Executive Order 12958-Classified National Security Information, as Amended
Source: The provisions of Executive Order 12958, as amended
by Executive Order 13292, can be found at 68 Federal Register 15315 (March 28,
2003).
Executive Order 12958 was amended on March 25, 2003, by Executive Order 13292,
to read as follows:
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, and in order to further amend Executive Order
12958, as amended, it is hereby ordered that Executive
Order 12958 is amended to read as follows:
This order prescribes a uniform system for classifying,
safeguarding, and declassifying national security
information, including information relating to defense
against transnational terrorism. Our democratic
principles require that the American people be informed
of the activities of their Government. Also, our
Nation's progress depends on the free flow of
information. Nevertheless, throughout our history, the
national defense has required that certain information
be maintained in confidence in order to protect our
citizens, our democratic institutions, our homeland
security, and our interactions with foreign nations.
Protecting information critical to our Nation's
security remains a priority.
NOW, THEREFORE, by the authority vested in me as
President by the Constitution and the laws of the
United States of America, it is hereby ordered as
follows:
Part 1. Original Classification
Sec. 1.1. Classification Standards.
(a) Information may
be originally classified under the terms of this order
only if all of the following conditions are met:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the
control of the United States Government;
(3) the information falls within one or more of the categories of
information listed in section 1.4 of this order; and
(4) the original classification authority determines that the unauthorized
disclosure of the information reasonably could be expected to result in
damage to the national security, which includes defense against
transnational terrorism, and the original classification authority is able
to identify or describe the damage.
(b) Classified information shall not be
declassified automatically as a result of any
unauthorized disclosure of identical or similar
information.
(c) The unauthorized disclosure of foreign
government information is presumed to cause damage to
the national security.
Sec. 1.2. Classification Levels.
(a) Information may be
classified at one of the following three levels:
(1) “Top Secret” shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause exceptionally
grave damage to the national security that the original classification
authority is able to identify or describe.
(2) “Secret” shall be applied to information, the unauthorized disclosure
of which reasonably could be expected to cause serious damage to the
national security that the original classification authority is able to
identify or describe.
(3) “Confidential” shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause damage to the
national security that the original classification authority is able to
identify or describe.
(b) Except as otherwise provided by statute, no
other terms shall be used to identify United States
classified information.
Sec. 1.3. Classification Authority.
(a) 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) agency heads and officials designated by the President in the Federal
Register; and
(3) United States Government officials delegated this authority pursuant to
paragraph (c) of this section.
(b) Officials authorized to classify information at
a specified level are also authorized to classify
information at a lower level.
(c) Delegation of original classification
authority.
(1) Delegations of original classification authority shall be limited to
the minimum required to administer this order. Agency heads are responsible
for ensuring that designated subordinate officials have a demonstrable and
continuing need to exercise this authority.
(2) “Top Secret” original classification authority 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 paragraph
(a)(2) of this section.
(3) “Secret” or “Confidential” original classification authority 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
paragraph (a)(2) of this section; or the senior agency official described
in section 5.4(d) of this 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 in
this order. Each delegation shall identify the official by name or position
title.
(d) Original classification authorities must
receive training in original classification as provided
in this order and its implementing directives. Such
training must include 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. 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
person to require classification, the information shall
be protected in a manner consistent with this order and
its implementing directives. The information shall be
transmitted promptly as provided under this order or
its implementing directives to the agency that has
appropriate subject matter interest and classification
authority with respect to this information. That agency
shall decide within 30 days whether to classify this
information. If it is not clear which agency has
classification responsibility for this information, it
shall be sent to the Director of the Information
Security Oversight Office. The Director shall determine
the agency having primary subject matter interest and
forward the information, with appropriate
recommendations, to that agency for a classification
determination.
Sec. 1.4. Classification Categories. Information shall not be considered
for classification unless it concerns:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including special
activities), intelligence sources or methods, or
cryptology;
(d) foreign relations or foreign activities of the
United States, including confidential sources;
(e) scientific, technological, or economic matters
relating to the national security, which includes
defense against transnational terrorism;
(f) United States Government programs for
safeguarding nuclear materials or facilities;
(g) vulnerabilities or capabilities of systems,
installations, infrastructures, projects, plans, or
protection services relating to the national security,
which includes defense against transnational terrorism;
or
(h) weapons of mass destruction.
Sec. 1.5. Duration of Classification.
(a) At the time of original classification,
the original classification authority shall attempt to establish a specific
date or event for declassification based upon the duration of the national security
sensitivity of the information. Upon reaching the date or event, the information
shall be automatically declassified. The date or event shall not exceed the
time frame established in paragraph (b) of this section.
(b) If the original classification authority cannot determine an earlier specific
date or event for declassification, information shall be marked for declassification
10 years from the date of the original decision, unless the original classification
authority otherwise determines that the sensitivity of the information requires
that it shall be marked for declassification for up to 25 years from the date
of the original decision. All information classified under this section shall
be subject to section 3.3 of this order if it is contained in records of permanent
historical value under title 44, United States Code.
(c) An original classification authority may extend
the duration of classification, change the level of
classification, or reclassify specific information only
when the standards and procedures for classifying
information under this order are followed.
(d) Information marked for an indefinite duration
of classification under predecessor orders, for
example, marked as “Originating Agency's Determination
Required,” or information classified under predecessor
orders that contains no declassification instructions
shall be declassified in accordance with part 3 of this
order.
Sec. 1.6. Identification and Markings.
(a) At the time of original classification,
the following shall appear on the face of each classified document, or shall
be applied to other classified media in an appropriate manner:
(1) one of the three classification levels defined in section 1.2 of this
order;
(2) the identity, by name or personal identifier and position, of the
original classification authority;
(3) the agency and office of origin, if not otherwise evident;
(4) declassification instructions, which shall indicate one of the
following:
(A)
the date or event for declassification, as prescribed in section 1.5(a) or
section 1.5(c);
(B)
the date that is 10 years from the date of original classification, as
prescribed in section 1.5(b); or
(C)
the date that is up to 25 years from the date of original classification,
as prescribed in section 1.5 (b); and
(5) a concise reason for classification that, at a minimum, cites the
applicable classification categories in section 1.4 of this order.
