing Restricted Data and Formerly Restricted Data.

(k) Use of approved declassification guides. Approved declassification guides are the sole basis for the exemption from automatic declassification of specific information as provided in section 3.3(b) of the Order and the sole basis for the continued classification of information under section 3.3(h) of the Order. These guides must be prepared in accordance with section 3.3(j) of the Order and include additional pertinent detail relating to the exemptions described in sections 3.3(b) and 3.3(h) of the Order, and follow the format required of declassification guides as described in § 2001.32. During a review under section 3.3 of the Order, it is expected that agencies will use these guides to identify specific information for exemption from automatic declassification. It is further expected that the guides or detailed declassification guidance will be made available to the NDC under section 3.7(b) of the Order and to appropriately cleared individuals of other agencies to support equity recognition.

(l) Automatic declassification date. No later than December 31 of the year that is 25 years from the date of origin, classified records determined to be permanently valuable shall be automatically declassified unless automatic declassification has been delayed for any reason as provided in § 2001.30(n) and sections 3.3(b) and (c) of the Order. If the date of origin of an individual record cannot be readily determined, the date of original classification shall be used instead.

(m) Exemption from Automatic Declassification at 25, 50, or 75 years. Agencies may propose to exempt from automatic declassification specific information, either by reference to information in specific records, in specific file series of records, or in the form of a declassification guide, in accordance with section 3.3(j) of the Order. Agencies may propose to exempt information within five years of, but not later than one year before the information is subject to automatic declassification. The agency head or senior agency official, within the specified timeframe, shall notify the Director of ISOO, serving as the Executive Secretary of the Panel, of the specific information being proposed for exemption from automatic declassification.

(n) Delays in the onset of automatic declassification - (1) Media that make a review for possible declassification exemptions more difficult or costly. An agency head or senior agency official shall consult with the Director of the NDC before delaying automatic declassification for up to five years for classified information contained in media that make a review for possible declassification more difficult or costly. When determined by NARA or jointly determined by NARA and another agency, the following may be delayed due to the increased difficulty and cost of conducting declassification processing:

(i) Records requiring extraordinary preservation or conservation treatment, to include reformatting, to preclude damage to the records by declassification processing;

(ii) Records which pose a potential menace to health, life, or property due to contamination by a hazardous substance; and

(iii) Electronic media if the media is subject to issues of software or hardware obsolescence or degraded data.

(2) Referred records. Records containing classified information that originated with other agencies or the disclosure of which would affect the interests or activities of other agencies and could reasonably be expected to fall under one or more of the exemption categories of section 3.3(b) of the Order shall be identified prior to the onset of automatic declassification for later referral to those agencies. Declassification reviewers shall be trained periodically on other agency equities to aid in the proper identification of other agency equities eligible for referral.

(i) Information properly identified as a referral to another agency contained in records accessioned by NARA or in the custody of the presidential libraries shall be subject to automatic declassification only after the referral has been made available by NARA for agency review in accordance with § 2001.34, provided the information has not otherwise been properly exempted by an equity holding agency under section 3.3 of the Order.

(ii) Information properly identified as a referral to another agency contained in records maintained in the physical, but not legal, custody of NARA shall be subject to automatic declassification after accessioning and in accordance with § 2001.34, provided the information has not otherwise been properly exempted by an equity holding agency under section 3.3 of the Order.

(3) Newly discovered records. An agency head or senior agency official must consult with the Director of ISOO on any decision to delay automatic declassification of newly discovered records no later than 90 days, from the discovery of the records. The notification shall identify the records, their volume, the anticipated date for declassification, and the circumstances of the discovery. An agency may be granted up to three years from the date of discovery to make a declassification, exemption, or referral determination. If referrals to other agencies are properly identified, they will be handled in accordance with subparagraphs 2(i) and 2(ii) above.

(4) Integral file blocks. Classified records within an integral file block that are otherwise subject to automatic declassification under section 3.3 of the Order shall not be automatically declassified until December 31 of the year that is 25 years from the date of the most recent record within the file block. For purposes of automatic declassification, integral file blocks shall contain only records dated within ten years of the oldest record in the file block. Integral file blocks applied prior to December 29, 2009, that cover more than ten years remain in effect until December 31, 2012, unless an agency requests an extension from the Director of ISOO on a case-by-case basis prior to December 31, 2011, which is subsequently approved.

