II 116th CONGRESS 2d Session S. 4806 IN THE SENATE OF THE UNITED STATES October 19, 2020 Mr. Murphy (for himself and Mr. Wyden ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To establish the Interagency Security Classification Appeals Panel, to provide agency and higher level reviews of classification decisions, to provide expedited review of classification decisions for members of Congress, and to provide protections for those challenging classification decisions, and for other purposes.

1. Short title This Act may be cited as the Transparency in Classification Act of 2020 . 2. Findings Congress makes the following findings: (1) A fundamental tenet of democracy is the consent of the governed, which requires public knowledge of governmental actions. As a result, few government powers are more sacred than the ability to decide which information should be withheld from the public. (2) The protection of our national security requires that some of the work of the United States Government be done such that this information is protected if its disclosure could cause serious or grave harm to national security and if such harm does not outweigh the public's right to know. (3) Although the executive branch of the Federal Government has a responsibility to weigh the public's right to know when making classification decisions, it does not always do so due to errors of commission and omission. (4) In order to ensure an informed public while simultaneously protecting certain information that would harm national security if divulged, checks and balances are needed for the classification system. (5) Congress, by virtue of its vital role in oversight, has an interest and responsibility to address abuse and improper classification by the executive branch of the Federal Government. (6) Although section 552 of title 5, United States Code (commonly known as the Freedom of Information Act ) and other public access tools, including Mandatory Declassification Review pursuant to section 3.5 of Executive Order 13526 ( 50 U.S.C. 3161 note; relating to classified national security information), provide venues for declassifying records that would not harm national security if divulged, the lengthy time frame for these appeals renders them ineffective in nourishing vital public debate. (7) An accurate and limited classification system supports both the public's right to know and government effectiveness through enabling policy coordination, reducing costs of maintaining information that need not be classified, and protecting the integrity of the classification system. (8) The national security of the United States is enhanced both by laws permitting national security agencies to occasionally limit access to sensitive national security information through the classification system, such as Executive Order 13526 ( 50 U.S.C. 3161 note; relating to classified national security information), and by an open debate on decisions that affect the national security of the United States. Both are central to the proper functioning of the political institutions and democracy of the United States. (9) Allowing limitations on access as described in paragraph (8) presents a potential for abuse, where embarrassing or inconvenient information could be classified for reasons other than national security. This is prohibited by law, including by section 1.7 of Executive Order 13526 ( 50 U.S.C. 3161 note; relating to classified national security information). (10) Ensuring national security agencies use classification powers judiciously and in accordance with the laws described in paragraph (8) requires a recourse for authorized classification holders, including all members of Congress, to challenge classifications decisions of agencies and appeal agency-level classification decisions to an independent body. (11) Since 1995, the Interagency Security Classification Appeals Panel (ISCAP) has provided the public and users of the classification system with a valuable forum for further review of classification decisions. (12) Since the founding of the Interagency Security Classification Appeals Panel, however, the work of the Panel has been constrained by a lack or resources, including classified communication technology and dedicated staff, as well as limited progress on much-needed governmentwide modernization of the classification system. This has created a backlog of more than 1,000 cases. (13) Since 2000, the Public Interest Declassification Board (PIDB) has provided a vital role in supporting the public interest in classification policy and classification decisions, including the vital role of responding to requests from Congress to consider the classification decisions of specific records. This advisory role plays a separate, complementary role to the Interagency Security Classification Appeals Panel, which is able to declassify records through its appeal function. (14) Section 2302(b)(9)(A) of title 5, United States Code, prohibits the head of an agency from taking or failing to take, or threatening to take or fail to take, a personnel action against certain employees because of the exercise of an appeal, complaint, or grievance right granted by any provision of law. 3. Definitions In this Act: (1) Agency, classified material or record, declassification, and national security The terms agency , classified material , classified record , declassification , and national security have the meanings given such terms in section 709 of the Public Interest Declassification Act of 2000 ( Public Law 106–567 ; 50 U.S.C. 3355g ). (2) Authorized users of the classification system The term authorized user of the classification system means an official or contractor of the Federal Government who is authorized to access classified material or records. (3) Classification decision (A) In general The term classification decision , means a decision regarding whether 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, requires protection against unauthorized disclosure in the interests of the national security of the United States. (B) Inclusion Such term includes the following: (i) An original classification decision. (ii) A decision creating a derivative classification. (iii) A decision creating a classification by compilation. (iv) Any decision creating any similar classification pursuant to a provision of law in effect on the day before the date of the enactment of this Act. (4) Panel The term Panel means the Interagency Security Classification Appeals Panel established under section 4(a). 