IMPROVING

DECLASSIFICATION

A REPORT TO THE PRESIDENT

FROM THE PUBLIC INTEREST DECLASSIFICATION BOARD

“A popular Government, without

popular information or the means

of acquiring it, is but a Prologue

to a Farce or a Tragedy; or perhaps

both. Knowledge will forever govern

ignorance; And a people who mean

to be their own Governors, must arm

themselves with the power which

knowledge gives.”

James Madison to W.T. Barry

August 4, 1822

DECEMBER 2007
Images on the following pages are courtesy of the National Archives and Records Administration, with the exception of the image on page 35,

which is courtesy of the Architect of the Capitol.
LETTER TO THE PRESIDENT ..............................................................3

INTRODUCTION ..........................................................................4

A Brief Historical Perspective on Declassification Activity in the U.S. Government ..........................5

What the Declassification “System” Generally Looks Like Today .........................................6

What the Declassification “System” Must Look Like Tomorrow .........................................7

SUMMARY OF ISSUES & CORRESPONDING RECOMMENDATIONS ........................8

DETAILS OF THE 15 ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ISSUE NO. 1: Understanding What the Declassification System is Accomplishing . . . . . . . . . . . . . . . . . . . . . . . 13

ISSUE NO. 2: Prioritizing the Declassification Review of Historically Significant Information . . . . . . . . . . . . . . 16

ISSUE NO. 3: Expediting the Declassification of Presidential Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ISSUE NO. 4: Preserving a Capability Within Agencies to Review Records

Less Than 25 Years of Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ISSUE NO. 5: Bringing Greater Uniformity, Consistency, and Efficiency

to the Declassification Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

ISSUE NO. 6: Expediting the Declassification Reviews of Multiple Equity Documents . . . . . . . . . . . . . . . . . . . 22

ISSUE NO. 7: Performing Declassification Reviews Involving Special

Media and Electronic Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

ISSUE NO. 8: Re-Reviews of Previously Disclosed Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

ISSUE NO. 9: Dealing with Other Exempted Information

and the Delays Entailed in Archival Processing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

ISSUE NO. 10: Exercising Discretion for Disclosure in Exceptional Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

ISSUE NO. 11: Removing an Impediment to Comprehensive Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

ISSUE NO. 12: Expanding the Uses and Roles of Historians and Historical Advisory Boards . . . . . . . . . . . . . . 31

ISSUE NO. 13: Clarifying the Status and Treatment of Formerly Restricted Data . . . . . . . . . . . . . . . . . . . . . . . 32

ISSUE NO. 14: The Handling of the President’s Daily Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

ISSUE NO. 15: Declassification Reviews of Certain Congressional Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

APPENDIX A – Biographical Information for Current Board Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

APPENDIX B – Witnesses Appearing Before the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

APPENDIX C – Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

APPENDIX D – Board’s Authorizing Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

TABLE OF CONTENTS

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3
Understanding history is essential in a democracy. Without

such an understanding, the public cannot know which

candidates to vote for or which policies to support. They

cannot judge the best course for the country. Without historic

understanding, the mistakes of the past are destined to be

repeated; the triumphs, unappreciated.

Yet, the public cannot always be told all that its Government is

doing. To do so would reveal information that might harm

the country’s interests. Diplomatic problems might be created,

military capabilities could be undermined, or the ability to

gather information about threats to security might be

damaged. To protect sensitive information, the U.S.

Government, like other democratic Governments, has

established a classification system whereby such information is

identified, marked, handled, and stored in a manner designed

to prevent its unauthorized disclosure. For the most part, the

public has accepted, and continues to accept, the need for such

controls on information.

At the same time, the public believes its Government often

keeps information classified longer than it needs to be.

Eventually, all classified information will lose its potential to

cause serious and demonstrable harm to U.S. security interests

should it be disclosed. It might take 100 days for this to

happen, or it might take 100 years, but eventually events,

circumstances, and the passage of time will erode the reason

for restricting access to the information. The public expects

the Government to make its best effort to ascertain the point

when this occurs and to make historically significant

information available. Declassified information, whenever

made available, is often important — essential, in fact — to

understanding the decisions and actions taken at crucial

junctures in the country’s history. History, after all, is

cumulative: it has no finality. As historical insights evolve,

the public’s understanding is continually being broadened

and deepened, as is the capacity of Government to learn from

its mistakes and successes.

To its credit, the U.S. Government has always accepted the

obligation to make classified information that is historically

significant available to the public. To that end, the

Government has established a number of declassification

programs. Information that was previously classified is reviewed

against the standards for continued classification.

In fact, the present standard for keeping historically significant

information classified beyond 25 years is much more exacting

than that required for its initial classification. The original

classification needed only establish that “the unauthorized

disclosure of the information could be expected to result in

damage to the national security.” After 25 years, the standard

is whether disclosure could be expected to reveal, for example,

“actual U.S. military war plans that remain in effect,“ or

whether it would “seriously and demonstrably impair relations

between the United States and a foreign Government, or

seriously and demonstrably undermine ongoing diplomatic

activities of the Unites States.” Today, if continued

classification does not satisfy these higher standards, the

information is declassified and ordinarily made available to

the public in some manner.

INTRODUCTION

4
5

The first governmentwide system providing for security

classification was promulgated in an Executive order issued

by President Dwight Eisenhower in 1953. Before that,

departments and agencies with responsibilities in the national

security area protected their information as they saw fit,

in accordance with their own internal regulations. The

Eisenhower Order acknowledged in principle the need to

declassify documents when they no longer required protection,

specifically requiring departments and agencies to assign dates

or events at the time documents were classified to govern their

declassification. But the Eisenhower Order did not require

agencies to systematically review such documents for

declassification, nor did it require them to review for

declassification documents requested by the public.

In 1961, President John Kennedy amended the Eisenhower

Order to require departments and agencies to designate

officials with responsibility for “continuing reviews” of

classified documents and for responding to requests for such

documents “from all sources.” The amended order also

provided for the automatic declassification of documents that

had not been exempted by the agencies at the end of 12 years.

Although they were an improvement over the Eisenhower

Order from the public’s perspective, the Kennedy amendments

still left it to the departments and agencies to determine

the size and scope of their continuing reviews of classified

documents, as well as how requests from the public would

be handled. No agency saw fit to allow its documents to be

automatically declassified after 12 years.

The Nixon Executive order on security classification, issued in

1972, reduced the maximum length of time a document could

be classified to 10 years but also allowed agencies to exempt

their documents from this requirement. Similarly, it provided

that all documents would be automatically declassified after 30

years unless the agency head extended the period required for

protection. For the first time, however, agencies were required

to establish internal procedures to provide for “mandatory

declassification reviews” of documents requested by members

of the public. The Nixon Order also provided, for the first

time, that the Archivist of the United States would be required

to systematically review for declassification all 30-year-old

records that had been transferred to NARA’s custody, i.e.,

records determined to be “permanently valuable.”

For the next 23 years — until Executive Order 12958 was

issued by President Bill Clinton in 1995 — the National

Archives was the only agency of the Federal Government that

was required to conduct systematic declassification reviews.

A few agencies, such as the State Department and the Central

Intelligence Agency, instituted systematic reviews over certain

of their record collections, but none chose to institute

systematic reviews of all their classified records. Indeed,

virtually all the declassification reviews that occurred at the

agencies from 1972 until 1995 (apart from what was being

done at the National Archives, including the Presidential

libraries and declassification reviews initiated by the

Department of State in support of the published Foreign

Relations of the United States series) were undertaken

pursuant to an access demand (e.g., Freedom of Information

Act (FOIA) or mandatory declassification review request) or

a legal requirement (e.g., a congressionally mandated special

search), or were part of limited agency initiatives.

As a result, by 1995, a mountain of unreviewed classified

documents — estimated at that time to be nearly 700 million

pages — had accumulated at the National Archives with no

prospect, given the level of resources then available, of ever

being reviewed. To make matters worse, with each passing year

the mountain was growing, and many millions more pages of

such records were held by the agencies as well. To resolve this

situation, Executive Order 12958 (hereinafter, “the Order”)

introduced the concept of “automatic declassification,”

whereby all classified records deemed to be “permanently

valuable records of the Government” — those required to be

legally transferred by agencies or Presidents and Vice

Presidents to the National Archives, including its Presidential

libraries — would be presumed declassified when they reached

25 years of age, unless the agency that originated them acted to

exempt them pursuant to the provisions of the Order. At the

time, it was believed that this requirement would encourage

agencies to allow certain files or categories of records to be

declassified in bulk, without the necessity of document-bydocument review. With limited exceptions, however, this did

not turn out to be the case. Instead, agencies hired additional

staff and contractors to review their records at the National

Archives and among their own holdings. They were initially

given five years to complete their work; however, this deadline

was ultimately extended to December 31, 2006. (The

automatic declassification of documents containing the equities

of multiple agencies was delayed until December 31, 2009;

and the automatic declassification of information contained in

“special media” was delayed until December 31, 2011.)

At the end of 2006, virtually all departments and agencies were

deemed to have complied with the requirements of the Order,

at least with respect to the initial implementation of automatic

declassification. Over the 12-year period in which the reviews

were conducted, approximately 1 billion pages of permanently

valuable records were declassified. Each year thereafter, millions

more pages of permanently valuable records will become 25

years old and be subject to automatic declassification, and thus

will likely undergo declassification review.

A Brief Historical Perspective on Declassification Activity in the U.S. Government
The declassification system of 2007 is a far cry from what it

used to be. Far more resources are being applied to

declassification activity and far greater results are being

achieved. One witness before the Board opined that it might

take a generation for the public to fully appreciate what has

been declassified over the past 12 years.

At the same time, although collaboration among the agencies

has clearly increased since 1995, the Government continues to

have a decentralized, largely autonomous system to carry out

these activities. The pertinent guidance at the national level is

principally designed to provide latitude, rather than direction,

to the agencies, and oversight at the top remains relatively

weak. Ultimate authority and control rest with the departments

and agencies involved and, unsurprisingly, they do not all

see (or execute) their responsibilities in quite the same way.

However, all departments and agencies face the same problem:

burgeoning demands on their resources. Not only have the

automatic declassification provisions of the Order forced them

to commit resources, they are constantly bombarded by

requests and requirements emanating from a variety of other

sources, such as the FOIA, mandatory declassification reviews,

and congressionally mandated searches. There is also pressure

from within many agencies to get their own stories out. No

agency is currently able to keep up with the demand. All must

juggle their resources and allocate their personnel to satisfying

whatever requirements seem to be the most pressing at the

time — for legal reasons, political reasons, agency needs, or

reasons of public relations. What can be put off is put off; what

can go to the end of the queue goes to the end of the queue.

“Robbing Peter to pay Paul” is the inevitable outcome.

What appears to be missing is a common understanding of

the public interest and a common approach to effectuating it.

Though the Government is committed, as a matter of policy,

to making historically significant information available to the

public as soon as it can safely do so, there is no common

understanding among the agencies of what “historically

significant” information is, nor any common understanding

of how such information will be treated once identified as such.

Rather, it becomes part of the “queue,” lost in the shuffle of

automatic declassification reviews, FOIA requests, specially

mandated searches, and the like. What of historical significance

is actually being declassified is unclear both to the public and to

the Government.

Making matters worse, declassification does not necessarily

mean that information will be available to the public any time

soon. Once declassified, documents undergo archival

processing, which includes determining whether they should

be withheld for reasons other than security classification,

conducting archival description (which may include indexing

the documents), and conducting any necessary preservation

activities. The National Archives lacks sufficient resources to

keep pace with agency declassification reviews, resulting in

enormous backlogs. It will likely take years for hundreds of

millions of pages of materials declassified over the past 12 years

to become available to the public. Moreover, many declassified

documents will continue to be withheld from the public

because they contain other types of controlled, unclassified

information, such as investigative or personal information.

Many more years are likely to pass before this protected

information is allowed into the public domain.

Nevertheless, there are many hopeful signs. A great deal of

information has been declassified since 1995 that otherwise

would not have been, largely because departments and

agencies devoted major resources to their declassification

activities. Testimony to the Board indicated that they are

developing professional cadres of experienced and dedicated

reviewers. They also appear to be making greater use of

information technology and working more closely and

more effectively with each other than ever before — and,

in particular, with the National Archives.

The tasks ahead remain daunting, and the resources needed to

meet existing deadlines and workloads will never be sufficient

and are under constant threat of reduction. The Board is

optimistic that success is possible, but not if the Government

stays on its present course. Some things need to change.

Declassification is, and will always be, a staff-intensive activity,

but manpower is not the sole key to success. Declassification

can and must be done in a smarter way. It needs to be better

focused with greater uniformity among departments and

agencies. It needs to use technology to a greater extent to

accomplish its mission and institute better strategic planning to

address the needs of the future, especially the declassification

of information stored in existing as well as emerging digital,

optical, and other nontextual formats.

What the Declassification System Generally Looks Like Today

6
Whatever may be done to improve the declassification system

of today, it is apparent that this system is ill-equipped to deal

with the requirements of tomorrow. Rather than focusing on

the review of classified information contained in paper

documents, it will increasingly focus on the review of classified

information contained in electronic records, such as e-mails

and PowerPoint presentations, which are stored in a variety

of databases and in various electronic formats. The volume

of such records, in fact, is apt to dwarf the volume of classified

records now being reviewed by departments and agencies in

paper form on a document-by-document basis. In all

likelihood, if departments and agencies are to continue to

identify “permanently valuable” classified records among these

holdings for review as they reach 25 years of age, some means

of doing this electronically will be required both for the

identification and the declassification review of such records.

Moreover, after these declassification reviews have taken place,

an electronic means will be needed to transfer the records that

have been declassified to the National Archives, where they can

be subjected electronically to archival processing and ultimately

be made available electronically to the public. In short, a

declassification system is needed that makes far greater use

of information technology to achieve its objectives — including

technology that is compatible across the entire system at every

step of the declassification process.

The National Archives has anticipated the need for a

governmentwide system for identifying and processing

“permanently valuable” electronic records of the Government

by establishing the Electronic Records Archives (ERA)

initiative, which envisions a comprehensive, dynamic system for

preserving virtually any kind of electronic record, regardless of

its form or how it is stored at the department or agency that

created it. The idea is that once such a system is operational,

the Archives would make such records available to the public

electronically.

It is unclear to the Board, however, whether the needs of the

declassification system could be folded into, and would be

assimilated by, the ERA initiative that is now under way. The

Board intends to examine this issue in depth over the coming

year. In the meantime, much can be done to improve the

existing declassification system, and it is to this end that the

following recommendations are offered.

What the Declassification System Must Look Like Tomorrow Millions of Pages

250

200

150

100

50

0

1980- 1995 1996 1997 1999 2000 2001 2002 2003 2004 5 2 2006 00

1994188.3 million

69 million

196 million

204 million

193 million

127 million

75 million

100 million

44 million

43 million

28 million

29.5 million

37.6 million

Average per year: 12.6 million pages

1998

1.33 BILLION PAGES DECLASSIFIED, FYS 1980-2006

7

Source: Fiscal Year 2006 Report to the President, Information Security Oversight Office.
8

Understanding What the Declassification System is Accomplishing. There are at least eight ways by which

security classified national security information may become declassified, including through Freedom of Information

Act requests and through automatic declassification under Executive Order 12958. The Board presents several

recommendations that would increase the efficiency of the system as a whole.

ISSUE NO. 1:

RECOMMENDATIONS

1. The Board recommends establishing by Executive Order or by

statute a National Declassification Program under the Archivist

of the United States.

2. A new National Declassification Center (NDC) to be

established within the National Archives and Records

Administration (NARA) should administer the program,

and the Archivist should establish a new position — Deputy

Archivist for Declassification Policy and Programs — to oversee

all aspects of the NDC’s operations

3. Departments and agencies should be required to consolidate

all of their declassification activities in one office or bring them

under the control of one office.

4. All departments and agencies should be required to record

declassification decisions on a single computerized system,

regardless of the avenue by which declassification occurs and

within five years to make these databases available to the public

containing at least pertinent information such as the titles of the

documents and the locations where they are available.

5. All departments and agencies should report to the NDC at least

annually what they have declassified.

Prioritizing the Declassification Review of Historically Significant Information. There is no satisfactory means at

present of identifying historically significant information within the vast body of information that is being reviewed and

declassified. Accordingly, no priority is given to the declassification and release to the public of such information.

ISSUE NO. 2:

RECOMMENDATIONS

1. To ensure that historically significant classified records are given

priority at the 25-year review point, both in terms of what

records are taken first and in terms of the quality of the review

they receive, the President should promulgate by Executive

order, or other appropriate issuance, a system for identifying

such information.

2. A board consisting of prominent historians, academicians,

and former Government officials would be appointed by the

Archivist to determine which events or activities of the U.S.

