28 C.F.R. Subpart C—Access to Classified Information
Title 28 - Judicial Administration
(a) No person may be given access to classified information or material originated by, in the custody, or under the control of the Department, unless the person— (1) Has been determined to be eligible for access in accordance with sections 3.1–3.3 of Executive Order 12968; (2) Has a demonstrated need-to-know; and (3) Has signed an approved nondisclosure agreement. (b) Eligibility for access to classified information is limited to United States citizens for whom an appropriate investigation of their personal and professional history affirmatively indicated loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information. A determination of eligibility for access to classified information is a discretionary security decision based on judgments by appropriately trained adjudicative personnel. Eligibility shall be granted only where facts and circumstances indicate access to classified information is clearly consistent with the national security interests of the United States and any doubt shall be resolved in favor of the national security. Sections 2.6 and 3.3 of Executive Order 12968 provide only limited exceptions to these requirements. (c) The Department of Justice does not discriminate on the basis of race, color, religion, sex, national origin, disability, or sexual orientation in granting access to classified information. However, the Department may investigate and consider any matter that relates to the determination of whether access is clearly consistent with the interests of national security. No negative inferences concerning the standards for access may be raised solely on the basis of the sexual orientation of the employee or mental health counseling. (d) An employee granted access to classified information may be investigated at any time to ascertain whether he or she continues to meet the requirements for access. (e) An employee granted access to classified information shall provide to the Department written consent permitting access by an authorized investigative agency, for such time as access to classified information is maintained and for a period of three years thereafter, to: (1) Financial records maintained by a financial institution as defined in 31 U.S.C. 5312(a) or by a holding company as defined in 12 U.S.C. 3401; (2) Consumer reports under the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.); and (3) Records maintained by commercial entities within the United States pertaining to any travel by the employee outside the United States. (f) Information may be requested pursuant to the employee consent obtained under paragraph (e) of this section only where: (1) There are reasonable grounds to believe, based on credible information, that the employee or former employee is, or may be, disclosing classified information in an unauthorized manner to a foreign power or agent of a foreign power; (2) Information the Department deems credible indicates the employee or former employee has incurred excessive indebtedness or has acquired a level of affluence that cannot be explained by other information; or (3) Circumstances indicate that the employee or former employee had the capability and opportunity to disclose classified information that is known to have been lost or compromised to a foreign power or an agent of a foreign power. (a) The Assistant Attorney General for Administration, in consultation with the Counsel for Intelligence Policy, shall designate each employee, by position or category where possible, who has a regular need for access to any of the categories of classified information described in section 1.3(a) of Executive Order 12968. (b) An employee may not hold a position designated as requiring a regular need for access to categories of classified information described in section 1.3(a) of Executive Order 12968 unless, as a condition of access to such information, the employee files with the Department Security Officer: (1) A financial disclosure form developed pursuant to section 1.3(c) of Executive Order 12968 as part of all background investigations or reinvestigations; (2) The same financial disclosure form, if selected by the Department Security Officer on a random basis; and (3) Relevant information concerning foreign travel, as determined by the Department Security Officer. Employees who are eligible for access to classified information shall be subject to periodic reinvestigations and may also be reinvestigated if, at any time, there is reason to believe that they may no longer meet the standards for access. (a) Determinations of eligibility for access to classified information are separate from suitability determinations with respect to the hiring or retention of persons for employment by the Department or any other personnel actions. (b) The number of employees eligible for access to classified information shall be kept to the minimum required for the conduct of Department functions. (c) Eligibility for access to classified information shall be limited to classification levels for which there is a need for access. No person shall be granted eligibility higher than his or her need. No person shall be granted access to specific classified information unless that person has an actual need-to-know that classified information, pursuant to section 2.5 of Executive Order 12968. (a) Classified information shall not be disseminated outside the Executive Branch except under conditions that ensure that the information will be given protection equivalent to that afforded within the Executive Branch. (b) Classified information originated by or in the custody of the Department may be made available to individuals or agencies outside the Executive Branch provided that such information is necessary for performance of a function from which the Federal Government will derive a benefit or advantage and that the release is not prohibited by the originating department or agency (or foreign government in the case of Foreign Government Information). Before such a release is made, the head of the Office, Board, Division, or Bureau making the release shall determine the propriety of such action, in the interest of the national security, and must approve the release. Prior to the release, the Department Security Officer must confirm that the recipient is eligible for access to the classified information involved and agrees to safeguard the information in accordance with the provisions of this part. (c) Members of Congress, Justices of the United States Supreme Court, and Judges of the United States Courts of Appeal and District Courts do not require a determination of their eligibility for access to classified information by the Department. Federal Magistrate Judges must be determined eligible for access to classified information by the Department Security Officer pursuant to procedures approved by the Assistant Attorney General for Administration in consultation with the Judicial Conference of the United States. All other Legislative and Judicial personnel including, but not limited to, congressional staff, court reporters, typists, secretaries, law clerks, and translators who require access to classified information must be determined eligible by the Department Security Officer consistent with standards established in this regulation. (d) When other persons outside the Executive Branch who are not subject to the National Industrial Security Program require access to classified information originated by or in the custody of the Department, but do not otherwise possess a proper access authorization, an appropriate background investigation must be completed to allow the Department Security Officer to determine their eligibility for access to classified information. The length of time it generally takes to complete an expedited background investigation is 90 days. Therefore, all persons