28 C.F.R. Subpart B—Classified Information
Title 28 - Judicial Administration
(a) Top Secret original classification authority may only be exercised by the Attorney General, the Assistant Attorney General for Administration, and officials to whom such authority is delegated in writing by the Attorney General. No official who is delegated Top Secret classification authority pursuant to this paragraph may redelegate such authority. (b) The Assistant Attorney General for Administration may delegate original Secret and Confidential classification authority to subordinate officials determined to have frequent need to exercise such authority. No official who is delegated original classification authority pursuant to this paragraph may redelegate such authority. (c) Officials authorized to classify information at a specified level are also authorized to classify information at a lower level. In the absence of an official authorized to exercise classification authority pursuant to this section, the person designated to act in lieu of such official may exercise the official's classification authority. (a) Information may be originally classified only if all of the following standards are met: (1) The information is owned by, produced by or for, or is under the control of the United States Government; (2) The information falls within one or more of the categories of information specified in section 1.5 of Executive Order 12958; and (3) The classifying official determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security and such official is able to identify or describe the damage. (b) Information may be classified as Top Secret, Secret, or Confidential according to the standards established in section 1.3 of Executive Order 12958. No other terms shall be used to identify United States classified national security information except as otherwise provided by statute. (c) Information shall not be classified if there is significant doubt about the need to classify the information. If there is significant doubt about the appropriate level of classification with respect to information that is being classified, it shall be classified at the lower classification of the levels considered. (d) Information shall not be classified in order to conceal inefficiency, violations of law, or administrative error; to prevent embarrassment to a person, organization, or agency; to restrain competition; or to prevent or delay release of information that does not require protection in the interest of national security. Information that has been declassified and released to the public under proper authority may not be reclassified. (e) Information that has not previously been disclosed to the public under proper authority may be classified or reclassified after the Department has received a request for it under the Freedom of Information Act (5 U.S.C. 552), the Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory review provisions of §17.31. When it is necessary to classify or reclassify such information, it shall be forwarded to the Department Security Officer and classified or reclassified only at the direction of the Attorney General, the Deputy Attorney General, or the Assistant Attorney General for Administration. (f) Compilations of items of information that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that meets the standards for classification under Executive Order 12958 and that is not otherwise revealed in the individual items of information. (a) Whenever any employee, contractor, licensee, certificate holder, or grantee of the Department who does not have original classification authority originates or develops information that requires immediate classification and safeguarding, and no authorized classifier is available, that person shall: (1) Safeguard the information in a manner appropriate for its classification level; (2) Apply the appropriate overall classification markings; and (3) Within five working days, securely transmit the information to the organization that has appropriate subject matter interest and classification authority. (b) When it is not clear which Department organization would be the appropriate original classifier, the information shall be sent to the Department Security Officer to determine the appropriate organization. (c) The organization with classification authority shall decide within 30 days whether to classify information. (a) At the time of original classification, original classification authorities shall attempt to establish a specific date or event for declassification not more than 10 years from the date of the original decision based on the duration of the national security sensitivity of the information. If the original classification authority cannot determine an earlier specific date or event for declassification, the information shall be marked for declassification 10 years from the date of the original decision. (b) At the time of original classification, an original classification authority may exempt specific information from declassification within 10 years in accordance with section 1.6(d) of Executive Order 12958. (c) An original classification authority may extend the duration of classification or reclassify specific information for successive periods not to exceed 10 years at a time if such action is consistent with the standards and procedures established under, and subject to the limitations of, Executive Order 12958. (a) Classified information must be marked pursuant to the standards set forth in section 1.7 of Executive Order 12958; ISOO implementing directives in 32 CFR 2001, subpart B; and internal Department of Justice direction provided by the Department Security Officer. (b) Foreign government information shall be marked or classified at a level equivalent to that level of classification assigned by the originating foreign government. (c) Information assigned a level of classification under predecessor Executive Orders shall be considered as classified at that level of classification. (a) Persons need not possess original classification authority to derivatively classify information based on source documents or classification guides. (b) Persons who apply derivative classification markings shall observe original classification decisions