4. Interagency Security Classification Appeals Panel (a) Establishment There is established within the executive branch of the United States a panel to be known as the Interagency Security Classification Appeals Panel . (b) Purposes The purposes of the Panel are as follows: (1) To provide the public and authorized users of the classification system, including members of Congress and employees and contractors of the legislative branch of the Federal Government who are authorized users of the classification system, with a forum for further review of classification decisions made by the heads of agencies. (2) To provide a member of Congress a mechanism for expedited review of a classification decision that is relevant to an active public policy debate. (c) Duties The duties of the Panel are as follows: (1) Carrying out such activities as may be necessary for the purposes set forth under subsection (b). (2) Conducting reviews under section 5(b). (3) Such other duties as may be identified by the President. (d) Membership (1) Composition Subject to paragraphs (2) and (3), the Panel shall be composed of 6 members, each of whom shall be appointed by one of the following: (A) The Secretary of State. (B) The Secretary of Defense. (C) The Attorney General. (D) The Archivist of the United States. (E) The Director of National Intelligence. (F) The National Security Advisor. (2) Additional members under certain circumstances (A) Matters concerning the Central Intelligence Agency Subject to paragraph (3), when the Panel deliberates a matter concerning classified material or records that originated with the Central Intelligence Agency or when dealing with a support activity associated with such a classified material or record, the Panel shall, at the discretion of the Director of the Central Intelligence Agency, consist of 7 members as follows: (i) The 6 members of the Panel appointed under paragraph (1). (ii) One member appointed by the Director of the Central Intelligence Agency. (B) Matters concerning Congress Subject to paragraph (3)(B), when the Panel deliberates a matter concerning classified material or records relating to congressional requests or reporting requirements, the Panel shall consist of 8 members as follows: (i) The 6 members of the Panel appoints under paragraph (1). (ii) One member chosen by the Secretary of the Senate. (iii) One member chosen by the Clerk of the House of Representatives. (3) Qualifications and status (A) Federal employee status Each member of the Panel under paragraphs (1) and (2)(A) shall be a full-time or permanent employee of the Federal Government who is in a senior-level position, such as a member of the Senior Executive Service. (B) Security clearance An individual may not be selected to be a member of the Panel unless, as of the day before the date of such selection, the individual had a security clearance at a level appropriate for purposes of serving as a member of the Panel. (4) Chairperson (A) In general The members of the Panel appointed under paragraph (1) shall designate a chairperson from among the members of the Panel. (B) Reporting The chairperson of the Panel shall report directly to the Director of the Information Security Oversight Office of the National Archives and Records Administration. (e) Administration (1) Executive secretary The Director of the Information Security Oversight Office of the National Archives and Records Administration shall serve as the executive secretary of the Panel. (2) Program and administrative support The Director shall provide program and administrative support for the Panel. (3) Bylaws Not later than 180 days after the date of the enactment of this Act, the Panel shall publish bylaws that clearly show how individuals described in section 5(b)(1)(A) may submit requests under such section. (f) Public observer (1) In general The Panel shall select a highly qualified, public observer who shall— (A) participate in activities and deliberations of the Panel; (B) aid in transparency and provide an external, historical perspective to inform Panel deliberations; and (C) be vetted and provided an interim and permanent security clearance. (2) Qualifications The Panel shall ensure that a person selected to serve as a public observer under paragraph (1)— (A) has significant experience in examining and assessing public access to classified files or decisions in an academic, historic, or advocacy role; (B) has a history of independence and nonpartisan advocacy for transparency and open debate relating to government records; and (C) at the time of selection is not serving in a publicly elected office and has not served in a partisan elected office at any time during the 5-year period ending on the date of selection. 5. Agency and higher level review of classification decisions (a) Agency review of classification decisions (1) In general Each head of an agency shall establish a process under which— (A) an individual who is eligible to access classified material or a classified record that was the subject of a classification decision made by such head may request a review of such classification decision; (B) the head of the agency reviews such classification decision pursuant to such request; and (C) the head of the agency revokes, modifies, or sustains such classification decision. (2) Elements Under a process established by the head of an agency under paragraph (1)— (A) an individual who is eligible to access classified material or a classified record that was the subject of a classification decision made by such head shall be able to request a review of such decision by submitting to the head, at any time, the request in writing; (B) except as provided in subparagraph (C), for each request the head of the agency receives under subparagraph (A) regarding a classification decision of the head of the agency, the head of the agency shall— (i) not later than 60 days after the date on which the head of the agency receives the request, respond to the request by providing the requestor with— (I) an acknowledgment that the head of the agency received the request; and (II) a notice estimating when the head of the agency will