(5) File series exemptions. Agencies seeking to delay the automatic declassification of a specific series of records as defined in section 6.1(r) of the Order because it almost invariably contains information that falls within one or more of the exemption categories under section 3.3(b) must submit their request in accordance with section 3.3(c) of the Order to the Director of ISOO, serving as Executive Secretary of the Panel, at least one year prior to the onset of automatic declassification. Once approved by the Panel, the records in the file series exemption remain subject to section 3.5 of the Order. This delay applies only to records within the specific file series. Copies of records within the specific file series or records of a similar topic to the specific file series located elsewhere may be exempted in accordance with exemptions approved by the Panel.

(o) Redaction standard. Agencies are encouraged but are not required to redact documents that contain information that is exempt from automatic declassification under section 3.3 of the Order, especially if the information that must remain classified comprises a relatively small portion of the document. Any such redactions shall be performed in accordance with policies and procedures established in accordance with § 2001.45(d).

(p) Restricted Data and Formerly Restricted Data. (1) Restricted Data and Formerly Restricted Data are excluded from the automatic declassification requirements in section 3.3 of the Order because they are classified under the Atomic Energy Act of 1954, as amended. Restricted Data concerns:

(i) The design, manufacture, or utilization of atomic weapons;

(ii) The production of special nuclear material, e.g., enriched uranium or plutonium; or

(iii) The use of special nuclear material in the production of energy.

(2) Formerly Restricted Data is information that is still classified under the Atomic Energy Act of 1954, as amended, but which has been removed from the Restricted Data category because it is related primarily to the military utilization of atomic weapons.

(3) Any document marked as containing Restricted Data or Formerly Restricted Data or identified as potentially containing unmarked Restricted Data or Formerly Restricted Data shall be referred to the Department of Energy in accordance with § 2001.34(b)(8).

(4) Automatic declassification of documents containing Restricted Data or Formerly Restricted Data is prohibited. Documents marked as containing Restricted Data or Formerly Restricted Data are excluded from the automatic declassification provisions of the Order until the Restricted Data or Formerly Restricted Data designation is properly removed by the Department of Energy. When the Department of Energy determines that a Restricted Data or Formerly Restricted Data designation may be removed, any remaining information classified under the Order must be referred to the appropriate agency in accordance with the declassification provisions of the Order and this Directive.

(5) Any document containing information concerning foreign nuclear programs that was removed from the Restricted Data category in order to carry out provisions of the National Security Act of 1947, as amended, shall be referred to the Department of Energy.

(6) The Secretary of Energy shall determine when information concerning foreign nuclear programs that was removed from the Restricted Data category in order to carry out the provisions of the National Security Act of 1947, as amended, may be declassified. Unless otherwise determined, information concerning foreign nuclear programs (e.g., intelligence assessments or reports, foreign nuclear program information provided to the U.S. Government) shall be declassified when comparable information concerning the United States nuclear program is declassified. When the Secretary of Energy determines that information concerning foreign nuclear programs may be declassified, any remaining information classified under the Order must be referred to the appropriate agency in accordance with the declassification provisions of the Order and this Directive.

§ 2001.31 - Systematic declassification review.

(a) General. Agencies shall establish systematic review programs for those records containing information exempted from automatic declassification. This includes individual records as well as file series of records. Agencies shall prioritize their review of such records in accordance with priorities established by the NDC.

§ 2001.32 - Declassification guides.

(a) Preparation of declassification guides. Beginning one year after the effective date of this directive, declassification guides must be submitted to the Director of ISOO, serving as the Executive Secretary of the Panel, at least one year prior to the onset of automatic declassification for approval by the Panel. Currently approved guides remain in effect until a new guide is approved, to the extent they are otherwise applied consistent with section 3.3(b) of the Order. The information to be exempted must be narrowly defined, with sufficient specificity to allow the user to identify the information with precision. Exemptions must be based upon specific content and not type of document. Exemptions for general categories of information are not acceptable. Agencies must prepare guides that clearly delineate between the exemptions proposed under sections 3.3(b), 3.3(h)(1) and (2), and 3.3(h)(3).

