FAS Note: The following draft legislation was prepared for Senator Daniel P. Moynihan. As a working draft, it includes some typographical and other errors which have not been corrected.

(draft 21 September 1999)

PUBLIC INTEREST DECLASSIFICATION ACT OF 1999

SECTION 1. SHORT TITLE

This Act may be cited as the "Public Interest Declassification Act of 1999."

SECTION 2. PUBLIC INTEREST DECLASSIFICATION BOARD

A. FINDINGS -- The Congress finds that--
(1) The systematic declassification of records of permanent historic value is in the public interest in a democracy.

(2) The management of classification and declassification by executive branch agencies requires comprehensive reform in order to meet that public interest.

(3) Reform of classification and declassification will require more investment, more technical development, and more coordination by the executive branch.

(4) Until that reform can be accomplished, the establishment of a process for declassifying selected records of national security activities of extraordinary public interest is the most effective way to achieve the public interest.

(5) Because of the technical and logistic complexity of identifying and reviewing classified records of national security activities of extraordinary public interest, Congress must establish and fund a coordinated mechanism to address and prioritize records series and, when necessary, subjects for declassification review.

(6) It is appropriate for the United States Senate and House of Representatives to cooperate and assist the Board in fulfilling the purposes of this Act.

B. ESTABLISHMENT -- There is established a Public Interest Declassification Board (hereinafter referred to as the "Board") within the Office of the National Security Advisor.

C. PURPOSE -- The purpose of the Board shall be to direct and provide for the systematic declassification review of permanently valuable records, and of those of extraordinary public interest, that pertain to the national security activities of the United States in the possession of an agency or Federal Presidential library and to facilitate their release to the public. The Board's goal is to provide the Public with the fullest access possible to a thorough, accurate and reliable document record of major United States national security decisions and significant United States national security activity to:

(1) Enable reliable historical analysis when records are released.

(2) Ensure that new avenues of historical study are not closed.

D. MEMBERSHIP -- The President shall appoint as members to the Board nine non-federally employed individuals who have a demonstrated expertise in matters of national security of the United States. The President may select them from among distinguished historians, political scientists, archivists, international lawyers, and other such social scientists who have a demonstrated record of substantial research pertaining to the security of the United States. The National Security Advisor's Office shall select the Executive Secretary.
(1) The members shall be appointed after consideration of recommendations made by such organizations as the American Historical Association, the Organization of American Historians, the American Political Science Association, Society of American Archivists, the American Society of International Law, the Law and National Security Committee of the American Bar Association, and the Society for Historians of American Foreign Relations.

(2) Terms of Service Appointments

(a) Of the members appointed, three shall be appointed for terms of three years, three shall be appointed for terms of two years, and three shall be appointed for terms of one year.

(b) Subsequent appointments and reappointments shall last for three years in duration.

(c) Each term of service shall begin on September 1 of the year in which the appointment is made.

(d) A vacancy in the membership of the Board shall be filled in the same manner as provided under this subsection to make the original appointment. A member appointed to fill a vacancy before the expiration of a term shall serve for the remainder of that term. A member may continue to serve when his or her term expires until a successor is appointed. A member may be appointed to a new term upon the expiration of his or her term.

(e) A member may serve no more than three full terms.

E. SELECTION OF A CHAIRPERSON -- The President shall designate one of its members as a chairperson to serve a term of one year. A chairperson may be re-designated upon expiration of his or her term as chairperson.

F. MEETINGS -- A majority of the members of the Board shall constitute a quorum. The Board shall meet at least quarterly but as frequently as may be necessary to carry out its duties.

G. SECURITY -- The Board's members and staff shall, as a condition of being granted access to an agency's classified information under this Act, hold the appropriate level security clearance granted or recognized under that agency's standard procedures and any necessary special access approvals required for access to that information. For purposes of any law or regulation governing access to classified records that pertain to the national security activity of the United States, and subject to Section 5B, a member of the Board seeking access under this paragraph to a record shall be deemed to have a need to know.

H. COMPENSATION --

(1) Members of the Board
(a) Shall receive compensation at a rate of not to exceed the daily equivalent of the annual rate of basic pay payable for positions at SES-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; and

(b) Shall be allowed travel expenses, including per diem in lieu of subsistence at rates authorized for employees of agencies under subchapter 1 of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of the services of the Board.

