5 FAM 480
Classifying and Declassifying National Security Information—Executive Order 13526
(Office of Origin: A/GIS/IPS)
5 FAM 481 GENERAL
5 FAM 481.1 POLICY AND PURPOSE
a. This subchapter sets forth the procedures to be followed in the Department to implement Executive Order 13526, Classified National Security Information (“the order”). This sub-chapter supplements and expands upon the Department’s national security information regulations appearing in Title 22 Code of Federal Regulations Part 9 (see 5 FAM 481.3, below).
b. E.O. 13526 establishes a uniform system for classifying, marking, safeguarding, and declassifying national security information; i.e., information the unauthorized disclosure of which could reasonably be expected to cause damage to the national defense or foreign relations of the United States. The order is intended to keep to a minimum the amount of information that is classified and the length of time it remains classified, as well as to facilitate its eventual declassification.
c. The full text of E.O. 13526, which supersedes all previous Executive Orders on the subject, is on the Government Printing Office (GPO) website. The implementing Directive by the Information Security Oversight Office may be found at 32 CFR 2001.
5 FAM 481.2 Scope and Applicability of E.O. 13526
a. E.O. 13526 applies to the creation, use, handling, and declassification of classified information as well as access to such information. It applies to all classified information, regardless of physical format, and includes photographs, emails, tapes, web pages, and any other items created by Department personnel or contained in the files of the Department. It does not apply to information that is not classified but that may require protection, including withholding under the Freedom of Information Act or other law, such as information pertaining to law enforcement, information protected by attorney-client or attorney-work product privilege, or privacy, confidential commercial, or sensitive deliberative information. Such information, though it is not classified national security information, may bear administrative designations such as Sensitive But Unclassified (SBU), Personally Identifiable Information (PII), Critical Infrastructure Information (CII), or Controlled Unclassified Information (CUI) which is being implemented to replace SBU, and other labels indicating that it requires protection from public disclosure.
b. Restricted data (RD) and formerly restricted data (FRD): E.O. 13526 does not supersede the Atomic Energy Act of 1954, as amended, and “RD” and “FRD” must be handled, protected, classified, downgraded, and declassified in conformity with the provisions of the Atomic Energy Act of 1954, as amended, and regulations issued under that act. RD concerns the design, manufacture, or utilization of atomic weapons; the production of special nuclear material, e.g., enriched uranium or plutonium; or the use of special nuclear material in the production of energy. FRD is related primarily to the military utilization of atomic weapons. The Departments of Energy and Defense oversee the Federal government’s programs concerning RD and FRD.
5 FAM 481.3 Implementation and Review
a. E.O. 13526 requires agencies to designate a senior agency official who will be responsible for implementation of the order, including implementing instructions and education and training. In the Department, the Secretary of State has designated the Under Secretary for Management (M) as the senior agency official.
b. The responsibility for implementation of the order is shared by the Bureau of Administration (A) and the Bureau of Diplomatic Security (DS). The Office of Information Security (DS/SI/IS) is responsible for all aspects of the protection and safeguarding of classified information and of special access programs under the purview of the Secretary of State ("Department special access programs"). DS/SI/IS also sets policy for captions that may go after the TS, S, or C marking (i.e., ORCON, RELTO, and NOFORN distribution restrictions). See 12 FAM 536.7 for guidance. The A bureau, specifically A/GIS/IPS, is responsible for other aspects of implementation of E.O. 13526, including the classification, declassification, and marking of information classified under the order as well as training and guidance in classification and declassification.
c. E.O. 13526 provides that the director of the Information Security Oversight Office (ISOO), under the direction of the archivist of the United States and in consultation with the assistant to the President for National Security Affairs, shall issue directives necessary to implement the order. The ISOO director has issued a directive (32 CFR 2001) that sets forth in some detail procedures for implementing various provisions of E.O. 13526. This subchapter (5 FAM 480) reflects many of the requirements of the ISOO directive and of the Department’s national security information regulations appearing in Part 9 of Title 22 of the Code of Federal Regulations (22 CFR 9). 22 CFR 9 sets forth the Department’s regulations regarding classification and declassification of national security information, including derivative classification and classification challenges. Code of Federal Regulations provisions pertaining to certain information access aspects of E.O. 13526, such as systematic and mandatory declassification review, may be found in 22 CFR 171.
d. E.O. 13526 establishes an Interagency Security Classification Appeals Panel (ISCAP). Since its creation, the Deputy Assistant Secretary (DAS) for A/GIS has been the Department's member on the ISCAP. The Office of Information Programs and Services (A/GIS/IPS) has provided support to the member and provided liaisons and alternate members. The ISCAP is charged with the responsibility for ruling on:
(1) Classification challenge appeals;
(2) Agency requests for exemption from automatic declassification; and
(3) Mandatory declassification appeals by individuals.
e. Each Department employee and contractor is responsible for knowing and following the requirements of E.O. 13526, 12 FAM 500 (Information Security), as well as this subchapter.
5 FAM 481.4 Special Access Programs
As required by Section 4.3(b)(4) of E.O. 13526, the officials responsible for any Department special access programs (SAPs) will annually submit to the Secretary or a Deputy Secretary an explanation for the existence of and justification for the continued operation of those SAPs so that the Secretary or a Deputy Secretary may determine whether those programs continue to meet the requirements of the order.
5 FAM 482 CLASSIFICATION OF NATIONAL SECURITY INFORMATION
5 FAM 482.1 Requirements for Classification
a. Information that warrants classification under E.O. 13526 may be classified:
(1) By persons to whom original classification authority has been delegated (see 5 FAM 482.2 below), and
(2) Derivatively on the basis of the original classification of the information by an authorized classifier or pursuant to the Department’s Classification Guide (see 5 FAM 482.3 below).