requiring access to classified information to participate in congressional or judicial proceedings should be identified and the background investigation initiated far enough in advance to ensure a minimum impact on such proceedings. (e) Personnel who are subject to a Department contract or grant or who are rendering consultant services to the Department and require access to classified information originated by or in the custody of the Department shall be processed for such access pursuant to procedures approved by the Assistant Attorney General for Administration. (f)(1) The requirement that access to classified information may be granted only as is necessary for the performance of official duties may be waived, pursuant to section 4.5(a) of Executive Order 12958, for persons who: (i) Are engaged in historical research projects; or (ii) Have previously occupied policymaking positions to which they were appointed by the President. (2) All persons receiving access pursuant to this paragraph (f) must have been determined to be trustworthy by the Department Security Officer as a precondition before receiving access. Such determinations shall be based on such investigation as the Department Security Officer deems appropriate. Historical researchers and former presidential appointees shall not have access to Foreign Government Information without the written permission from an appropriate authority of the foreign government concerned. (3) Waivers of the “need-to-know” requirement under this paragraph (f) may be granted by the Department Security Officer provided that the Security Programs Manager of the Office, Board, Division, or Bureau with classification jurisdiction over the information being sought: (i) Makes a written determination that such access is consistent with the interest of national security; (ii) Limits such access to specific categories of information over which the Department has classification jurisdiction; (iii) Maintains custody of the classified information at a Department facility; (iv) Obtains the recipient's written and signed agreement to safeguard the information in accordance with the provisions of this regulation and to authorize a review of any notes and manuscript for determination that no classified information is contained therein; and (v) In the case of former presidential appointees, limits their access to items that such former appointees originated, reviewed, signed, or received while serving as a presidential appointee and ensures that such appointee does not remove or cause to be removed any classified information reviewed. (4) If access requested by historical researchers and former presidential appointees requires the rendering of services for which fair and equitable fees may be charged pursuant to 31 U.S.C. 9701, the requester shall be so notified and fees may be imposed. (a) Applicants and employees who are determined to not meet the standards for access to classified information established in section 3.1 of Executive order 12968 shall be: (1) Provided with a comprehensive and detailed written explanation of the basis for that decision as the national security interests of the United States and other applicable law permit and informed of their right to be represented by counsel or other representative at their own expense; (2) Permitted 30 days from the date of the written explanation to request any documents, records, or reports including the entire investigative file upon which a denial or revocation is based; and (3) Provided copies of documents requested pursuant to this paragraph (a) within 30 days of the request to the extent such documents would be provided if requested under the Freedom of Information Act (5 U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C. 552a), and as the national security interests and other applicable law permit. (b) An applicant or employee may file a written reply and request for review of the determination within 30 days after written notification of the determination or receipt of the copies of the documents requested pursuant to this subpart, whichever is later. (c) An applicant or employee shall be provided with a written notice of and reasons for the results of the review, the identity of the deciding authority, and written notice of the right to appeal. (d) Within 30 days of receipt of a determination under paragraph (c) of this section, the applicant or employee may appeal that determination in writing to the ARC, established under §17.15. The applicant or employee may request an opportunity to appear personally before the ARC and to present relevant documents, materials, and information. (e) An applicant or employee may be represented in any such appeal by an attorney or other representative of his or her choice, at his or her expense. Nothing in this section shall be construed as requiring the Department to grant such attorney or other representative eligibility for access to classified information, or to disclose to such attorney or representative, or permit the applicant or employee to disclose to such attorney or representative, classified information. (f) A determination of eligibility for access to classified information by the ARC is a discretionary security decision. Decisions of the ARC shall be in writing and shall be made as expeditiously as possible. Access shall be granted only where facts and circumstances indicate that access to classified information is clearly consistent with the national security interest of the United States, and any doubt shall be resolved in favor of the national security. (g) The Department Security Officer shall have an opportunity to present relevant information in writing or, if the applicant or employee appears personally, in person. Any such written submissions shall be made part of the applicant's or employee's security record and, as the national security interests of the United States and other applicable law permit, shall also be provided to the applicant or employee. Any personal presentations shall be, to the extent consistent with the national security and other applicable law, in the presence of the applicant or employee. (h) When the Attorney General or Deputy Attorney General personally certifies that a procedure set forth in this section cannot be made available in a particular case without damaging the national security interests of the United States by revealing classified information, the particular procedure shall not be made available. This is a discretionary and final decision not subject to further review. (i) This section does not limit the authority of the Attorney General pursuant to any other law or Executive Order to deny or terminate access to classified information if the national security so requires and the Attorney General determines that the appeal procedures set forth in this section cannot be invoked in a manner that is consistent with the national security. Nothing in this section requires that the Department provide any procedures under this section to an applicant where a conditional offer of employment is withdrawn for reasons of suitability or any reason other than denial of eligibility for access to classified information. Suitability determinations shall not be used for the purpose of denying an applicant or employee the review proceedings of this section where there has been a denial or revocation of eligibility for access to classified information.
Title 28: Judicial Administration
PART 17—CLASSIFIED NATIONAL SECURITY INFORMATION AND ACCESS TO CLASSIFIED INFORMATION
Subpart C—Access to Classified Information
§ 17.41 Access to classified information.
§ 17.42 Positions requiring financial disclosure.
§ 17.43 Reinvestigation requirements.
§ 17.44 Access eligibility.
§ 17.45 Need-to-know.
§ 17.46 Access by persons outside the Executive Branch.
§ 17.47 Denial or revocation of eligibility for access to classified information.