(b) General content of declassification guides. Declassification guides must be specific and detailed as to the information requiring continued classification and clearly and demonstrably explain the reasons for continued classification. Declassification guides shall:

(1) Be submitted by the agency head or the designated senior agency official;

(2) Provide the date of issuance or last review;

(3) State precisely the information that the agency proposes to exempt from automatic declassification and to specifically declassify;

(4) Identify any related files series that have been exempted from automatic declassification pursuant to section 3.3(c) of the Order; and

(5) To the extent a guide is used in conjunction with the automatic declassification provisions in section 3.3 of the Order, state precisely the elements of information to be exempted from declassification to include:

(i) The appropriate exemption category listed in section 3.3(b), and, if appropriate, section 3.3(h) of the Order; and

(ii) A date or event for declassification that is in accordance with section 3.3(b) or section 3.3(h).

(c) Internal review and update. Agency declassification guides shall be reviewed and updated as circumstances require, but at least once every five years. Each agency shall maintain a list of its declassification guides in use.

(d) Dissemination of guides. (1) Declassification guides shall be disseminated within the agency to be used by all personnel with declassification review responsibilities.

(2) Declassification guides or detailed declassification guidance shall be submitted to the Director of the NDC in accordance with section 3.7(b)(3) of the Order.

§ 2001.33 - Mandatory review for declassification.

(a) U.S. originated information - (1) Regulations. Each agency shall publish, and update as needed or required, in the Federal Register regulations concerning the handling of mandatory declassification review requests, to include the identity of the person(s) or office(s) to which requests should be addressed.

(2) Processing - (i) Requests for classified records in the custody of the originating agency. A valid mandatory declassification review request must be of sufficient specificity to allow agency personnel to locate the records containing the information sought with a reasonable amount of effort. Requests for broad types of information, entire file series of records, or similar non-specific requests may be denied by agencies for processing under this section. In responding to mandatory declassification review requests, agencies shall make a final determination within one year from the date of receipt. When information cannot be declassified in its entirety, agencies shall make reasonable efforts to release, consistent with other applicable laws, those declassified portions of the requested information that constitute a coherent segment. Upon denial, in whole or in part, of an initial request, the agency shall also notify the requestor of the right of an administrative appeal, which must be filed within 60 days of receipt of the denial. Agencies receiving mandatory review requests are expected to conduct a line-by-line review of the record(s) for public access and are expected to release the information to the requestor, unless that information is prohibited from release under the provisions of a statutory authority, such as, but not limited to, the Freedom of Information Act, (5 U.S.C. 552), as amended, the Presidential Records Act of 1978 (44 U.S.C. 2201-2207), or the National Security Act of 1947 (Pub. L. 235, 61 Stat. 496, 50 U.S.C. Chapter 15).

(ii) Requests for classified records in the custody of an agency other than the originating agency. When an agency receives a mandatory declassification review request for records in its possession that were originated by another agency, it shall refer the request and the pertinent records to the originating agency. However, if the originating agency has previously agreed that the custodial agency may review its records, the custodial agency shall review the requested records in accordance with declassification guides or guidelines provided by the originating agency. Upon receipt of a request from the referring agency, the originating agency shall promptly process the request for declassification and release in accordance with this section. The originating agency shall communicate its declassification determination to the referring agency. The referring agency is responsible for collecting all agency review results and informing the requestor of any final decision regarding the declassification of the requested information unless a prior arrangement has been made with the originating agency.

(iii) Appeals of denials of mandatory declassification review requests. The agency appellate authority shall normally make a determination within 60 working days following the receipt of an appeal. If additional time is required to make a determination, the agency appellate authority shall notify the requester of the additional time needed and provide the requester with the reason for the extension. The agency appellate authority shall notify the requestor in writing of the final determination and of the reasons for any denial. The appellate authority must inform the requestor of his or her final appeal rights to the Panel.

(iv) Appeals to the Interagency Security Classification Appeals Panel. In accordance with section 5.3(c) of the Order, the Panel shall publish in the Federal Register the rules and procedures for bringing mandatory declassification appeals before it.

(v) Records subject to mandatory declassification review. Records containing information exempted from automatic declassification in accordance with section 3.3(c) of the Order or with § 2001.30(n)(1) are still subject to the mandatory declassification review provisions of section 3.5 of the Order.

(b) Foreign government information. Except as provided in this paragraph, agencies shall process mandatory declassification review requests for classified records containing foreign government information in accordance with this section. The declassifying agency is the agency that initially received or classified the information. When foreign government information is being considered for declassification, the declassifying agency shall determine whether the information is subject to a treaty or international agreement that does not permit automatic or unilateral declassification. The declassifying agency or the Department of State, as appropriate, may consult with the foreign government(s) prior to declassification.