complete a review of the request under subparagraph (B) of paragraph (1) and act on the request under subparagraph (C) of such paragraph; and (ii) not later than 120 days after the date on which the head of the agency receives the request— (I) complete a review of the request pursuant to subparagraph (B) of paragraph (1); and (II) pursuant to such review, act on the request under subparagraph (C) of such paragraph; (C) the head of the agency is not required to review a classification decision as described in subparagraph (B) of paragraph (1) or take an action under subparagraph (C) of such paragraph if the classification decision was already reviewed pursuant to a substantially similar request under this subsection during the most recently 2-year period; (D) the head of the agency may review a classification decision pertaining to classified material or a classified record that is subject to a request under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act ); (E) requests for review under this subsection and responses to such requests are not themselves treated as classified material or classified records; (F) any classified material or classified record that is the subject of a request under this subsection remains classified under this subsection until the head of the agency changes such classification under paragraph (1)(C) or such classification is changed by the Panel under subsection (b)(3); and (G) priority is given to the review of a classification decision when an expedited review has been requested under subsection (d)(2). (b) Appeals for higher level review (1) Submittal (A) In general An individual who is eligible to access classified material or a classified record that was the subject of a classification decision made by the head of an agency may submit to the Panel a request to review such classification decision. (B) Manner A request submitted under subparagraph (A) shall be submitted in writing. (C) Content (i) In general Except as provided in clause (ii), a request submitted under subparagraph (A) need not be more specific than questioning why classified material or a classified record is or is not classified at a certain level. (ii) Minimum information A request submitted under subparagraph (A) with respect to a classification decision shall contain enough information to enable the executive secretary of the Panel to obtain pertinent documents about the request and the classification decision. (iii) No classified information (I) In general Except as provided in subclause (II), a request submitted under subparagraph (A) shall not include any classified material or records. (II) Arrangements If it is impossible for an individual to request under subparagraph (A) a review of a classification decision without submitting classified material or a classified record along with the request, the submitter of the request may do so after first contacting the Panel and making prior arrangements for submittal of the classified material or classified record. (D) Electronic submission The Panel shall establish and publicly announce an electronic mail address to which requests may be submitted under subparagraph (A). (E) Timeliness of requests A requests submitted to the Panel under subparagraph (A) shall be submitted not later than 60 days after— (i) in a case in which the head of an agency provides a response to the submitter of the request in accordance with subsection (a)(2)(B), the date of the final agency decision arrived at pursuant to a review carried out pursuant to the request; or (ii) in a case in which the head of the agency fails to respond to the request in accordance with subsection (a)(2)(B), the date that is 60 days after the date on which the request was submitted to the head of the agency. (F) Rejection of requests If the executive secretary of the Panel determines that a request submitted under subparagraph (A) is not submitted in accordance with the requirements of this section, the executive secretary shall— (i) notify the submitter of the request, in writing, that the request was not submitted in accordance with the requirements of this section; and (ii) explain in detail how the request is deficient. (2) Review The Panel shall review the following: (A) A classification decision of the head of an agency pursuant to a request for review submitted under paragraph (1)(A), in a case in which the submitter of the request— (i) previously submitted a request for review of the classification decision to the head of the agency in accordance with the process established by the head of the agency under subsection (a); and (ii) (I) received, pursuant to such process, a final decision arrived at pursuant to a review conducted pursuant to the request; or (II) did not receive a response as required by subsection (a)(2)(B). (B) A classification decision of the head of an agency pursuant to a request for expedited review for Congress submitted under subsection (d)(3). (3) Resolution (A) In general After reviewing a classification decision of the head of an agency under paragraph (2) and using past precedent to inform and to improve the efficiency of decision making, the Panel may, pursuant to a vote of the members of the panel— (i) affirm the classification decision or a decision of the head arrived at pursuant to a review conducted pursuant to the process established by the head under subsection (a); (ii) reverse a decision described in clause (i), in whole or in part; or (iii) engage in dialogue with the head of the agency for further consideration of a decision described in clause (i). (B) Votes A decision to reverse under subparagraph (A)(ii) shall be made with an affirmative vote of at least a majority of the members of the Panel present for the vote. (C) Notification Not later than 2 business days after the Panel decides to take an action under subparagraph (A) pursuant to a request for a review of a classification decision of the head of an agency, the executive secretary of the Panel shall notify the submitter of the request and the head of the agency in writing of the decision of the Panel. (D) Declassification (i) In general Except as provided in clause (ii), 10 days after the executive secretary of the Panel submits notice under subparagraph (C) with respect to a decision of the Panel that classified material or a classified record