I. The Congress is authorized to provide for necessary secretarial and staff assistance for the Board.

J. The Federal Advisory Committee Act shall not apply to the Board.

K. The Board shall make its internal unclassified and declassified records and reports not otherwise protected from disclosure by law available for public inspection.

SECTION 3. DECLASSIFICATION OF INFORMATION OF PUBLIC INTEREST

A. ORDER OF REVIEW --
(1) IN GENERAL -- The Board can, to the extent resources are available to the Board under the terms of the Act, order an Agency or Federal Presidential Library to:
(a) Conduct a systematic review for declassification of classified materials that are at least 25 years old, which are determined by the Archivist of the United States to constitute permanently valuable records of the United States;

(b) Identify, where necessary, and conduct declassification reviews of historically important records series, or other records, of national security activities that the Board determines are of extraordinary public interest and of a high priority.

(2) CONSIDERATIONS --
(a) The Board shall consider the opinions and requests of Members of Congress, including those expressed in letters or legislative proposals; the opinions and requests of the National Security Council; those of other members of the U.S. electorate; and those of individual members of the Board in determining whether a specific subject matter is of extraordinary public interest and so eligible for a declassification review under section 3A(1)(b).

(b) The Board shall consult with the Archivist of the United States to ensure that all reviews called for in Section 3 preserve the archival integrity of the records.

(c) The Board shall, through the head of an agency given an order under this Act, exercise oversight of declassification reviews ordered under this Act.

(d) The Board shall establish liaison with and, wherever appropriate, coordinate its work with other historical advisory committees that are concerned with declassification review of the historical record and which are established by federal statute.

B. AGENCY AND PRESIDENTIAL LIBRARY REVIEW -- Pursuant to an order described in section 3A(1), an Agency or Federal Presidential library shall, in a manner consistent with the requirements and restrictions of section 4A, review for declassification, and refer as appropriated to the originating agencies for their review for declassification, all classified records that pertain to the national security activity of the United States owned by, produced by or for, or under the control of, the Agency or Federal Presidential library and are responsive to the order of the Board.

C. RELEASE AND DISSEMINATION AS APPROPRIATE OF DECLASSIFIED INFORMATION -- The Agency or Federal Presidential library shall make available for release and dissemination, all records declassified in the review process of subsection (B) and are not otherwise protected from disclosure by law.

D. PROCEDURES FOR RELEASE AND DISSEMINATION OF DECLASSIFIED INFORMATION -- The Board shall establish, in coordination with the procedures of the National Records Archives Service, procedures and guidance for ther release, and shall provide funding for the release, of information declassified pursuant to an order under this section. Such procedures may include the use of libraries, publications, and the Internet for the dissemination of such information.

E. AUTHORITY TO PRIORITIZE -- The Board shall establish such priorities as are necessary to carry out this Act and consult with other similarly legislatively created panels and boards as necessary.

SECTION 4. PROTECTION OF NATIONAL SECURITY INFORMATION

A. IN GENERAL -- Nothing in this Act shall be construed to limit the substantive or procedural protection afforded any information by other provisions of law.

B. WITHHOLDING INFORMATION FROM CONGRESS -- Nothing in this Act shall be construed to authorize the withholding of information from Congress.

SECTION 5. PROCEDURES FOR DECLASSIFICATION REVIEW

A. DEVELOPMENT OF PROCEDURES -- Each department, agency, Federal Presidential library, or other entity of the United States Government engaged in national security activity formulation, storage, execution, or support shall develop procedures for its historical or archival office (or a designated office if there is no historical or archival office)--
(1) To forward to the Board, for its consideration and processing under the terms of this Act, all requests for declassification reviews not made under either section 552 or 552a of Title 5, United States Code.

(2) To coordinate with the Board in complying with a Board order to review for declassification and, where necessary, to identify for review those records described in section 3 of this Act;

(3) To permit full access to such records, in their original, unrevised state, to a single liaison representative to the Board employed by the department, agency, Federal Presidential library, or entity, who has been designated by the agency as the liaison to the Board, and who holds all necessary clearances and has met any other standard requirements for access to the records in question.