Government should be considered historically significant

from a national security and foreign policy standpoint, for a

particular year. The board would require input of agency

records managers and historians as well as NARA’s archivists,

to include those within the Presidential libraries, to determine

the specific records series that most likely contain the records

about the topics the board identifies as historically significant.

3. Once the records series determined to be “likely to contain

information of historical significance” had been identified and

approved, these records would receive the highest priority for

declassification.

4. The Archivist of the United States, through the NDC, would

oversee the implementation of this process within affected

departments and agencies, and would establish within the

NDC, a mechanism for resolving disagreements that might

arise in the course of such implementation.

5. If this system were adopted, E.O. 12958, as amended, would

need to be amended to allow departments and agencies to give

priority to the review of classified records deemed to be

historically significant as they reach 25 years of age.

6. It is recognized that “routine” records may still have

significance, especially to particular individuals. Such records

would still be subject to timely review for declassification in

response to a specific access demand (e.g. a FOIA or

MDR request).

SUMMARY OF ISSUES &

CORRESPONDING RECOMMENDATIONS
9

Expediting the Declassification of Presidential Records. The declassification of Presidential records takes far too

long under the current system.

ISSUE NO. 3:

RECOMMENDATIONS

1. The Archivist should establish a single center within the

Washington, D.C. metropolitan area, to house all future

classified Presidential records from the end of a Presidential

administration until their eventual declassification, at which

time, they would be physically transferred to the appropriate

Presidential library and made available to the public.

2. If establishing a separate center for the storage and review of

classified Presidential records were not considered feasible,

then the new NDC should consider establishing as part of its

mechanism for the review of classified documents with

multiple equities, an office or division dedicated to the

reviews requested by Presidential libraries.

3. If neither of these options is considered feasible, Congress

should consider amending the Presidential Records Act to

provide, similar to the FRUS statute, that departments and

agencies will give priority to the declassification of Presidential

records over other declassification reviews, except those

otherwise made pursuant to law, e.g. the FOIA or other

searches mandated by statute.

4. In the absence of statutory change, a similar policy could be

set forth in Executive order, or other Executive branch policy

issuance.

5. If the current decentralized system is retained without structural

change, NARA needs to consider means of augmenting the

archival capabilities at Presidential libraries, e.g. by increasing

their staffs, contracting out, granting security clearances to

volunteers, to accelerate the archival processing of classified

Presidential records.

Preserving a Capability within Agencies to Review Records less than 25 Years of Age. Agencies typically

allocate their declassification review personnel to whatever the pressing need may be at the time, which often leaves

insufficient resources to perform declassification reviews of records less than 25 years old that they know to be

historically significant.

ISSUE NO. 4:

RECOMMENDATIONS

1. Either pursuant to uniform guidelines issued by the National

Declassification Center or pursuant to an appropriate Executive

branch issuance, agencies should be directed to dedicate some

specific percentage of their declassification review personnel to

conducting reviews of records less than 25 years old that they

know to be historically significant and are reasonably likely to

provide the public with meaningful results.

2. The Archivist should annually recognize in some appropriate

fashion the agency or agencies that declassify and release to the

public on their own initiative historically significant information

less than 25 years old.

Bringing Greater Uniformity, Consistency, and Efficiency to the Declassification Process. All executive

departments and agencies of the Federal Government are bound by the Order on security classification, but, when it

comes to their declassification programs, there is a wide disparity in terms of their implementation, including the level

of resources being applied to such activities, training, use of technology, interface with the public, and approach to

declassification reviews.

ISSUE NO. 5:

RECOMMENDATIONS

1. The President, by executive order or other appropriate issuance,

should charge the new NDC with prescribing uniform

guidelines to govern the declassification activities of all executive

departments and agencies.

2. In addition to prescribing uniform guidelines, the NDC should

be responsible for providing “services of common concern” for

the declassification activities of the Federal Government where

appropriate, to include the review of classified documents that

contain multiple equities, as well as the review of classified

information contained in special media and electronic records.

3. The NDC should also be authorized to conduct declassification

reviews for other departments and agencies on a reimbursable

basis.

4. The Order should be amended to prescribe a uniform policy to

govern the subsequent review of all exempted records.
10

Expediting the Declassification Reviews of Multiple Equity Documents. The declassification of documents

involving “multiple equities” (i.e. documents originated by one agency that contain information classified by one or

more other agencies) has proven especially difficult and time-consuming.

ISSUE NO. 6:

RECOMMENDATIONS

1. The centralized approach currently being taken pursuant to the

National Declassification Initiative needs to be made permanent

and institutionalized, preferably within the new National

Declassification Center, and departments and agencies that

have “equities” in such reviews should be required to provide

adequate personnel to conduct them.

2. While the Board recognizes that as a practical matter, the

“automatic declassification” deadline for multiple equity

documents may have to be extended by the President, it

recommends that the deadline be extended no more than

once and only after the Archivist has presented him with a

comprehensive and realistic plan, agreed to by the departments

and agencies involved, for achieving the objective within the

time frame contemplated.

Performing Declassification Review Involving Special Media and Electronic Records. Too little has been done

with regard to meeting the deadline of December 31, 2011, for the review of classified information contained in

special media records as well as developing plans to cope with the truly monumental problem looming on the

horizon: the review of classified information contained in electronic records.

ISSUE NO. 7:

RECOMMENDATIONS

1. NARA should be formally charged with leading a special effort,

within the new National Declassification Center, for analyzing

the special media records problem and for creating a

governmentwide plan for addressing it to include

declassification and access.

2. As part of this process, the Center needs to consider at the

outset how much classified information stored in special media

is permanently valuable according to 44 U.S.C. and the PRA,

and thus requires preservation.

3. The Center might consider whether the declassification review

of special media records at age 25 or older ought to be

limited to, or give priority to, the special media records

containing historically significant information.

4. The Center should also consider what “services of common

concern” it might be able to provide on a reimbursable basis to

help agencies cope with the special media records problem, such

as the procurement of obsolete hardware and software for the

use of all participating agencies.

5. The Center should serve a similar role with respect to the

review of classified electronic records, putting uniform policies

in place to ensure activities of departments and agencies are

synchronized and standardized with what NARA itself is

planning in terms of the Electronic Records Archive, i.e.,

digitizing its archival records and making them available to

the public electronically.

Re-reviews of Previously Disclosed Information. In recent years, there have been several instances where agencies

have discovered that records created by other agencies (but containing their classified information) have been

declassified and made available to the public at the National Archives without their having had an opportunity to

review the records themselves for declassification.

ISSUE NO. 8:

RECOMMENDATIONS

1. Such action should be taken only when the potential harm to

the national security from continued public disclosure is clear

and convincing (after all, these records are most often far more

than 25 years old), and the potential for future harm can be

significantly ameliorated by withdrawing the records.

2. Any withdrawal of records that were previously available to the

public at the National Archives should require the approval

of the Archivist; this concept should be codified in the

Executive Order.

3. The Order or pertinent statutes should be amended to provide

that no member of the public shall be criminally prosecuted,

or suffer any other adverse consequences, for maintaining,

using, or disseminating a record, or information contained in a

document, that they had lawfully obtained from the National

Archives or any other agency of the Federal Government.

4. These reviews should be undertaken only where there is a clear

indication (and subsequent showing) that the benefits to our

national security are worth the costs.
11

Dealing with other Exempted Information and the Delays Entailed in Archival Processing. Because a record has

been declassified does not necessarily mean it will be made available to the public any time soon.

ISSUE NO. 9:

RECOMMENDATIONS

1. Records identified as being of historical significance should

undergo a concurrent review for personal privacy or “controlled

but unclassified” information at the same time as the review for

declassification is conducted.

2. Standardization is required as to how Executive branch agencies

handle “controlled unclassified information” at the end of its

life-cycle.

3. The Archivist should develop a personnel plan, to be funded

as part of NARA’s annual budget submission to the

Administration (and later presentation to Congress), that

would address the current archival processing backlog and to

otherwise enable the National Archives in the future to fully

process all declassified records within five years of their

declassification so that they may be released to the public.

Expanding the Uses and Roles of Historians and Historical Advisory Boards. Relatively few agencies with

responsibilities in the national security currently employ historians and/or maintain historical advisory boards.

ISSUE NO. 12:

RECOMMENDATIONS

1. Amend the Order to require that all departments and agencies

with significant classification activity establish historical advisory

boards — composed of experts from inside and outside the

agency — who report to the head of the agency.

2. By appropriate Executive branch issuance, require all

departments and agencies with responsibilities in the national

security area to hire an appropriate number of historians, either

to select classified records of historical significance for

declassification review and publication (as part of the

department or agency’s ongoing declassification initiatives),

or to write historical accounts based upon the department or

agency’s classified holdings.

3. The declassification review of historical accounts written by

agency historians ought to take place 25 years after the most

recent event considered in the account, rather than 25 years

after the historical account is written.

Exercising Discretion for Disclosure in Exceptional Cases. The latitude given departments and agencies by the

Order to declassify information when the public interest in disclosure outweighs the risk of damage is not being

seriously exercised.

ISSUE NO. 10:

RECOMMENDATIONS

1. The Order should be amended to provide that where the entity

that originally requested declassification review of the record in

question is a Government entity (including a Presidential library, the office that prepares the Foreign Relations of the

United States (FRUS) series, a congressional committee, or a

court) who is seeking disclosure of the record for a public purpose, and that entity objects to the continued classification of

the record on the grounds that the public interest outweighs

the risk of damage caused by disclosure, it ought to trigger a referral to the senior agency official for a “weighing of the interests” under this provision of the Order.

Removing an Impediment to Comprehensive Review. Not infrequently, requests to agencies from individual

members of the public actually hamper the agency’s ability to make historically significant records available to the public

in general.

ISSUE NO. 11:

RECOMMENDATIONS

1. In the view of the Board, when an agency receives a request

from an individual for a particular document or documents that

are part of a larger collection of historically significant

documents currently undergoing review for declassification, the

agency receiving the request should be permitted to hold such

request in abeyance for up to one year, provided it advises the

individual requestor that the document or documents at issue

are part of a larger collection undergoing declassification review

and advises the requestor when the results of the larger

declassification review are expected to be made available.
12

Clarifying the Status and Treatment of Formerly Restricted Data (FRD). In practice, information identified by

statute as Formerly Restricted Data (FRD) remains outside the scope of information that can be requested by the

public and is not subject to the declassification review requirements of the Order.

ISSUE NO. 13:

RECOMMENDATIONS

1. Preferably, the President should make clear by an amendment

to the Order that FRD should be treated as “defense

information” and should be safeguarded and declassified in

accordance with the Order, thereby providing the public with

the same rights of access that it has to other information

classified pursuant to the Order.

2. If, on the other hand, the President believes that the

information currently designated as FRD, because of its

particular sensitivity, should continue to remain outside the

classification system, consideration should be given to

transitioning FRD to the normal classification system as it

reaches 25 years of age (and presumably has become

less sensitive).

3. If the President determines that the current system should

remain as it is, the Board recommends that an appropriately

cleared representative of the public, familiar with the issues,

should participate in the Government’s periodic deliberations

with respect to what should remain in FRD, i.e. excluded from

the normal classification and/or release to the public. In

addition, DOD, DOE, and State should promulgate clear and

consistent guidance to the larger declassification community

with respect to what constitutes FRD, e.g. former storage

locations of nuclear weapons, which may be identified in

permanent historical records more than 25 years old.

The Handling of the President’s Daily Brief. The President’s Daily Brief (PDB), which is prepared each day by

the CIA, has not been retained as part of the records of the White House since the beginning of the Reagan

administration, which deprives historians and researchers (and ultimately the public) of an ability to learn what a

particular President was being told by the Intelligence Community regarding the world situation.

ISSUE NO. 14:

RECOMMENDATIONS

1. The President should clarify as a matter of policy that he will

not foreclose declassification review of the PDB by claiming

“executive privilege” for it. He or she may reserve the right as a

former President to assert executive privilege with respect to

particular documents that are being considered for release by

his or her Presidential library.

2. The President should direct that the PDB be retained by the

White House as a Presidential record under the Presidential

Records Act. It can then later be reviewed for declassification at

the request of the Presidential library concerned.

3. The President should direct that the PDBs that were not

allowed to remain in the Presidential materials of past Presidents

be provided to each Presidential library. Before they are sent to

the Presidential library, they should undergo a declassification

review. The Presidential library should maintain the PDBs as a

distinct series.

Declassification Reviews of Certain Congressional Records. The declassification

procedures for classified records created by committees of Congress, particularly classified reports and closed hearing

transcripts, are irregular and limited.

ISSUE NO. 15:

RECOMMENDATIONS

1. Formal procedures should be established for the declassification

review of classified committee reports and hearing transcripts

created by committees within their respective bodies.

2. If a new National Declassification Center is established it should

have responsibility for review of congressional records.
13

ISSUE NO. 1:

UNDERSTANDING WHAT THE DECLASSIFICATION SYSTEM IS ACCOMPLISHING.

The declassification system of the Federal Government is

composed of many “moving parts.” So many, in fact, that

no one knows what is actually being accomplished by it; in

particular, whether information of historical significance is

being identified, reviewed, declassified, and released at the

earliest possible time. Consequently, the public has a

difficult time simply finding out what information of

historical interest has been declassified and what may now

be available to it.

BACKGROUND

Classified information may be reviewed, declassified, and

released to the public in at least eight ways:

1. Freedom of Information Act (FOIA) Requests. Any

member of the public may ask for most classified

documents, however old, to be declassified and made

available for any reason. The requestor must be able to

specify the document(s) with reasonable certainty. Adverse

decisions by a department or agency ultimately can be

appealed to the courts.

2. Mandatory Declassification Review (MDR) Requests.

Similar to FOIA requests, under E.O. 12958 as amended,

any member of the public may request that a classified

document (that can reasonably be identified), regardless of

its age, be reviewed for declassification. MDRs are handled

administratively within the executive branch. Ultimate

appeal of denials is to the Interagency Security Classification

Appeals Panel (ISCAP) rather than the courts.

3. Automatic Declassification. Under this program,

established in 1995 by E.O. 12958, all classified documents

25 years of age or older determined to be permanently

valuable under 44 U.S.C. were subject to automatic

declassification on December 31, 2006, unless departments

or agencies exempted them from declassification. This

program forced departments and agencies to review these

records before the deadline established by the Order.

Owing to the volume of such records (an estimated 1.3

billion pages), nearly all agencies performed only a

“pass/fail” review, exempting from declassification any

record they found to contain information that continued to

be classified, rather than redacting such information.

Records that were exempted then became subject to the

“systematic declassification” provisions of the Order, which

require agencies to conduct subsequent and ongoing

declassification review(s) based on researcher interest and

the likelihood of declassification upon review.

Since the Order requires that all permanently valuable

classified records will be automatically declassified as they

reach 25 years of age, unless appropriately exempted from

declassification by the originating agency, most agencies

have chosen to institute an ongoing process for considering

the records subject to the automatic declassification

provisions of the Order.

4. Special searches mandated by law or Executive order. On

occasion, Congress has enacted laws requiring the review

of classified records relating to a particular event or series

of events, such as the assassination of President John F.

Kennedy, human radiation experiments, and Nazi or

Japanese war crimes. Additionally, through action taken

by the executive branch, agencies have conducted special

reviews, such as the declassification of documents related to

prisoners of war/missing in action and human rights abuses

in Chile during General Augusto Pinochet’s regime.

5. Department and agency initiatives. Departments and

agencies sometimes review collections of classified records

on their own initiative, especially when the public interest

is high and the agency itself wants to get the records out

to improve the public’s understanding of its performance.

These efforts are often tied to specific historical events or

efforts by agency historians.

6. The Foreign Relations of the United States (FRUS)

Series. This series, published by the State Department,

documents the history of diplomatic relations between the

United States and other countries. Historians working for

the State Department decide which subjects will be covered

(e.g., relations with country X from 1955 through 1958)

and in what priority, then attempt to identify relevant

documents both at the State Department and elsewhere in

the U.S. Government, most often at the Department of

Defense (DOD), the Central Intelligence Agency (CIA),

and NARA’s Presidential libraries. Once key documents are

identified, the Department of State asks the department

or agency concerned to conduct a declassification review,

which can include redactions of documents or substitutions

of one document for another if it contains the same

substantive information needed to be declassified for

information deemed to be classified. Once the review is

completed, declassified documents are published as part of

the FRUS series. The Department of State began publishing

FRUS in 1861, although it did not have to contend with

classified documents until after World War II. Still, it is the

oldest and arguably most significant declassification

program in the Federal Government. In 1991, Congress

gave FRUS its own statutory charter, which, among other

things, required the Department of State to publish FRUS

volumes within 30 years of the events they described and

required other Government agencies to assist the

Department of State in the preparation of these volumes.

