11 FAM 500
PROCESS AND INFORMATION SHARING
11 FAM 520
Release and Disclosure of U.S. Classified Information to Foreign Governments
(Office of Origin: L/M)
11 FAM 521 POLICIES
a. In the interest of national security, it is essential that the U.S. Government cooperate closely with certain foreign governments to the extent of providing foreign partners with classified information and appropriately protecting classified and sensitive information received from those governments. In accordance with Executive Order 13526, for the purposes of foreign disclosure or release of classified information, "foreign government" includes any element of a foreign government, or an international organization of governments, or any element thereof.
(1) Dissemination: A general term for distributing information to intended recipients;
(2) Disclosure: Showing or revealing classified information, whether orally, in writing or any other medium, without providing the recipient material for retention; and
(3) Release: For the purpose of this section, providing classified information in writing or any other medium for retention to foreign governments.
c. For guidance on markings related to the disclosure or release of classified information, see 12 FAM 536.7, Use of the Handling Caveats – Originator Controlled (ORCON), Not for Release to Foreign Nationals (NOFORN), and Releasable to (REL TO).
d. Authority to disclose or release classified information is as follows:
(1) Classified information may only be disclosed or released to a foreign government when specifically authorized by an official who has been delegated Original Classification Authority (OCA), or by subordinate officials designated by the OCA to make release decisions in a limited context for a specific program or ongoing information exchange. See 12 FAM Exhibit 536.7-1, General. For a list of positions with OCA, see 5 FAM 482.2;
(2) The agency, office, or officer who originated or created classified information is in the best position to judge whether it is appropriate to disclose or release the information with a foreign partner;
(3) Ambassadors or appropriate principal officers at post and senior Department security officials in consultation with regional bureaus and assigned desk officers, are to assess the general care, concern, and security capabilities and effectiveness of host governments to protect U.S. classified information entrusted to them;
(4) Disclosure or release of Top Secret information can only be authorized by persons who have been delegated Original Classification Authority for Top Secret information;
(5) Classified information that originated in another federal agency generally may be disseminated to another agency, U.S. entity, or foreign government without consultations with, and approval of, that agency. However, consultations with the originating agency are encouraged. Further, a recipient agency must not disseminate classified information when the originating agency has determined that prior authorization is required for such dissemination and has marked or indicated such requirement on the medium containing the classified information (see, for example, ORCON markings under 12 FAM 536.7-2). Affirmative dissemination markings that either authorize or limit further release of the originating agency’s information are one means of determining prior authorization for disclosure or release. Consultations are another means;
(6) The disclosure or release of foreign government information (FGI), including restricted, designated, or unclassified information provided in confidence, to a third-country entity must have the prior consent of the originating government if required by a treaty, agreement, bilateral exchange, or other obligation. See 5 FAM 482.6 and 12 FAM 534.1;
(7) Disclosures or releases of intelligence or intelligence-related information, including Sensitive Compartmented Information (SCI), are not covered by this guidance. Employees seeking to disclose or release national intelligence information should not use this guidance but must contact INR for further guidance. If there is any confusion as to whether classified information constitutes intelligence information, employees should consult with the originator and/or INR. See also 12 FAM 536.6-2; and
(8) This section does not apply to disclosure or release of classified military information, which is governed by the Department of Defense (see 12 FAM 536.6-3).
e. The following should be also considered in determining the appropriateness and suitability of sharing U.S. classified information with foreign governments:
(1) Whether the disclosure or release is consistent with U.S. foreign policy and national security objectives and is otherwise consistent with U.S. law and policy;
(2) Whether it is possible to obtain the desired objective without disclosing or releasing classified U.S. information;
(3) Whether sanitizing, downgrading, declassifying, or summarizing (e.g., via write-to-release) the information would be preferable to release;
(4) Whether the amount of information disclosed or released is limited to what is necessary to accomplish the desired objective;
(5) Whether the disclosure or release can be expected to result in a clearly identifiable benefit to the United States;
(6) Whether the recipient might use the information in a manner harmful to U.S. interests or for reasons contrary to the purpose(s) for which it is disclosed;
(7) Whether the recipient would share the information with other governments or third parties without permission;
(8) Whether the recipient has the capability and intent to safeguard the information under standards that provide a degree of protection at least equivalent to that required by the United States;
(9) U.S. classified information that has been disclosed or released to a foreign partner remains classified and is not to be considered declassified or downgraded;
(10) Classified information approved for disclosure or release will generally retain its classified status and markings. However, in cases where it is more appropriate to declassify information than to disclose or release it as classified information, the Department’s standard declassification procedures must be followed (see 5 FAM 484); and
(11) When classified information is disclosed or released to a foreign government, the disclosing official should make a record of the disclosure or release and keep it with a copy of the released material. This practice both protects the releaser by documenting compliance with Department policy and facilitates future cooperation by providing important insight into how, when, and why national security-related information was provided to a foreign partner. Additionally, when the information is released (physical copy provided to the foreign official), a signed receipt of the release is required. [See Form DS-112, Classified Material Receipt, or DS-794, Material Receipt.] This receipt should be kept with the record of the release and copy of the information. DS/SI/IS is the primary authority for the Department for safeguarding national security information and should be consulted with respect to handling and dissemination questions. The Department’s primary authority for classification and declassification matters is A/GIS/IPS, which should be consulted concerning original or derivative classification decisions.