(4) To accommodate a request for reevaluation of a document or record found to contain information that continues to require protection, the head of the originating agency or Federal Presidential library shall tag, index, physically set aside, or otherwise enable its ready retrieval.

C. DENIALS -- In the event that the head of an originating agency or Federal Presidential library considers it necessary to deny access by the Board or its designated liaison to the original text of any record, or to exempt records from declassification review, the head shall, subject to the appropriate procedures to protect national security information, promptly notify the Board in writing, describing the nature of the records in question and the justification for withholding or exempting those records.

D. DISCRETION -- At the conclusion of a declassification review, or upon a request for reevaluation, the head of an agency may, in his discretion or upon the recommendation of the head of a Federal Presidential Library, determine that the public's interest in disclosure of information originated by that agency and still properly classified outweighs the Government's need to protect the information reviewed. In such a case, the head of an agency may release the information.

E. REPORTING REQUIREMENT -- The Board shall annually submit to the Committees on Intelligence, Government Reform, and International Relations of the House of Representatives and the Committees on Intelligence, Government Affairs, and Foreign Relations in the Senate a report on activities and accomplishments under this Act.

SECTION 6. JUDICIAL REVIEW

No action taken under this Act shall be subject to judicial review.

SECTION 7. FUNDING

A. IN GENERAL -- the annual budget request for the Board, and for action taken by the Board under this Act, shall appear as a distinct item in the annual budget request of the Office of the National Security Advisor.

B. FUNDING OF AGENCY AND FEDERAL PRESIDENTIAL LIBRARY EXPENSES--

(1) After receipt of a Board order to review and, where necessary, to identify records for declassification, each agency shall provide the Board with an estimate of costs and time schedules to comply with the order. The Board shall identify the necessary funds and transfer these funds to each agency for a search for records, where necessary; for a declassification review; and for the release of records declassified under this Act.

(2) If the costs incurred by an agency to complete the declassification process are less than the amount transferred by the Board, the agency shall remit the unused funds to the Board. If the funds transferred by the Board are not sufficient to complete the declassification process, the Board shall identify additional funds, pursuant to paragraph (3) of this section, and transfer those funds to the agency to allow completion of the declassification review process. An agency shall hold the search and declassification review as well as any required search process in abeyance until such time as the necessary funds to complete it are transferred.

(3) The Board shall maintain a reserve fund that may be carried over to the subsequent fiscal year(s) that will be used to pay costs in excess of the estimated costs required to meet the Board's orders.

SECTION 8. DEFINITIONS

As used in this Act:
A. AGENCY -- The term "Agency" means--
(1) An executive agency as defined in section 105 of title 5, United States Code,

(2) A military department as defined in section 102 of such title,

(3) Any other entity in the executive branch that comes into possession of classified information, and

(4) Does not include the Board established herein.

B. FEDERAL PRESIDENTIAL LIBRARY -- The term "Federal Presidential Library" means libraries operated and maintained by the United States Government through the National Archives and Records Administration inaugurated with the Presidential Libraries Act of 1955 and governed by the Presidential Records Act of 1978 and the Presidential Libraries Act of 1986.

C. CLASSIFIED RECORD -- The term "classified record" includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microfilm, sound recording, videotape, machine readable records, and any other documentary material, regardless of physical form or characteristics, that is a extraordinary public interest record and that has been determined pursuant to statute or Executive order to require protection against unauthorized disclosure in the interests of the national security of the United States and is marked to indicate its classified status.

D. DECLASSIFICATION -- The term "declassification" means the process by which information that has been classified is determined no longer to require protection from unauthorized disclosure to protect the national security of the United States.

E. NATIONAL SECURITY -- The term "national security" means the national defense or foreign relations of the United States.

F. RECORDS OF EXTRAORDINARY PUBLIC INTEREST -- The term "records of extraordinary public interest" means material required for historical study that, as determined by the Board, demonstrates and records the principal national security policies, actions, and decisions of the United States. These materials will provide a significantly different perspective in general from those available in other historical sources. These materials shall include, but not be limited to (1) policies, events, actions, and decisions which led to significant national security outcomes. This will include (A) the collection and analysis of especially important intelligence and (B) documents that record the development and evolution of significant United States national security policies, actions, and decisions.