and carry forward to any newly created documents the pertinent classification markings. (c) Information classified derivatively from other classified information shall be classified and marked in accordance with the standards set forth in sections 2.1–2.3 of Executive Order 12958, the ISOO implementing directives in 32 CFR 2001.22, and internal Department directions provided by the Department Security Officer. (a) Classified information shall be declassified as soon as it no longer meets the standards for classification. Declassification and downgrading is governed by §3.1–3.3 of Executive Order 12958, implementing ISOO directives at 32 CFR 2001, subpart E, and applicable internal Department of Justice direction provided by the Department Security Officer. (b) Information shall be declassified or downgraded by the official who authorized the original classification if that official is still serving in the same position, the originator's successor, or a supervisory official of either, or by officials delegated such authority in writing by the Attorney General or the Assistant Attorney General for Administration. (c) It is presumed that information that continues to meet the classification requirements under Executive Order 12958 requires continued protection. In some exceptional cases during declassification reviews, the need to protect classified information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. If it appears that the public interest in disclosure of the information may outweigh the need to protect the information, the declassification reviewing official shall refer the case with a recommendation for decision to the DRC. The DRC shall review the case and make a recommendation to the Attorney General on whether the public interest in disclosure outweighs the damage to national security that might reasonably be expected from disclosure. The Attorney General shall decide whether to declassify the information. The decision of the Attorney General shall be final. This provision does not amplify or modify the substantive criteria or procedures for classification or create any substantive or procedural rights subject to judicial review. (d) Each component shall develop schedules for declassification of records in the National Archives. The Department shall cooperate with the National Archives and Records Administration and the Presidential Libraries to ensure that declassification is accomplished in a timely manner. (a) Subject to paragraph (b) of this section, all classified information contained in records that are more than 25 years old that have been determined to have permanent historical value shall be declassified automatically on April 17, 2000. Subsequently, all classified information in such records shall be automatically declassified not later than 25 years after the date of its original classification with the exception of specific information exempt from automatic declassification pursuant to section 3.4 (b) and (d) of Executive Order 12958. (b) At least 220 days before information is declassified automatically under this section, the respective component head shall notify the Assistant Attorney General for Administration through the Department Security Officer of any specific information they propose to exempt from automatic declassification. The notification shall include: (1) A description of the information; (2) An explanation of why the information is exempt from automatic declassification and must remain classified for a longer period of time; and (3) A specific date or event for declassification of the information whenever the information exempted does not identify a confidential human source or human intelligence source. (c) Proposed exemptions under this section shall be forwarded to the DRC, which shall recommend a disposition of the exemption request to the Assistant Attorney General for Administration. When the Assistant Attorney General for Administration determines the exemption request is consistent with this section, he or she will submit it to the Executive Secretary of the Interagency Security Classification Appeals Panel. (d) Declassification guides that narrowly and precisely define exempted information may be used to exempt information from automatic declassification. Declassification guides must include the exemption notification information detailed in paragraph (b) of this section, and be approved pursuant to paragraph (c) of this section. The original classification authority, to the greatest extent possible, shall declassify classified information contained in records determined to have permanent historical value under title 44 of the United States Code before they are accessioned into the National Archives. The Department shall cooperate with the National Archives and Records Administration in carrying out an automatic declassification program involving accessioned Department records, presidential papers, and historical materials under the control of the Archivist of the United States. (a) Authorized holders of information classified by the Department who, in good faith, believe that specific information is improperly classified or unclassified are encouraged and expected to challenge the classification status of that information pursuant to section 1.9 of Executive Order 12958. Authorized holders may submit classification challenges in writing to the DRC, through the Office of Information and Privacy, United States Department of Justice, Washington, DC 20530. The challenge need not be more specific than a question as to why the information is or is not classified, or is classified at a certain level. (b) The DRC shall redact the identity of an individual challenging a classification under paragraph (a) of this section and forward the classification challenge to the original classification authority for review and response. (c) The original classification authority shall promptly, and in no case later than 30 days, provide a written response to the DRC. The original classification authority may classify or declassify the information subject to challenge or state specific reasons why the original classification determination was proper. If the original classification authority is not able to response within 30 days, the DRC shall inform the