NOTE: Authorization to classify information at a specified level includes authorization to classify information at a lower level.
b. Original classification: Information may be originally classified under E.O. 13526 only if all the following conditions are met:
(1) An original classification authority (OCA) is classifying the information;
(2) The information is owned by, produced by or for, or is under the control of the U.S. Government;
(3) The information falls within one or more of the categories of information listed in section 1.4 of E.O. 13526 (see 5 FAM 482.5, below); and
(4) The OCA determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security that can be identified or described.
c. Derivative classification: Information may be classified derivatively in two ways:
(1) By reproducing, extracting, or summarizing classified information or applying classification markings derived from the source material, or
(2) As directed by the Classification Guide (see 5 FAM 482.3, below).
NOTE: Persons who classify information derivatively need a security clearance, but need not possess original classification authority.
5 FAM 482.2 Original Classification Authorities (OCA)
a. Top Secret classification authorities: Pursuant to section 1.3 of E.O. 13526 and the delegations made thereunder by the Secretary, those occupying various positions in the Department and at posts abroad have the authority to classify information originally as Top Secret. The positions include the Secretary, the Deputy Secretaries, the Under Secretaries, assistant secretaries, and some executive level IV officials and their deputies; chiefs of mission, Charges d’affaires, and U.S. Representatives to various international organizations.
b. Secret and confidential classification authorities: Pursuant to section 1.3 of E.O. 13526 and the delegations made thereunder by the Secretary or the senior agency official, those occupying various positions in the Department and at posts abroad have the authority to classify information originally as Secret or Confidential. The positions include deputy assistant secretaries in the Department; deputy chiefs of mission abroad, and principal officers at consulates general and consulates abroad.
c. A complete listing of Top Secret and Secret Original Classification Authorities may be found on the Intranet. All Original Classification Authorities must receive training on proper classification and declassification at least once a year, pursuant to section 1.3 of E.O. 13526.
d. A/GIS/IPS will review the lists of Top Secret and Secret original classification authorities each year, comparing these lists to the Department's current structure to determine if the lists are current and accurate. When updates to the lists are required, A/GIS/IPS will send the updated lists for approval to the Under Secretary for Management for Secret level original classification authorities and to the Secretary of State for Top Secret level original classification authorities.
5 FAM 482.3 Derivative Classification Authority
a. Using the Department’s Classification Guide.as explained in Part 2 of E.O. 13526, derivative classification is permitted where classification decisions are made in accordance with the instructions contained in an agency Classification Guide. The Department’s Classification Guide, which may be found on CLASSNET, provides detailed guidance on the proper classification of the types of information most frequently classified by the Department. Use of the Classification Guide is the preferred method of classification and is intended to ensure uniformity and conformity with government-wide classification standards. While classifying information based on the Classification Guide is a form of derivative classification, it is different from restating or otherwise using information that is already classified (see 5 FAM 482.3 paragraph b, below). As with the person who reproduces, extracts, or summarizes information that is already classified, the person who applies classification markings based on or as directed by a Classification Guide need not possess original classification authority. However, it is essential that the material being classified and the level and duration of classification fit within the provisions for classification set forth in the Classification Guide, including the general prohibition against derivatively classifying information for more than twenty-five years on the basis of a Classification Guide except for information that should clearly and demonstrably be expected to reveal the identity of a confidential human source, a human intelligence source, or key design concepts of weapons of mass destruction, and specific information incorporated into Classification Guides in accordance with section 2.2(e) of E.O. 13526. The order also requires that derivative classifiers be identified by name and position (or personal identifier) on the classified information. Department derivative classifiers are required to receive training on the proper application of derivative classification principles annually or their derivative classification authority will be suspended until they receive such training.
b. Using information that is already classified: Another form of derivative classification is the incorporating, paraphrasing, restating, or generating in a new form information that is already classified and then marking the newly developed material consistent with the classified markings that apply to the source information. Although persons who reproduce, extract, or summarize classified information need not possess original classification authority, they must observe and respect the original classification decisions and carry forward to any newly created documents the pertinent classification markings (see 5 FAM 482.11, below). When information assigned a level of classification lacks required markings (e.g., the declassification date is missing, no reason is stated, etc.) derivative classifiers should remedy the error. If classifiers have a question when remedying the error, they should ask the first OCA in their supervisory chain or email firstname.lastname@example.org or, if classified information is contained, email email@example.com. All sources for derivatively classified information must be identified; when multiple sources are noted, a list of all sources must be included with the new classified document.
c. If an employee, contractor, licensee, certificate holder, or grantee of the Department originates information that is not marked as classified, but which an employee believes should be classified, he or she should first consult the Department of State Classification Guide to see if the information in question is covered by the guide. If the guide does not address the information in question, the employee must protect the information as though it were classified and forward the document(s) to the first OCA in his or her chain of command with a request that the OCA make a determination about the classification status of the information. The OCA shall render a decision on the classification status of the information within 30 days and provide written notification to the originator of the information. The OCA will consult with any necessary subject matter experts, including those at other agencies.
5 FAM 482.4 Classification Levels
a. Information may be classified at one of the three levels described below. Except as otherwise provided by statute (e.g., the Atomic Energy Act for restricted data and formerly restricted data), no other terms may be used to identify United States classified information. If there is significant doubt about the appropriate level of classification, it should be classified at the lower level.
b. “Top Secret” applies to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the OCA is able to identify or describe.
c. “Secret” applies to information, the unauthorized disclosure of which could reasonably be expected to cause serious damage to the national security that the OCA is able to identify or describe.
d. “Confidential” applies to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the OCA is able to identify or describe.
5 FAM 482.5 Classification Categories
a. In order to classify information, it must pertain to one of the following:
(1) Military plans, weapons systems, or operations;
(2) Foreign government information;
(3) Intelligence activities (including covert action), intelligence sources or methods, or cryptology;
(4) Foreign relations or foreign activities of the United States, including confidential sources;
(5) Scientific, technological, or economic matters relating to the national security;
(6) U.S. programs for safeguarding nuclear materials or facilities;
(7) Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or
(8) The development, production, or use of weapons of mass destruction.
b. The Department’s Classification Guide contains detailed descriptions of the types of information most frequently encountered at the Department that fall within one or more of these categories.