(b) Specific information described in paragraph (a)
of this section may be excluded if it would reveal
additional classified information.
(c) With respect to each classified document, the
agency originating the document shall, by marking or
other means, indicate which portions are classified,
with the applicable classification level, and which
portions are unclassified. In accordance with standards
prescribed in directives issued under this order, the
Director of the Information Security Oversight Office
may grant waivers of this requirement. The Director
shall revoke any waiver upon a finding of abuse.
(d) Markings implementing the provisions of this
order, including abbreviations and requirements to
safeguard classified working papers, shall conform to
the standards prescribed in implementing directives
issued pursuant to this order.
(e) Foreign government information shall retain its
original classification markings or shall be assigned a
U.S. classification that provides a degree of
protection at least equivalent to that required by the
entity that furnished the information. Foreign
government information retaining its original
classification markings need not be assigned a U.S.
classification marking provided that the responsible
agency determines that the foreign government markings
are adequate to meet the purposes served by U.S.
classification markings.
(f) Information assigned a level of classification
under this or predecessor orders shall be considered as
classified at that level of classification despite the
omission of other required markings. Whenever such
information is used in the derivative classification
process or is reviewed for possible declassification,
holders of such information shall coordinate with an
appropriate classification authority for the
application of omitted markings.
(g) The classification authority shall, whenever
practicable, use a classified addendum whenever
classified information constitutes a small portion of
an otherwise unclassified document.
(h) Prior to public release, all declassified
records shall be appropriately marked to reflect their
declassification.
Sec. 1.7. Classification Prohibitions and Limitations.
(a) In no case shall information be classified in
order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require
protection in the interest of the national security.
(b) Basic scientific research information not
clearly related to the national security shall not be
classified.
(c) Information may be reclassified after
declassification and release to the public under proper
authority only in accordance with the following
conditions:
(1) the reclassification action is taken under the personal authority of
the agency head or deputy agency head, who determines in writing that the
reclassification of the information is necessary in the interest of the
national security;
(2) the information may be reasonably recovered; and
(3) the reclassification action is reported promptly to the Director of the
Information Security Oversight Office.
(d) Information that has not previously been
disclosed to the public under proper authority may be
classified or reclassified after an agency has received
a request for it under the Freedom of Information Act
(5 U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C.
552a), or the mandatory review provisions of section
3.5 of this order only if such classification meets the
requirements of this order and is accomplished on a
document-by-document basis with
the personal participation or under the direction of
the agency head, the deputy agency head, or the senior
agency official designated under section 5.4 of this
order.
(e) Compilations of items of information that are
individually unclassified may be classified if the
compiled information reveals an additional association
or relationship that: (1) meets the standards for
classification under this order; and (2) is not
otherwise revealed in the individual items of
information. As used in this order, “compilation”
means an aggregation of pre-existing unclassified items
of information.
Sec. 1.8. Classification Challenges.
(a) Authorized
holders of information who, in good faith, believe that
its classification status is improper are encouraged
and expected to challenge the classification status of
the information in accordance with agency procedures
established under paragraph (b) of this section.
(b) In accordance with implementing directives
issued pursuant to this order, an agency head or senior
agency official shall establish procedures under which
authorized holders of information are encouraged and
expected to challenge the classification of information
that they believe is improperly classified or
unclassified. These procedures shall ensure that:
(1) individuals are not subject to retribution for bringing such actions;
(2) an opportunity is provided for review by an impartial official or
panel; and
(3) individuals are advised of their right to appeal agency decisions to
the Interagency Security Classification Appeals Panel (Panel) established
by section 5.3 of this order.
Part 2. Derivative Classification
Sec. 2.1. Use of Derivative Classification.
(a) Persons
who only reproduce, extract, or summarize classified
information, or who only apply classification markings
derived from source material or as directed by a
classification guide, need not possess original
classification authority.
(b) Persons who apply derivative classification
markings shall:
(1) observe and respect original classification decisions; and
(2) carry forward to any newly created documents the pertinent classification
markings. For information derivatively classified based on multiple sources,
the derivative classifier shall carry forward:
(A) the date or event for declassification that corresponds to the longest
period of classification among the sources; and
(B) a listing of these sources on or attached to the official file or record
copy.
Sec. 2.2. Classification Guides.
(a) Agencies with
original classification authority shall prepare
classification guides to facilitate the proper and
uniform derivative classification of information. These
guides shall conform to standards contained in
directives issued under this order.
(b) Each guide shall be approved personally and in
writing by an official who:
(1) has program or supervisory responsibility over the information or is
the senior agency official; and
(2) is authorized to classify information originally at the highest level
of classification prescribed in the guide.
(c) Agencies shall establish procedures to ensure
that classification guides are reviewed and updated as
provided in directives issued under this order.
Part 3. Declassification and Downgrading
Sec. 3.1. Authority for Declassification.
(a)
Information shall be declassified as soon as it no
longer meets the standards for classification under
this order.
(b) It is presumed that information that continues
to meet the classification requirements under this
order requires continued protection. In some
exceptional cases, however, the need to protect such
information may be outweighed by the public interest in
disclosure of the information, and in these cases the
information should be declassified. When such questions
arise, they shall be referred to the agency head or the
senior agency official. That official will determine,
as an exercise of discretion, whether the public
interest in disclosure outweighs the damage to the
national security that might reasonably be expected
from disclosure. This provision does not:
(1) amplify or modify the substantive criteria or procedures for
classification; or
(2) create any substantive or procedural rights subject to judicial review.
(c) If the Director of the Information Security
Oversight Office determines that information is
classified in violation of this order, the Director may
require the information to be declassified by the
agency that originated the classification. Any such
decision by the Director may be appealed to the
President through the Assistant to the President for
National Security Affairs. The information shall remain
classified pending a prompt decision on the appeal.