DETAILS OF THE 15 ISSUES
7. Presidential libraries. While copies of classified White

House documents may be held by departments and

agencies, the only place where a complete collection of the

records of a Presidential administration is maintained is at

the relevant Presidential library, which is part of the

National Archives. The NARA archivists who work at these

libraries process the collections and submit classified records

for review and declassification by the departments or

agencies that have equities in them. Most of these

declassification activities are undertaken in response to

FOIA or mandatory declassification review requests, to

support FRUS, or pursuant to the automatic declassification

requirements of the Order.

8. Ad hoc requests for assorted governmental purposes.

Departments and agencies carry out declassification reviews

at the request of other Government agencies for a variety

of purposes. These purposes include use in domestic and

international judicial and quasi-judicial proceedings, support

for U.S. diplomatic efforts, support for U.S. border control

activities, assistance with the global response to terrorism,

support for the operations of the United Nations and other

international bodies, ensuring that documents donated by

former Government officials do not contain classified

information, and support for U.S. or foreign Government

intervention in environmental or humanitarian crises.

In addition to the above, some departments and agencies

require their current and former employees to submit

manuscripts they have written for a national security review

prior to publication. Rarely are actual records declassified as

part of this prepublication review process. Rather, agencies

simply clear manuscripts for publication after determining

that they have no objection to their publication. “No

objection” does not constitute official release, confirm

accuracy, or endorse the author’s views.

Of these eight avenues for declassification, only one —

automatic declassification review when a document reaches

25 years of age — is intended to precipitate a systematic

review of all classified documents at a particular point.

The Board has been informed that more than a billion

pages were declassified between 1995 and 2006 in response

to this Executive order requirement. Even though all these

records are deemed to be of permanent archival value for

preservation in the National Archives, the amount of truly

historically significant information that has been declassified

is unclear.

What is reviewed and declassified under the other avenues

for declassification identified above depends upon what is

requested by private individuals or Government entities

(e.g., Presidential libraries, FRUS); what is mandated by

Congress; and what is done at the initiative of the agencies

themselves. Presumably, classified information of historical

significance is being released pursuant to all these additional

avenues, but there is no comprehensive, systematic way to

know. A number of obstacles stand in the way.

First, there is no single entity in the Federal Government

formally charged with keeping track even in macro terms,

nor is there any one entity in the Federal Government that

members of the public can turn to find out what has been

declassified of historical significance and is now available

to them.

Second, departments and agencies do not routinely make

available to the public everything they declassify. The CIA

is the only agency that makes available what it declassifies

pursuant to its review of records under the automatic

declassification provisions, but the CIA does not routinely

make available what it declassifies pursuant to other avenues.

Most agencies will make the public aware of certain of their

declassification actions; they may also provide copies of

documents that have been declassified upon request.

However, some agencies are hampered in doing this

because responsibility for declassification within the agency

is not centralized. Simply because something is declassified

does not mean it will be released.

Third, although most agencies have computerized databases

for recording declassification decisions, not all have

centralized systems, nor is the information in these systems

available to the public.

The greatest practical hurdle to alerting the public to

the records that have been declassified, or making them

available to the public, is the sheer volume of such records.

The documents declassified as part of automatic

declassification since 1995 number more than a billion

pages. Even if an agency maintains a database of the

documents that have been declassified, making a list of such

documents available to the public (much less the documents

themselves) may exceed its capabilities.

14
15

RECOMMENDATIONS

1. The executive branch needs to examine the declassification

activities of the Federal Government as a whole, in terms of

output, efficiency, and effectiveness. To begin this process,

the Board recommends establishing by Executive order or

by statute a National Declassification Program under the

Archivist of the United States. The Archivist should be

charged with annually evaluating the performance of

the Federal declassification “system” writ large and, in

particular, the declassification of information of

historical significance.

2. A new National Declassification Center (NDC) should

be established within the National Archives and Records

Administration (NARA) to administer the program.

The Archivist should establish a new position — Deputy

Archivist for Declassification Policy and Programs — to

oversee all aspects of the NDC’s operations. Funding for

the NDC should be a separate line item in NARA’s budget.

3. Departments and agencies should be required to

consolidate all their declassification activities in one office

or bring them under the control of one office. Additionally,

agencies should be required to better coordinate their

internal efforts related to declassification and release as these

functions (FOIA offices and declassification review offices)

are entirely separate in some agencies. This will facilitate

public access and make it far easier to assess and coordinate

declassification decisions and activities and work efficiently

with the NDC.

4. All departments and agencies should be required to record

declassification decisions on a single computerized system,

regardless of the avenue by which declassification occurs,

and within five years to make databases available to the

public that contain at least pertinent information such as

|the titles of the documents and the locations where they

are available.

5. All departments and agencies should report to the NDC

at least annually what they have declassified. The format

for these reports (e.g., by collection, topic, office files, or

individual document) would be worked out with individual

agencies, but the objective in every case should be to

describe the information of historical significance that

the agency has declassified during the reporting period in

sufficient detail that the public is made aware of the action

taken and is able to request copies of the declassified

information. The NDC would, in turn, issue a

comprehensive, governmentwide report advising the public

of the historically significant declassification actions taken

by the Government as a whole.
16

There is no satisfactory means at present of identifying

historically significant information within the vast body of

information that is being reviewed and declassified.

Accordingly, no priority is given to the declassification and

release to the public of such information.

BACKGROUND

Under the existing system, classified information that is

“historically significant to the country” is not identified as

such. Instead, for Federal records, departments and agencies

work with the National Archives to identify records series, both

classified and unclassified, that constitute permanently valuable

records of the agency. These records are further defined by law

as including documents pertaining to the “organization,

functions, policies, decisions, procedures, and essential

transactions of the agency and designed to furnish the

information necessary to protect the legal and financial rights

of the Government and of persons directly affected by the

agency’s activities” (44 U.S.C. 3101). Thus, what is

permanently valuable is defined in terms of constituting a

record of the agency’s activities, rather than constituting

a record of importance to the history of the country. Once

identified as permanently valuable, records are typically stored

at a holding facility until both physical and legal custody is

transferred to the National Archives for archival processing.

Permanently valuable records also include Presidential

records and historical materials transferred to the legal

custody of NARA by a variety of statutes, including 44 U.S.C.

2111, 2111 note, and 2201; they are stored at the

Presidential libraries.

The Board has been told that, overall, approximately 8 percent

of the Government’s total classified holdings are deemed to

constitute permanently valuable records. (Two to 3 percent

of all Federal records are deemed permanently valuable.)

Nevertheless, the number of classified records deemed to be

permanently valuable is huge, totaling billions of pages. While

the Government may need to retain them as a record of a

particular department’s or agency’s activities, most will not be

considered “important to the history of the United States.”

Thus, we have a system in which far more classified records

are subject to declassification review after 25 years than could

possibly be considered historically significant where the

national security activities of the country are concerned.

Yet, because there is no means of identifying and segregating

historically significant classified records within this vast

population, the historically significant records are treated like

all other permanently valuable records requiring declassification

review at the end of 25 years. They do not go to the head of

the queue, nor are they given preference in terms of the quality

of the review they receive (e.g., pass/fail, redaction). Nor is the

public typically alerted in any meaningful way to their

declassification. In short, they are simply treated like all other

permanently valuable classified records. Put another way,

records of historical significance to the country are being

buried in a mountain of permanently valuable agency records.

Unless something is changed, it will take years, if not decades,

to unearth them.

RECOMMENDATIONS

1. To ensure that historically significant classified records are

given priority at the 25-year review point, both in terms

of what records are taken first and in terms of the quality

of the review they receive, the President should promulgate

by Executive order or other appropriate issuance a system

for identifying such information.

2. Such a system might operate as follows:

a. A board consisting of prominent historians, academicians,

and former Government officials would be appointed by

the Archivist to determine which events or activities of the

U.S. Government should be considered historically

significant from a national security and foreign policy

standpoint for a particular year. Presumably, this board

would begin with the year coming due for the next review

of 25-year-old classified records. For example, in 2008,

the board would determine which events or activities of

the U.S. Government occurring in 1983 were historically

significant. These might include such things as President

Reagan’s Strategic Defense Initiative program, the U.S.

reaction to the downing of Korean Airlines Flight 007, the

U.S. invasion of Grenada, the U.S. reaction to the terrorist

bombing of the Marine barracks in Beirut, and Reagan’s

relations with Prime Minister Margaret Thatcher or Soviet

Premier Yuri Andropov.

b. Then the board would identify the officials or offices

and pertinent series or collections where records would be

presumed to contain information of historical significance

relating to the subjects identified. More often than not,

these would include the records of the incumbent President

as well as the Secretaries of Defense and State. Depending

on the subject, they might also include the records of other

department or agency heads (e.g., the Attorney General,

the Director of Central Intelligence, or the Assistant to the

President for National Security Affairs), or the records of

assistant-secretary-level officials or higher who are known

to have played a significant role for the U.S. Government

in the event or activity.

c. The board would require input of agency records

managers and historians as well as NARA’s archivists,

including those in the Presidential libraries, to determine

the specific records series that most likely contain records

about the topics the board identifies as historically

significant.

ISSUE NO. 2:

PRIORITIZING THE DECLASSIFICATION REVIEW OF HISTORICALLY

SIGNIFICANT INFORMATION.
17

d. Once the board had identified the records of likely historical

significance for purposes of the forthcoming 25-year

declassification review, it would turn its attention to

previous years and compile similar lists.

e. The board might wish to compile tentative lists (that it

would update and finalize over time) for the years prior to

the forthcoming 25-year reviews. Using our previous

example, the board would start with 1984 and work

forward toward the present. Such lists could also serve as

a guide to agencies conducting reviews of records less than

25 years old (see Issue No. 4, infra).

f. In formulating these lists, the board should solicit outside

comments, including publication in the Federal Register.

g. The lists of historically significant series compiled by the

board, once approved by the Archivist of the United States,

would be announced to the public.

3. Once the records series determined to be “likely to contain

information of historical significance” had been identified

and approved, the following actions would occur:

a. As part of their declassification review of records at age

25, affected departments and agencies would identify

within the larger series the individual classified records

“likely to contain information of historical significance.”

b. Such records would be given priority in terms of their

declassification review at age 25. They would be reviewed

by the department or agency’s most experienced reviewers

and be redacted as appropriate, rather than being

considered on a pass/fail basis. The presumption would

be that such records would be released unless their

disclosure could reasonably be expected to cause serious

and demonstrable harm. In other words, they would receive

the most thoughtful scrutiny and broadest latitude in terms

of what the agency would make available to the public, in

recognition that it is in our national interest to disclose our

historical record.

c. The public would be informed (by record series) of the

records of historical significance declassified pursuant to this

process at age 25. To the extent possible, individual records

would also be identified to the public, scanned, and made

available electronically.

d. Any record declassified pursuant to this process would

be given priority in terms of subsequent archival processing.

Dates that may have been previously established between

the National Archives and the department or agency

concerned for public disclosure of the records at issue

(see Issue No. 9, infra) would be trumped by this

review process.

e. Records that were determined to be historically

significant but were not declassified at the 25-year review

would be set aside and reviewed every five years thereafter

until they had been declassified.

f. The lists of historically significant events and activities

developed by the board would become the principal criteria

used by the Archivist to evaluate the declassification system

in terms of its producing information of historical

significance for the public and for periodically advising

the public of such actions (see Issue No. 1, supra).

4. The Archivist of the United States, through the NDC,

would oversee the implementation of implementation

of this process in affected departments and agencies, and

would establish within the NDC a mechanism for resolving

disagreements that might arise in the course of such

implementation.

5. If this system were adopted, E.O. 12958, as amended,

would need to be amended to allow departments and

agencies to give priority to the review of classified records

deemed to be historically significant as they reach 25 years

of age.

6. It is recognized that “routine” records may still have

significance, especially to particular individuals. Such

records would still be subject to timely review for

declassification in response to a specific access demand

(e.g., a FOIA or MDR request).
18

The declassification of Presidential records takes far too

long under the current system.

BACKGROUND

From the standpoint of their historical significance, the records

of former Presidents are, arguably, the most important records

needed by the public to obtain an accurate and complete

understanding of the country’s history. At the end of an

administration, these records (including classified records) are

transferred to the legal custody of the Archivist of the United

States as Presidential records (44 U.S.C. 2201), then boxed

and moved to the library of the President concerned, where

they fall under the provisions of the Presidential Records Act

(PRA) and are in the custody of the National Archives (which

operates the library). Older Presidential library collections

(from Herbert Hoover to Jimmy Carter) are transferred as

historical materials (44 U.S.C. 2111, or 2111note), and the

staffs archivally process their materials according to the terms

of a Deed of Gift or the Presidential Recordings and Materials

Preservation Act (PRMPA). Archivists at the PRA libraries

(Reagan forward) have five years to achieve “intellectual

control” of their collections before they are subject to FOIA

or MDR requests from the public. They have the latitude of

making unclassified documents available earlier if they are able

to do so.

For the most part, the NARA archivists at the Presidential

libraries cannot declassify and release information to the public

unless and until the agency that originated the record and/or

the agency or agencies that have equities in the record have

reviewed and agreed to declassify it, or the record has

otherwise been subjected to the automatic declassification

provisions. Some agencies have delegated declassification

authority to the Archivist for the Presidential libraries to

declassify lower level items, such as items that were originally

time sensitive, but for the most part these libraries are required

to submit classified records in their holdings to equity-holding

agencies for a declassification review before they can be made

available to the public. The Archivist of the United States has

received additional, more substantive, delegated declassified

authority and discretion with respect to reviewing and acting

on specific equities and information in documents found in

older Presidential libraries through the Ford administration.

Additionally, it should be noted that the incumbent President

has the authority under the Presidential Records Act and E.O.

13233 to review and close any Presidential or Vice Presidential

record (Reagan forward), including declassified ones, by

claiming executive privilege.

Each of the records submitted for such review must be

catalogued and indexed at the library before it is submitted

for review by the equity-holding agencies in order for it to be

subsequently tracked. And, because there are typically so few

archivists at the libraries and their records collections are

relatively large (NARA estimates that the Presidential libraries

currently hold 30 million pages of classified records, 8 million

of which are from Hoover through Carter), this review process

takes years and years to accomplish. Archivists at the Reagan

Library, for instance, advised the Board that given their current

level of archival resources, it will take 100 years before all the

Reagan White House records, including those that are

classified, will be reviewed for release.

In 1997, both NARA’s Presidential libraries and the CIA

sought to help facilitate the declassification review of records in

the Presidential libraries by establishing the Remote Archives

Capture (RAC) program. Rather than have each Presidential

library send requests for declassification review to each agency

that has equity in a Presidential document, the libraries scan

the items they wish to have reviewed, captured electronically

on media, and then taken to a facility in the metropolitan

Washington, DC, area for review by the appropriate agencies.

The CIA coordinates the declassification review of these

records, including overseeing and managing the referral

process. Once all declassification reviews have been conducted,

the libraries receive media containing the declassified materials,

noting the various actions taken by the agencies, and process

these materials for release.

While the RAC program has, by all accounts, considerably

accelerated the declassification review process, the review of

materials furnished by the Presidential libraries still takes an

inordinate amount of time. Typically, agencies consider FOIA

requests, MDR requests, and special searches of their own

records first, and these often take priority over systematic

review of materials in the RAC program. Additionally, even

within the Presidential libraries, resources are limited, and the

few resources available to support automatic and systematic

declassification are often pulled away to respond to access

demands and special search projects.

Presidential libraries are severely constrained and understaffed

in terms of their ability to process their classified materials and

are at the mercy of departments and agencies whose approval

they must obtain before they are able to release the materials

of their respective presidencies to the public. Thus, the very

materials that are apt to mean the most in terms of their

historical significance are being bottled up by the system, often

for decades on end. Moreover, if the Board’s recommendation

in Issue No. 2 were adopted, giving priority to the

declassification review of historically significant records, even

greater demands would be placed on the existing system for

reviewing Presidential records. In light of this, the Board

believes fundamental change is called for.

ISSUE NO. 3:

EXPEDITING THE DECLASSIFICATION OF PRESIDENTIAL RECORDS.
19

RECOMMENDATIONS

The Board recommends, in order of preference, the following

actions:

1. The Archivist should establish a single center in the

Washington, DC, metropolitan area to house all future

classified Presidential records, from the end of a Presidential

administration until their eventual declassification, when

they would be physically transferred to the appropriate

Presidential library and made available to the public. Such

a center — established, maintained, and administered by

the National Archives — would leverage economies of scale

by concentrating the classified holdings of future Presidents

in a single facility. The center could support more efficient

and effective safeguarding of classified information as well as

facilitating the review of such information for eclassification

by departments and agencies in the Washington, DC, area.