5 FAM 482.6 Foreign Government Information
a. For the Department and the Foreign Service, the most important category of national security information is foreign government information (FGI). FGI is defined in E.O. 13526 as:
(1) Information provided to the United States by a foreign government or an international organization of governments or any element thereof with the expectation that the information, its source, or both are to be held in confidence; or
(2) Information produced by the U.S. under an international arrangement requiring that the information or the arrangement be held in confidence.
b. FGI may be included in diplomatic notes, aide memoires, non-papers, memcons, telegrams, emails, or other documents reporting conversations with foreign government officials. When in the form of a diplomatic note or other written communication from a foreign government official, it may well not bear any foreign government security classification. It may, nevertheless, require protection and, therefore, require a U.S. security classification to appropriately protect the information. For how FGI should be identified and marked, see 5 FAM 482.10 paragraph f, below.
c. As provided in section 1.1(d) of E.O. 13526, the unauthorized disclosure of FGI is presumed to cause damage to the national security.
d. Recipients of FGI must provide a degree of protection for that information at least equivalent to that required by the foreign government or the international organization that provided the information. When adequate to achieve the required protection, FGI may be handled under standards that are less restrictive than the safeguarding standards that ordinarily apply to U.S. “Confidential” information, including modified handling and transmission and allowing access to individuals with a need-to-know who have not otherwise been cleared for access to classified information or executed an approved nondisclosure agreement. For more information on modified handling procedures, see 12 FAM 534.1 paragraph (d). Questions about this aspect of E.O. 13526 should be addressed to DS/SI/IS or the Office of the Legal Adviser (L).
e. Foreign government information provided pursuant to an existing treaty, agreement, bilateral exchange, or other process may require protection in addition to that established for U.S. classified information. For example, the release or disclosure of foreign government information to any third-country entity may require the prior consent of the originating government.
f. To obtain authorization to disclose classified information originating in the United States to foreign governments, including information with dissemination controls, follow the procedure in 12 FAM 536.6-4. For detailed instructions on international information sharing arrangements, see 11 FAM 500.
5 FAM 482.7 Duration of Classification
a. At the time of original classification, the classifier must establish a specific date or event for declassification based on the duration of the national security sensitivity of the information.
b. If unable to determine a date or event less than 10 years out, a declassification date that is 10 years from the date of origin should be assigned unless the classifier determines that the national security sensitivity of the information will exceed 10 years, in which case a date or event not to exceed 25 years should be assigned.
c. The only circumstances in which information may be originally classified for more than 25 years are in order to protect a confidential human source or a human intelligence source or key design concepts of weapons of mass destruction in which case such information may be originally classified for up to 75 years (see section 3.3(h) of E.O. 13526 and 32 CFR 2001.12 paragraphs (a)(2)(i) and (ii)). This limitation, however, does not preclude extension of classification by an OCA beyond 25 years at some later date (see 5 FAM 482.8, below). Both OCAs and derivative classifiers using the Department of State Classification Guide should mark the duration for classification of human sources as 50X1-HUM or 50X2-WMD as appropriate (X1 and /or 25X1-human are no longer used).
d. All information classified under the order and contained in records of permanent historical value under Title 44, U.S.C., is subject to the automatic declassification provisions of section 3.3 of E.O. 13526 (see 5 FAM 484.1,below).
e. No information may remain classified indefinitely. Information classified under a previous order and marked for an indefinite duration of classification (e.g., information marked “OADR” for “Originating Agency’s Determination Required”) or classified with incomplete declassification instructions will be subject to automatic declassification 25 years from its origination or initial classification (not its derivative classification) in accordance with section 3.3 of E.O. 13526.
f. When classifying information derivatively from an already classified source, if a duration of classification is missing, the derivative classifier should insert a valid declassification instruction in YYYYMMDD format not to exceed 25 years from the date of the source document or 25 years from the date of the current document if the date of the source document is unknown. Documents that identify a confidential human source or human intelligence source, or key design concepts of weapons of mass destruction should carry the 50X1-HUM or 50X2-WMD marking.
5 FAM 482.8 Extending the Duration of Classification
Only an original classification authority with jurisdiction over the information may extend the duration of its classification. Extending the duration of classification requires that all the substantive and procedural requirements for original classification be met, and the extension of classification may not exceed 25 years from origination unless all the requirements of section 3.3 of E.O. 13526 for exempting information from automatic declassification at 25 years are met (see 5 FAM 484.1, below).
5 FAM 482.9 Reclassifying Information
a. As a general rule, information that has been declassified or marked as unclassified or that is unmarked may be classified or reclassified at any time if:
(1) It otherwise meets the requirements for classification; and
(2) It has not been previously released to the public under proper authority.
NOTE: However, if the information is the subject of a request under the Freedom of Information Act, the Privacy Act, the Presidential Records Act, or the mandatory declassification review provisions of E.O. 13526, Section 1.7(d) of the order states that it may be classified or reclassified only if such classification or reclassification is accomplished under the direction of the Secretary, a Deputy Secretary, or the senior agency official designated under section 5.4 of the order (which, in the Department, is the Under Secretary for Management (M)). M has delegated the authority and responsibility for classification actions under section 1.7(d) to the Deputy Assistant Secretary for Global Information Services (A/GIS) and the director of the Office of Information Programs and Services (A/GIS/IPS). When classifying or reclassifying such information, it should be marked in the same way as if it were being originally classified (see 5 FAM 482.10, below).
b. Information that has been declassified and released under proper authority may be reclassified only if:
(1) The information may be reasonably recovered;
(2) The reclassification is approved by the secretary; and
(3) The reclassification action is promptly reported to the national security advisor and the director of ISOO.