(d) The provisions of this section shall also apply
to agencies that, under the terms of this order, do not
have original classification authority, but had such
authority under predecessor orders.
Sec. 3.2. Transferred Records.
(a) In the case of
classified records transferred in conjunction with a
transfer of functions, and not merely for storage
purposes, the receiving agency shall be deemed to be
the originating agency for purposes of this order.
(b) In the case of classified records that are not
officially transferred as described in paragraph (a) of
this section, but that originated in an agency that has
ceased to exist and for which there is no successor
agency, each agency in possession of such records shall
be deemed to be the originating agency for purposes of
this order. Such records may be declassified or
downgraded by the agency in possession after
consultation with any other agency that has an interest
in the subject matter of the records.
(c) Classified records accessioned into the
National Archives and Records Administration (National
Archives) as of the effective date of this order shall
be declassified or downgraded by the Archivist of the
United States (Archivist) in accordance with this
order, the directives issued pursuant to this order,
agency declassification guides, and any existing
procedural agreement between the Archivist and the
relevant agency head.
(d) The originating agency shall take all
reasonable steps to declassify classified information
contained in records determined to have permanent
historical value before they are accessioned into the
National Archives. However, the Archivist may require
that classified records be accessioned into the
National Archives when necessary to comply with the
provisions of the Federal Records Act. This provision
does not apply to records being transferred to the
Archivist pursuant to section 2203 of title 44, United
States Code, or records for which the National Archives
serves as the custodian of the records of an agency or
organization that has gone out of existence.
(e) To the extent practicable, agencies shall adopt
a system of records management that will facilitate the
public release of documents at the time such documents
are declassified pursuant to the provisions for
automatic declassification in section 3.3 of this
order.
Sec. 3.3. Automatic Declassification.
(a) Subject to paragraphs (b)-(e) of this section, on December 31, 2006, all
classified records that (1) are more than 25 years old and (2) have been determined
to have permanent historical value under title 44, United States Code, shall
be automatically declassified whether or not the records have been reviewed.
Subsequently, all classified records shall be automatically declassified on
December 31 of the year that is 25 years from the date of its original classification,
except as provided in paragraphs (b)-(e) of this section.
(b) An agency head may exempt from automatic
declassification under paragraph (a) of this section
specific information, the release of which could be
expected to:
(1) reveal the identity of a confidential human source, or a human
intelligence source, or reveal information about the application of an
intelligence source or method;
(2) reveal information that would assist in the development or use of
weapons of mass destruction;
(3) reveal information that would impair U.S. cryptologic systems or
activities;
(4) reveal information that would impair the application of state of the
art technology within a U.S. weapon system;
(5) reveal actual U.S. military war plans that remain in effect;
(6) reveal information, including foreign government information, that
would seriously and demonstrably impair relations between the United States
and a foreign government, or seriously and demonstrably undermine ongoing
diplomatic activities of the United States;
(7) reveal information that would clearly and demonstrably impair the
current ability of United States Government officials to protect the
President, Vice President, and other protectees for whom protection
services, in the interest of the national security, are authorized;
(8) reveal information that would seriously and demonstrably impair current
national security emergency preparedness plans or reveal current
vulnerabilities of systems, installations, infrastructures, or projects
relating to the national security; or
(9) violate a statute, treaty, or international agreement.
(c) An agency head shall notify the President
through the Assistant to the President for National
Security Affairs of any specific file series of records
for which a review or assessment has determined that
the information within that file series almost
invariably falls within one or more of the exemption
categories listed in paragraph (b) of this section and
which the agency proposes to exempt from automatic
declassification. The notification shall include:
(1) a description of the file series;
(2) an explanation of why the information within the file series is almost
invariably exempt from automatic declassification and why the information
must remain classified for a longer period of time; and
(3) except for the identity of a confidential human source or a human
intelligence source, as provided in paragraph (b) of this section, a
specific date or event for declassification of the information. The
President may direct the agency head not to exempt the file series or to
declassify the information within that series at an earlier date than
recommended. File series exemptions previously approved by the President
shall remain valid without any additional agency action.
(d) At least 180 days before information is
automatically declassified under this section, an
agency head or senior agency official shall notify the
Director of the Information Security Oversight Office,
serving as Executive Secretary of the Panel, of any
specific information beyond that included in a
notification to the President under paragraph (c) of
this section that the agency proposes to exempt from
automatic declassification. The notification shall
include:
(1) a description of the information, either by reference to information in
specific records or in the form of a declassification guide;
(2) an explanation of why the information is exempt from automatic
declassification and must remain classified for a longer period of time;
and
(3) except for the identity of a confidential human source or a human
intelligence source, as provided in paragraph (b) of this section, a
specific date or event for declassification of the information. The Panel
may direct the agency not to exempt the information or to declassify it at
an earlier date than recommended. The agency head may appeal such a
decision to the President through the Assistant to the President for
National Security Affairs. The information will remain classified while
such an appeal is pending.
(e) The following provisions shall apply to the
onset of automatic declassification:
(1) Classified records within an integral file block, as defined in this
order, that are otherwise subject to automatic declassification under this
section 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.
(2) By notification to the Director of the Information Security Oversight
Office, before the records are subject to automatic declassification, an
agency head or senior agency official designated under section 5.4 of this
order may delay automatic declassification for up to 5 additional years for
classified information contained in microforms, motion pictures,
audiotapes, videotapes, or comparable media that make a review for possible
declassification exemptions more difficult or costly.
(3) By notification to the Director of the Information Security Oversight
Office, before the records are subject to automatic declassification, an
agency head or senior agency official designated under section 5.4 of this
order may delay automatic declassification for up to 3 years for classified
records that have been referred or transferred to that agency by another
agency less than 3 years before automatic declassification would otherwise
be required.
(4) By notification to the Director of the Information Security Oversight
Office, an agency head or senior agency official designated under section
5.4 of this order may delay automatic declassification for up to 3 years
from the date of discovery of classified records that were inadvertently
not reviewed prior to the effective date of automatic declassification.
