[Weekly Compilation of Presidential Documents Volume 39, Number 13 (Monday, March 31, 2003)]
[Pages 359-376]
[Online from the Government Printing Office, www.gpo.gov]
<R04>
Executive Order 13292--Further Amendment to Executive Order 12958, as
Amended, Classified National Security Information
March 25, 2003
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:
``Classified National Security Information
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
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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
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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
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(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.
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(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:
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(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;
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(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
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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.
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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.
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(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
[[Page 369]]
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
[[Page 370]]
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
[[Page 371]]
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:
[[Page 372]]
(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
[[Page 373]]
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
[[Page 374]]
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.
[[Page 375]]
(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
[[Page 376]]
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.
George W. Bush
The White House,
March 25, 2003.
[Filed with the Office of the Federal Register, 9:17 a.m., March 27,
2003]
Note: This Executive order was published in the Federal Register on
March 28.