5 FAM 482.10 Identification and Markings for Original Classification
a. Classified information must be uniformly and conspicuously marked in order to leave no doubt about the classified status of the information, the level of protection required, and the duration of the classification.
b. On the face of each originally classified document, regardless of media, the original classification authority (OCA) must apply the following markings:
(1) At the top and bottom of the document or other media, the overall classification;
(2) On the “classified by” line, the identity by name and position or by personal identifier, of the OCA, followed by the office, bureau, or post, and agency of origin, if not otherwise evident;
(3) On the “reason” line, the basis for classification; i.e., one of the classification categories set forth in section 1.4 of E.O. 13526 (and in 5 FAM 482.5 above) and shown by writing the number 1.4 followed by the letter of each applicable category;
(4) On the “declassify on” line, the duration of the classification as shown by the date or event at which it will become unclassified, or 50X1-HUM or 50X2-WMD markings.
EXAMPLE OF ORIGINAL CLASSIFICATION MARKING
Classified By: June Jones, DAS, M/OFM
Reason: 1.4(b) and (d)
Declassify On: 20160303
c. Each portion of a document containing classified information, ordinarily a paragraph but including the subject line, headers, summaries, tables or graphics, must be marked to indicate its classification level, or that it is unclassified, by placing one of the parenthetical symbols listed below immediately preceding the portion to which it applies. Subject line and header portion markings may appear after the text.
(TS) = Top Secret (S) = Secret
(C) = Confidential (SBU) = Sensitive But Unclassified (U) = Unclassified
d. The highest classification level of information contained in a document determines the overall classification level of the document. The overall classification should be placed at the top and bottom of all pages of a document including the cover, if any.
e. A transmittal document should indicate on its face the highest classification level of any document attached or enclosed. A document transmitting classified documents is often, by itself, unclassified or classified at a lower level than the documents it is transmitting. In such a case, it should also carry conspicuously on its face the following instruction, as appropriate.
EXAMPLES OF TRANSMITTAL MARKINGS
Unclassified when classified attachment is removed
Upon removal of attachments, this document is [Unclassified/Classification Level].
f. As noted in 5 FAM 482.6 above, foreign government information (FGI) requiring protection may appear in a foreign government’s documents with or without a security classification marking by that government. It is the responsibility of the recipient U.S. agency to mark such FGI requiring security classification protection with the appropriate level of U.S. security classification marking.
g. For State Department documents, it will generally be evident from the text or the documents’ security classification “reason” marking, e.g., “1.4(b),” that they contain FGI. In the unusual circumstance where the presence of FGI is not evident, the document shall be marked “This Document Contains [country of origin] Information,” or simply “contains FGI” if the identity of the foreign government must be concealed. A separate record identifying the foreign government shall be maintained to facilitate eventual declassification. If the fact that the information is foreign government information must be concealed, the document should be marked as if it were wholly of U.S. origin. While other agencies are required to indicate all individual portions containing FGI, the Department has a waiver from ISOO from this requirement. However, Department classifiers incorporating other agencies’ FGI marked materials should carry forward those FGI portion markings.
h. Working papers or drafts, regardless of media, containing classified information shall be dated when created and marked with the highest classification of information contained therein, protected at that level, and if otherwise appropriate destroyed when no longer needed. Working papers must be controlled and marked in the same manner prescribed for a finished document at the same classification level if they are released by the originator outside the originating agency, retained for more than 180 days from the date of origin, or filed permanently.
i. Particular care must be taken to insure that any special media, such as floppy disks, CD-ROMs, flash drives, audio or visual tape cartridges, or equipment, are clearly marked so as to show the classification status of the material, the level of protection required, and the duration of the classification.
j. Information marked with a classification level under this or predecessor orders should be considered classified at that level of classification despite the omission of other required markings. Whenever such information is used in the derivative classification process or is reviewed for possible declassification, holders of such information should coordinate with an appropriate classification authority (e.g., A/GIS/IPS) for the application of the omitted markings.
k. If the classified information in a document, including an email, constitutes a small portion, the classification authority should consider using a separate classified addendum or separate email.
5 FAM 482.11 Identification and Markings for Derivative Classification
a. Information classified derivatively using the Department’s Classification Guide should be marked in accordance with the instructions in the Classification Guide.
Classified By: June Jones, Director A/GIS/IPS
Derived From: Department of State Classification Guide, 11-01, B
Declassify on 20150312
Classified By: June Jones, Director A/GIS/IPS
DRV from DSCG 11-01, B
Declassify on 20150312
b. Information classified derivatively by incorporating, paraphrasing, restating, or generating in a new form information that is already classified should concisely identify the agency/office of origin and the date of the source on the “Derived From” line.
Derived From: DOS Memo, “Funding Issues,” 10/20/03, AF to IO
Derived From: Multiple Sources, last dated 01/05/04
The derivative classifier should maintain with the file or record copy of the derivatively classified document a listing of the sources used, but it is not necessary to transfer the reason(s) for the original classification decision to the derived document.
c. The declassification instructions from the source document should be carried forward to the derivatively classified document. When a document is derivatively classified from multiple sources, the declassification date or event should be the longest declassification date or event of any of the sources. When the document is derivatively classified from a source marked “OADR” or a source showing any of the 25-year exemption markings X1 through X9 (see 5 FAM 485.2, below), the derivative classifier shall carry over the human source exemption or calculate a date that is 25 years from the date of the (latest) source document when determining the derivative document’s date or event to be placed on the “Declassify On” line.
EXAMPLES OF DURATION MARKINGS
Declassify On: 20201020 Source Marked “OADR;” dated 10/20/95.
Declassify On: 20280513 Source Marked “X2” and “X8;” dated 05/13/03.
Declassify on 20361228 (Calculate 25 year max when source unmarked)
5 FAM 482.12 Classification Prohibitions
E.O. 13526 prohibits classifying information to conceal violations of the law, inefficiency, or administrative error; to prevent embarrassment to a person, organization, or agency; to restrain competition; or to prevent or delay the release of information that does not require protection in the interest of national security. However, the order does permit classification of information concerning the “foreign relations or foreign activities of the United States,” so classification of some information that arguably falls within one of the categories above might nonetheless be warranted.
