22 C.F.R. Subpart C—Executive Order 12958 Provisions
Title 22 - Foreign Relations
As used in this subpart, the following definitions shall apply: (a) Agency means any executive branch agency, as defined in 5 U.S.C. 105, any military department, as defined by 5 U.S.C. 102, and any other entity within the executive branch that comes into possession of classified information. (b) Classified information means information that has been determined pursuant to E.O. 12958 or any predecessor order on national security information to require protection against unauthorized disclosure and is marked to indicate its classified status when in documentary form. (c) Declassification means the authorized change in the status of information from classified information to unclassified information. (d) Department means the U.S. Department of State, including its field offices and Foreign Service posts abroad. (e) FOIA means the Freedom of Information Act, 5 U.S.C. 552. (f) Foreign government information means: (1) Information provided to the United States Government by a foreign government or governments, an international organization of governments, or any element thereof, with the expectation that the information, the source of the information, or both, are to be held in confidence; (2) Information produced by the United States pursuant to or as a result of a joint arrangement with a foreign government or governments, or an international organization of governments, or any element thereof, requiring that the information, the arrangement, or both, are to be held in confidence; or (3) Information received and treated as foreign government information under the terms of a predecessor executive order. (g) Information means any knowledge that can be communicated or documentary material, regardless of its physical form or characteristics that is owned by, produced by or for, or is under the control of the United States Government. (h) Mandatory declassification review means the process by which specific classified information is reviewed for declassification pursuant to a request under §171.21. (i) National Security means the national defense or foreign relations of the United States. (j) Certain former government personnel includes former officials of the Department of State or other U.S. Government agencies who previously have occupied policy-making positions to which they were appointed by the President under 3 U.S.C. 105(a)(2)(A) or by the Vice President under 3 U.S.C. 106(a)(1)(A). It does not include former Foreign Service Officers as a class or persons who merely received assignment commissions as Foreign Service Officers, Foreign Service Reserve Officers, Foreign Service Staff Officers and employees. (k) Senior Agency Official means the Under Secretary of State for Management. (a) Scope. All information classified under E.O. 12958 or predecessor orders shall be subject to declassification review upon request by a member of the public or a U.S. government employee or agency with the following exceptions: (1) Information originated by the incumbent President or, in the performance of executive duties, the incumbent Vice President; the incumbent President's White House staff or, in the performance of executive duties, the incumbent Vice President's staff; committees, commissions, or boards appointed by the incumbent President; other entities within the Executive Office of the President that solely advise and assist the incumbent President; (2) Information that is the subject of litigation; (3) Information that has been reviewed for declassification within the past two years; and (4) Information exempted from search and review under the Central Intelligence Agency Information Act. (b) Requests. Requests for mandatory declassification review should be addressed to the Information and Privacy Coordinator at the address given in Sec. 171.5. E-mail requests are not accepted at this time. (c) Mandatory declassification review and the FOIA. A mandatory declassification review request is separate and distinct from a request for records under the FOIA. When a requester submits a request under both mandatory declassification review and the FOIA, the Department shall require the requester to elect review under one process or the other. If the requester fails to make such election, the request will be under the process that would result in the greatest disclosure unless the information requested is subject to only mandatory declassification review. (d) Description of information sought. In order to be processed, a request for declassification review must describe the document or the material containing the information sought with sufficient specificity to enable the Department to locate the document or material with a reasonable amount of effort. Whenever a request does not sufficiently describe the material, the Department shall notify the requester that no further action will be taken unless additional description of the information sought is provided. (e) Refusal to confirm or deny existence of information. The Department may refuse to confirm or deny the existence or nonexistence of requested information whenever the fact of existence or nonexistence is itself classified. (f) Processing. In responding to mandatory declassification review requests, the Department shall make a review determination as promptly as possible and notify the requester accordingly. When the requested information cannot be declassified in its entirety, the Department shall release all meaningful portions that can be declassified and that are not exempt from disclosure on other grounds (see §171.25). (g) Other agency information. When the Department receives a