Once operational, consideration should be given to

accommodating the still-classified holdings of existing

Presidential libraries within such a center until they, too,

can be declassified.

2. If establishing a separate center for the storage and review

of classified Presidential records is not considered feasible,

the new NDC should consider establishing, as part of its

mechanism for the review of classified documents with

“multiple equities,” an office or division dedicated to the

reviews requested by Presidential libraries.

3. If neither of these options is considered feasible and the

current decentralized review system is retained, Congress

should consider amending the Presidential Records Act to

provide, similar to the FRUS statute, that departments and

agencies will give priority to the declassification of

Presidential records over other declassification reviews,

except those otherwise made pursuant to law (e.g., the

FOIA or other searches mandated by statute).

4. In the absence of statutory change, a similar policy could

be set forth in an Executive order or other executive branch

policy issuance.

5. If the current decentralized system is retained without

structural change, NARA needs to consider ways to

augment the archival capabilities at Presidential libraries

(e.g., increasing their staffs, contracting out, granting

security clearances to volunteers) to accelerate the archival

processing of classified Presidential records. Indeed, NARA

needs to systematically examine the way it manages

declassification and access issues in the Presidential library

system. Adding staff capability is a necessary step, but

existing policies and practices at each library need to be

examined. Depending on the nature of their classified

collections, the way that one library handles declassification

may not be the same way that another library should handle

it. This will be especially true in the future as libraries come

to grips with increasing amounts of classified information

stored in electronic records and special media.
20

Agencies typically allocate their declassification review

personnel to whatever the pressing need may be at the

time: meeting the automatic declassification deadline of

25 years, satisfying FOIA requests, MDRs, congressionally

mandated searches, or the requirements of the FRUS

statute. As a result, there are often insufficient resources to

perform declassification reviews of records less than 25

years old that agencies know to be historically significant.

BACKGROUND

For most agencies, self-initiated declassification reviews of

material they are not otherwise required to review (i.e., because

it is less than 25 years old) are a luxury they cannot afford.

Indeed, most are hard-pressed to find the resources needed

to conduct the reviews that are required of them. Yet, when

agencies have found the resources needed to conduct selfinitiated reviews, the results have often been of great value to

the historical record.

The Board believes it critical that room be left in the

declassification system for agencies to initiate and conduct

declassification reviews of material they know to be historically

significant without waiting for it to reach 25 years of age.

The recent NARA initiative to subject the records of the 9/11

Commission to declassification review by affected agencies,

rather than waiting for 25 years, provides an excellent example

of the importance of leaving sufficient capability within the

system to undertake reviews of classified materials known to

be historically significant.

RECOMMENDATIONS

1. Either pursuant to uniform guidelines issued by the

National Declassification Center, contemplated in Issue

No. 3, supra, or pursuant to an appropriate executive

branch issuance, agencies should be directed to dedicate

some specific percentage of their declassification review

personnel to conducting reviews of records less than

25 years old that they know to be historically significant

and that are reasonably likely to provide the public with

meaningful results.

2. The Archivist should annually recognize in some

appropriate fashion agencies that declassify and release to

the public on their own initiative historically significant

information less than 25 years old.

ISSUE NO. 4:

PRESERVING A CAPABILITY IN AGENCIES TO REVIEW RECORDS LESS THAN

25 YEARS OF AGE
21

All executive departments and agencies of the Federal

Government are bound by the Order on security

classification, but when it comes to their declassification

programs, there is a wide disparity in terms of

implementation, including the level of resources applied

to such activities, training, use of technology, interface

with the public, and approach to declassification reviews.

As a result, opportunities to be more efficient in the

declassification process are being lost, results vary from

agency to agency, and the treatment accorded the public

depends largely on the particular department or agency

a person happens to be dealing with.

The current Order also does not provide uniform guidance

in terms of when agencies will “re-review” the classified

documents they have exempted from declassification at the

initial 25-year review. This could lead to wide variations

among agencies and to even more complications in

subsequent declassification reviews of documents involving

multiple agency equities.

RECOMMENDATIONS

1. The President, by Executive order or other appropriate

issuance, should charge the new NDC (see Issue No. 1,

supra) with prescribing uniform guidelines to govern the

declassification activities of all executive departments and

agencies. These should include guidelines for the allocation

of resources, use of technology, and training of reviewers,

and should establish a uniform approach to the

declassification of classified information. The NDC

should have oversight of these guidelines.

2. In addition to prescribing uniform guidelines, the NDC

should be responsible for providing “services of common

concern” for the declassification activities of the Federal

Government where appropriate. These services should

clearly include the review of classified documents that

contain multiple equities (see Issue No. 6, infra), as well

as the review of classified information contained in special

media and electronic records (see Issue No. 7, infra).

The NDC should become the focal point for

governmentwide training in declassification as well as for

the research and development of technology to be applied

to declassification activities. Technology could also be

purchased and used by the NDC, on a reimbursable basis,

for the benefit of affected departments and agencies.

3. The NDC should be authorized to conduct declassification

reviews for other departments and agencies on a

reimbursable basis. For agencies with relatively small

classified holdings, this might be a preferable alternative to

establishing their own declassification programs. In time,

in fact, departments and agencies with larger classified

holdings may find it preferable to rely on the NDC to

conduct their declassification reviews, particularly if the

NDC demonstrates the capability to process information

more efficiently and effectively (owing to its superior

technical capabilities, for example).

4. If the Board’s recommendation under Issue No. 2 (supra)

were adopted, classified documents containing historically

significant information that were exempt from

declassification at their 25-year review would be reviewed

every five years thereafter until they were declassified.

For exempted records that were not determined to be

historically significant, however, a uniform policy governing

the subsequent declassification review of such records

would need to be placed in the Order. If the Board’s

recommendation under Issue No. 2, supra, were not

adopted, the Order should be amended to prescribe a

uniform policy to govern the subsequent review of all

exempted records.

ISSUE NO. 5:

BRINGING GREATER UNIFORMITY, CONSISTENCY, AND EFFICIENCY

TO THE DECLASSIFICATION PROCESS.
22

The declassification of documents involving multiple

equities (i.e., documents originated by one agency that

contain information classified by one or more other

agencies) has proven especially difficult and timeconsuming.

BACKGROUND

Classified documents are not meant to be declassified and

released to the public until all the agencies that have equities in

the classification of the documents have had an opportunity to

review them and authorize their release. Often, however, the

department or agency that originally created the record, in

conducting its declassification review, has failed to identify the

classified equity information of other agencies. As a result, no

referral was made and records containing classified information

were improperly made public. This has led to thousands of

records being withdrawn from the “open shelves” (see Issue

No. 8, infra.). Owing to these flawed reviews, few departments

and agencies allow other departments and agencies to review

their equity for declassification.

Over time, however, the more pervasive problem has been

simply the time and effort required for the declassification

review of documents that contain multiple equities. To be

declassified, such documents have to be circulated and

reviewed by each agency thought to have equity in them.

Usually, these documents go to the end of the queue at each

agency, often taking months or even years before they are

reviewed. In recognition of this problem, the automatic

declassification review of classified documents involving

multiple equities was delayed for three additional years

(until December 31, 2009) to allow time for this multipleagency review.

Meanwhile, several things were done to help agencies meet the

2009 deadline. Where Presidential materials and records were

concerned, the CIA and NARA collaborated to develop the

Remote Archives Capture (RAC) program so that multiple

equity documents in the Presidential libraries could be

identified, referred to the departments and agencies with

equities in them, and reviewed in a center in the Washington,

DC, area. Second, in an effort to help the various departments

and agencies better identify other agencies’ equity information,

the CIA led the establishment of an informal body of agency

declassification personnel known as the External Referral

Working Group (ERWG), which still meets on a periodic basis.

Much later, NARA created an Interagency Referral Center

(IRC), where Federal records containing information with

multiple equities could be referred and reviewed onsite by

the participating agencies. In addition, the CIA created an

automated system known as the Document Declassification

Support System (DDSS) that permitted departments and

agencies to alert other departments and agencies of classified

records believed to contain their equities and require their

review. Many departments and agencies also began to offer

periodic equity recognition training for their own reviewers

and for other department and agency reviewers. Finally, and

most recently, as part of efforts related to the IRC and the

National Declassification Initiative (NDI), NARA has put

together “equity training labs,” using a variety of means to

discuss agency equities, declassification review decisions, and

referral procedures to ensure that all departments and agencies

have the opportunity to review and declassify their equity

information before it becomes public.

Most of this activity has been folded into the NDI, which is a

temporary effort (recently established at Archives II at College

Park) to provide for the referral review of the 25-year-old

records involving multiple equities that remain among the

boxes reviewed since 1995. Some 427,000,000 pages of

records already reviewed by the originating agencies still

require multiple equity review. Many agencies are sending

reviewers to Archives II to review their agency’s equity

information. Some are fully committed to doing this now,

while others participate on a limited basis. A few agencies have

yet to participate.

ISSUE NO. 6:

EXPEDITING THE DECLASSIFICATION REVIEWS OF MULTIPLE EQUITY DOCUMENTS.
23

While the NDI has been in existence for nearly a year, it is still

unclear what sort of volume of multiple equity documents it

will be able to move through the referral and declassification

review process with regularity. While the centralized approach

offered by the NDI does appear to be facilitating and

expediting the review of such documents, given the large

backlog to be reviewed and the relatively limited resources

departments and agencies are currently devoting to it, the NDI

is not apt to result in departments and agencies being able to

meet the current deadline of December 31, 2009, for the

automatic declassification of such documents. In all likelihood,

this deadline will have to be extended by the President.

Even when the existing backlog of multiple equity documents

is eliminated, of course, more classified documents containing

multiple equities will require declassification review as they

reach age 25.

RECOMMENDATIONS

1. In the opinion of the Board, the centralized approach

currently being taken pursuant to the National

Declassification Initiative represents the best option

available to the Government to expedite the review of

classified documents containing multiple equities. Thus,

the NDI needs to be made permanent and institutionalized,

preferably within the new National Declassification Center

(see Issue 5, supra). Departments and agencies that have

equities in such reviews should be required to provide

adequate personnel to conduct them — it cannot remain an

option. Without participation by all the agencies that have

equities in the documents, the documents cannot be

declassified.

2. Although the Board recognizes that, as a practical matter,

the automatic declassification deadline for multiple equity

documents may have to be extended by the President, it

recommends that the deadline be extended no more than

once and only after the Archivist has presented the

President with a comprehensive and realistic plan, agreed to

by the departments and agencies involved, for achieving the

objective within the time frame contemplated.
24

Too little has been done with regard to meeting the

deadline of December 31, 2011, for the review of classified

information contained in “special media” records or

developing plans to cope with the truly monumental

problem looming on the horizon: the review of classified

information contained in electronic records.

BACKGROUND

The Order allowed agencies to delay the automatic

declassification at 25 years requirement for any classified

information contained in “microforms, motion pictures,

audiotapes, videotapes, or comparable media that make a

review for possible declassification exemption more difficult

or costly.” Falling into this category are microfilm, microfiche,

motion pictures, and sound recordings. The definition of

“special media” records in the Order does not include

electronic records stored in computer systems, although the

Information Security Oversight Office (ISOO) has advocated

treating electronic records as special media if they involve

software or hardware obsolescence, data degradation, or other

similar issue that would make declassification more difficult

or costly.

In theory, all classified information held in special media

records identified as constituting “permanently valuable

records” would become declassified on December 31, 2011,

unless the agencies have reviewed and exempted them from

declassification. In all likelihood, the Board believes that this

deadline will also have to be extended, inasmuch as most

agencies will have their hands full over the next two years

meeting the multiple equity deadline, leaving little time to

deal with the challenging issues involved in reviewing and

declassifying special media records.

Be that as it may, relatively little thought appears to have been

given to how the classified information contained in special

media records that are 25 years of age or older will be reviewed

for declassification and, just as important, how the declassified

information will be accessed by the public. Much of this

information is not stored in digital format, but it may need

to be in order to review it for declassification and to make it

available to the public.

An overall strategic plan needs to be developed to address the

unique issues posed by special media regardless of classification

status. First, NARA and the agencies need to determine which

special media constitute “permanently valuable” records of the

Government and thus require transmittal under law to the

National Archives. Second, for those determined to be

permanently valuable, standards need to be developed for their

preservation. Unlike documents, the information contained in

some types of special media may seriously deteriorate unless

action is taken to preserve them, either in their existing form or

by transferring the information to new storage media. Third,

standards and plans need to be developed to govern how the

declassification reviews of special media that contain classified

information will be conducted. If classified information is

found in a document stored on a roll of microfilm, for

example, is the entire roll to be considered classified? If not,

how should the rest of the documents on the roll be treated?

Similarly, should some types of special media (e.g., those that

duplicate what is found elsewhere in textual form) receive less

priority or be exempted altogether in terms of review for

declassification? Finally, the portion of the strategic plan

dealing with the declassification review of special media needs

to be synchronized with NARA’s plans for ultimately making

declassified information available to the public. For example,

if NARA plans to make such information available in digital

format, the plans for preserving and conducting declassification

reviews should build in compatibility with the format NARA

ultimately plans to use.

Complicating the task for NARA and the agencies, some of the

special media records in which classified information was stored

25 years ago (or more) are no longer in use in the departments

and agencies. However, to view what is contained in these

media, old or obsolete devices may need to be obtained. Many

of these special media records also used formats proprietary to

the agency that created them. Thus, even if the information in

the special media record could be viewed, it might not be

readily transferable to other kinds of systems or formats, such

as digital formats.

Agencies also need to begin planning for the review of

permanently valuable classified records stored in their digital

computer systems. Until now, the volume of electronic records

age 25 or older has been small compared to the volume of

paper records, but this is clearly changing and will dramatically

increase in the years ahead. Indeed, the day may come when

all Federal Government records are digitized and stored

electronically. Anticipating this change in archival records as

well as the need to ultimately make its archival holdings

available to the public electronically, NARA has contracted for

the development of an Electronic Records Archives (ERA)

system. Although this concept has yet to reach initial operating

capability, it will ultimately (1) allow for the secure storage of

classified electronic records, no matter the type of format, by

migrating the information onto a standard digital format; (2)

allow NARA and agency reviewers to conduct a declassification

review; and (3) transfer all declassified records onto the

unclassified ERA system that will provide for public access.

Many of the difficulties complicating the special media records

situation also complicate the electronic records area. The

devices on which classified information is stored may no longer

be in use. Consequently, the hardware or software required to

view the information may not be readily available. As a result,

agencies may not have a capability to read what is stored or

transfer it electronically.

ISSUE NO. 7:

PERFORMING DECLASSIFICATION REVIEWS INVOLVING SPECIAL MEDIA

AND ELECTRONIC RECORDS.
25

The forthcoming exponential increase in the quantity of

classified electronic records requiring declassification in the

future dictates that new procedures be developed now, because

the current business practices used by most agencies are based

on a record-by-record review that will likely prove impossible

to maintain. In addition to developing new procedures,

agencies need to make better use of technology to conduct

declassification in a more efficient and effective manner.

RECOMMENDATIONS

1. NARA should be formally charged with leading a special

effort, within the new National Declassification Center, to

analyze the special media records problem and to create a

governmentwide plan for addressing it that includes

declassification and access.

2. As part of this process, the Center needs to consider at the

outset how much classified information stored in special

media is “permanently valuable” according to 44 U.S.C.

and the PRA and thus requires preservation. In most cases,

the classified information found in special media records will

be viewed (and ultimately reviewed for declassification) in

documentary or electronic form. Thus, a more limited

approach may be called for here. For example, special media

records might be considered permanently valuable for

archival purposes only if they can be expected to provide

information that is not otherwise documented elsewhere in

paper or electronic form.

3. If the idea of identifying records of historical significance

were adopted (see Issue No. 2, supra), the Center might

consider whether the declassification review of special media

records at age 25 or older ought to be limited to, or give

priority to, special media records containing historically

significant information. Thus, any special media record that

reflected what transpired at meetings of or briefings to the

President, the Secretaries of State and Defense, and other

high-ranking officials, or otherwise documented topics of

historical significance, would be given priority in terms of

their preservation, review, and archival processing. Another

means of assigning priority would be to begin with the

special media records held by the Presidential libraries that

would likely have the most historical value.

4. The Center should also consider what services of common

concern it might be able to provide on a reimbursable basis

to help agencies cope with the special media records

problem. Rather than have every agency of the

Government, for example, attempt to procure obsolete

hardware and software to read the special media it created

25 years ago, it might be more efficient for the Center to

procure such devices and systems for other agencies to use,

or to contract on behalf of the Federal Government as a

whole for such devices and systems. Similarly, rather than

having every agency embark on its own search for

technology that would allow information contained in

special media records to be converted into a digital format

— something all agencies are apt to want — the Center

might do this for the benefit of all. As an added benefit, this

will ensure standardization, so that as technology continues

to improve, the special media records can be migrated in a

standard and systematic fashion.