(f) Information exempted from automatic
declassification under this section shall remain
subject to the mandatory and systematic
declassification review provisions of this order.
(g) The Secretary of State shall determine when the
United States should commence negotiations with the
appropriate officials of a foreign government or
international organization of governments to modify any
treaty or international agreement that requires the
classification of information contained in records
affected by this section for a period longer than 25
years from the date of its creation, unless the treaty
or international agreement pertains to information that
may otherwise remain classified beyond 25 years under
this section.
(h) Records containing information that originated
with other agencies or the disclosure of which would
affect the interests or activities of other agencies
shall be referred for review to those agencies and the
information of concern shall be subject to automatic
declassification only by those agencies, consistent
with the provisions of subparagraphs (e)(3) and (e)(4)
of this section.
Sec. 3.4. Systematic Declassification Review.
(a) Each
agency that has originated classified information under
this order or its predecessors shall establish and
conduct a program for systematic declassification
review. This program shall apply to records of
permanent historical value exempted from automatic
declassification under section 3.3 of this order.
Agencies
shall prioritize the systematic review of records based
upon the degree of researcher interest and the
likelihood of declassification upon review.
(b) The Archivist shall conduct a systematic
declassification review program for classified records:
(1) accessioned into the National Archives as of the
effective date of this order; (2) transferred to the
Archivist pursuant to section 2203 of title 44, United
States Code; and (3) for which the National Archives
serves as the custodian for an agency or organization
that has gone out of existence. This program shall
apply to pertinent records no later than 25 years from
the date of their creation. The Archivist shall
establish priorities for the systematic review of these
records based upon the degree of researcher interest
and the likelihood of declassification upon review.
These records shall be reviewed in accordance with the
standards of this order, its implementing directives,
and declassification guides provided to the Archivist
by each agency that originated the records. The
Director of the Information Security Oversight Office
shall ensure that agencies provide the Archivist with
adequate and current declassification guides.
(c) After consultation with affected agencies, the
Secretary of Defense may establish special procedures
for systematic review for declassification of
classified cryptologic information, and the Director of
Central Intelligence may establish special procedures
for systematic review for declassification of
classified information pertaining to intelligence
activities (including special activities), or
intelligence sources or methods.
Sec. 3.5. Mandatory Declassification Review.
(a) Except
as provided in paragraph (b) of this section, all
information classified under this order or predecessor
orders shall be subject to a review for
declassification by the originating agency if:
(1) the request for a review describes the document or material containing
the information with sufficient specificity to enable the agency to locate
it with a reasonable amount of effort;
(2) the information is not exempted from search and review under sections
105C, 105D, or 701 of the National Security Act of 1947 (50 U.S.C. 403-5c,
403-5e, and 431); and
(3) the information has not been reviewed for declassification within the
past 2 years. If the agency has reviewed the information within the past 2
years, or the information is the subject of pending litigation, the agency
shall inform the requester of this fact and of the requester's appeal
rights.
(b) Information originated by:
(1) the incumbent President or, in the performance of executive duties, the
incumbent Vice President;
(2) the incumbent President's White House Staff or, in the performance of
executive duties, the incumbent Vice President's Staff;
(3) committees, commissions, or boards appointed by the incumbent
President; or
(4) other entities within the Executive Office of the President that solely
advise and assist the incumbent President is exempted from the provisions
of paragraph (a) of this section. However, the Archivist shall have the
authority to review, downgrade, and declassify papers or records of former
Presidents under the control of the Archivist pursuant to sections 2107,
2111, 2111 note, or 2203 of title 44, United States Code. Review procedures
developed by the Archivist shall provide for consultation with agencies
having primary subject matter interest and shall be consistent with the
provisions of applicable laws or lawful agreements that pertain to the
respective Presidential papers or records. Agencies with primary subject
matter interest shall be notified promptly of the Archivist's decision. Any
final decision by the Archivist may be appealed by the requester or an
agency to the Panel. The information shall remain classified pending a
prompt decision on the appeal.
(c) Agencies conducting a mandatory review for
declassification shall declassify information that no
longer meets the standards for classification
under this order. They shall release this information
unless withholding is otherwise authorized and
warranted under applicable law.
(d) In accordance with directives issued pursuant
to this order, agency heads shall develop procedures to
process requests for the mandatory review of classified
information. These procedures shall apply to
information classified under this or predecessor
orders. They also shall provide a means for
administratively appealing a denial of a mandatory
review request, and for notifying the requester of the
right to appeal a final agency decision to the Panel.
(e) After consultation with affected agencies, the
Secretary of Defense shall develop special procedures
for the review of cryptologic information; the Director
of Central Intelligence shall develop special
procedures for the review of information pertaining to
intelligence activities (including special activities),
or intelligence sources or methods; and the Archivist
shall develop special procedures for the review of
information accessioned into the National Archives.
Sec. 3.6. Processing Requests and Reviews. In response
to a request for information under the Freedom of
Information Act, the Privacy Act of 1974, or the
mandatory review provisions of this order, or pursuant
to the automatic declassification or systematic review
provisions of this order:
(a) An agency may refuse to confirm or deny the
existence or nonexistence of requested records whenever
the fact of their existence or nonexistence is itself
classified under this order or its predecessors.
(b) When an agency receives any request for
documents in its custody that contain information that
was originally classified by another agency, or comes
across such documents in the process of the automatic
declassification or systematic review provisions of
this order, it shall refer copies of any request and
the pertinent documents to the originating agency for
processing, and may, after consultation with the
originating agency, inform any requester of the
referral unless such association is itself classified
under this order or its predecessors. In cases in which
the originating agency determines in writing that a
response under paragraph (a) of this section is
required, the referring agency shall respond to the
requester in accordance with that paragraph.
Sec. 3.7. Declassification Database.
(a) The Director
of the Information Security Oversight Office, in
conjunction with those agencies that originate
classified information, shall coordinate the linkage
and effective utilization of existing agency databases
of records that have been declassified and publicly
released.