5 FAM 483 UPGRADING/DOWNGRADING CLASSIFIED INFORMATION
5 FAM 483.1 General
a. Upgrading means changing the level of classified information to a higher level of classification (e.g., Confidential to Secret). Downgrading means changing the level of classified information to a lower level (e.g., Secret to Confidential). Downgrading does not include declassification of information.
b. Information may be upgraded or downgraded by:
(1) The official who authorized the original classification, if that official is still serving in the same position;
(2) The successor in function to the official who originally classified the information;
(3) A supervisory official of either; or
(4) Officials delegated such authority in writing by the Secretary of State or the Under Secretary for Management.
NOTE: However, information may be upgraded to or downgraded from Top Secret only by those possessing original Top Secret classification authority or otherwise authorized to make such a change in classification.
5 FAM 483.2 Marking Changes in Classification Level
Documents whose classification level has been changed, such as by upgrading or downgrading, must be marked accordingly. Any previous markings that do not apply must be crossed through and new markings applied. Portion markings must also be changed as required, and the “Classified by” line revised to show the date of the action and the authority for change.
EXAMPLE OF UPGRADING/DOWNGRADING MARKING
Classified by June Smith, Chief, Programs and Policies Division, A/GIS/IPS/PP
Reason: 1.4(b) and (d)
Declassify on 05/03/16
Downgraded to [e.g., CONFIDENTIAL] by John Jones, DAS, A/GIS, January 1, 2010
5 FAM 483.3 Handling of Documents Upgraded to Confidential or Secret
5 FAM 483.3-1 Background
a. Executive Order (E.O.) 13526 on Classified National Security Information prescribes a uniform system for classifying, safeguarding, and declassifying national security information.
b. When information has been requested under the Freedom of Information Act (FOIA), it may be classified only under the more restricted terms of Section 1.7(d) of E.O. 13526. This process is commonly referred to as an “upgrade” or as “upgrading” information. Section 1.7(d) of E.O. 13526 states:
(d) Information that has not previously been disclosed to the public under proper authority may be classified or reclassified after an agency has received a request for it under the Freedom of Information Act (5 U.S.C. 552), the Presidential Records Act, 44 U.S.C. 2204(c)(1), the Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory review provisions of section 3.5 of this order only if such classification meets the requirements of this order and is accomplished on a document-by-document basis with the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official designated under section 5.4 of this order. The requirements in this paragraph also apply to those situations in which information has been declassified in accordance with a specific date or event determined by an original classification authority in accordance with section 1.5 of this order.
5 FAM 483.3-2 Standard Operating Procedure
a. Information that is identified during a FOIA review may be considered for classification.
b. A classification memorandum is drafted for the Under Secretary for Management, the Deputy Assistant Secretary for Global Information Services, or the director of the Office of Information Programs and Services in the Bureau of Administration (A) who have been delegated the authority to upgrade information following this process.
c. The memorandum is then reviewed.
d. If the memorandum is approved, the information is classified or reclassified.
e. Custodians of the information will be notified that the information has been classified or reclassified; this is done so that the information is appropriately handled from that point forward.
f. The information will be removed from certain systems/networks and placed in appropriate systems/networks.
5 FAM 483.3-3 Notification Text
The following instructions should be sent to Department of State personnel following the classification of a document as Confidential or Secret pursuant to section 1.7(d) of Executive Order 13526 and 5 FAM 482.9 in connection with a request under the Freedom of Information Act. In general, these instructions should be sent to any and all individuals who are identified as having sent or received the newly classified document:
(1) Begin text of instructions to current employees as follows: You are receiving this message because information that was previously unclassified and that may be in your possession has since been classified as Confidential or Secret pursuant to Executive Order 13526, section 1.7(d), in connection with a request under the Freedom of Information Act (FOIA). A copy of the document(s) as redacted for FOIA is attached to this email. This is intended to help you find any versions of the document in your possession; and
(2) Steps to follow:
(a) Forward this message to your information systems security officer (ISSO);
(b) Conduct an electronic search;
(c) Locate any electronic copies of the document in your possession. Keep in mind that you may have saved copies of messages in email archives or folders, including your sent folder;
(d) If you locate a copy of the document on OpenNet, determine if the document should be preserved if, for example, you have a continuing need to access the information; it is a Federal record; or it is the subject of litigation or other legal hold. If so, and if you have the appropriate clearance to access and possess the document, you may transfer the document to ClassNet, for example, using SMART or with assistance from the IT service center. If you do not have the appropriate clearance to access and possess the document, please contact your ISSO immediately;
(e) Upon proper transfer of the document to CLASSNET (thus properly preserving the document), delete all electronic copies of the document in your possession on OpenNet. Additionally, empty your deleted items folder;
(f) Mark the document with the classification information shown on the redacted copy provided and consult your ISSO when necessary;
(h) Conduct a physical search to locate any non-electronic copies of the document(s) in your possession. If you locate a copy of the document, and if you have the appropriate clearance to access and possess the document, determine if the document should be preserved since, for example, you have a continuing need to access the information; it is a Federal record; or it is the subject of litigation or other legal hold. If so, mark it appropriately as noted. (See 5 FAM 482.11.) If you do not have the appropriate clearance to access and possess the document, please contact your bureau security officer (BSO) or regional security officer (RSO) immediately;
(i) Mark the document with the classification information shown on the redacted copy provided and consult your ISSO when necessary;
(j) Preserve and store properly at least one copy of the document as necessary (5 FAH-4 H-315.1). You may keep additional copies provided they are properly marked and stored in an approved security container authorized for Confidential or Secret material;
(k) If you are aware of any other individuals who received or were given copies of the document, please forward this notification to them, copying FOIADocResponse@State.Gov, and request that they acknowledge receipt to you and FOIADocResponse@State.Gov;
(l) Notify your information systems security officer of the actions you have taken, referencing these instructions. Please acknowledge receipt of this message to FOIADocResponse@State.Gov; and
(m) Note that the classification of this document, pursuant to E.O. 13526, Section 1.7(d), does not in itself indicate that any person previously acted improperly with respect to the document or the information contained therein. Going forward, however, the document is to be safeguarded in accordance with Department procedures for the handling of classified information.