5. The Center should serve a similar role with respect to the

review of classified electronic records, putting uniform

policies in place to ensure that activities of departments and

agencies are synchronized and standardized with what

NARA itself is planning in terms of the Electronic Records

Archive; that is, digitizing its archival records and making

them available to the public electronically.
26

In recent years, there have been several instances where

agencies have discovered that records created by other

agencies (but containing their classified information)

have been declassified and made available to the public

at the National Archives without their having had an

opportunity to review the records for declassification.

When this has occurred, the agency concerned has typically

requested that the documents be withdrawn from public

access at the National Archives until the agency can

perform a declassification review. After this review, some

of the records reviewed might be returned to the open

shelves, but others presumably would not be. Not only

does this kind of activity pull the personnel resources of

the agencies involved from other priorities, it creates a

dilemma for any member of the public who might earlier

have obtained a copy of such documents or used

information contained in them.

BACKGROUND

According to an April 2006 ISOO audit report, 10 separate

re-review projects occurred between 1999 and 2006. In all,

more than 25,000 records that had been declassified pursuant

to the Order and made available to the public at the National

Archives (including a small amount of materials in the

Presidential libraries) were removed from the open shelves

during this period for agencies to conduct re-reviews. In the

audit report, ISOO concluded that about half the documents

withdrawn continued to meet the minimal standard for

continued classification beyond 25 years.

All of these re-reviews are resource-intensive and duplicate

other declassification review efforts, taking reviewers away from

other work. Nevertheless, the agencies that have undertaken

the re-reviews told the Board that they had little choice. If they

have reason to believe that their classified information has been

improperly put in the public domain, they have to do

something about it. If, after reviewing the records, they decide

to remove them from public access, they defend their actions

by saying that these records should never have been made

available to the public in the first place. Although agencies

recognize that damage may already have been done, given

the public availability of these records, they contend that by

withdrawing the records, it is reasonable to expect that the

extent of further damage might be mitigated. This will

obviously depend on how widely (and in what form) the

records at issue were disseminated. Moreover, the agencies

do not dispute the fact that withdrawing particular records

from the National Archives inevitably calls attention to them,

encouraging some in the public (who might hold copies of the

records) to further disseminate them. On balance, however,

the agencies believe that withdrawal better protects their

national security interests than leaving the records on the

open shelves of the National Archives.

What the agencies do not appear to be adequately taking into

account, however, is the effect these actions have on the public.

From the public’s perception, the Government is pulling

declassified records off the open shelf and reclassifying them.

As one Washington Post editorial described the recent effort,

the Federal Government was trying to “put toothpaste back in

the tube.” Beyond the cynicism for the classification system

engendered by such efforts, they also create practical dilemmas

for any members of the public who may possess, have used, or

may want to use the records that have been withdrawn. What

are researchers, academics, and historians who have copies of

the records expected to do with them? Are they to be

considered classified? If so, can they legally be disseminated to

others? Can they be quoted from or cited as authority? Does

the researcher or historian risk possible criminal liability under

the espionage laws if he or she republishes them or cites them?

What about uses of the information that have already been

made? Suppose the records have been excerpted or cited in

previously published historical works. How are others in the

same academic field going to be able to have the same

information or check the accuracy of their colleagues’ work?

ISSUE NO. 8:

RE-REVIEWS OF PREVIOUSLY DISCLOSED INFORMATION.
27

RECOMMENDATIONS

1. Given the dilemmas created for the public by the

withdrawal of records previously declassified and made

available to the public, such action should be taken only

when the potential harm to the national security from

continued public disclosure is clear and convincing (after all,

these records are most often far more than 25 years old),

and the potential for future harm can be significantly

ameliorated by withdrawing the records. In considering

such removal actions, agencies should be required to

address the following factors:

a. the length of time the record has been available to

the public,

b. the form in which it has been available to the public, and

c. the extent to which the record is known to have been

disclosed to and used by the public.

Agencies need to ascertain this information, to the extent

possible, and make a convincing assessment of “significant

harm” before they decide to withdraw a record from

public access.

2. Since the Archivist of the United States is the custodian

of the records at issue (although the agencies retain

classification authority), any withdrawal of records that were

previously available to the public at the National Archives

should require the approval of the Archivist. While this

concept is currently captured in interim guidelines issued

by ISOO and NARA and generally agreed to by the

agencies involved in past re-review and record removal

efforts, the concept should be codified in the Executive

order.

3. The Order or pertinent statutes should be amended to

provide that no member of the public shall be criminally

prosecuted or suffer any other adverse consequences for

maintaining, using, or disseminating a record or

information contained in a document that was lawfully

obtained from the National Archives or any other agency

of the Federal Government.

4. Given that recent experience demonstrates that re-reviews

of large collections of records already made publicly

available have the potential for pulling significant resources

away from other declassification review priorities, such as

reviewing records for still-sensitive classified national

security information prior to public release, these reviews

should be undertaken only where there is a clear indication

(and subsequent showing) that the national security benefits

are worth the cost.
28

A record that has been declassified may not necessarily be

made available to the public any time soon.

BACKGROUND

There are nine exemptions in the Freedom of Information

Act (FOIA) that allow departments and agencies to withhold

information — even information they have declassified — from

the public. The exemptions most commonly cited include

information compiled for law enforcement purposes,

“predecisional” information, information that (if released to

the public) would violate the privacy of a living person, and

information specifically exempted from disclosure by statute,

(e.g., individual tax returns). In years past, many agencies

marked this information “For Official Use Only.” More

recently, it has become known as Controlled Unclassified

Information (CUI), a term that serves as an umbrella for a host

of agency-unique caveats to be applied during an FOIA review.

The FOIA does not say how long agencies may withhold

information in these exempted categories, nor does any

executive branch policy set a limit. There is, moreover, no

requirement to review this information at a certain point to

determine whether (like classified information) it can be

released to the public. Agencies are basically left to their own

devices. Apart from the statutory requirement to turn over

their permanently valuable records (including records

containing exempted material) to NARA for archival

processing, no law or executive branch policy governs the

disposition of such records.

Some agencies establish, in conjunction with NARA, records

retention schedules that assign a date when their permanently

valuable records will be accessioned into the National Archives,

based on when they believe the sensitivity of the records (from

the standpoint of personal privacy, predecisional advice,

investigative information, etc.) will have passed. The FBI, CIA,

and National Security Agency (NSA) have approved records

retention schedules that call for their permanently valuable

records to be accessioned into the Archives after 50 years. The

Office of the Secretary of Defense, the Board was told, retains

its records for 40 years before turning them over to the

National Archives. Even at these extended periods, agencies

often do not want exemptible information released by the

National Archives without their concurrence.

Once in the custody of the National Archives, records

(including records that have been declassified) must undergo

archival processing before they can be made available to the

public. Archival processing entails gaining intellectual control

over the records by arranging and describing them, evaluating

and conducting any preservation needs, and reviewing them

for information that is not appropriate for release. For Federal

records and Presidential records covered by the Presidential

Records Act, this essentially entails reviewing the records for

possible exemption under the terms of the FOIA or restriction

under the Presidential Records Act. For pre-Reagan-era

Presidential materials, this means reviewing them for Deed of

Gift restrictions or under the restrictions of the Presidential

Recording and Materials Preservation Act. Records requiring

restriction, whether for national security or other reasons, are

withdrawn from the broader collection and are replaced with

forms noting the withdrawal and the reasons for the

withdrawal. This allows for transparency for the public and also

serves as the means by which the public can lodge an access

demand through FOIA or MDR.

Needless to say, archival processing requires significant

additional time, and NARA has nowhere near the number

of personnel needed to keep pace with the large volume of

records being declassified pursuant to the 25-year review

process mandated by the Order. The Board was told that more

than 400 million pages have been declassified by the agencies

since 1995 and are awaiting archival processing and that the

backlog grows larger every day. Unless changes are made, it

will be decades before all these records appear on the open

shelves (or electronic databases) of the National Archives.

RECOMMENDATIONS

1. If the concept presented in Issue No. 2, supra (identifying

and giving priority to the declassification of records of

historical significance) were adopted, agencies would be

required to make such records available to the public

without waiting for them to be accessioned into the

National Archives or appear on the open shelves. The

agencies would, presumably, also determine in the course

of the declassification review of such records whether there

were other reasons that might preclude them from being

made public. This might involve conducting a review for

release of Controlled Unclassified Information (CUI) at

the same time as the declassification review.

2. Regardless of whether the concept presented in Issue No. 2

is ultimately adopted, the decontrol and release of CUI that

may be contained in classified documents needs to be

conducted at the same time as the declassification review

itself to maximize the release of information to the public.

Additionally, standardization is required for how executive

branch agencies handle CUI at the end of its lifecycle.

Uniform standards should be established for how long and

under what circumstances agencies may continue to protect

CUI, and how its release to the public will be effected. To

the extent possible, these procedures ought to be linked to

the declassification review process to take advantage of the

efficiencies that would be generated.

3. The Archivist should develop a personnel plan, to be funded

as part of NARA’s annual budget submission to the

administration (and later presentation to Congress), that

would address the current archival processing backlog and

enable the National Archives in the future to fully process

all declassified records within five years of their

declassification so that they can be released to the public.

ISSUE NO. 9:

DEALING WITH OTHER EXEMPTED INFORMATION AND THE DELAYS ENTAILED

IN ARCHIVAL PROCESSING.
The latitude given departments and agencies by the Order

to declassify information when the public interest in

disclosure outweighs the risk of damage is not being

seriously exercised. While it is used on occasion — such

as the declassification of information contained in recent

National Intelligence Estimates (NIEs) and even the

President’s Daily Brief (PDB) — it is not used with

regularity, and agencies are not provided with guidelines

or clarification for how they ought to make such decisions.

BACKGROUND

The Order provides that in exceptional cases, the head of

the agency or the “senior agency official” in charge of the

classification program may decide “as an exercise of discretion”

that “the public interest in disclosure of the information

outweighs the damage to the national security that might

reasonably be expected from the disclosure.” The Order also

makes clear that this language does not establish any

procedural right to such review on the part of any requestor.

When this language was adopted in 1995, it was seen as a

major step forward in terms of promoting the public’s access to

previously classified information. While in practice departments

and agencies are usually able to postulate in the abstract

damage to the national security that might reasonably be

expected from public disclosure of a particular record, when

that record is considered in light of information already

disclosed to the public about the subject matter involved, the

damage that could reasonably be expected from its disclosure

might seem minor. Assuming that the record also involves an

issue of keen interest to the public, the public’s interest in

disclosure might be seen as outweighing the concern for

damage. This provision of the Order was seen as allowing

agencies to make this judgment in appropriate cases.

In fact, this discretion has rarely been exercised. Moreover,

when it has been exercised, it has more often been because the

department or agency wants to get its own position out, rather

than because the agency head or senior agency official has

found the public’s interest compelling. In short, this

discretionary authority has not resulted in the level of increased

public access that was originally expected.

It is understandable why the executive branch wanted to limit

the use of this authority to exceptional cases. If this weighing

of interests were required for every decision to keep classified

information secret, it would bring the declassification review

process to a virtual halt. If the authority to weigh the public

interest were delegated to those performing classification

reviews, frequent and unsupportable inconsistencies would

undoubtedly arise. Having said this, there would appear to

be certain occasions when a senior agency official ought to

routinely weigh the public’s interest.

RECOMMENDATION

The Order should be amended to provide that where the

original request for a declassification review comes from a

Government entity (including a Presidential library, the office

that prepares the Foreign Relations of the United States

(FRUS) series, a congressional committee, or a court) seeking

disclosure of the record for a public purpose, and where that

entity objects to the continued classification of the record on

the grounds that the public interest outweighs the risk of

damage caused by disclosure, the request ought to trigger a

referral to the senior agency official for a “weighing of the

interests” under this provision of the Order.

ISSUE NO. 10:

EXERCISING DISCRETION FOR DISCLOSURE IN EXCEPTIONAL CASES.

29
Not infrequently, requests to agencies from individual

members of the public actually hamper the agency’s ability

to make historically significant records available to the

public in general.

BACKGROUND

The Board has been told by representatives of several agencies,

as well as by the directors of several Presidential libraries, that

not infrequently they receive FOIA requests or requests for

mandatory reviews under the Order from a member of the

public for records that are part of a larger, historically

significant collection that is currently being archivally processed

(including a declassification review) for release to the public.

However, in responding to the request, the agency must

identify the specific records within the larger collection, pull

them out, and start them down a separate review path in the

agency (which may be the province of other reviewers and

other offices). When that review has been completed, the

records must be replaced within the broader collection. In the

end, responding to an individual request actually delays the

process that would make the broader collection of historically

significant documents public.

Thus, when agencies receive such requests, most will ask the

individual requestor to withdraw or hold in abeyance his or

her request until the broader review of the collection is

accomplished. Some agree to do so; others do not.

RECOMMENDATION

In the view of the Board, when an agency receives a request

from an individual for a particular document or documents

that are part of a larger collection of historically significant

documents currently undergoing review for declassification,

the agency receiving the request should be permitted to hold

such request in abeyance for up to one year, provided it advises

the individual requestor that the document or documents at

issue are part of a larger collection undergoing declassification

review and advises the requestor when the results of the larger

declassification review are expected to be made available. Not

only will the interests of the general public be better served,

but the individual making the request is also apt to benefit by

waiting for the release of the broader collection.

ISSUE NO. 11:

REMOVING AN IMPEDIMENT TO COMPREHENSIVE REVIEW.

30
Relatively few agencies with responsibilities in the national

security currently employ historians or maintain historical

advisory boards. As a result, the public, as well as the

agencies themselves, is losing a potentially valuable source

of historical data and analysis.

BACKGROUND

As far as the Board has been able to determine, among the

national security agencies, only the State Department and the

CIA maintain historical advisory boards. The board at the State

Department is created by statute and the board at the CIA by

agency directive. The Office of the Secretary of Defense

recently abolished its historical advisory board, and none of the

military departments or defense agencies has established one,

despite having voluminous classified holdings.

Typically composed of historians and academics, the board’s

principal function is to advise their respective agencies on what

their declassification priorities should be; that is, what classified

information held by the agency would be of greatest interest to

the public. They might advise with respect to prioritizing what

the agency itself should initiate as well as prioritizing within

requirements imposed from the outside.

More agencies hire historians for their staffs, but the number

hired at any given agency is usually quite small. As full-time

employees, they will have various responsibilities. At some

agencies, they are used to select historically significant classified

documents for declassification review. At the State

Department, for example, historians are used to compile and

publish the FRUS series. They select the classified records at

the State Department and other agencies (including the

Presidential libraries) that are seen as having the greatest

pertinence for the FRUS volume at issue. Requests are then

made to the agencies to declassify the documents selected.

Records proposed by the historians for inclusion in a FRUS

volume that are withheld by another agency for reasons of

national security may then be referred to the department’s

Historical Review Board for consideration before further steps

are taken.

Some agencies, such as the CIA, put their historians to a

somewhat different use. They are used primarily to write

classified historical accounts based on their agency’s classified

records. For the most part, these accounts are intended for

agency management and employees, to illuminate the lessons

learned from the agency’s past. But in time, some of these

accounts are declassified and made public. Putting these

historical accounts together often entails analyzing and

synthesizing mountains of classified information — something

that would take researchers and academics on the outside years

to do themselves if and when the information ever became

declassified. Indeed, it is doubtful that researchers and

academics on the outside would ever be able to arrive at the

insights and conclusions reached in many of these internal

accounts. In fact, these accounts, once declassified, often

provide the most comprehensive, authoritative accounts of the

agency’s activities available anywhere in the public domain.

Most agencies still do not employ historians; among those

that do, their numbers are small. To make matters worse, the

historical studies they produce are typically classified; many

sit in safes or security vaults, unread, for decades on end. Since

the automatic declassification deadline was established, these

studies are required to be reviewed for declassification 25 years

after they were created, although the historical events they

document and analyze may be far older. The Board notes with

approval the recent action by the Director of National

Intelligence to require elements of the U.S. intelligence

community to hire historians for their respective staffs.

But the impact of this action is limited to intelligence agencies.

RECOMMENDATION

1. Amend the Order to require that all departments and

agencies with significant classification activity establish

historical advisory boards that report to the head of the

agency. These boards should be composed of experts from

the inside and outside who understand how the agency’s

classified information might benefit the public; the board

would advise the agency with respect to the priority to be

assigned declassification reviews of its classified holdings.