(b) Agency heads shall fully cooperate with the
Director of the Information Security Oversight Office
in these efforts.
Part 4. Safeguarding
Sec. 4.1. General Restrictions on Access.
(a) A person
may have access to classified information provided
that:
(1) a favorable determination of eligibility for access has been made by an
agency head or the agency head's designee;
(2) the person has signed an approved nondisclosure agreement; and
(3) the person has a need-to-know the information.
(b) Every person who has met the standards for
access to classified information in paragraph (a) of
this section shall receive contemporaneous training on
the proper safeguarding of classified information and
on the criminal, civil, and administrative sanctions
that may be imposed on an individual who fails to
protect classified information from unauthorized
disclosure.
(c) Classified information shall remain under the
control of the originating agency or its successor in
function. An agency shall not disclose information
originally classified by another agency without its
authorization. An official or employee leaving agency
service may not remove classified information from the
agency's control.
(d) Classified information may not be removed from
official premises without proper authorization.
(e) Persons authorized to disseminate classified
information outside the executive branch shall ensure
the protection of the information in a manner
equivalent to that provided within the executive
branch.
(f) Consistent with law, directives, and
regulation, an agency head or senior agency official
shall establish uniform procedures to ensure that
automated information systems, including networks and
telecommunications systems, that collect, create,
communicate, compute, disseminate, process, or store
classified information have controls that:
(1) prevent access by unauthorized persons; and
(2) ensure the integrity of the information.
(g) Consistent with law, directives, and
regulation, each agency head or senior agency official
shall establish controls to ensure that classified
information is used, processed, stored, reproduced,
transmitted, and destroyed under conditions that
provide adequate protection and prevent access by
unauthorized persons.
(h) Consistent with directives issued pursuant to
this order, an agency shall safeguard foreign
government information under standards that provide a
degree of protection at least equivalent to that
required by the government or international
organization of governments that furnished the
information. When adequate to achieve equivalency,
these standards may be less restrictive than the
safeguarding standards that ordinarily apply to United
States “Confidential” information, including modified
handling and transmission and allowing access to
individuals with a need-to-know who have not otherwise
been cleared for access to classified information or
executed an approved nondisclosure agreement.
(i) Except as otherwise provided by statute, this
order, directives implementing this order, or by
direction of the President, classified information
originating in one agency shall not be disseminated
outside any other agency to which it has been made
available without the consent of the originating
agency. An agency head or senior agency official may
waive this requirement for specific information
originated within that agency. For purposes of this
section, the Department of Defense shall be considered
one agency. Prior consent is not required when
referring records for declassification review that
contain information originating in several agencies.
Sec. 4.2. Distribution Controls.
(a) Each agency shall
establish controls over the distribution of classified
information to ensure that it is distributed only to
organizations or individuals eligible for access and
with a need-to-know the information.
(b) In an emergency, when necessary to respond to
an imminent threat to life or in defense of the
homeland, the agency head or any designee may authorize
the disclosure of classified information to an
individual or individuals who are otherwise not
eligible for access. Such actions shall be taken only
in accordance with the directives implementing this
order and any procedures issued by agencies governing
the classified information, which shall be designed to
minimize the classified information that is disclosed
under these circumstances and the number of individuals
who receive it. Information disclosed under this
provision or implementing directives and procedures
shall not be deemed declassified as a result of such
disclosure or subsequent use by a recipient. Such
disclosures shall be reported promptly to the
originator of the classified information. For purposes
of this section, the Director of Central Intelligence
may issue an implementing directive governing the
emergency disclosure of classified intelligence
information.
(c) Each agency shall update, at least annually,
the automatic, routine, or recurring distribution of
classified information that they distribute. Recipients
shall cooperate fully with distributors who are
updating distribution lists and shall notify
distributors whenever a relevant change in status
occurs.
Sec. 4.3. Special Access Programs.
(a) Establishment of
special access programs. Unless otherwise authorized by
the President, only the Secretaries of State, Defense,
and Energy, and the Director of Central Intelligence,
or the principal deputy of each, may create a special
access program. For special access programs pertaining
to intelligence activities (including special
activities, but not including military operational,
strategic, and tactical programs), or intelligence
sources or methods, this function shall be exercised by
the Director of Central Intelligence. These officials
shall keep the number of these programs at an absolute
minimum, and shall establish them only when the program
is required by statute or upon a specific finding that:
(1) the vulnerability of, or threat to, specific information is
exceptional; and
(2) the normal criteria for determining eligibility for access applicable
to information classified at the same level are not deemed sufficient to
protect the information from unauthorized disclosure.
(b) Requirements and limitations.
(1) Special
access programs shall be limited to programs in which
the number of persons who will have access ordinarily
will be reasonably small and commensurate with the
objective of providing enhanced protection for the
information involved.
(2) Each agency head shall establish and maintain a system of accounting
for special access programs consistent with directives issued pursuant to
this order.
(3) Special access programs shall be subject to the oversight program
established under section 5.4(d) of this order. In addition, the Director
of the Information Security Oversight Office shall be afforded access to
these programs, in accordance with the security requirements of each
program, in order to perform the functions assigned to the Information
Security Oversight Office under this order. An agency head may limit access
to a special access program to the Director and no more than one other
employee of the Information Security Oversight Office, or, for special
access programs that are extraordinarily sensitive and vulnerable, to the
Director only.
(4) The agency head or principal deputy shall review annually each special
access program to determine whether it continues to meet the requirements
of this order.
5) Upon request, an agency head shall brief the Assistant to the President
for National Security Affairs, or a designee, on any or all of the agency's
special access programs.
(c) Nothing in this order shall supersede any
requirement made by or under 10 U.S.C. 119.
Sec. 4.4. Access by Historical Researchers and Certain
Former Government Personnel.
(a) The requirement in
section 4.1(a)(3) of this order that access to
classified information may be granted only to
individuals who have a need-to-know the information may
be waived for persons who:
(1) are engaged in historical research projects;
(2) previously have occupied policy-making positions to which they were
appointed by the President under section 105(a)(2)(A) of title 3, United
States Code, or the Vice President under 106(a)(1)(A) of title 3, United
States Code; or
(3) served as President or Vice President.