5 FAM 484 Declassification of National Security Information
5 FAM 484.1 General
a. Declassification means an authorized change in the status of information from classified information to unclassified information. Information should be declassified as soon as it no longer meets the standards for classification under E.O. 13526.
b. Classified information is not declassified automatically because of an unauthorized release of identical or similar information.
c. Declassification usually occurs as the result of review of information under one of several established programs:
(1) Systematic declassification review of 25-year old classified information (see 5 FAM 485, below);
(2) Mandatory declassification review of specific information in response to a request pursuant to the order for its declassification (see 5 FAM 486, below); or
(3) Review of classified information retrieved as responsive to an information access request, such as under the FOIA or the Privacy Act. All these programs are administered primarily by the Office of Information Programs and Services (A/GIS/IPS), and any inquiry regarding declassification should be directed to that office.
d. Declassification may also occur through special declassification projects, some mandated by legislation (e.g., Kennedy Assassination Papers, Nazi War Crimes Documents) and some initiated by the executive branch (e.g., Chile and Argentina declassification projects). Such projects are also carried out by A/GIS/IPS. The declassified results of these projects are usually posted on the Department’s website on the FOIA homepage.
e. Declassification may also occur automatically by (1) occurrence of the date or event specified by the original classification authority, or (2) expiration of the maximum time frame for duration of classification established under E.O. 13526, usually 25 years from origination (see 5 FAM 485, below).
f. Although it is presumed that information that continues to meet classification requirements requires continued protection, section 3.1(d) of E.O. 13526 permits declassification of classified information by the Secretary or the Under Secretary for Management, as an exercise of discretion, when a determination is made that the public interest in disclosure outweighs the need to protect the information.
5 FAM 484.2 Declassification Authority
a. Information generally may be declassified by:
(1) The official who authorized the original classification, if that official is still serving in the same position and has original classification authority;
(2) The originator’s successor in function if that official has original classification authority;
(3) A supervisory official of either if that official has original classification authority; or
(4) Officials delegated declassification authority in writing by the Secretary of State or the Under Secretary for Management.
b. The Department’s primary declassification authority is A/GIS/IPS which has been delegated declassification authority by the Under Secretary for Management. It is advisable to consult A/GIS/IPS on all declassification questions in order to ensure consistency in declassification decisions and updates of archival records in electronic systems. In all cases, A/GIS/IPS should be consulted on declassification determinations that may involve the equities of other agencies, foreign governments, or multiple offices within the Department. Diplomatic Security should be consulted for information sharing decisions for tribal, State, and local governments.
5 FAM 484.3 Declassification Marking
All declassified records, regardless of media format, must be marked in such a manner as to leave no doubt about the declassified status of the information and the identity of the declassification authority. Specifically, the classification marking must be marked through by Xs or a line and include:
(1) The word “Declassified;”
(2) The name or personal identifier and the position title of the declassification authority or Declassification Guide; and
(3) The date of declassification.
EXAMPLE OF DECLASSIFICATION MARKING
Declassified by John Jones,
DAS, Office of Foreign Missions, M/OFM,
5 FAM 485 Automatic Declassification
5 FAM 485.1 Automatic Declassification - General
a. With certain exceptions, all classified records that are more than 25 years old and are considered to have permanent historical value under 44 U.S.C., are subject to automatic declassification, whether or not they have been reviewed (see section 3.3 of E.O. 13526). With certain exceptions, all classified records are automatically declassified on December 31 of the year that is 25 years from the date of their origin. If the date of origin cannot be readily determined, the date of original classification should be used.
b. A/GIS/IPS administers the program to review classified records approaching 25 years of age to ensure that any applicable exceptions or exemptions from automatic declassification have been identified and appropriate action taken. Do not assume that a classified record that is more than 25-years old has been declassified. Many have had their classification extended under section 3.3 of E.O. 13526. Consult A/GIS/IPS/PP/DRS: DiplomaticResearch@state.gov.
c. Records containing information that originated with other agencies or the disclosure of which would affect the interests or activities of other agencies must normally be referred for review to those agencies, and the information of concern shall be subject to declassification only by or with the concurrence of those agencies.
d. Records containing foreign government information are sometimes governed by an agreement or referred to the originating government for its views on declassification. In the case of records containing FGI, consult A/GIS/IPS. The same is true for records from USUN, NATO, UNESCO, etc.
e. Classified records within an integral file block, otherwise subject to automatic declassification under this section, are not automatically declassified until December 31 of the year that is 25 years from the date of the most recent record within the file block. An integral file block usually consists of a set of records covering either a specific topic or a range of time, such as a presidential administration. Most integral file block determinations were made prior to the initial automatic declassification deadline of December 31, 2006. Any office or bureau that believes that the integral file block provision may be applicable to some of its records should consult A/GIS/IPS. Under E.O.13526, file blocks containing classified information may span no more than 10 years without a waiver from ISOO/NARA. Offices needing assistance regarding file series currently spanning more than 10 years should consult A/GIS/IPS/PP/LA for assistance via firstname.lastname@example.org.
f. Restricted data and formerly restricted data are not classified under the provisions of E.O. 13526 and are not subject to the automatic declassification provisions of the order.
g. Information exempted from automatic declassification remains subject to the mandatory and systematic review provisions of E.O. 13526 (See 5 FAM 486, below).