2. By appropriate executive branch issuance, require all

departments and agencies with responsibilities in the

national security area to hire an appropriate number of

historians, either to select classified records of historical

significance for declassification review and publication (as

part of the department or agency’s ongoing declassification

initiatives), or to write historical accounts based on the

department or agency’s classified holdings. Alternatively,

consideration should be given to centralizing and

consolidating the work of historians who are part of larger

organizations. For example, the Director of National

Intelligence (DNI) might employ historians to serve the

intelligence community as a whole by making the CIA’s

Center for the Study of Intelligence into an IntelligenceCommunity-wide center under the auspices of the DNI,

or the Secretary of Defense might employ a cadre of

historians whose work encompasses all DOD components.

3. The declassification review of historical accounts written

by agency historians ought to take place 25 years after the

most recent event considered in the account, rather than

25 years after the historical account is written.

ISSUE NO. 12:

EXPANDING THE USES AND ROLES OF HISTORIANS AND HISTORICAL

ADVISORY BOARDS.

31
In practice, what is identified pursuant to statute,

directive, and regulation as Formerly Restricted Data

(FRD) generally remains outside the scope of information

that can be requested by the public. Is it not subject to the

declassification review requirements of the Order. It is

unclear whether the statute necessarily dictates this result,

or whether it continues to be necessary or desirable.

BACKGROUND

Two categories of classified data relating to nuclear weapons —

Restricted Data (RD) and Formerly Restricted Data (FRD) —

are established pursuant to law (i.e., the Atomic Energy Act

of 1954, as amended) and related regulations and directives

rather than pursuant to the Order. The law itself speaks only

to the control of RD but permits information that “relates

primarily to the military utilization of atomic weapons” to be

“carved out” of the RD category by joint agreement of the

Defense Department and (now) the Department of Energy

(DOE) on the basis of a joint determination that it can be

“adequately protected as defense information”; that is, that it

can be adequately protected within the classification system.

In fact, FRD was carved out of the RD category a few years

after the statute was enacted primarily to allow DOD — which

had custody and control of such weapons and was responsible

for their movement, storage, and maintenance — to clear

personnel for information needed for their official duties

without at the same time giving them access to nuclear weapon

design information. When FRD was carved out of the RD

category, however, it continued to be excluded from the

normal classification system — even though, presumably, under

the law, DOE and DOD had to jointly determine that it could

be adequately protected within that system. As a practical

matter, information considered FRD has remained off-limits to

the public — it is exemptible under the FOIA and not subject

to review as part of MDR requests or other declassification

reviews — unless and until it is taken out of the FRD category

by joint agreement of DOE and DOD.

Today FRD covers such things as the numbers and location

of nuclear weapons, including the locations where nuclear

weapons have been stored over time, both in the United States

and abroad. This kind of information has spurred the greatest

interest among historians and academics. In 2002, a group of

prominent academics and historians proposed to the Director

of ISOO that the location of nuclear weapons sites that had

long since been nonoperational be taken out of the FRD

category. Despite efforts by ISOO to clarify the situation,

nothing changed. However, it should be noted that the release

of FRD — particularly the types and numbers of nuclear

weapons in the U.S. arsenal — has been authorized from time

to time to meet the needs of the Government, such as arms

control treaties.

Representatives of DOE told the Board that while the public

may not be able to obtain access to FRD in the same way as

other classified information, the public is not shy about making

its interests known to them and that, in fact, DOE and DOD

take into account the public interest in their decisions. For

example, DOE decided to make public the location of certain

nuclear weapons in the United States after local Governments

in the surrounding communities asked them to do so, to allow

the local communities to decide what actions might be taken in

the event of a natural disaster or civil disturbance. Without any

involvement by a person representing the public interest in the

departmental deliberations, however, it is impossible to know

the extent to which the public’s interests are being considered

or accommodated by this process.

The Board also notes that a large amount of the effort that has

gone into re-reviews of previously disclosed information (see

Issue No. 8, supra) pursuant to the Kyl-Lott amendment has

been necessitated because departments and agencies did not

understand or appreciate what fell into the category of FRD.

They unintentionally created documents containing FRD

without marking it as such. When the documents were

reviewed for declassification as they became 25 years old,

again, the originating agency did not recognize FRD.

32

ISSUE NO. 13:

CLARIFYING THE STATUS AND TREATMENT OF FORMERLY RESTRICTED DATA.
While the Board recognizes that much of the information that

currently falls into the FRD category is extremely sensitive, and

indeed may retain its sensitivity (both for foreign policy and

military reasons) long into the future, treating it outside

the normal classification system has its costs in terms of

accommodating the interests of the public in such information

and providing appropriate and consistent handling within the

executive branch.

RECOMMENDATION

1. Preferably, the President should make clear by an

amendment to the Order that FRD should be treated as

“defense information,” as the Atomic Energy Act of 1954

appears to contemplate. Once so designated, this

information should be safeguarded and declassified in

accordance with the Order. This would provide the public

with the same rights of access that it has to other

information classified pursuant to the Order.

2. If, on the other hand, the President believes that because of

its particular sensitivity, the information currently designated

as FRD should continue to remain outside the classification

system, consideration should be given to transitioning FRD

to the normal classification system as it reaches 25 years of

age (and presumably has become less sensitive). This would

mean that when permanently valuable records of the

Government are being reviewed under the automatic

declassification provisions, information designated as FRD

would be reviewed for declassification and release to the

public as other kinds of classified information are (rather

than excluded, ipso facto, from release, as is now the case).

3. If the President determines that the current system should

remain as it is, the Board recommends that an appropriately

cleared representative of the public who is familiar with the

issues should participate in the Government’s periodic

deliberations with respect to what should remain in FRD;

that is, excluded from the normal classification or release to

the public. In addition, DOD, DOE, and State should

promulgate clear and consistent guidance to the larger

declassification community with respect to what constitutes

FRD (e.g., former storage locations of nuclear weapons that

may be identified in permanent historical records more than

25 years old).

33
The President’s Daily Brief (PDB), which is prepared each

day by the CIA, has not been retained as part of the

records of the White House since the beginning of the

Reagan administration. In the past, PDBs were included as

part of the Presidential library collection and were sent to

the Presidential libraries (Truman through Carter). The

lack of PDBs maintained as a series among the records of

the President deprives historians and researchers (and

ultimately the public) of an ability to learn what a

particular President was being told by the Intelligence

Community regarding the world situation.

BACKGROUND

As a matter of policy, the CIA does not review or release PDBs.

Nonetheless, the Board was told that excerpts from at least 30

PDBs have been declassified in the past and made available for

the purpose of significant investigations (e.g., the 9/11

Commission). In fact, some of the PDBs were declassified

inadvertently, as personnel did not recognize the information

as coming from a PDB and made review decisions based only

on the merits of the information. Although PDBs at the older

Presidential libraries have been scanned as part of the RAC

project, and the CIA asserts that it does not use pass/fail

reviews but rather redacts all such materials it reviews, the

PDBs that have been processed to date have not been returned

in redacted form but rather denied in their entirety.

The CIA asserts that the PDB is covered by the doctrine of

executive privilege, because it constitutes confidential advice to

the President. (It is, in fact, litigating this issue in the context of

a lawsuit filed by a group of historians. The CIA’s position was

upheld at the district court level. However the Ninth Circuit

Court of Appeals rejected this argument while, at the same

time, supporting the continued classification of the two specific

Johnson administration PDBs in question in this lawsuit on the

basis that declassification would reveal intelligence sources and

methods.) It should be noted that President George W. Bush

declassified portions of the August 6, 2001, PDB and the

December 4, 1998, PDB for use by the 9/11 Commission.

The directors of the Presidential libraries who do not have

PDBs in their collections (from Reagan forward) were

unanimously of the view that these omissions constitute a

serious gap in the record. They were especially concerned with

PDBs that had been annotated by the President. While they

recognized that the PDB was a sensitive record from the

standpoint of sources and methods, and may contain personal

information regarding the foreign leaders the President was

meeting with, they believed the sensitive information could be

redacted, particularly as the PDBs age and become obsolete,

to allow for the public release of information no longer

considered sensitive. A key issue for the Board is whether the

public’s understanding of the country’s history is limited by

having the PDB categorically withheld.

RECOMMENDATION

1. The President should clarify as a matter of policy that he or

she will not foreclose declassification review of the PDB by

claiming executive privilege for it. He or she may reserve

the right as a former President to assert executive privilege

with respect to particular documents that are being

considered for release by his or her Presidential library.

2. The President should direct that the PDB be retained by

the White House as a Presidential record under the

Presidential Records Act. It can be reviewed later for

declassification at the request of the Presidential library

concerned. This process also allows the former President or

his or her representative to object to the disclosure on other

grounds (e.g., personal privacy, confidential advice from a

subordinate).

3. The President should direct that the PDBs that were not

allowed to remain in the Presidential materials of past

Presidents be provided to each Presidential library.

Before they are sent to the Presidential library, they should

undergo a declassification review. The Presidential library

should maintain the PDBs as a distinct series.

ISSUE NO. 14:

HANDLING THE PRESIDENT’S DAILY BRIEF.

34
The declassification procedures for classified records

created by committees of Congress, particularly classified

reports and closed hearing transcripts, are irregular

and limited.

BACKGROUND

Congressional committees with responsibilities in the national

security area maintain classified records received from the

executive branch. They also create classified records based on

the classified information provided by the executive branch in

both written and oral form; that is, reports and testimony.

The Order on security classification does not apply to

Congress, but Congress protects the classified information

shared with it by the executive branch as a matter of comity.

The classified records created by the Congress often provide

unique and significant insights into national security policy,

decisionmaking, and the budget and oversight process at a

given point in time. Frequently, closed sessions of

congressional committees are the only occasion when executive

branch policy in the national security area is explained,

challenged (by members), and defended by administration

representatives. The exchanges at these hearings, as well as the

views of Congress (elaborated in classified committee reports),

often affect the policy choices of the executive branch. Yet,

because the records of the committees involved are classified

and never subjected to declassification review, the public and

historians are largely unaware of their existence.

The conditions for the release of congressional records to the

public is specified in House Rule VII and Senate Rule 474

(96th Congress), which allow for some records to be

withheld for up to 50 years. There are no provisions for

the declassification of classified records. To the extent that

Congress discloses classified records, it does so on its

own initiative.

Disclosure has happened occasionally in several ways.

Committees of Congress have decided to publish declassified

versions of records they have created, normally committee

reports and transcripts of closed hearings. When this occurs,

the committee typically requests the relevant departments or

agencies to conduct a declassification review of the records

and redact any information that might be classified before the

records are published by the Government Printing Office and

made available to the public.

Some committees transfer custody of their records to NARA

within a few months or years after they are created, and even

classified committee records may reach NARA before they are

25 years old. Although the committees involved retain control

of these records, they permit the National Archives to seek

declassification review of records for which an MDR has been

filed with NARA. The Archives sends the records to the

appropriate department or agency for review, prior to review

by the committee concerned.

Classified records are sometimes discovered in the private

papers of legislators after they retire but before the records are

donated to private libraries. When this happens, the papers are

usually sent to the department or agency concerned for

security review.

In 1997, the Secretary of the Senate expressed to NARA his

interest in having NARA conduct a declassification review of

all the classified records in NARA’s custody, including those

at least 25 years old that could otherwise be released to the

public. Now, 10 years later, this proposal is only beginning to

be implemented by NARA. It does not cover records of the

House in NARA’s custody or the records of the Senate Select

Committee on Intelligence.

Thus, despite their historical significance, classified records

created by the Congress are reviewed for declassification only

on a hit-or-miss and relatively limited basis. As a result, the

public is denied a valuable source of historically significant

information.

RECOMMENDATION

1. Formal procedures should be established for the

declassification review of classified committee reports and

hearing transcripts created by committees within their

respective bodies. These procedures should require the

chief clerks of the affected committees to transfer to NARA

copies of the classified reports and hearing transcripts

created by the committee as they become 25 years old.

NARA, in turn, would ensure that declassification reviews

were conducted by the affected agencies.

2. If a new National Declassification Center is established

(see Issue No. 1, supra), it should have responsibility for

reviewing congressional records.

ISSUE NO. 15:

DECLASSIFICATION REVIEWS OF CERTAIN CONGRESSIONAL RECORDS.

35
MARTIN FAGA

Martin Faga was appointed to the PIDB for a 4-year term by

the President in October 2004. In 2005, he was appointed

to the President’s Foreign Intelligence Advisory Board. He

was President and chief executive officer of the MITRE

Corporation from 2000 to 2006 and is currently a member of

its board of trustees. Before joining MITRE, Mr. Faga served

from 1989 until 1993 as Assistant Secretary of the Air Force

for Space with primary emphasis on policy, strategy, and

planning. At the same time, he served as Director of the

National Reconnaissance Office (NRO). Mr. Faga’s career

included service as a staff member of the House Permanent

Select Committee on Intelligence, where he headed the

program and budget staff; as an engineer at the Central

Intelligence Agency; and as a research and development officer

in the Air Force. Mr. Faga received bachelor’s and master’s

degrees in electrical engineering from Lehigh University in

1963 and 1964.

STEVEN GARFINKEL

Steven Garfinkel was appointed to the PIDB for a 4-year term

by the President in October 2004. He currently teaches

Government, law, and sociology at Albert Einstein High

School in Kensington, MD. He chaired the Nazi War Crimes

and Japanese Imperial Government Records Interagency

Working Group (IWG) from 2000 to 2006. He previously

served as Director of the Information Security Oversight Office

from May 1980 through December 2001. In that position, he

was responsible to the President for policy oversight of the

governmentwide security classification system and the National

Industrial Security Program. Mr. Garfinkel also served for

almost 10 years in the Office of General Counsel of the

General Services Administration. His positions in that office

included chief counsel for the National Archives and Records

Service, chief counsel for information and privacy, and chief

counsel for civil rights. Mr. Garfinkel attended both George

Washington University and its Law School as a Trustee Scholar.

He received his J.D. (with honors, Law Review) in 1970, three

years after receiving his B.A. (with distinction, PBK). In 2004,

he received a master’s degree in teaching from Towson

University.

JOAN VAIL GRIMSON

Joan Vail Grimson was appointed to the PIDB for a 3-year

term by the Senate Majority Leader in March 2005. She served

as general counsel and deputy staff director for the Senate

Select Committee on Intelligence. She also served as counsel

to the Armed Services Committee and was responsible for

oversight of Departments of Defense and Energy programs for

nonproliferation and arms control. In addition, Mrs. Grimson

was the Committee’s lead staff person for the Comprehensive

Test Ban Treaty debate in the Senate. She also served as

counsel to the Commission on Protecting and Reducing

Government Secrecy. Mrs. Grimson was in private practice and

was a judicial clerk to U.S. District Court Chief Judge Frank

W. Bullock in Greensboro, NC. She also worked in the

national security office of the Office of National Drug Control

Policy and was an analyst for the National Security Council in

the Reagan administration. Mrs. Grimson received her law

degree from American University and an undergraduate degree

in political science from UCLA.

ELIZABETH RINDSKOPF PARKER

Elizabeth Rindskopf Parker was appointed to the PIDB for a

3-year term by the President in October 2004. She joined

Pacific McGeorge University as its eighth dean in 2002 from

her position as general counsel for the University of Wisconsin

system. Previously, she served as general counsel for the CIA;

Principal Deputy Legal Adviser, U.S. Department of State;

general counsel, National Security Agency; and as Acting

Assistant Director (Mergers and Acquisitions) at the Federal

Trade Commission. In addition to her experience managing

Government legal offices, Ms. Parker also served as the director

of the New Haven Legal Assistance Association, Inc. Early in

her career, she gained significant personal experience with

a wide variety of complex Federal litigation, raising

discrimination and civil liberties issues at all levels of the

Federal court system, including two successful arguments

before the U.S. Supreme Court and numerous arguments

before various Federal Circuit Courts of Appeal. She received

her law degree from the University of Michigan in 1968. She

is a 1965 cum laude graduate of the University of Michigan.

RONALD RADOSH

Ronald Radosh was appointed to the PIDB for a 3-year term

by the President in April 2007. He is an adjunct senior fellow

at the Hudson Institute in Washington, DC. Mr. Radosh is the

author, coauthor, or editor of 14 books, including Commies:

A Journey Through the Old Left, the New Left, and the Leftover

Left (Encounter Books, 2001); Spain Betrayed: The Soviet

Union in the Spanish Civil War (with Mary Habeck) (Yale

University Press, 2001); The Rosenberg File (with Joyce Milton)

(Yale University Press, 1997); Divided They Fell: The Demise of

the Democratic Party, 1964–1996 (The Free Press, 1996.); and

The Amerasia Spy Case: Prelude to McCarthyism (with Harvey

Klehr) (University of North Carolina Press, 1996). His articles

have appeared in such publications as Partisan Review,

The New Republic, The New Criterion, The New York Times,

Times Literary Supplement, The Journal of American History,

The Wall Street Journal, and The Weekly Standard. Mr. Radosh

has served as a senior research associate for the Center for

Communitarian Studies at George Washington University;

professor of history in the Graduate Faculty, City University of

New York; research director for the United States Information

Agency; and associate director of the Office of the President,

American Federation of Teachers.