request for information in its possession that was originally classified by another agency, it shall refer the request and the pertinent information to the other agency for processing unless that agency has agreed that the Department may review such information for declassification on behalf of that agency. The Department may, after consultation with the other agency, inform the requester of the referral unless association of the other agency with the information is itself classified. (h) Foreign government information. In the case of a request for material containing foreign government information, the Department, if it is also the agency that initially received the foreign government information, shall determine whether the information may be declassified and may, if appropriate, consult with the relevant foreign government on that issue. If the Department is not the agency that initially received the foreign government information, it shall refer the request to the original receiving agency for direct response to the requester. (i) Cryptologic and intelligence information. Mandatory declassification review requests for cryptologic information shall be processed in accordance with special procedures established by the Secretary of Defense, and such requests for information concerning intelligence activities or intelligence sources and methods shall be processed in accordance with special procedures established by the Director of Central Intelligence. Any denial of a mandatory declassification review request may be appealed to the Department's Appeals Review Panel in accordance with §171.52. A denial by the Appeals Review Panel of a mandatory declassification review appeal may be further appealed to the Interagency Security Classification Appeals Panel. It is presumed that information that continues to meet classification requirements requires continued protection. In exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the senior Department official with Top Secret authority having primary jurisdiction over the information in question. That official, after consultation with the Assistant Secretary for Public Affairs, will determine whether the public interest in disclosure outweighs the damage to national security that reasonably could be expected from disclosure. If the determination is made that the information should be declassified and disclosed, that official will make such a recommendation to the Secretary or the senior agency official who shall make the decision on declassification and disclosure. This provision does not amplify or modify the substantive criteria or procedures for classification or create any substantive or procedural right subject to judicial review. (a) The restriction in E.O. 12958 and predecessor orders on limiting access to classified information to individuals who have a need-to-know the information may be waived, under the conditions set forth below, for persons who: (1) Are engaged in historical research projects; (2) Have served as Presidential or Vice Presidential appointees as defined in §171.20(j), or (3) Served as President or Vice President. (b) Requests by such persons must be submitted in writing to the Information and Privacy Coordinator at the address set forth in §171.5 and must include a general description of the records sought, the time period covered by the request, and an explanation why access is sought. Requests for access by such requesters may be granted if: (1) The Secretary or the Senior Agency Official determines in writing that access is consistent with the interests of national security; (2) The requester agrees in writing to safeguard the information from unauthorized disclosure or compromise; (3) The requester submits a statement in writing authorizing the Department to review any notes and manuscripts created as a result of access; (4) The requester submits a statement in writing that any information obtained from review of the records will not be disseminated without the express written permission of the Department; (c) If a requester uses a research assistant, the requester and the research assistant must both submit a statement in writing acknowledging that the same access conditions set forth in paragraph (b)(4) of this section apply to the research assistant. Such a research assistant must be working for the applicant and not gathering information for publication on his or her own behalf. (d) Access granted under this section shall be limited to items the appointee originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or as President or Vice President. (e) Such requesters may seek declassification and release of material to which they have been granted access under this section through either the FOIA or the mandatory declassification review provisions of E.O. 12958. Such requests shall be processed in the order received, along with other FOIA and mandatory declassification review requests, and shall be subject to the fees applicable to FOIA requests. Exemptions from disclosure set forth in the Freedom of Information Act, the Privacy Act, and other statutes or privileges protecting information from disclosure recognized in discovery or other such litigation-related procedures may be applied to withhold information declassified under the provisions of this subpart.
Title 22: Foreign Relations
PART 171—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC
Subpart C—Executive Order 12958 Provisions
§ 171.20 Definitions.
§ 171.21 Declassification review.
§ 171.22 Appeals.
§ 171.23 Declassification in the public interest.
§ 171.24 Access by historical researchers and certain former government personnel.
§ 171.25 Applicability of other laws.
