Interim Guidelines Governing Re-review of Previously Declassified Records at the National Archives
To be promulgated as a change to "Classified National Security Information Directive No. 1" (32 CFR Part 2001)
Section 2001.13 Classification prohibitions and limitations [1.7]
(e) Whenever an agency with Original Classification Authority proposes to temporarily restrict access to a record or a collection of records that has previously been available for public use in the physical and legal custody of the National Archives and Records Administration (NARA) in order to assess if the record(s) requires formal withdrawal from public purview because it contains classified national security information, the following shall apply regardless of whether the action constitutes reclassification or because the record was designated unclassified without proper authority:
(1) The agency official designated under section 5.4(d) of the Order or designee must submit a request in writing to the designated official at NARA. Notification will also be provided to ISOO and any other agency whose interests or activities are affected. This request should, to the greatest extent practicable, be made in unclassified form, with the use of a classified addendum, as necessary, in accordance with section 1.6(g) of the Order.
(2) The written request will identify the specific record(s) involved and the length of time it is proposed to restrict access in order to conduct the assessment. Normally, this will not exceed 30 days. Only the minimum number of records at the record, folder, or box level, consistent with the objective of the assessment, will be subject to access restrictions.
(3) Should the collection be so extensive that the agency proposes to take more than 180 days to conduct the assessment, the written request will include a phased plan that ensures that access will not be restricted for any individual record for more than 180 days. This plan should, to the greatest extent practicable, be made in unclassified form, with the use of a classified addendum, as necessary, in accordance with section 1.6(g) of the Order. At the end of each 180-day period, records that have been subject to access restrictions will either be returned to public purview or formally withdrawn in accordance with the procedures set forth in paragraph (f) of this section.
(4) NARA will immediately temporarily restrict access in accordance with the request and will properly secure the record(s) pending timely review by the agency. Should the designated NARA official not agree to the request to temporarily restrict access or to any aspect of the proposed plan, the head or deputy head of the agency making the request can appeal directly to the Archivist of the United States.
(5) In all cases, if a member of the public requests access to records that have been subject to access restrictions pursuant to this section, NARA and the pertinent agency shall complete all actions associated with the review under this section in an expedited manner and otherwise provide timely and appropriate access to the record(s) or formally withdraw the record in accordance with paragraph (f) of this section. NARA shall inform the requestor that the records are temporarily under review in accordance with this section.
(6) If during the review an agency believes that information requires referral to another agency under section 3.3(h) of the Order, the agency shall notify NARA and NARA shall immediately notify the other agency whose equities or interests are affected. The other agency shall then comply with the provisions of this section.
(f) Whenever an agency with Original Classification Authority, following an assessment conducted pursuant to paragraph (e) of this section, decides to formally withdraw a record or a collection of records that has previously been available for public use in the physical and legal custody of NARA because the record contains classified national security information, the following shall apply regardless of whether the action constitutes reclassification or because the record(s) was designated unclassified without proper authority:
(1) The agency head, deputy agency head, or, in situations when the record(s) was designated unclassified without proper authority, the agency official designated under section 5.4(d) of the Order must determine that allowing the public continued access to the record(s) would seriously and demonstrably damage national security and that the withdrawal of the record(s) from public purview would significantly mitigate that damage.
i. The determination will be made in writing with notification to the Archivist of the United States, ISOO, and any other agency whose interests or activities are affected.
ii. The written determination, classified when appropriate under the Order, will also state precisely the elements of information that are classified, the duration of classification, and the specific authority for continued classification, to include the specific citation of the appropriate classification or declassification guide. In reaching this determination, the agency shall consider whether withdrawing the record(s) might damage national security by highlighting or otherwise bringing undue attention to the information and take into consideration the following information to be provided by NARA:
1. the length of time the record(s) has been available to the public;
2. the extent to which the box containing the record(s) has been requested for research;
3. the extent to which the record(s) and/or the classified information at issue has been referenced or published in government and non-government publications.
(2) The actual withdrawal of records will be accomplished in a collaborative manner between NARA and the agency involved, taking care to ensure the preservation of the records and their provenance.
i. The agency will recommend withdrawal of specific record(s) based solely upon the written guidance provided to the Archivist of the United States in accordance with (f)(1) of this part.
ii. Specific information will be sanitized rather than the entire record withdrawn, as practical, and as determined by the agency using a risk-management approach.
iii. Agencies and NARA will account for all withdrawn or sanitized records and provide periodic written reports to ISOO in a timely manner.
iv. The actual withdrawal of a record is the responsibility of NARA and will entail the substitution of the withdrawn record with a withdrawal notice, which shall identify to the greatest extent practicable and with precision the record withdrawn and the reason for its withdrawal.
v. NARA will ensure the timely processing of the subject records following conclusion of the review and withdrawal efforts.
(3) Should the agency, NARA, or another agency whose interests or activities are affected fail to agree as to the need for formal withdrawal of previously released records based on classification, the designated official of either NARA or the other agency may refer the matter as a classification challenge directly to the Interagency Security Classification Appeals Panel (ISCAP) for decision. Agencies may appeal or object to ISCAP decisions in accordance with Section 5.3(d) and (f) of the Order. In all cases, the record(s) shall be withdrawn and otherwise protected as classified national security information pending completion of the ISCAP appeals process.
(4) ISOO shall audit all withdrawal activity as it occurs and shall publicly report the number of records withdrawn by which agencies under this section at least annually.
(g) All withdrawn records remain subject to systematic declassification review under section 3.4 of the Order and mandatory declassification review under section 3.5 of the Order.