5 FAM 485.2 Automatic Declassification Exemptions
a. Section 3.3 of E.O. 13526 provides that information may be exempted from automatic declassification at 25 years if its release should clearly and demonstrably be expected to:
(1) Reveal the identity of a confidential human source, a human intelligence source, a relationship with an intelligence or security service of a foreign government or international organization, or a nonhuman intelligence source; or impair the effectiveness of an intelligence method currently in use, available for use, or under development;
(2) Reveal information that would assist in the development, production, or use of weapons of mass destruction;
(3) Reveal information that would impair U.S. cryptologic systems or activities;
(4) Reveal information that would impair the application of state-of-the-art technology within a U.S. weapon system;
(5) Reveal formally named or numbered U.S. military war plans that remain in effect or reveal operational or tactical elements of prior plans that are contained in active plans;
(6) Reveal information, including foreign government information, that would cause serious harm to relations between the U.S. and a foreign government, or to ongoing diplomatic activities of the U.S.;
(7) Reveal information that would impair the current ability of U.S. Government officials to protect the President, Vice President, and others for whom protection services, in the interest of national security, are authorized;
(8) Reveal information that would seriously impair current national security emergency preparedness plans or reveal current vulnerabilities of systems, installations, or infrastructures relating to the national security; or
(9) Violate a statute, treaty, or international agreement that does not permit the automatic or unilateral declassification of information at 25 years.
b. Information subject to exemption from automatic declassification at 25 years because it falls within one of the categories in 5 FAM 485.2 paragraph a may be in the form of:
(1) Specific information that falls within one of the exemption categories in 5 FAM 485.2 paragraph a;
(2) A specific file series of records that the Department proposes to exempt from automatic declassification at 25 years because the information in the file series almost invariably falls within one of the exemption categories in 5 FAM 485.2 paragraph a; or
(3) Information specified as exempt from automatic declassification in the Department's Declassification Guide because it falls within one of the exempt categories in 5 FAM 485.2 paragraph a.
c. Section 3.3(c)(1) of E.O. 13526 requires that an agency head notify the Inter-Agency Security Classification Appeals Panel (ISCAP) of any specific file series of records the Department has determined to be exempt from automatic declassification because the information in the file series almost invariably falls within one of the subsection (a) exemption categories. The notification to ISCAP must include:
(1) A description of the file series;
(2) An explanation of why the information in the file series is almost invariably exempt from automatic declassification and must remain classified for longer than 25 years: and
(3) Except for human sources and key design concepts of weapons of mass destruction, a specific date or event for declassification that does not exceed December 31 of the year that is 50 years from the date or origin of the records.
d. Any proposals for exemption from automatic declassification at 25, 50, or 75 years must be made no earlier than five years nor later than one year before the information is subject to automatic declassification.
e. The fact that some information may ultimately be determined to warrant exemption from automatic declassification does not mean that the information may be exempted from automatic declassification at the time it is originally classified; i.e., that it may be classified initially for a period longer than 25 years. Normally, A/GIS/IPS will make all determinations regarding whether delay of or exemption from automatic declassification under E.O. 13526 is warranted and how documents are marked to reflect such determinations. The two exceptions to maximum 25 year duration are confidential human sources and design of WMD (50X1-HUM and 50X2-WMD, respectively).
5 FAM 486 Declassification Review
5 FAM 486.1 Systematic Declassification Review
Although the order requires the systematic review of all permanent historical records exempted from automatic declassification under Section 3.3 of E.O. 13526, the Department conducts a declassification review of all records of historical value, whether in paper, electronic, or special media format, prior to their reaching the automatic declassification age of 25 years. The systematic review program is conducted by A/GIS/IPS and is governed by the ISOO-approved 2001 Department of State 25-year Declassification Guide which identifies types of information that warrants classification beyond 25 years (see section 3.3 of E.O. 13526 and 5 FAM 485.2, above). After review, the records are transferred to the National Archives and Records Administration (NARA). When they are accessioned by NARA, usually when 30 years old, NARA becomes the legal owner of these records and is responsible for their disclosure to the public. Offices that believe they have information that routinely requires classification beyond 25 years should contact A/GIS/IPS/PP/LA as soon as possible before the Department forwards a revised Declassification Guide under E.O. 13526 to the Inter-Agency Security Classification Appeals Panel (ISCAP) for approval.
5 FAM 486.2 Mandatory Declassification Review
a. Requests for review for declassification of specific classified information are known as mandatory declassification review requests. A/GIS/IPS is responsible for administering the Department’s mandatory declassification review program required by E.O. 13526.
b. Unlike FOIA or Privacy Act requests which normally describe a subject to which the request pertains, a mandatory review request must describe or identify the document or material containing the information to be reviewed with sufficient specificity to enable IPS to locate the records with a reasonable amount of effort; i.e., without having to conduct an extensive or broad-based search.
c. If the information has been reviewed within the past two years or is the subject of pending litigation, the information is not subject to review for declassification, and A/GIS/IPS will inform the requester of this fact and of the requester’s right to appeal that decision initially to the Department’s Appeals Review Panel and ultimately to ISOO and the Interagency Security Classification Appeals Panel (ISCAP).
d. Information originated by:
(1) The incumbent President or the incumbent Vice President;
(2) Their staffs;
(3) Committees, commissions, or boards appointed by the incumbent President; or
(4) Other entities within the Executive Office of the President that solely advise and assist the incumbent President, is exempted from the mandatory review provisions of E.O. 13526.
e. In responding to a request for mandatory declassification review, the Department may refuse to confirm or deny the existence or non-existence of a document if the fact of its existence or non-existence would itself be classifiable under E.O. 13526.
f. Although information may be declassified as a consequence of a mandatory declassification review, its release to the public is still subject to any disclosure exemptions under applicable law, including the FOIA and the Privacy Act.