(b) Waivers under this section may be granted only
if the agency head or senior agency official of the
originating agency:
(1) determines in writing that access is consistent with the interest of
the national security;
(2) takes appropriate steps to protect classified information from
unauthorized disclosure or compromise, and ensures that the information is
safeguarded in a manner consistent with this order; and
(3) limits the access granted to former Presidential appointees and Vice
Presidential appointees to items that the person originated, reviewed,
signed, or received while serving as a Presidential appointee or a Vice
Presidential appointee.
Part 5. Implementation and Review
Sec. 5.1. Program Direction.
(a) The Director of the
Information Security Oversight Office, under the
direction of the Archivist and in consultation with the
Assistant to the President for National Security
Affairs, shall issue such directives as are necessary
to implement this order. These directives shall be
binding upon the agencies. Directives issued by the
Director of the Information Security Oversight Office
shall establish standards for:
(1) classification and marking principles;
(2) safeguarding classified information, which shall pertain to the
handling, storage, distribution, transmittal, and destruction of and
accounting for classified information;
(3) agency security education and training programs;
(4) agency self-inspection programs; and
(5) classification and declassification guides.
(b) The Archivist shall delegate the implementation
and monitoring functions of this program to the
Director of the Information Security Oversight Office.
Sec. 5.2. Information Security Oversight Office.
(a)
There is established within the National Archives an
Information Security Oversight Office. The Archivist
shall appoint the Director of the Information Security
Oversight Office, subject to the approval of the
President.
(b) Under the direction of the Archivist, acting in
consultation with the Assistant to the President for
National Security Affairs, the Director of the
Information Security Oversight Office shall:
(1) develop directives for the implementation of this order;
(2) oversee agency actions to ensure compliance with this order and its
implementing directives;
(3) review and approve agency implementing regulations and agency guides
for systematic declassification review prior to their issuance by the
agency;
(4) have the authority to conduct on-site reviews of each agency's program
established under this order, and to require of each agency those reports,
information, and other cooperation that may be necessary to fulfill its
responsibilities. If granting access to specific categories of classified
information would pose an exceptional national security risk, the affected
agency head or the senior agency official shall submit a written
justification recommending the denial of access to the President through
the Assistant to the President for National Security Affairs within 60 days
of the request for access. Access shall be denied pending the response;
(5) review requests for original classification authority from agencies or
officials not granted original classification authority and, if deemed
appropriate, recommend Presidential approval through the Assistant to the
President for National Security Affairs;
(6) consider and take action on complaints and suggestions from persons
within or outside the Government with respect to the administration of the
program established under this order;
(7) have the authority to prescribe, after consultation with affected
agencies, standardization of forms or procedures that will promote the
implementation of the program established under this order;
(8) report at least annually to the President on the implementation of this
order; and
(9) convene and chair interagency meetings to discuss matters pertaining to
the program established by this order.
Sec. 5.3. Interagency Security Classification Appeals
Panel.
(a) Establishment and administration.
(1) There is established an Interagency Security Classification Appeals
Panel. The Departments of State, Defense, and Justice, the Central
Intelligence Agency, the National Archives, and the Assistant to the
President for National Security Affairs shall each be represented by a
senior-level representative who is a full-time or permanent part-time
Federal officer or employee designated to serve as a member of the Panel by
the respective agency head. The President shall select the Chair of the
Panel from among the Panel members.
(2) A vacancy on the Panel shall be filled as quickly as possible as
provided in paragraph (a)(1) of this section.
(3) The Director of the Information Security Oversight Office shall serve
as the Executive Secretary. The staff of the Information Security Oversight
Office shall provide program and administrative support for the Panel.
(4) The members and staff of the Panel shall be required to meet
eligibility for access standards in order to fulfill the Panel's functions.
(5) The Panel shall meet at the call of the Chair. The Chair shall schedule
meetings as may be necessary for the Panel to fulfill its functions in a
timely manner.
(6) The Information Security Oversight Office shall include in its reports
to the President a summary of the Panel's activities.
(b) Functions. The Panel shall:
(1) decide on appeals by persons who have filed classification challenges
under section 1.8 of this order;
(2) approve, deny, or amend agency exemptions from automatic
declassification as provided in section 3.3 of this order; and
(3) decide on appeals by persons or entities who have filed requests for
mandatory declassification review under section 3.5 of this order.
(c) Rules and procedures. The Panel shall issue
bylaws, which shall be published in the Federal
Register. The bylaws shall establish the rules and
procedures that the Panel will follow in accepting,
considering, and issuing decisions on appeals. The
rules and procedures of the Panel shall provide that
the Panel will consider appeals only on actions in
which:
(1) the appellant has exhausted his or her administrative remedies within
the responsible agency;
(2) there is no current action pending on the issue within the Federal
courts; and
(3) the information has not been the subject of review by the Federal
courts or the Panel within the past 2 years.
(d) Agency heads shall cooperate fully with the
Panel so that it can fulfill its functions in a timely
and fully informed manner. An agency head may appeal a
decision of the Panel to the President through the
Assistant to the President for National Security
Affairs. The Panel shall report to the President
through the Assistant to the President for National
Security Affairs any instance in which it believes that
an agency head is not cooperating fully with the Panel.
(e) The Panel is established for the sole purpose
of advising and assisting the President in the
discharge of his constitutional and discretionary
authority to protect the national security of the
United States. Panel decisions are committed to the
discretion of the Panel, unless changed by the
President.
(f) Notwithstanding paragraphs (a) through (e) of
this section, whenever the Panel reaches a conclusion
that information owned or controlled by the Director of
Central Intelligence (Director) should be declassified,
and the Director notifies the Panel that he objects to
its conclusion because he has determined that the
information could reasonably be expected to
cause damage to the national security and to reveal (1)
the identity of a human intelligence source, or (2)
information about the application of an intelligence
source or method (including any information that
concerns, or is provided as a result of, a relationship
with a cooperating intelligence element of a foreign
government), the information shall remain classified
unless the Director's determination is appealed to the
President, and the President reverses the
determination.
