Revisions to Executive Order 12958 on Classified National Security Information
Executive Order 12958, as amended, "Classified National Security Information" ( PDF Format)
(Contact ISOO to request a comparison guide to E.O. 12958.)
FAQ regarding E.O. 13292, Further Amendment to E.O. 12958
On March 25 the President signed Executive Order 13292 further amending Executive Order 12958 of April 17, 1995 on Classified National Security Information. The principal purpose of the amendment was to provide agencies an additional 3 and a half years to address the remaining backlog of unreviewed 25 year old classified records of permanent historical value prior to the onset of automatic declassification. The other changes were recommended by a broad consensus of interagency professionals in classification and declassification. They reflect seven years of experience in implementing E.O. 12958 as well as new priorities resulting from the events of 9/11.
What is most notable about the new amendment is what does not change. The revision has left the existing classification/declassification regime largely intact. It will likely have an exceedingly limited impact on the way in which government officials classify or declassify information. For all practical purposes, it virtually institutionalizes automatic declassification as an essential element of the classification process.
For classifiers, the most notable change will be a simplification of the process and a resulting change in marking requirements. These marking changes will not come into effect for six months to allow time for the Information Security Oversight Office (ISOO) to draft an Implementing Directive and for agencies to issue implementing instructions based on this directive. In the interim, creators of classified materials should continue to mark them according to existing instructions.
For those involved in the declassification process, in addition to providing more time to complete the review of 25-year old records, the revision gives greater clarity to what records are subject to automatic declassification and under what conditions.
A synopsis of the most significant changes included in the amendment is set forth below:
- Deadline for Automatic Declassification Extended. The major innovation of E.O. 12958 was the introduction of automatic declassification of non-exempted information after 25 years, whether or not it had been reviewed for release. This provision was intended to force agencies to meet their obligation to conduct a systematic review for release of information at 25 years. As such, the original order was very successful in that it has led to the declassification of some one billion pages of older historical records. The new amendment commits agencies to finish reviewing the backlog of classified records more than 25 years old, estimated at 400,000,000 pages, by the end of 2006. (Sec. 3.3(a))
- Clarification of Documents Subject to Automatic Declassification. Before the current amendment, the language of E.O. 12958 was unclear as to what 25-year-old documents that had not been explicitly exempted from release were subject to declassification and under what circumstances. Moreover, even in blocks of retired records spanning a period of years, the language suggested that older documents would become automatically declassified before the file was subject to review.
A number of changes have been made that clarify the question of what documents are automatically declassified at 25 years:- records in a file block shall not be automatically declassified until the most recent record is 25 years old (Sec 3.3(e)(1));
- an additional five years is allowed for difficult to review records such as audio and video tapes (Sec. 3.3(e)(2));
- an additional three years is allowed for the release of records transferred or referred from another agency (Sec. 3.3(e)(3));
- an additional three years is allowed for newly discovered records (Sec.3.3(e)(4));
- Protecting Foreign Government Information. The amendment to E.O. 12958 contains the presumption that the unauthorized release of foreign government information exchanged in confidence will cause damage to the national security (Sec 1.1(c)). The practical consequence of this addition is limited since the original order contained such broad discretion in this area that an original classifier had the authority to classify such information all along. More importantly, the amendment makes it explicit that for foreign government information to be exempt from automatic declassification, the same standard as other information concerning foreign and diplomatic relations of the United States and a foreign government will be applied. Specifically, serious and demonstrable "impairment" or "undermining" of these relations or activities must be shown in order for the information to be exempted. (Sec 3.3(b)(6))
- Categories of Classifiable Information Clarified. Additional categories of information, specifically defense against transnational terrorism, infrastructures, and protection services, were explicitly spelled out as included in those that were eligible for classification. "Weapons of mass destruction" was added as a separate category. Arguably, all such information was already covered by the existing order. (Sec 1.4 (e) (g) & (h))
- Simplifying the Scheme. E.O. 12958 had been considered unduly complicated to administer because of separate criteria for original classification for up to ten years; for original classification from 10 to 25 years; and for extending classification beyond 25 years. To correct this, the separate set of criteria for withholding information between 10 and 25 years from date of origin has been eliminated. While the revised language maintains ten years as the norm for most original classification actions, there is now one set of criteria for classification up to 25 years (Sec. 1.4) and another for withholding beyond 25 years (Sec. 3.3(b)).
- Reclassification of Properly Released Material. As originally issued E.O. 12958 prohibited the reclassification of information after it had been released to the public under proper authority. This amendment restores the ability of the predecessor E.O. to reclassify such information, but only under "the personal authority of the agency head or deputy agency head" and only if the material may be "reasonably recovered." This change should have little impact; it was virtually unused when previously available and ISOO will closely monitor its use. (Sec 1.7(c))
- Classifying Documents After Request Under FOIA. The original language of E.O. 12958 required special procedures for classifying or reclassifying documents after they had been requested under the FOIA, and prohibited it entirely for documents more than 25 years old. The language prohibiting the classification or reclassification of 25-year-old information has been dropped, though the special procedures remain. (Sec 1.7 (d))
- Continuing Ability to Exempt File Series. When E.O. 12958 was issued, it required that all record file series that were to be exempted from automatic declassification had to be declared to the President before the order went into effect. This has been changed so that an agency may now notify the President at any time of file series of records that qualify under the specific standards for exemption (Sec 3.3(c)); and specific information may be exempted from automatic declassification if described in a declassification guide. (Sec 3.3(d)(1))
- Authority of Director of Central Intelligence (DCI) Recognized. While intelligence sources and methods information will remain subject to the jurisdiction of Interagency Security Classification Appeals Panel (ISCAP), the amendment recognizes the special authority and responsibility of the DCI to protect such information. As such, this revision does authorize the DCI to veto ISCAP release conclusions, but only after full consideration by ISCAP. Furthermore, a decision by the DCI to bar release can still be appealed to the President by any member of ISCAP. (Sec. 5.3(f))
- Sharing Classified Information in an Emergency. One of the issues that arose in the wake of 9/11 was awareness of the limitations imposed by the lack of authority under the E.O. to pass classified information to persons not otherwise eligible (e.g. local and state authorities) in an emergency. As a result, a section has been added specifically authorizing an agency head or designated person to share classified information with individuals not otherwise eligible to receive it and specifying procedures to be followed. This is especially important in the context of Homeland Security. (Sec 4.2(b))
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