Administrative Law - CFR - 32 CFR Part 1907: Challenges to Classification of Documents by Authorized Holders Pursuant to 1.9 of Executive Order 12958


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32 CFR PART 1907:
CHALLENGES TO CLASSIFICATION OF DOCUMENTS BY AUTHORIZED HOLDERS PURSUANT TO 1.9 OF EXECUTIVE ORDER 12958

 

32 CFR PART 1907—CHALLENGES TO CLASSIFICATION OF DOCUMENTS BY AUTHORIZED HOLDERS PURSUANT TO § 1.9 OF EXECUTIVE ORDER 12958

  • General
    • 1907.01:  Authority and purpose.
    • 1907.02:  Definitions.
    • 1907.03:  Contact for general information and requests.
    • 1907.04:  Suggestions and complaints.
  • Filing of Challenges
    • 1907.11:  Prerequisites.
    • 1907.12:  Requirements as to form.
    • 1907.13:  Identification of material at issue.
    • 1907.14:  Transmission.
  • Action on Challenges
    • 1907.21:  Receipt, recording, and tasking.
    • 1907.22:  Challenges barred by res judicata.
    • 1907.23:  Response by originator(s) and/or any interested party.
    • 1907.24:  Designation of authority to hear challenges.
    • 1907.25:  Action on challenge.
    • 1907.26:  Notification of decision and prohibition on adverse action.
  • Right of Appeal
    • 1907.31:  Right of appeal.

Authority:
Executive Order 12958, 60 FR 19825, 3 CFR 1996 Comp., P. 333-356 (or successor orders).

Source:
62 FR 32494, June 16, 1997, unless otherwise noted.


General

32 CFR 1907.01:  Authority and purpose.

(a) Authority.

 This part is issued under the authority of and in order to implement § 1.9 of Executive Order (E.O.) 12958, sec. 102 of the National Security Act of 1947, and sec. 6 of the CIA Act of 1949.

(b) Purpose.

 This part prescribes procedures for authorized holders of information classified under the various provisions of E.O. 12958, or predecessor Orders, to seek a review or otherwise challenge the classified status of information to further the interests of the United States Government. This part and § 1.9 of E.O. 12958 confer no rights upon members of the general public, or authorized holders acting in their personal capacity, both of whom shall continue to request reviews of classification under the mandatory declassification review provisions set forth at § 3.6 of E.O. 12958.

32 CFR 1907.02:  Definitions.

For purposes of this part, the following terms have the meanings as indicated:

(a) Agency or CIA

means the United States Central Intelligence Agency acting through the CIA Information and Privacy Coordinator;

(b) Authorized holders

means any member of any United States executive department, military department, the Congress, or the judiciary (Article III) who holds a security clearance from or has been specifically authorized by the Central Intelligence Agency to possess and use on official business classified information, or otherwise has Constitutional authority pursuant to their office;

(c) Days

means calendar days when the Agency is operating and specifically excludes Saturdays, Sundays, and legal public holidays. Three (3) days may be added to any time limit imposed on a requester by this CFR part if responding by U.S. domestic mail; ten (10) days may be added if responding by international mail;

(d) Challenge

means a request in the individual's official, not personal, capacity and in furtherance of the interests of the United States;

(e) Control

means ownership or the authority of the CIA pursuant to federal statute or privilege to regulate official or public access to records;

(f) Coordinator

means the CIA Information and Privacy Coordinator acting in the capacity of Executive Secretary of the Agency Release Panel;

(g) Information

means any knowledge that can be communicated or documentary material, regardless of its physical form, that is:
(1) Owned by, produced by or for, or under the control of the United States Government, and
(2) Lawfully and actually in the possession of an authorized holder and for which ownership and control has not been relinquished by the CIA;

(h) Interested party

means any official in the executive, military, congressional, or judicial branches of government, United States or foreign, or U.S. Government contractor who, in the sole discretion of the CIA, has a subject matter or physical interest in the documents or information at issue;

(i) Originator

means the CIA officer who originated the information at issue, or successor in office, or a CIA officer who has been delegated declassification authority for the information at issue in accordance with the provisions of this Order;

(j) This Order

means Executive Order 12958 of April 17, 1995 and published at 60 FR 19825-19843 (or successor Orders).

32 CFR 1907.03:  Contact for general information and requests.

For information on this part or to file a challenge under this part, please direct your inquiry to the Executive Secretary, Agency Release Panel, Central Intelligence Agency, Washington, DC 20505. The commercial (non-secure) telephone is (703) 613-1287; the classified (secure) telephone for voice and facsimile is (703) 613-3007.

32 CFR 1907.04:  Suggestions and complaints.

The Agency welcomes suggestions or complaints with regard to its administration of the Executive Order. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. The Agency will respond to all substantive communications and take such actions as determined feasible and appropriate.

 


Filing of Challenges

32 CFR 1907.11:  Prerequisites.

The Central Intelligence Agency has established liaison and procedures with many agencies for declassification issues. Prior to reliance on this Part, authorized holders are required to first exhaust such established administrative procedures for the review of classified information. Further information on these procedures is available from the point of contact, see 32 CFR 1907.03.