Sec. 5.4. General Responsibilities. Heads of agencies
that originate or handle classified information shall:
(a) demonstrate personal commitment and commit
senior management to the successful implementation of
the program established under this order;
(b) commit necessary resources to the effective
implementation of the program established under this
order;
(c) ensure that agency records systems are designed
and maintained to optimize the safeguarding of
classified information, and to facilitate its
declassification under the terms of this order when it
no longer meets the standards for continued
classification; and
(d) designate a senior agency official to direct
and administer the program, whose responsibilities
shall include:
(1) overseeing the agency's program established under this order, provided,
an agency head may designate a separate official to oversee special access
programs authorized under this order. This official shall provide a full
accounting of the agency's special access programs at least annually;
(2) promulgating implementing regulations, which shall be published in the
Federal Register to the extent that they affect members of the public;
(3) establishing and maintaining security education and training programs;
(4) establishing and maintaining an ongoing self-inspection program, which
shall include the periodic review and assessment of the agency's classified
product;
(5) establishing procedures to prevent unnecessary access to classified
information, including procedures that:
(A)
require that a need for access to classified information is established
before initiating administrative clearance procedures; and
(B)
ensure that the number of persons granted access to classified information
is limited to the minimum consistent with operational and security
requirements and needs;
(6) developing special contingency plans for the safeguarding of classified
information used in or near hostile or potentially hostile areas;
(7) ensuring that the performance contract or other system used to rate
civilian or military personnel performance includes the management of
classified information as a critical element or item to be evaluated in the
rating of:
(A)
original classification authorities;
(B)
security managers or security specialists; and
(C)
all other personnel whose duties significantly involve the creation or
handling of classified information;
(8) accounting for the costs associated with the implementation of this
order, which shall be reported to the Director of the Information Security
Oversight Office for publication; and
(9) assigning in a prompt manner agency personnel to respond to any
request, appeal, challenge, complaint, or suggestion arising out of this
order that pertains to classified information that originated in a
component of the agency that no longer exists and for which there is no
clear successor in function.
Sec. 5.5. Sanctions.
(a) If the Director of the
Information Security Oversight Office finds that a
violation of this order or its implementing directives
has occurred, the Director shall make a report to the
head of the agency or to the senior agency official so
that corrective steps, if appropriate, may be taken.
(b) Officers and employees of the United States
Government, and its contractors, licensees, certificate
holders, and grantees shall be subject to appropriate
sanctions if they knowingly, willfully, or negligently:
(1) disclose to unauthorized persons information properly classified under
this order or predecessor orders;
(2) classify or continue the classification of information in violation of
this order or any implementing directive;
(3) create or continue a special access program contrary to the requirements
of this order; or
(4) contravene any other provision of this order or its implementing directives.
(c) Sanctions may include reprimand, suspension
without pay, removal, termination of classification
authority, loss or denial of access to classified
information, or other sanctions in accordance with
applicable law and agency regulation.
(d) The agency head, senior agency official, or
other supervisory official shall, at a minimum,
promptly remove the classification authority of any
individual who demonstrates reckless disregard or a
pattern of error in applying the classification
standards of this order.
(e) The agency head or senior agency official
shall:
(1) take appropriate and prompt corrective action when a violation or
infraction under paragraph (b) of this section occurs; and
(2) notify the Director of the Information Security Oversight Office when a
violation under paragraph (b)(1), (2), or (3) of this section occurs.
Part 6. General Provisions
Sec. 6.1. Definitions. For purposes of this order:
(a) “Access” means the ability or opportunity to
gain knowledge of classified information.
(b) “Agency” means any “Executive agency,” as
defined in 5 U.S.C. 105; any “Military department” as
defined in 5 U.S.C. 102; and any other entity within
the executive branch that comes into the possession of
classified information.
(c) “Automated information system” means an
assembly of computer hardware, software, or firmware
configured to collect, create, communicate, compute,
disseminate, process, store, or control data or
information.
(d) “Automatic declassification” means the
declassification of information based solely upon:
(1) the occurrence of a specific date or event as determined by the
original classification authority; or
(2) the expiration of a maximum time frame for duration of classification
established under this order.
(e) “Classification” means the act or process by
which information is determined to be classified
information.
(f) “Classification guidance” means any
instruction or source that prescribes the
classification of specific information.
(g) “Classification guide” means a documentary
form of classification guidance issued by an original
classification authority that identifies the elements
of information regarding a specific subject that must
be classified and establishes the level and duration of
classification for each such element.
(h) “Classified national security information” or
“classified information” means information that has
been determined pursuant to this order or any
predecessor order to require protection against
unauthorized disclosure and is marked to indicate its
classified status when in documentary form.
(i) “Confidential source” means any individual or
organization that has provided, or that may reasonably
be expected to provide, information to the United
States on matters pertaining to the national security
with the expectation that the information or
relationship, or both, are to be held in confidence.
(j) “Damage to the national security” means harm
to the national defense or foreign relations of the
United States from the unauthorized disclosure of
information, taking into consideration such aspects of
the information as the sensitivity, value, utility, and
provenance of that information.
(k) “Declassification” means the authorized
change in the status of information from classified
information to unclassified information.
(l) “Declassification authority” means:
(1) the official who authorized the original classification, if that
official is still serving in the same position;
(2) the originator's current successor in function;
(3) a supervisory official of either; or
(4) officials delegated declassification authority in writing by the agency
head or the senior agency official.
(m) “Declassification guide” means written
instructions issued by a declassification authority
that describes the elements of information regarding a
specific subject that may be declassified and the
elements that must remain classified.
(n) “Derivative classification” means the
incorporating, paraphrasing, restating, or generating
in new form information that is already classified, and
marking the newly developed material consistent with
the classification markings that apply to the source
information. Derivative classification includes the
classification of information based on classification
guidance. The duplication or reproduction of existing
classified information is not derivative
classification.