11 FAM 522 AUTHORITIES
· Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458), section 1016
· Executive Order 13526, as amended
· Executive Order 13388, as amended
· 32 CFR 2001 and 32 CFR 2004
11 FAM 523 Information Sharing Arrangements
a. U.S. officials wishing to disclose or release classified information to a foreign nation should first determine if the sharing of that information is governed by an existing international agreement, which includes treaties and executive agreements, or other arrangement or obligation. Each arrangement is different, so officials should determine the scope of information sharing enabled by that particular arrangement.
b. When a relevant instrument cannot be identified, consideration should then be given to initiating an international agreement. The negotiation and conclusion of international agreements is governed by the Circular 175 process. (See 11 FAM 721.) After coordinating with the relevant desk or post, the releasing office or official should consult with the Office of the Assistant Legal Adviser for Treaty Affairs to determine whether a formal agreement is needed. Such agreements facilitate the exchange of classified information, and commit each party to accord adequate protection to information received from other(s). In coordination with other federal agencies, the Office of the Legal Adviser has developed a template for a General Security of Information Agreement (GSOIA). The Office of the Assistant Legal Adviser for Treaty Affairs can be reached at email@example.com.
c. In some cases in which a binding agreement does not exist and negotiating one is not feasible, nonbinding understandings that recognize the requirements set forth in Executive Order 13526 may offer an effective way to add a greater level of assurance that shared information would be handled appropriately.
d. To accommodate interim or “one-time” exchanges, the Office of Information Security has posted a diplomatic note template option (see 11 FAM Exhibit 523(2)) that can be used as covering instructions to inform the receiving government(s) of their obligations to protect U.S. classified documents entrusted to them. See 5 FAH-1 H-620 through 5 FAH-1 H-629.3 for general instructions on preparing diplomatic notes.
e. All information sharing arrangements described in paragraphs b through d of this section should spell out safeguarding requirements in detail and include guidance on access, marking, dissemination, transmission, and storage of the information. The arrangements should explain that the governments intend:
(1) Not to disclose or release the information to a third government without the approval of the originating government;
(2) To afford all information received substantially the same degree of protection afforded it by the originating government;
(3) To grant access only to individuals who have a need to know and who have been granted the requisite security clearance in accordance with the standards of the recipient government;
(4) That the information will not be used for other than the purpose intended without the approval of the originating government;
(5) To respect private rights, such as patents, copyrights, or trade secrets, which may be involved in the information; and
(6) To inform originating government authorities promptly and fully of any suspected or known compromises.
f. Additionally, personnel releasing information should follow these standard operating procedures to ensure that minimal safeguarding and storage requirements for classified information are met:
(1) Obtain OCA authorization as well as appropriate clearances from the affected desk/post officer(s) to release the information. Overseas, if information is to be shared with a third country, the releaser shall consult with the desk officer and the post of the receiving country prior to the release. In other words, if an employee is planning to release information to foreign country X, while stationed in foreign country Y, it is expected that the employee would notify the country X U.S. desk officer and the U.S. post located in country X;
(2) When making use of the one-time or interim release option described in 11 FAM 522, paragraph d, convey the document(s) to be shared under cover of a diplomatic note as outlined under that FAM section. In the introduction of the Diplomatic Note, include the purpose for releasing the information, if the reason is unclassified, to facilitate the periodic provision of diplomatic notes to Congress. Properly mark, handle, and transport classified documents in accordance with 14 FAH-4 H-322; and
(3) As described in 11 FAM 521, paragraph e, the releaser should obtain a signed receipt and make a record of the disclosure or release, including a copy of the diplomatic note.
g. See 11 FAM Exhibit 523(1) for an example of how to carry out an information exchange.
11 FAM 524 Appointment and training of Employees Delegated to Release U.S. Classified Information
a. Each chief of mission and each Assistant Secretary may designate employees as needed to provide prompt and necessary disclosure or release decisions. Such designation may be most useful in programs where ongoing exchanges with a foreign government are anticipated.
b. A template for designating release authority may be found at 12 FAM Exhibit 536.7-1.
c. Employees who disclose or release classified information to foreign governments as OCAs, or their designees, must complete FSI's course PK 323, Classified and Sensitive But Unclassified Information: Identifying and Marking, prior to exercising their authority, as well as annual refresher training.