BIOGRAPHICAL INFORMATION FOR CURRENT BOARD MEMBERS

36

APPENDIX A
DAVID E. SKAGGS

David Skaggs was appointed to the PIDB for a 2-year term

by the Minority Leader of the U.S. House of Representatives

in January 2005, and reappointed for two years in July 2007.

He is the executive director of the Colorado Department

of Higher Education. This position follows eight years as

executive director of the Center for Democracy and

Citizenship at the Council for Excellence in Government,

counsel to a Washington, DC–based law firm, and three

years as an adjunct professor at the University of Colorado.

He served 12 years in Congress (1987–1999) as the

Representative from the 2nd Congressional District in

Colorado, including eight years on the House Appropriations

Committee and six years on the House Permanent Select

Committee on Intelligence, where he devoted particular

attention to classification and information security issues.

Mr. Skaggs was a Colorado State Representative (1981–1987),

including two terms as Minority Leader, and was chief of staff

for Congressman Timothy E. Wirth of Colorado from 1974

to 1977. Before serving in elected office, Mr. Skaggs practiced

law in Boulder, CO; as a judge advocate in the United States

Marine Corps; and briefly in New York City. He has a B.A. in

philosophy from Wesleyan University (1964) and an LL.B

from Yale Law School (1967).

L. BRITT SNIDER

L. Britt Snider was appointed to the PIDB for a 4-year term

by the President in October 2004. At the same time, the

President appointed him to a 2-year term as Chairman of the

PIDB. He is currently an adjunct professor in the Security

Studies Program, School of Foreign Service, Georgetown

University. Mr. Snider has more then 30 years of Federal

Government service, split evenly between the executive and

legislative branches. In 1995, Mr. Snider became staff director

of the Presidential commission (Aspin/Brown) that assessed

the roles and capabilities of U.S. intelligence agencies at the

end of the Cold War. In 1997, he continued Government

service as special counsel to Director of the Central Intelligence

George J. Tenet. A year later, he was appointed by President

Clinton as the second statutory Inspector General of the

Central Intelligence Agency, in which capacity he served

for three years until his retirement in 2001. Mr. Snider is a

graduate of Davidson College and University of Virginia

School of Law.

ADMIRAL WILLIAM O. STUDEMAN,

USN (RET.)

Bill Studeman was appointed to the PIDB for a 3-year term

by the Speaker of the House in June 2006. He recently retired

from Northrop Grumman Corporation as vice president and

deputy general manager of Mission Systems. He holds a B.A.

in history from the University of the South in Sewanee, TN;

an M.A. in public and international affairs from George

Washington University; and several honorary doctorates. He is

a distinguished graduate of both the Naval and National War

Colleges. As a restricted line naval intelligence officer, Admiral

Studeman’s flag tours included OPNAV Director of Long

Range Navy Planning; Director of Naval Intelligence; Director,

National Security Agency; and Deputy Director of Central

Intelligence (DDCI) with two extended periods as Acting

Director of Central Intelligence (DCI). As DDCI, he served in

both the George H. W. Bush and Clinton administrations

under DCIs Bob Gates, Jim Woolsey, and John Deutch.

Admiral Studeman retired from the Navy in 1995 after almost

35 years of service. He was recently a commissioner on the

Presidential Commission on Weapons of Mass Destruction,

and is currently serving on the National Advisory Board on

Bio-Security. He is a member of the Defense Science Board,

as well as DIA JMIC, NRO, national labs, and other

advisory boards.

37

"Guardianship," on the Constitution Avenue side of the

National Archives Building, uses martial symbols, such as the

helmet, sword, and lion skin to convey the need to protect the

historical record for future generations. This sculpture is

inscribed "Eternal Vigilance is the Price of Liberty."
THE BOARD RECEIVED SUMMARY BRIEFINGS

ON THE STATUS OF THE DECLASSIFICATION

PROGRAMS OF THE FOLLOWING:

CENTRAL INTELLIGENCE AGENCY

DEPARTMENT OF DEFENSE

Office of the Secretary of Defense

Joint Chiefs of Staff

Department of the Air Force

Department of the Army

Department of the Navy

Defense Intelligence Agency

National Security Agency

National Geospatial Intelligence Agency

National Reconnaissance Office

DEPARTMENT OF ENERGY

DEPARTMENT OF JUSTICE

Federal Bureau of Investigation

DEPARTMENT OF STATE

NATIONAL ARCHIVES AND RECORDS

ADMINISTRATION

THE BOARD HEARD FROM HISTORIANS

OF THE FOLLOWING:

DEPARTMENT OF STATE

OFFICE OF THE DIRECTOR OF NATIONAL

INTELLIGENCE

DEFENSE INTELLIGENCE AGENCY

NATIONAL RECONNAISSANCE OFFICE

NATIONAL SECURITY AGENCY

CIA’S HISTORICAL REVIEW PANEL

STATE DEPARTMENT HISTORICAL ADVISORY

COMMITTEE

GENERAL EDITOR OF THE FOREIGN RELATIONS

OF THE UNITES STATES

THE BOARD HEARD FROM

REPRESENTATIVES OF THE FOLLOWING

PUBLIC INTEREST GROUPS:

NATIONAL SECURITY ARCHIVE AT GEORGE

WASHINGTON UNIVERSITY

REPRESENTATIVES OF THE AMERICAN BAR

ASSOCIATION’S STANDING COMMITTEE

ON LAW AND NATIONAL SECURITY

PUBLIC CITIZEN LITIGATION GROUP

NATIONAL COALITION FOR HISTORY

THE BOARD HEARD FROM THE FOLLOWING

MEMBERS OF THE PUBLIC:

MR. MARK S. ZAID, ESQ.

MR. SCOTT ARMSTRONG

MR. BRUCE BERKOWITZ

MR. STEVEN AFTERGOOD

MS. MEREDITH FUCHS

WITNESSES APPEARING BEFORE THE BOARD

38

APPENDIX B
GLOSSARY

Automatic Declassification: 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. Source:

E.O. 12958, as amended, section 6.1(d)..

Classified National Security Information: Information

that has been determined (pursuant to E.O. 12958, as

amended, or any predecessor order) to require protection

against unauthorized disclosure and is marked to indicate its

classified status when in documentary form. Source: E.O.

12958, as amended, section 6.1(h).

Declassification: The authorized change in the status

of information from classified information to unclassified

information. Source: E.O. 12958, as amended, section 6.1(k).

Executive Order (E.O.) 12958, as amended: E.O.

12958, “Classified National Security Information,” signed by

President William J. Clinton in 1995, was amended by E.O.

13292, signed by President George W. Bush in 2003. This

order prescribes a uniform system for classifying, safeguarding,

and declassifying national security information, including

information relating to defense against transnational terrorism.

This order also established the concept of automatic

declassification, in which all classified records shall be

automatically declassified on December 31 of the year that

is 25 years from the date of their original creation, unless

properly exempted from declassification. Source: E.O. 12958,

as amended, introduction and section 3.3(a).

Foreign Relations of the United States (FRUS):

The official documentary historical record of major U.S.

foreign policy decisions and significant diplomatic activity.

The series, which is produced by the State Department’s Office

of the Historian, began in 1861 and now comprises more than

350 individual volumes. The volumes published since 1980

increasingly contain declassified records from all the foreign

affairs agencies. Source: The U.S. Department of State, Office

of the Historian (www.state.gov/r/pa/ho/frus/).

Freedom of Information Act (FOIA), 5 U.S.C. §

552: The FOIA requires Federal agencies — but not

Congress or Federal courts — to make records available to

any person making a request for them. Nine categories of

information are exempted from FOIA requests, such as

information properly classified by Executive order, information

contained in personnel and medical files, and similar files the

disclosure of which would constitute a clearly unwarranted

invasion of personal privacy. FOIA decisions may be appealed

in Federal court. Source: 5 U.S.C. § 552, as amended in 2002.

Information Security Oversight Office (ISOO):

A component of the National Archives and Records

Administration that receives program and policy guidance

from the National Security Council. ISOO oversees the

security classification programs in both Government and

industry and reports annually to the President on their status.

Source: ISOO Report to the President, 2006.

Kyl-Lott Amendment: The name applied to the

requirement established in section 3161, “Protection against

Inadvertent Release of Restricted Data and Formerly Restricted

Data,” of the National Defense Authorization Act of 1999.

The requirement orders the Department of Energy to develop

a plan to prevent the release of nuclear weapons design and

employment information. Among its provisions is the

requirement that records subject to the declassification

provisions of E.O. 12958 be reviewed on a page-by-page basis

for Restricted Data and Formerly Restricted Data unless they

have been determined to be highly unlikely to contain those

types of information. The provision is named after its two

proponents, Senators Trent Lott and John Kyl. Source: Public

Law 105-261, section 3161.

Mandatory Declassification Review: The review for

declassification of classified information in response to a request

for declassification that meets the requirements under section

3.5 of E.O. 12958, as amended. All classified information,

with some exceptions (such as the records of an incumbent

President), is subject to a review for declassification by the

originating agency if requested. An administrative appeal of an

agency decision may be ultimately appealed to the Interagency

Security Classification Appeals Panel. Source: E.O. 12958, as

amended, section 6.1(w) and section 3.5(a-d).

Multiple Equity Records: Records containing information

that originated with other agencies or the disclosure of which

would affect the interests or activities of other agencies. Source:

E.O. 12958, as amended, section 3.3(h).

National Security: The national defense or foreign relations

of the United States. Source: E.O. 12958, as amended, section

6.1(y).

39

APPENDIX C
Special Media Information: Information contained

in microforms, motion pictures, audiotapes, videotapes,

or comparable media that make a review for possible

declassification exemptions more difficult or costly. Source:

E.O. 12958, as amended, section 3.3(e)(2).

Records: 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.

Source: E.O. 12958, as amended, section 6.1(dd). E.O.

12958, as amended, defines “document” as, “any recorded

information, regardless of the nature of the medium or the

method or circumstances of recording” (Section 6.1(o)).

The two terms are used interchangeably in this paper.

Records Having Permanent Historical Value:

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.

Source: E.O. 12958, as amended, section 6.1(ee).

Historically Significant Records, or Records or

Materials of Extraordinary Public Interest: Records

or materials that demonstrate and record the national security

policies, actions, and decisions of the United States, including

(1) policies, events, actions, and decisions that led to significant

national security outcomes; and (2) the development and

evolution of significant United States national security policies,

actions, and decisions. These records will provide a significantly

different perspective in general from records and materials

publicly available in other historical sources and would need

to be addressed through ad hoc record searches outside any

systematic declassification program established under Executive

order. Source: Public Interest Declassification Board enabling

legislation: Public Law 106-657, section 709.

Remote Archives Capture (RAC): A joint program,

administered by the Office of Presidential Libraries of the

National Archives and Records Administration and the Central

Intelligence Agency, in which classified Presidential records

at the Presidential libraries are scanned into an electronic

document review system for centralized review in the

Washington area by agency reviewers. Source: National

Archives and Records Administration Performance and

Accountability Report, FY 2007, p. 21.

40

"The Past," on the Pennsylvania Avenue side of the National

Archives Building. An aged figure with a scroll and closed book

imparting the knowledge of past generations "stares down

the corridors of time." The words on the base enjoin, "Study

the Past."
BOARD’S AUTHORIZING STATUTE

SEC. 701. SHORT TITLE.

This title may be cited as the ‘‘Public Interest Declassification

Act of 2000’’.

SEC. 702. FINDINGS.

Congress makes the following findings:

(1) It is in the national interest to establish an effective,

coordinated, and cost-effective means by which records

on specific subjects of extraordinary public interest that

do not undermine the national security interests of the

United States may be collected, retained, reviewed, and

disseminated to Congress, policymakers in the executive

branch, and the public.

(2) Ensuring, through such measures, public access to

information that does not require continued protection to

maintain the national security interests of the United States

is a key to striking the balance between secrecy essential

to national security and the openness that is central to the

proper functioning of the political institutions of the

United States.

SEC. 703. PUBLIC INTEREST

DECLASSIFICATION BOARD.

(a) ESTABLISHMENT. —

(1) There is established within the executive branch of the

United States a board to be known as the ‘‘Public Interest

Declassification Board’’ (in this title referred to as the

‘‘Board’’).

(2) The Board shall report directly to the President or,

upon designation by the President, the Vice President, the

Attorney General, or other designee of the President. The

other designee of the President under this paragraph may

not be an agency head or official authorized to classify

information under Executive Order 12958, or any

successor order.

(b)PURPOSES. — The purposes of the Board are

as follows:

(1) To advise the President, the Assistant to the President

for National Security Affairs, the Director of the Office of

Management and Budget, and such other executive branch

officials as the Board considers appropriate on the

systematic, thorough, coordinated, and comprehensive

identification, collection, review for declassification, and

release to Congress, interested agencies, and the public

of declassified records and materials (including donated

historical materials) that are of archival value, including

records and materials of extraordinary public interest.

(2) To promote the fullest possible public access to a

thorough, accurate, and reliable documentary record of

significant United States national security decisions and

significant United States national security activities in

order to —

(A) support the oversight and legislative functions

of Congress;

(B) support the policymaking role of the executive

branch;

(C) respond to the interest of the public in national

security matters; and

(D) promote reliable historical analysis and new avenues

of historical study in national security matters.

(3) To provide recommendations to the President for the

identification, collection, and review for declassification of

information of extraordinary public interest that does not

undermine the national security of the United States, to be

undertaken in accordance with a declassification program

that has been established or may be established by the

President by Executive order.

(4) To advise the President, the Assistant to the President

for National Security Affairs, the Director of the Office of

Management and Budget, and such other executive branch

officials as the Board considers appropriate on policies

deriving from the issuance by the President of Executive

orders regarding the classification and declassification of

national security information.

(5) To review and make recommendations to the President

in a timely manner with respect to any congressional

request, made by the committee of jurisdiction, to declassify

certain records or to reconsider a declination to declassify

specific records.

(c) MEMBERSHIP. —

(1) The Board shall be composed of nine individuals

appointed from among citizens of the United States who

are preeminent in the fields of history, national security,

foreign policy, intelligence policy, social science, law, or

See: Public Law 106-567 (December 27, 2000), as amended by section 1102 of P.L. 108-458 (Intelligence Reform and

Terrorism Prevention Act of 2004) (December 17, 2004), and as further amended by section 602 of P.L. 110-53

(Implementing Recommendations of the 9/11 Commission Act of 2007) (August 3, 2007).

TITLE VII — DECLASSIFICATION OF INFORMATION

41

APPENDIX D
archives, including individuals who have served in Congress

or otherwise in the Federal Government or have otherwise

engaged in research, scholarship, or publication in such

fields on matters relating to the national security of the

United States, of whom —

(A) five shall be appointed by the President;

(B) one shall be appointed by the Speaker of the House

of Representatives;

(C) one shall be appointed by the majority leader of

the Senate;

(D) one shall be appointed by the minority leader of the

Senate; and

(E) one shall be appointed by the minority leader of the

House of Representatives.

(2) (A) Of the members initially appointed to the Board

by the President —

(i) three shall be appointed for a term of 4 years;

(ii) one shall be appointed for a term of 3 years; and

(iii) one shall be appointed for a term of 2 years.

(B) The members initially appointed to the Board by

the Speaker of the House of Representatives or by the

majority leader of the Senate shall be appointed for a

term of 3 years.

(C) The members initially appointed to the Board by

the minority leader of the House of Representatives or

the Senate shall be appointed for a term of 2 years.

(D) Any subsequent appointment to the Board shall be

for a term of 3 years.

(3) A vacancy in the Board shall be filled in the same

manner as the original appointment. A member of the

Board appointed to fill a vacancy before the expiration

of a term shall serve for the remainder of the term.

(4) A member of the Board may be appointed to a new

term on the Board upon the expiration of the member’s

term on the Board, except that no member may serve more

than three full terms on the Board.

(d) CHAIRPERSON; EXECUTIVE SECRETARY. —

(1) (A) The President shall designate one of the members

of the Board as the chairperson of the Board.

(B) The term of service as Chairperson of the Board

shall be 2 years.

(C) A member serving as Chairperson of the Board may

be redesignated as Chairperson of the Board upon the

expiration of the member’s term as Chairperson of the

Board, except that no member shall serve as Chairperson

of the Board for more than 6 years.

(2) The Director of the Information Security Oversight

Office shall serve as the Executive Secretary of the Board.