(o) “Document” means any recorded information,
regardless of the nature of the medium or the method or
circumstances of recording.
(p) “Downgrading” 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.
(q) “File series” means file units or documents
arranged according to a filing system or kept together
because they relate to a particular subject or
function, result from the same activity, document a
specific kind of transaction, take a particular
physical form, or have some other relationship arising
out of their creation, receipt, or use, such as
restrictions on access or use.
(r) “Foreign government information” means:
(1) information provided to the United States Government by a foreign
government or governments, an international organization of governments, or
any element thereof, with the expectation that the information, the source
of the information, or both, are to be held in confidence;
(2) information produced by the United States Government pursuant to or as
a result of a joint arrangement with a foreign government or governments,
or an international organization of governments, or any element thereof,
requiring that the information, the arrangement, or both, are to be held in
confidence; or
(3) information received and treated as “foreign government information”
under the terms of a predecessor order.
(s) “Information” means any knowledge that can be
communicated or documentary material, regardless of its
physical form or characteristics, that
is owned by, produced by or for, or is under the
control of the United States Government. “Control”
means the authority of the agency that originates
information, or its successor in function, to regulate
access to the information.
(t) “Infraction” means any knowing, willful, or
negligent action contrary to the requirements of this
order or its implementing directives that does not
constitute a “violation,” as defined below.
(u) “Integral file block” means a distinct
component of a file series, as defined in this section,
that should be maintained as a separate unit in order
to ensure the integrity of the records. An integral
file block may consist of a set of records covering
either a specific topic or a range of time such as
presidential administration or a 5-year retirement
schedule within a specific file series that is retired
from active use as a group.
(v) “Integrity” means the state that exists when
information is unchanged from its source and has not
been accidentally or intentionally modified, altered,
or destroyed.
(w) “Mandatory declassification review” means the
review for declassification of classified information
in response to a request for declassification that
meets the requirements under section 3.5 of this order.
(x) “Multiple sources” means two or more source
documents, classification guides, or a combination of
both.
(y) “National security” means the national
defense or foreign relations of the United States.
(z) “Need-to-know” means a determination made by
an authorized holder of classified information that a
prospective recipient requires access to specific
classified information in order to perform or assist in
a lawful and authorized governmental function.
(aa) Network” means a system of two or more
computers that can exchange data or information.
(bb) “Original classification” means an initial
determination that information requires, in the
interest of the national security, protection against
unauthorized disclosure.
(cc) “Original classification authority” means an
individual authorized in writing, either by the
President, the Vice President in the performance of
executive duties, or by agency heads or other officials
designated by the President, to classify information in
the first instance.
(dd) “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.
(ee) “Records having permanent historical value”
means Presidential papers or Presidential records and
the records of an agency that the Archivist has
determined should be maintained permanently in
accordance with title 44, United States Code.
(ff) “Records management” means the planning,
controlling, directing, organizing, training,
promoting, and other managerial activities involved
with respect to records creation, records maintenance
and use, and records disposition in order to achieve
adequate and proper documentation of the policies and
transactions of the Federal Government and effective
and economical management of agency operations.
(gg) “Safeguarding” means measures and controls
that are prescribed to protect classified information.
(hh) “Self-inspection” means the internal review
and evaluation of individual agency activities and the
agency as a whole with respect to the
implementation of the program established under this
order and its implementing directives.
(ii) “Senior agency official” means the official
designated by the agency head under section 5.4(d) of
this order to direct and administer the agency's
program under which information is classified,
safeguarded, and declassified.
(jj) “Source document” means an existing document
that contains classified information that is
incorporated, paraphrased, restated, or generated in
new form into a new document.
(kk) “Special access program” means a program
established for a specific class of classified
information that imposes safeguarding and access
requirements that exceed those normally required for
information at the same classification level.
(ll) “Systematic declassification review” means
the review for declassification of classified
information contained in records that have been
determined by the Archivist to have permanent
historical value in accordance with title 44, United
States Code.
(mm) “Telecommunications” means the preparation,
transmission, or communication of information by
electronic means.
(nn) “Unauthorized disclosure” means a
communication or physical transfer of classified
information to an unauthorized recipient.
(oo) “Violation” means:
(1) any knowing, willful, or negligent action that could reasonably be
expected to result in an unauthorized disclosure of classified information;
(2) any knowing, willful, or negligent action to classify or continue the
classification of information contrary to the requirements of this order or
its implementing directives; or
(3) any knowing, willful, or negligent action to create or continue a
special access program contrary to the requirements of this order.
(pp) “Weapons of mass destruction” means
chemical, biological, radiological, and nuclear
weapons.
Sec. 6.2. General Provisions.
(a) Nothing in this order
shall supersede any requirement made by or under the
Atomic Energy Act of 1954, as amended, or the National
Security Act of 1947, as amended. “Restricted Data”
and “Formerly Restricted Data” shall be handled,
protected, classified, downgraded, and declassified in
conformity with the provisions of the Atomic Energy Act
of 1954, as amended, and regulations issued under that
Act.
(b) The Attorney General, upon request by the head
of an agency or the Director of the Information
Security Oversight Office, shall render an
interpretation of this order with respect to any
question arising in the course of its administration.
(c) Nothing in this order limits the protection
afforded any information by other provisions of law,
including the Constitution, Freedom of Information Act
exemptions, the Privacy Act of 1974, and the National
Security Act of 1947, as amended. This order is not
intended to and does not create any right or benefit,
substantive or procedural, enforceable at law by a
party against the United States, its departments,
agencies, officers, employees, or agents. The foregoing
is in addition to the specific provisos set forth in
sections 3.1(b) and 5.3(e) of this order.”
(d) Executive Order 12356 of April 6, 1982, was
revoked as of October 14, 1995.
Sec. 6.3. Effective Date. This order is effective
immediately, except for section 1.6, which shall become
effective 180 days from the date of this order.
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