should be declassified in whole or in part under subparagraph (A), the Panel shall publish notice of the decision of the Panel and the declassified material or record, unless the President overrules the decision of the Panel under subsection (c). (ii) Declassification pursuant to appeals from members of Congress In a case of a decision described in clause (i) that is arrived at pursuant to a request for expedited review for a member of Congress submitted under subsection (d)(3), the Panel shall carry out clause (i) as if the reference to 10 days were a reference to 2 days . (4) Administrative matters (A) Notice to agency heads If the Panel receives a request under paragraph (1)(A) with respect to a classification decision of the head of an agency, the executive secretary of the Panel shall notify the head of the agency of such request. (B) Preparation of files For each request received by the Panel under paragraph (1)(A) pursuant to which the Panel will review a classification decision, the executive secretary of the Panel shall prepare a file and present pertinent portions of such file to the members of the Panel before any votes are taken with respect to the review. (C) Classified material and records (i) In general After receiving a request under paragraph (1)(A) for review of a classification decision of the head of an agency, the executive secretary of the Panel shall arrange for the transmittal of relevant classified material and records from the agency. (ii) Cooperation Each head of an agency that receives a request from the executive secretary of the Panel for classified material or records that pertain to the review of a classification decision of the head pursuant to a request submitted under paragraph (1)(A) or a mandatory declassification review shall, within 3 business days— (I) transmit the requested classified material, records, and documents to the executive secretary of the Panel; or (II) provide the executive secretary of the Panel with access to such material, records, and documents. (D) Website (i) In general The Panel shall make available to the public on the website of the Panel the following: (I) A log of all requests for review submitted to the Panel under paragraph (1)(A). (II) The status of each request logged under subclause (I). (III) A log of all actions taken and decisions made by the Panel under paragraph (3)(A). (IV) A justification for each decision logged under subclause (III). (ii) Requirements (I) In general The Panel shall ensure that the website of the Panel serves as a public record to streamline decision making of the Panel and assist those submitting appeals under this section as well as other functions of the Panel in effect pursuant to an Executive order that was in effect before the date of the enactment of this, including functions relating to mandatory declassification review. (II) Technical accessibility Information described in clause (i), and such other information as the Panel considers relevant, shall be published under such clause in a tabular format that is contemporaneously updated and allows for the tracking and monitoring of individual requests. Such action-tracking system shall support the processing of requests and be updated with modern technology and modern formats as the Panel considers appropriate. (5) Protection of classified material and records Any classified material or record that is the subject of a classification decision that is the subject of a request for review under this subsection shall remain classified unless and until a final decision is made to declassify it. (6) Maintenance of files The executive secretary of the Panel shall maintain the files and records of the Panel pertaining to requests for review under this subsection in accordance with chapter 22 of title 44, United States Code (known as the Presidential Records Act ). (c) Review by the President (1) Petition for review (A) In general Except as provided in subparagraph (B), during the 10-day period beginning on the date on which the head of an agency receives a notice under subparagraph (C) of subsection (b)(3) that the Panel has decided to take an action under subparagraph (A) of such subsection with respect to a classification decision or other decision of the head of agency, the head of the agency may submit to the President a petition to reverse or modify the decision of the Panel. (B) Petition period for decisions pursuant to appeals from members of Congress In a case of a decision to act as described in subparagraph (A) that is arrived at pursuant to a request for expedited review for a member of Congress submitted under subsection (d)(3), subparagraph (A) shall apply as if the reference to 10-day period were a reference to 2-day period . (2) Review and resolution (A) In general In response to a petition under paragraph (1), the President may overrule or modify any decision of the Panel described in the petition. (B) Publication In a case in which the President acts to overrule or modify a decision of the Panel under subparagraph (A), such act shall be published under subsection (b)(4)(D) in the same manner as an action or decision of the Panel. (d) Review for members of Congress (1) Treatment of members of Congress (A) Authority A member of Congress may submit a request under subsection (a) for review of a classification decision of the head of an agency. (B) Treatment For purposes of this section and except as otherwise provided in this section, a member of Congress shall be treated as an individual who is eligible to access the classified material or a classified record that was the subject of a classification decision. (2) Expedited agency review for members of Congress (A) In general When a member of Congress submits a request under subsection (a) for review of the classification decision of the head of an agency and the member of Congress is a member of a committee of Congress that has jurisdiction over such agency, the member of Congress may request that the review be conducted on an expedited basis. (B) Contents A request submitted under subparagraph (A) for expedited review of a classification decision shall include the following: (i) An indication that the member of Congress is requesting an expedited review of the classification decision. (ii) A justification described in subparagraph (C). (C) Justification (i) In general A justification described in this subparagraph regarding a request for an expedited review of a classification decision regarding classified materials or records is an explanation of the public interest in an expedited public release and access to such classified materials or records. (ii) Justification requiring classified material or records In a case in which a justification cannot be made under subparagraph (B)(ii) by a member of Congress without the use or presentation of classified material or records, the member of Congress shall make a prior arrangement with the head of the agency for such presentation. (3) Expedited higher level review for members of Congress (A) In general Under any of the circumstances described in subparagraph (B), a member of Congress may submit a request to the Panel for expedited review of a classification decision of the head of an agency or a decision of the head of an agency reached pursuant to a review under subsection (a). (B) Circumstances The circumstances described in the subparagraph are the circumstances in which a member of Congress— (i) submits to the head of an agency a request for a review of the classification decision of the head of the agency under subsection (a); (ii) the member of Congress is a member of a committee of Congress that has jurisdiction over such agency; and (iii) (I) the member of Congress is not satisfied with the response of the head of the agency under such subsection; (II) the member of Congress does not receive a response from the head of the agency in 5 or fewer business days regarding the request for review; or (III) the head of the agency does not complete the requested review and decide on the matter set forth in the request in 10 or fewer business days. (C) Contents A request submitted under subparagraph (A) shall include the following: (i) An indication that the member of Congress is requesting an expedited review of the classification decision. (ii) A justification described in subparagraph (D). (D) Justification (i) In general A justification described in this subparagraph regarding a request for an expedited review of a decision concerning a classification decision that pertains to classified materials or records is an explanation of the public interest in an expedited public release and access to such classified materials or records. (ii) Justification requiring classified material or records In a case in which a justification cannot be made under subparagraph (C)(ii) by a member of Congress without the use or presentation of classified material or records, the member of Congress shall make a prior arrangement with the Panel for such presentation. (E) Priority consideration If the Panel receives a request under subparagraph (A) and determines that the justification included under subparagraph (C)(ii) is valid, the Panel shall prioritize review of the matters covered by the request over all other pending reviews before the Panel. (e) Right to informal inquiry (1) In general An individual who is eligible to access classified material or a classified record may informally question the classification of such material or record. (2) Sense of Congress It is the sense of Congress that an individual who is eligible to access classified material or a classified record and who wishes to challenge such classification should do so informally before submitting a request for review under subsection (a). (f) Protections (1) Definitions In this subsection: (A) Contractor employee The term contractor employee means an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, of an agency. (B) Covered individual The term covered individual means an employee of an agency or a contractor employee— (i) who, under this section, is eligible to request a review of a classification decision; and (ii) for whom the protection under section 2302(b)(9) of title 5, United States Code, does not apply. (C) Personnel action The term personnel action means, with respect to a covered individual— (i) an appointment; (ii) a promotion; (iii) an action under chapter 75 of title 5, United States Code, or other disciplinary or corrective action; (iv) a detail, transfer, or reassignment; (v) a reinstatement; (vi) a restoration; (vii) a reemployment; (viii) a performance evaluation under chapter 43 of title 5, United States Code, or under title 38, United States Code; (ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph; (x) a decision to order psychiatric testing or examination; (xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and (xii) any other significant change in duties, responsibilities, or working conditions. (2) Prohibition Any employee of an agency or contractor employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take, or threaten to take or fail to take, any personnel action against any covered individual because the covered individual— (A) exercises the right of the covered individual under subsection (e) to question informally the classification of a classified material or record; (B) refuses to obey an order that would require the covered individual to violate, with respect to a classification decision, a law, rule, or regulation; or (C) exercises the right of the covered individual, under this section, to request a review of a classification decision. 6. Authorization of appropriations There is authorized to be appropriated to carry out sections 4 and 5, $3,000,000 for fiscal year 2021. 7. Submittal of reports in unclassified form pursuant to War Powers Resolution Section 4 of the War Powers Resolution ( 50 U.S.C. 1543 ) is amended by adding at the end the following new subsection: (d) (1) Each report submitted under subsection (a) shall be submitted in unclassified form, but may include a classified annex. (2) The unclassified portion of each report submitted under subsection (a) shall be made available to the public. . 8. Rules of construction (a) Preservation of authority of President Nothing in this Act shall be construed to alter the authority of the President to determine access to classified material and records. (b) Preservation Nothing in this Act shall be construed to alter a function of the Panel that was in effect pursuant to an Executive order that was in effect before the date of the enactment of this Act and that is not covered by a provision of this Act.