(e) MEETINGS. — The Board shall meet as needed to

accomplish its mission, consistent with the availability

of funds. A majority of the members of the Board shall

constitute a quorum.

(f ) STAFF. — Any employee of the Federal Government

may be detailed to the Board, with the agreement of and

without reimbursement to the detailing agency, and such

detail shall be without interruption or loss of civil,

military, or foreign service status or privilege.

(g) SECURITY. —

(1) The members and staff of the Board shall, as a condition

of appointment to or employment with the Board, hold

appropriate security clearances for access to the classified

records and materials to be reviewed by the Board or its

staff, and shall follow the guidance and practices on security

under applicable Executive orders and Presidential or

agency directives.

(2) The head of an agency shall, as a condition of granting

access to a member of the Board, the Executive Secretary

of the Board, or a member of the staff of the Board to

classified records or materials of the agency under this title,

require the member, the Executive Secretary, or the

member of the staff, as the case may be, to —

(A) execute an agreement regarding the security of such

records or materials that is approved by the head of the .

agency; and

(B) hold an appropriate security clearance granted or

recognized under the standard procedures and eligibility

criteria of the agency, including any special access

approval required for access to such records or materials.

(3) The members of the Board, the Executive Secretary of

the Board, and the members of the staff of the Board may

not use any information acquired in the course of their

official activities on the Board for nonofficial purposes.

(4) For purposes of any law or regulation governing access

to classified information that pertains to the national

security of the United States, and subject to any limitations

on access arising under section 706(b), and to facilitate the

advisory functions of the Board under this title, a member

of the Board seeking access to a record or material under

this title shall be deemed for purposes of this subsection to

have a need to know the contents of the record or material.

(h) COMPENSATION. —

(1) Each member of the Board shall receive compensation

at a rate not to exceed the daily equivalent of the annual

rate of basic pay payable for positions at ES–1 of the Senior

Executive Service under section 5382 of title 5, United

States Code, for each day such member is engaged in the

actual performance of duties of the Board.

42
(2) Members of the Board shall be allowed travel expenses,

including per diem in lieu of subsistence at rates authorized

for employees of agencies under subchapter I of chapter 57

of title 5, United States Code, while away from their homes

or regular places of business in the performance of the

duties of the Board.

(i) GUIDANCE; ANNUAL BUDGET. —

(1) On behalf of the President, the Assistant to the

President for National Security Affairs shall provide

guidance on policy to the Board.

(2) The Executive Secretary of the Board, under the

direction of the Chairperson of the Board and the Board,

and acting in consultation with the Archivist of the United

States, the Assistant to the President for National Security

Affairs, and the Director of the Office of Management and

Budget, shall prepare the annual budget of the Board.

(j) SUPPORT. — The Information Security Oversight

Office may support the activities of the Board under

this title. Such support shall be provided on a

reimbursable basis.

(k) PUBLIC AVAILABILITY OF RECORDS AND

REPORTS. —

(1) The Board shall make available for public inspection

records of its proceedings and reports prepared in the

course of its activities under this title to the extent such

records and reports are not classified and would not be

exempt from release under the provisions of section 552

of title 5, United States Code.

(2) In making records and reports available under

paragraph (1), the Board shall coordinate the release of

such records and reports with appropriate officials from

agencies with expertise in classified information in order to

ensure that such records and reports do not inadvertently

contain classified information.

(l) APPLICABILITY OF CERTAIN

ADMINISTRATIVE LAWS. — The provisions of the

Federal Advisory Committee Act (5 U.S.C. App.) shall

not apply to the activities of the Board under this title.

However, the records of the Board shall be governed

by the provisions of the Federal Records Act of 1950.

SEC. 704. IDENTIFICATION, COLLECTION,

AND REVIEW FOR DECLASSIFICATION OF

INFORMATION OF ARCHIVAL VALUE OR

EXTRAORDINARY PUBLIC INTEREST.

(a) BRIEFINGS ON AGENCY DECLASSIFICATION

PROGRAMS. —

(1) As requested by the Board, or by the Select Committee

on Intelligence of the Senate or the Permanent Select

Committee on Intelligence of the House of Representatives,

the head of any agency with the authority under an

Executive order to classify information shall provide to the

Board, the Select Committee on Intelligence of the Senate,

or the Permanent Select Committee on Intelligence of the

House of Representatives, on an annual basis, a summary

briefing and report on such agency’s progress and plans in

the declassification of national security information. Such

briefing shall cover the declassification goals set by statute,

regulation, or policy, the agency’s progress with respect to

such goals, and the agency’s planned goals and priorities

for its declassification activities over the next 2 fiscal years.

Agency briefings and reports shall give particular attention

to progress on the declassification of records and materials

that are of archival value or extraordinary public interest to

the people of the United States.

(2)(A) The annual briefing and report under paragraph (1)

for agencies within the Department of Defense, including

the military departments and the elements of the

intelligence community, shall be provided on a

consolidated basis.

(B) In this paragraph, the term ‘‘elements of the

intelligence community’’ means the elements of the

intelligence community specified or designated under

section 3(4) of the National Security Act of 1947 (50

U.S.C. 401a(4)).

(b) RECOMMENDATIONS ON AGENCY

DECLASSIFICATION PROGRAMS. —

(1) Upon reviewing and discussing declassification plans and

progress with an agency, the Board shall provide to the head

of the agency the written recommendations of the Board as

to how the agency’s declassification program could be

improved. A copy of each recommendation shall also be

submitted to the Assistant to the President for National

Security Affairs and the Director of the Office of

Management and Budget.

(2) Consistent with the provisions of section 703(k),

the Board’s recommendations to the head of an agency

under paragraph (1) shall become public 60 days after such

recommendations are sent to the head of the agency under

that paragraph.

(c) RECOMMENDATIONS ON SPECIAL SEARCHES

FOR RECORDS OF EXTRAORDINARY PUBLIC

INTEREST. —

(1) The Board shall also make recommendations to the

President regarding proposed initiatives to identify, collect,

and review for declassification classified records and

materials of extraordinary public interest.

(2) In making recommendations under paragraph (1),

the Board shall consider the following:

(A) The opinions and requests of Members of Congress,

including opinions and requests expressed or embodied

in letters or legislative proposals, and also including

specific requests for the declassification of certain records

or for the reconsideration of declinations to declassify

specific records.

(B) The opinions and requests of the National Security

Council, the Director of Central Intelligence, and the

heads of other agencies.

43
(C) The opinions of United States citizens.

(D) The opinions of members of the Board.

(E) The impact of special searches on systematic and

all other on-going declassification programs.

(F) The costs (including budgetary costs) and the

impact that complying with the recommendations

would have on agency budgets, programs, and

operations.

(G) The benefits of the recommendations.

(H) The impact of compliance with the

recommendations on the national security of the

United States.

(d) PRESIDENT’S DECLASSIFICATION

PRIORITIES. —

(1) Concurrent with the submission to Congress of the

budget of the President each fiscal year under section 1105

of title 31, United States Code, the Director of the Office

of Management and Budget shall publish a description of

the President’s declassification program and priorities,

together with a listing of the funds requested to implement

that program.

(2) Nothing in this title shall be construed to substitute

or supersede, or establish a funding process for, any

declassification program that has been established or may

be established by the President by Executive order.

(e) DECLASSIFICATION REVIEWS. —

(1) IN GENERAL – If requested by the President, the

Board shall review in a timely manner certain records or

declinations to declassify specific records, the declassification

of which has been the subject of specific congressional

request described in section 703(b)(5).

(2) AUTHORITY OF THE BOARD – Upon receiving

a congressional request described in section 703(b)(5),

the Board may conduct the review and make the

recommendations described in that section, regardless of

whether such a review is requested by the President.

(3) REPORTING – Any recommendations submitted to

the President by the Board under section 703(b)(5), shall

be submitted to the chairman and ranking member of the

committee of Congress that made the request relating to

such recommendations.

SEC. 705. PROTECTION OF NATIONAL

SECURITY INFORMATION AND OTHER

INFORMATION.

(a) IN GENERAL. — Nothing in this title shall be

construed to limit the authority of the head of an agency

to classify information or to continue the classification

of information previously classified by that agency.

(b) SPECIAL ACCESS PROGRAMS. — Nothing in this

title shall be construed to limit the authority of the head

of an agency to grant or deny access to a special access

program.

(c) AUTHORITIES OF DIRECTOR OF CENTRAL

INTELLIGENCE. — Nothing in this title shall be

construed to limit the authorities of the Director of

Central Intelligence as the head of the intelligence

community, including the Director’s responsibility to

protect intelligence sources and methods from

unauthorized disclosure as required by section 103(c)(6)

of the National Security Act of 1947 (50 U.S.C. 403–

3(c)(6)).

(d) EXEMPTIONS TO RELEASE OF

INFORMATION. — Nothing in this title shall be

construed to limit any exemption or exception to the

release to the public under this title of information that is

protected under subsection (b) of section 552 of title 5,

United States Code (commonly referred to as the

‘‘Freedom of Information Act’’), or section 552a of title 5,

United States Code (commonly referred to as the

‘‘Privacy Act’’).

(e) WITHHOLDING INFORMATION FROM

CONGRESS. — Nothing in this title shall be construed to

authorize the withholding of information from Congress.

SEC. 706. STANDARDS AND PROCEDURES.

(a) LIAISON. —

(1) The head of each agency with the authority under an

Executive order to classify information and the head of each

Federal Presidential library shall designate an employee of

such agency or library to act as liaison to the Board for

purposes of this title.

(2) The Board may establish liaison and otherwise consult

with such other historical and advisory committees as the

Board considers appropriate for purposes of this title.

(b) LIMITATIONS ON ACCESS. —

(1) (A) Except as provided in paragraph (2), if the head

of an agency or the head of a Federal Presidential library

determines it necessary to deny or restrict access of the

Board, or of the agency or library liaison to the Board, to

information contained in a record or material, in whole or

in part, the head of the agency or the head of the library

shall promptly notify the Board in writing of such

determination.

(B) Each notice to the Board under subparagraph (A)

shall include a description of the nature of the records

or materials, and a justification for the determination,

covered by such notice.

44
(2) In the case of a determination referred to in paragraph (1)

with respect to a special access program created by the

Secretary of Defense, the Director of Central Intelligence,

or the head of any other agency, the notification of denial

of access under paragraph (1), including a description of the

nature of the Board’s request for access, shall be submitted

to the Assistant to the President for National Security Affairs

rather than to the Board.

(c) DISCRETION TO DISCLOSE. — At the conclusion

of a declassification review, the head of an agency may, in

the discretion of the head of the agency, determine that the

public’s interest in the disclosure of records or materials

of the agency covered by such review, and still properly

classified, outweighs the Government’s need to protect

such records or materials, and may release such records

or materials in accordance with the provisions of Executive

Order No. 12958 or any successor order to such

Executive order.

(d) DISCRETION TO PROTECT. — At the conclusion

of a declassification review, the head of an agency may, in

the discretion of the head of the agency, determine that

the interest of the agency in the protection of records or

materials of the agency covered by such review, and still

properly classified, outweighs the public’s need for access

to such records or materials, and may deny release of such

records or materials in accordance with the provisions of

Executive Order No. 12958 or any successor order to such

Executive order.

(e) REPORTS. —

(1) (A) Except as provided in paragraph (2), the Board

shall annually submit to the appropriate congressional

committees a report on the activities of the Board under

this title, including summary information regarding any

denials to the Board by the head of an agency or the head

of a Federal Presidential library of access to records or

materials under this title.

(B) In this paragraph, the term ‘‘appropriate

congressional committees’’ means the Select Committee

on Intelligence and the Committee on Governmental

Affairs of the Senate and the Permanent Select

Committee on Intelligence and the Committee on

Government Reform of the House of Representatives.

(2) Notwithstanding paragraph (1), notice that the Board

has been denied access to records and materials, and a

justification for the determination in support of the denial,

shall be submitted by the agency denying the access

as follows:

(A) In the case of the denial of access to a special access

program created by the Secretary of Defense, to the

Committees on Armed Services and Appropriations of

the Senate and to the Committees on Armed Services

and Appropriations of the House of Representatives.

(B) In the case of the denial of access to a special access

program created by the Director of Central Intelligence,

or by the head of any other agency (including the

Department of Defense) if the special access program

pertains to intelligence activities, or of access to any

information and materials relating to intelligence sources

and methods, to the Select Committee on Intelligence

of the Senate and the Permanent Select Committee on

Intelligence of the House of Representatives.

(C) In the case of the denial of access to a special access

program created by the Secretary of Energy or the

Administrator for Nuclear Security, to the Committees

on Armed Services and Appropriations and the Select

Committee on Intelligence of the Senate and to the

Committees on Armed Services and Appropriations and

the Permanent Select Committee on Intelligence of the

House of Representatives.

(f) NOTIFICATION OF REVIEW. — In response to a

specific congressional request for declassification review

described in section 703(b)(5), the Board shall advise the

originators of the request in a timely manner whether the

Board intends to conduct such review.

SEC. 707. JUDICIAL REVIEW.

Nothing in this title limits the protection afforded to any

information under any other provision of law. This title is not

intended and may not be construed to create any right or

benefit, substantive or procedural, enforceable against the

United States, its agencies, its officers, or its employees.

This title does not modify in any way the substantive criteria

or procedures for the classification of information, nor does

this title create any right or benefit subject to judicial review.

SEC. 708. FUNDING.

(a) AUTHORIZATION OF APPROPRIATIONS. —

There is hereby authorized to be appropriated to carry out

the provisions of this title amounts as follows:

(1) For fiscal year 2001, $650,000.

(2) For each fiscal year after fiscal year 2001, such sums as

may be necessary for such fiscal year.

(b) FUNDING REQUESTS. — The President shall

include in the budget submitted to Congress for each fiscal

year under section 1105 of title 31, United States Code,

a request for amounts for the activities of the Board under

this title during such fiscal year.

SEC. 709. DEFINITIONS.

In this title:

(1) AGENCY. —

(A) Except as provided in subparagraph (B), the term

‘‘agency’’ means the following:

(i) An Executive agency, as that term is defined in

section 105 of title 5, United States Code.

(ii) A military department, as that term is defined in

section 102 of such title.

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(iii) Any other entity in the executive branch that

comes into the possession of classified information.

(B) The term does not include the Board.

(2) CLASSIFIED MATERIAL OR RECORD. —

The terms ‘‘classified material’’ and ‘‘classified record’’

include any correspondence, memorandum, book, plan,

map, drawing, diagram, pictorial or graphic work,

photograph, film, microfilm, sound recording, videotape,

machine readable records, and other documentary material,

regardless of physical form or characteristics, that has been

determined pursuant to Executive order to require

protection against unauthorized disclosure in the interests

of the national security of the United States.

(3) DECLASSIFICATION. — The term ‘‘declassification’’

means the process by which records or materials that have

been classified are determined no longer to require

protection from unauthorized disclosure to protect the

national security of the United States.

(4) DONATED HISTORICAL MATERIAL. — The term

‘‘donated historical material’’ means collections of personal

papers donated or given to a Federal Presidential library or

other archival repository under a deed of gift or otherwise.

(5) FEDERAL PRESIDENTIAL LIBRARY. — The term

‘‘Federal Presidential library’’ means a library operated and

maintained by the United States Government through the

National Archives and Records Administration under the

applicable provisions of the Federal Records Act of 1950.

(6) NATIONAL SECURITY. — The term ‘‘national

security’’ means the national defense or foreign relations

of the United States.

(7) RECORDS OR MATERIALS OF EXTRAORDINARY

PUBLIC INTEREST. — The term ‘‘records or materials of

extraordinary public interest’’ means records or materials

that —

(A) demonstrate and record the national security

policies, actions, and decisions of the United States,

including —

(i) policies, events, actions, and decisions which led

to significant national security outcomes; and

(ii) the development and evolution of significant

United States national security policies, actions,

and decisions;

(B) will provide a significantly different perspective in

general from records and materials publicly available in

other historical sources; and

(C) would need to be addressed through ad hoc record

searches outside any systematic declassification program

established under Executive order.

(8) RECORDS OF ARCHIVAL VALUE. — The term

‘‘records of archival value’’ means records that have been

determined by the Archivist of the United States to have

sufficient historical or other value to warrant their

continued preservation by the Federal Government.

SEC. 710. EFFECTIVE DATE; SUNSET.

(a) EFFECTIVE DATE. — This title shall take effect on

the date that is 120 days after the date of the enactment

of this Act.

(b) SUNSET. — The provisions of this title shall expire on

December 31, 2012, unless reauthorized by statute.

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PUBLIC INTEREST

DECLASSIFICATION BOARD

c/o Information Security Oversight Office

700 Pennsylvania Avenue, NW,

Room 503

Washington, DC 20408-0001

Telephone: (202) 357-5250

Fax: (202) 357-5907