5 FAM 487 Classification Challenges
Like many of its predecessors, E.O. 13526 encourages challenges to the classification status of information by authorized holders of information who in good faith believe that its classification status or markings are improper. E.O. 13526 also provides that those making such challenges shall not be subject to retribution for such action. Formal challenges are required to be in writing, but they need not be any more specific than to question why information is or is not classified or is classified at a certain level. Under the Department’s regulations (22 CFR 9.8), challenges may be sent via secure means to an original classification authority (OCA) at the Department having jurisdiction over the information (with a copy of the challenge to A/GIS/IPS) or sent directly to A/GIS/IPS (SA2), preferably with copies of the classified documents. When sending a classification challenge to A/GIS/IPS, please send the challenge and the documents in question to email@example.com. The Department (either the OCA or IPS) is required to provide a response in writing within 60 days. A negative response may be appealed to the Department’s Appeals Review Panel (also A/GIS/IPS at SA-2) and, ultimately, to the Inter-Agency Security Classification Appeals Panel (ISCAP). For further information, contact A/GIS/IPS/PP or firstname.lastname@example.org, or on ClassNet at email@example.com.
5 FAM 488 RESOURCES
5 FAM 488.1 Training for Original Classification Authorities and Derivative Classifiers
a. Section 1.3(d) of the order and section 2001.70(d)(2) of the directive require that all original classification authorities (OCAs) receive training in proper classification (including the avoidance of over-classification) and declassification annually. Training shall include instruction on the proper safeguarding of classified information and on sanctions applicable to individuals who fail to classify information properly or protect classified information from improper disclosure. OCAs who fail to receive such training will have their classification authority suspended until such training is received.
b. Section 2.1(d) of the order and Section 2001.70(d)(3) of the Directive require that those who apply derivative classification markings receive training in the proper application of derivative classification principles with an emphasis on avoiding over-classification. The Department will suspend the classification authority of derivative classifiers who fail to receive such training annually until such training is received.
5 FAM 488.2 Classification Guides and Review of Classification Guidance
a. In accordance with Section 2.2 of the order and Section 2001.16 of the Directive, A/GIS/IPS, under the direction of M, shall conduct a fundamental classification guidance review no later than June 27, 2012 and at least once every five years thereafter. Such review shall include an evaluation of the content of the guidance and its use. The Department is required to provide ISOO with a detailed report summarizing the results of each review and to release an unclassified version to the public.
b. Under the direction of M, A/GIS/IPS will update the Department of State Classification Guide at least once every 5 years or more frequently if events warrant an earlier update. When updating the guide each bureau will be asked to review and identify any information that has changed and no longer requires classification or information that is not currently addressed in the guide but should be added.
c. Users of any of the Department’s Classification Guides should forward any information that they believe is inadequately covered by the guide to the office responsible for the guide.
d. As required to keep the Declassification Guide current and in any case no less frequently than every five years, A/GIS/IPS will prepare and submit to the ISCAP for its approval a cleared proposed 25-Year Declassification Guide. Individual requests for exemption from automatic declassification for information not covered by the guide will be submitted to the ISCAP by A/GIS/IPS no earlier than five years and no later than six months prior to the date for automatic declassification of the information.
e. The Declassification Guide will be used by the Systematic Review Program and FOIA reviewers in evaluating material for public release. Users of the Declassification Guide are encouraged to submit comments and suggestions for its improvement to firstname.lastname@example.org.
5 FAM 489 MANAGING CLASSIFIED INFORMATION
5 FAM 489.1 Performance Evaluation
Like its predecessor, E.O. 13526 requires that the agency head/senior agency official ensure that the system used to rate personnel performance include the designation and management of classified information as a critical element or item to be evaluated in the rating of OCAs, security managers or security specialists, and all other personnel whose duties significantly involve the creation of classified information.
5 FAM 489.2 Self-Inspection Programs
a. Section 5.4(d)(4) of the order requires that agency heads establish and maintain an on-going self-inspection program that shall include regular reviews of representative samples of original and derivative classification actions.
b. Under section 2001.60 of the Directive, the senior agency official (in the Department, the Under Secretary for Management (M)) determines the means and methods for the conduct of self-inspections. Such inspections include:
(1) Evaluation of the adherence by agency personnel to the principles and requirements of E.O. 13526 and the Directive and the effectiveness of the Department's programs dealing with classified national security information;
(2) Regular reviews of samples of the Department's original and derivative classification actions; and
(3) Review of the Department's security directives and instructions.
c. Under the Directive, self-inspections are required to be regular and on-going, conducted at least annually. They are to be documented both internally and externally, with the senior agency official reporting annually to the Director of ISOO on the programs (see 32 CFR 2001).
d. A/GIS/IPS administers the self-inspection program along with an annual report on classification management and an annual report on cost estimates for protecting national security information, each of which are submitted to ISOO. IPS follows NARA approved guidelines for compiling data and at appropriate times IPS will send data calls to those bureaus determined to hold data relevant to one of ISOO’s annual reports. In preparing data in response to IPS’ data calls, bureaus are responsible for adhering to the NARA guidelines when collecting the data and validating the data before submitting the results to IPS for inclusion in the Department’s ISOO reports:
(1) A/GIS/IPS will send an annual request to all bureaus for a count of classification decisions (memos, letter, etc.) made by bureau principals over the past fiscal year. Bureaus must submit a count of classification decisions in the following format to A/GIS/IPS by October 15 for the preceding fiscal year.
(2) Bureaus must maintain a repository of all classified documents processed by the bureau front office so that A/GIS/IPS can validate the count of classification decisions and inspect the decisions in keeping with Title 32 of the Code of Federal Regulations, Section 2001.60. The repository may be paper based or electronic but must include copies of all classified documents (memos, letters, reports, etc.) sent or received by bureau principals over the course of the fiscal year. There is no need to include cables or emails as these are available via the corporate archive.
5 FAM 489.3 Sanctions
a. Under the E.O. 13526, the director of ISOO, which conducts periodic inspections of agency classification activities, is required to report to the head of the agency or its senior agency official any violation of the order or its implementing directives.
b. Possible sanctions relating to classification management include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, and other such actions authorized by the Department’s regulations.