(c) Cryptologic information. Mandatory declassification review requests for cryptologic information shall be processed in accordance with special procedures issued by the Secretary of Defense and, when cryptologic information pertains to intelligence activities, the Director of National Intelligence.

(d) Intelligence information. Mandatory declassification review requests for information pertaining to intelligence sources, methods, and activities shall be processed in accordance with special procedures issued by the Director of National Intelligence.

(e) Fees. In responding to mandatory declassification review requests for classified records, agency heads may charge fees in accordance with 31 U.S.C. 9701 or relevant fee provisions in other applicable statutes.

(f) Requests filed under mandatory declassification review and the Freedom of Information Act. When a requester submits a request both under mandatory declassification review and the Freedom of Information Act (FOIA), the agency shall require the requestor to select one process or the other. If the requestor fails to select one or the other, the request will be treated as a FOIA request unless the requested materials are subject only to mandatory declassification review.

(g) FOIA and Privacy Act requests. Agency heads shall process requests for declassification that are submitted under the provisions of the FOIA, as amended, or the Privacy Act of 1974 (5 U.S.C. 552a), as amended, in accordance with the provisions of those Acts.

(h) Redaction standard. Agencies shall redact documents that are the subject of an access demand unless the overall meaning or informational value of the document is clearly distorted by redaction. The specific reason for the redaction, as provided for in section 1.4 or 3.3(b) of the Order, as applicable, must be included for each redaction. Information that is redacted due to a statutory authority must be clearly marked with the specific authority that authorizes the redaction. Any such redactions shall be performed in accordance with policies and procedures established in accordance with § 2001.45(d).

(i) Limitations on requests. Requests for mandatory declassification review made to an element of the Intelligence Community by anyone other than a citizen of the United States or an alien lawfully admitted for permanent residence, may be denied by the receiving Intelligence Community element. Documents required to be submitted for pre-publication review or other administrative process pursuant to an approved nondisclosure agreement are not subject to mandatory declassification review.

§ 2001.34 - Referrals.

(a) General. Referrals are required under sections 3.3(d)(3) and 3.6(b) of the Order in order to ensure the timely, efficient, and effective processing of reviews and requests and in order to protect classified information from inadvertent disclosure.

(b) Automatic declassification. The referral process for records subject to automatic declassification entails identification of records containing classified information that originated with other agencies or the disclosure of which would affect the interests or activities of other agencies. Those records that could reasonably be expected to fall under one or more of the exemptions in section 3.3(b) of the Order are eligible for referral. The referral process also entails formal notification to those agencies, making the records available for review by those agencies, and recording final agency determinations.

(1) In accordance with section 3.3(d)(3) of the Order, the identification of records eligible for referral is the responsibility of the primary reviewing agency and shall be completed prior to the date of automatic declassification established by section 3.3(a) of the Order.

(2) Except as otherwise determined by the Director of the NDC, primary reviewing agencies shall utilize the Standard Form 715, Government Declassification Review Tab, to tab and identify any Federal record requiring referral and record the referral in a manner that provides the referral information in an NDC database system.

(3) Notification of referral of records accessioned into NARA or in the custody of the presidential libraries, and making the records available for review, is the responsibility of NARA and shall be accomplished through the NDC.

(4) Within 180 days of the effective date of this provision, the NDC shall develop and provide the affected agencies with a comprehensive and prioritized schedule for the resolution of referrals contained in accessioned Federal records and Presidential records. The schedule shall be developed in consultation with the affected agencies, consider the public interest in the records, and be in accordance with the authorized delays to automatic declassification set forth in section 3.3(d) of the Order. The initial schedule shall cover the balance of the first effective fiscal year and four subsequent fiscal years. Thereafter, the schedule shall cover five fiscal years. The NDC shall consult with the affected agencies and update and provide such schedules annually.

(5) The NDC shall provide formal notification of the availability of a referral to the receiving agency and records will be subject to automatic declassification in accordance with the schedule promulgated by the NDC in paragraph (b)(4) of this section, unless the information has been properly exempted by an equity holding agency under section 3.3 of the Order.

(6) Records in the physical but not legal custody of NARA shall be subject to automatic declassification after accessioning and in accordance with paragraphs (b)(3) and (b)(5) of this section.