32 CFR 1907.12:  Requirements as to form.

The challenge shall include identification of the challenger by full name and title of position, verification of security clearance or other basis of authority, and an identification of the documents or portions of documents or information at issue. The challenge shall also, in detailed and factual terms, identify and describe the reasons why it is believed that the information is not protected by one or more of the § 1.5 provisions, that the release of the information would not cause damage to the national security, or that the information should be declassified due to the passage of time. The challenge must be properly classified; in this regard, until the challenge is decided, the authorized holder must treat the challenge, the information being challenged, and any related or explanatory information as classified at the same level as the current classification of the information in dispute.

32 CFR 1907.13:  Identification of material at issue.

Authorized holders shall append the documents at issue and clearly mark those portions subject to the challenge. If information not in documentary form is in issue, the challenge shall state so clearly and present or otherwise refer with specificity to that information in the body of the challenge.

32 CFR 1907.14:  Transmission.

Authorized holders must direct challenge requests to the CIA as specified in § 1907.03. The classified nature of the challenge, as well as the appended documents, require that the holder transmit same in full accordance with established security procedures. In general, registered U.S. mail is approved for SECRET, non-compartmented material; higher classifications require use of approved Top Secret facsimile machines or CIA-approved couriers. Further information is available from the CIA as well as corporate or other federal agency security departments.


 

Action on Challenges

32 CFR 1907.21:  Receipt, recording, and tasking.

The Executive Secretary of the Agency Release Panel shall within ten (10) days record each challenge received under this Part, acknowledge receipt to the authorized holder, and task the originator and other interested parties. Additional taskings, as required during the review process, shall be accomplished within five (5) days of notification.

32 CFR 1907.22:  Challenges barred by res judicata.

The Executive Secretary of the Agency Release Panel shall respond on behalf of the Panel and deny any challenge where the information in question has been the subject of a classification review within the previous two (2) years or is the subject of pending litigation in the federal courts.

32 CFR 1907.23:  Response by originator(s) and/or any interested party.

(a) In general.

 The originator of the classified information (document) is a required party to any challenge; other interested parties may become involved through the request of the Executive Secretary or the originator when it is determined that some or all of the information is also within their official cognizance.

(b) Determination.

 These parties shall respond in writing to the Executive Secretary of the Agency Release Panel with a mandatory unclassified finding, to the greatest extent possible, and an optional classified addendum. This finding shall agree to a declassification or, in specific and factual terms, explain the basis for continued classification including identification of the category of information, the harm to national security which could be expected to result from disclosure, and, if older than ten (10) years, the basis for the extension of classification time under §§ 1.6 and 3.4 of this Order. These parties shall also provide a statement as to whether or not there is any other statutory, common law, or Constitutional basis for withholding as required by § 6.1(c) of this Order.

(c) Time.

 The determination(s) shall be provided on a “first-in, first-out” basis with respect to all challenges pending under this section and shall be accomplished expeditiously taking into account the requirements of the authorized holder as well as the business requirements of the originator including their responsibilities under the Freedom of Information Act, the Privacy Act, or the mandatory declassification review provisions of this Order.

32 CFR 1907.24:  Designation of authority to hear challenges.

The Deputy Director for Administration has designated the Agency Release Panel and the Historical Records Policy Board, established pursuant to 32 CFR 1900.41, as the Agency authority to hear and decide challenges under these regulations.

32 CFR 1907.25:  Action on challenge.

(a) Action by Agency Release Panel.

 The Executive Secretary shall place challenges ready for adjudication on the agenda at the next occurring meeting of the Agency Release Panel. The Executive Secretary shall provide a summation memorandum for consideration of the members; the complete package consisting of the challenge, the information at issue, and the findings of the originator and interested parties shall also be provided. The Agency Release Panel shall meet and decide challenges sitting as a committee of the whole. Decisions are by majority vote of those present at a meeting and shall be based on the written record and their deliberations; no personal appearances shall be permitted without the express permission of the Panel.

(b) Action by Historical Records Policy Board.

 In any cases of divided vote by the ARP, any member of that body is authorized to refer the request to the CIA Historical Records Policy Board which acts as the senior corporate board for the Agency. The record compiled (the request, the memoranda filed by the originator and interested parties, and the previous decision(s)) as well as any memorandum of law or policy the referent desires to be considered, shall be certified by the Executive Secretary of the Agency Release Panel and shall constitute the official record of the proceedings and must be included in any subsequent filings.

32 CFR 1907.26:  Notification of decision and prohibition on adverse action.

The Executive Secretary of the Agency Release Panel shall communicate the decision of the Agency to the authorized holder, the originator, and other interested parties within ten (10) days of the decision by the Panel or Board. That correspondence shall include a notice that no adverse action or retribution can be taken in regard to the challenge and that an appeal of the decision may be made to the Interagency Security Classification Appeals Panel (ISCAP) established pursuant to § 5.4 of this Order.


 

Right of Appeal

32 CFR 1907.31:  Right of appeal.

A right of appeal is available to the ISCAP established pursuant to § 5.4 of this Order. Action by that body will be the subject of rules to be promulgated by the Information Security Oversight Office (ISOO).