individual who filed the challenge in writing of that fact, and the anticipated determination date. (d) The DRC shall inform the individual challenging the classification of the determination made by the original classification authority and that individual may appeal this determination to the DRC. Upon appeal, the DRC may declassify, or direct the classification of, the information. If the DRC is not able to act on any appeal within 45 days of receipt, the DRC shall inform the individual who filed the challenge in writing of that fact, and the anticipated determination date. (e) The DRC shall provide the individual who appeals a classification challenge determination with a written explanation of the basis for the DRC decision and a statement of his or her right to appeal that determination to the Interagency Security Classification Appeals Panel (ISCAP) pursuant to section 5.4 of Executive Order 12958 and the rules issued by the ISCAP pursuant to section 5.4 of Executive Order 12958. (f) Any individual who challenges a classification and believes that any action has been taken against him or her in retribution because of that challenge shall report the facts to the Office of the Inspector General or the Office of Professional Responsibility, as appropriate. (g) Requests for review of classified material for declassification by persons other than authorized holders are governed by §17.31. (a) Any person may request classified information be reviewed for declassification pursuant to the mandatory declassification review provisions of section 3.6 of Executive Order 12958. After such a review, the information or any reasonably segregable portion thereof that no longer requires protection under this part shall be declassified and released to the requester unless withholding is otherwise warranted under applicable law. If the information, although declassified, is withheld, the requester shall be given a brief statement as to the reasons for denial and a notice of the right to appeal the determination to the Director, Office of Information and Privacy (OIP), United States Department of Justice, Washington, DC 20530. If the mandatory review for declassification request relates to the classification of information that has been reviewed for declassification within the past two years or that is the subject of pending litigation, the requester shall be informed of that fact and the administrative appeal rights. (b) Request for mandatory review for declassification and any subsequent appeal to the DRC shall be submitted to the Director, Office of Information and Privacy, United States Department of Justice, Washington, DC 20530, describing the document or material containing the information with sufficient specificity to enable the Department to locate that information with a reasonable amount of effort. The OIP shall promptly forward the request to the component that originally classified the information, or the DRC in the case of an appeal, and provide the requester with an acknowledgement of receipt of the request. (c) When the description of the information in a request is deficient, the component shall solicit as much additional identifying information as possible from the requestor. Before denying a request on the basis that the information or material is not obtainable with a reasonable amount of effort, the component shall ask the requestor to limit the request to information or material that is reasonably obtainable. If the information or material requested cannot be described in sufficient particularity, or if it cannot be obtained with a reasonable amount of effort, the component shall provide the requestor with written notification of the reasons why no action will be taken and the right to appeal the decision to the DRC. (d) The component that originally classified the information shall provide a written response to requests for mandatory review within 60 days whenever possible, or shall inform the requester in writing why additional time is needed. Unless there are unusual circumstances, the additional time needed by the component originally classifying the information shall not extend beyond 180 days from the receipt of the request. If no determination has been made at the end of the 180 day period, the requester may apply to the DRC for a determination. (e) If the component that originally classified the information determines that continued classification is warranted, it shall notify the requester in writing of the decision and the right to appeal the decision to the DRC no later that 60 days after receipt of the notification of the decision. (f) The DRC shall determine the appeals of the components' mandatory declassification review decisions within 60 days after receipt of the appeal, or notify the requester why additional time is needed. In making its determinations concerning requests for declassification of classified information, the DRC, for administrative purposes, shall impose the burden of proof on the originating component to show that continued classification is warranted. The DRC shall provide the requester with a written statement of reasons for its decisions. (g) If the individual requesting review of a classification is not satisfied with the DRC's decision, he or she may appeal to the ISCAP pursuant to section 5.4 of Executive Order 12958 and rules issued by the ISCAP pursuant to that section. All known holders of information affected by unscheduled classification changes actions shall be notified promptly of such changes by the original classifier or the authority making the change in classification.
Title 28: Judicial Administration
PART 17—CLASSIFIED NATIONAL SECURITY INFORMATION AND ACCESS TO CLASSIFIED INFORMATION
Subpart B—Classified Information
§ 17.21 Classification and declassification authority.
§ 17.22 Classification of information; limitations.
§ 17.23 Emergency classification requests.
§ 17.24 Duration of classification.
§ 17.25 Identification and markings.
§ 17.26 Derivative classification.
§ 17.27 Declassification and downgrading.
§ 17.28 Automatic declassification.
§ 17.29 Documents of permanent historical value.
§ 17.30 Classification challenges.
§ 17.31 Mandatory review for declassification requests.
§ 17.32 Notification of classification changes.