(7) Agencies that establish a centralized facility as described in section 3.7(e) may make direct referrals provided such activities fall within the priorities and schedule established by the NDC and the activity is otherwise coordinated with the NDC. In such cases, the centralized facility is responsible for providing formal notification of a referral to receiving agencies and for making the records available for review or direct formal referral to agencies by providing a copy of the records unless another mechanism is identified in coordination with the NDC. As established in section 3.3(d)(3)(B), referrals to agencies from a centralized agency records facility as described in section 3.7(e) of the Order will be automatically declassified up to three years after the formal notification has been made, if the receiving agency fails to provide a final determination.

(8) Records marked as containing Restricted Data or Formerly Restricted Data or identified as potentially containing unmarked Restricted Data or Formerly Restricted Data shall be referred to the Department of Energy through the NDC. If the Department of Energy confirms that the document contains Restricted Data or Formerly Restricted Data, it shall then be excluded from the automatic declassification provisions of the Order until the Restricted Data or Formerly Restricted Data designation is properly removed.

(i) When the Department of Energy provides notification that a Restricted Data or Formerly Restricted Data designation is not appropriate or when it is properly removed, the record shall be processed for automatic declassification through the NDC.

(ii) In all cases, should the record be the subject of an access demand made pursuant to the Order or provision of law, the information classified pursuant to Executive order (rather than the Atomic Energy Act, as amended) must stand on its own merits.

(9) The NDC, as well as any centralized agency facility established under section 3.7(e) of the Order, shall track and document referral actions and decisions in a manner that facilitates archival processing for public access. Central agency facilities must work with the NDC to ensure documentation meets NDC requirements, and transfer all documentation on pending referral actions and referral decisions to the NDC when transferring the records to NARA.

(10) In all cases, receiving agencies shall acknowledge receipt of formal referral notifications in a timely manner. If a disagreement arises concerning referral notifications, the Director of ISOO will determine the automatic declassification date and notify the senior agency official, as well as the NDC or the primary reviewing agency.

(11) Remote Archives Capture (RAC). Presidential records or materials scanned in the RAC process shall be prioritized and scheduled for review by the NDC. The initial notification shall be made to the agency with primary equity, which shall have up to one year to act on its information and to identify all other equities eligible for referral. All such additional referrals in an individual record shall be made at the same time, and once notified by the NDC of an eligible referral, such receiving agencies shall have up to one year to review the records before the onset of automatic declassification.

(c) Agencies eligible to receive referrals. The Director of ISOO will publish annually a list of those agencies eligible to receive referrals for each calendar year.

(d) Systematic declassification review. The identification of equities shall be accomplished in accordance with paragraph (b) of this section. Priorities for review will be established by the NDC.

(e) Identification of interests other than national security. Referrals under sections 3.3(d)(3) and 3.6(b) of the Order shall be assumed to be intended for later public release unless withholding is otherwise authorized and warranted under applicable law. If a receiving agency proposes to withhold any such information, it must notify the referring agency at the time they otherwise respond to the referral. Such notification shall identify the specific information at issue and the pertinent law.

§ 2001.35 - Discretionary declassification.

(a) In accordance with section 3.1(d) of the Order, agencies may declassify information when the public interest in disclosure outweighs the need for continued classification.

(b) Agencies may also establish a discretionary declassification program that is separate from their automatic, systematic, and mandatory review programs.

§ 2001.36 - Classified information in the custody of private organizations or individuals.

(a) Authorized holders. Agencies may allow for the holding of classified information by a private organization or individual provided that all access and safeguarding requirements of the Order have been met. Agencies must provide declassification assistance to such organizations or individuals.

(b) Others. Anyone who becomes aware of organizations or individuals who possess potentially classified national security information outside of government control must contact the Director of ISOO for guidance and assistance. The Director of ISOO, in consultation with other agencies, as appropriate, will ensure that the safeguarding and declassification requirements of the Order are met.

§ 2001.37 - Assistance to the Department of State.

Heads of agencies shall assist the Department of State in its preparation of the Foreign Relations of the United States (FRUS) series by facilitating access to appropriate classified materials in their custody and by expediting declassification review of documents proposed for inclusion in the FRUS. If an agency fails to provide a final declassification review determination regarding a Department of State referral within 120 days of the date of the referral, or if applicable, within 120 days of the date of a High Level Panel decision, the Department of State, consistent with 22 U.S.C. 4353 and any implementing agency procedures, may seek the assistance of the Panel.