11 FAM 525 Emergencies
Releasing U.S. classified information in an emergency situation in which there is an imminent threat to life or in defense of the homeland is authorized by E.O. 13526, section 4.2(b) (Distribution Controls), and 32 CFR 2001.52 (Emergency Authority). Agency heads or designees may authorize the disclosure or release of classified information to an individual or individuals who are otherwise not eligible for access to such classified information with the following restrictions, among others:
(1) Limit the amount of classified information disclosed or released to the absolute minimum to achieve the purpose;
(2) Limit the number of individuals who receive it;
(3) Transmit the classified information via approved Federal Government channels by the most secure and expeditious method including those required in 32 CFR 2001.46 or other means deemed necessary when time is of the essence;
(4) Provide instructions about what specific information is classified and how it should be safeguarded; physical custody of classified information must remain with an authorized Federal Government entity, in all but the most extraordinary circumstances;
(5) Provide appropriate briefings to the recipients on their responsibilities to not disclose the information and to obtain a signed nondisclosure agreement for retention by DS/IS/APD; and
(6) Within 72 hours of the disclosure of classified information, or the earliest opportunity that the emergency permits, but no later than 30 days after the disclosure or release of classified information, the disclosing or releasing authority must notify the originating agency of the emergency release by providing:
(a) The disclosed information;
(b) To whom the information was disclosed;
(c) How the information was disclosed and transmitted;
(d) The reason for the emergency release;
(e) How the information is being safeguarded;
(f) A description of the briefings provided; and
(g) A copy of the nondisclosure agreements signed; and
(7) Information disclosed in emergency situations shall not be required to be declassified as a result of such disclosure or subsequent use by a recipient.
11 FAM 526 Sensitive Information
The release of Sensitive But Unclassified information (SBU) to foreign governments and international organizations of governments is not directly affected by Executive Order 13526. Such material, unless containing a caveat to the contrary, may be released as described in 11 FAM 520, except that it is necessary only to determine that the release is consistent with the policies of the U.S. Government and is advantageous to the United States.
11 FAM 527 through 529 unassigned
11 FAM Exhibit 523(1)
Example of an Information Exchange
A Foreign Service officer believes that it would be in the best interests of the United States Government to share classified information with the host government. The FSO should provide this information to an employee at post with OCA or an employee at post to whom the chief of mission has designated authority to make disclosure or release decisions for a specific program or ongoing exchange.
If the information is not already marked as “REL TO” the government in question, then the OCA or designated official must first determine if the information should be shared. Once the decision to release has been made and the information has been properly marked, it may be shared with the host government under cover of an existing information sharing agreement, such as a General Security of Information Agreement (GSOIA), or utilizing the sample diplomatic note provided in 12 FAM Exhibit 536.7-1.
The designated official and the releasing FSO must have taken the PK323 course and must work with the post RSO to ensure the classified information is properly marked and protected in accordance with E.O. 13526 and any applicable information sharing agreement. The U.S. official delivering the information must ensure that the receiving foreign official understands the restrictions on further sharing of the information, as indicated either on the diplomatic note or other arrangement with the receiving government.
This process will be similar for employees stationed domestically, with the OCA making the release decision likely to be the relevant Assistant Secretary or his/her designee. If the sender must transmit the classified information to post to complete the exchange, he/she should refer to 12 FAM 536.9 for transmission requirements.
11 FAM Exhibit 523(2)
Diplomatic Note Template for One-Time Information Exchange
(INSERT Post or Department of State Bureau) is pleased to provide (INSERT FOREIGN GOVERNMENT ENTITY) with the attached (INSERT TITLE OF DOCUMENT), which is classified at the CLASSIFICATION LEVEL security level.
The Government of the United States of America requires that (INSERT FOREIGN GOVERNMENT) adhere to the following guidelines, which relate to the safe handling, storage, transport, access, and destruction of this information:
This information is classified national security information, provided by the United States to (INSERT FOREIGN GOVERNMENT) in accordance with the following conditions:
This is a single exchange of information and shall not serve as a basis for future exchange. This exchange shall not affect any existing agreements between the United States and (INSERT FOREIGN GOVERNMENT), including (INSERT FOREIGN GOVERNMENT ENTITY).
(INSERT FOREIGN GOVERNMENT ENTITY) shall protect classified information received from the United States against unauthorized disclosure.
(INSERT FOREIGN GOVERNMENT ENTITY) shall afford classified information received from the United States a degree of protection at least equivalent to that afforded it by the United States.
(INSERT FOREIGN GOVERNMENT ENTITY) shall not further release or disclose classified information without the prior written approval of the United States.
(INSERT FOREIGN GOVERNMENT ENTITY) shall not use or permit the use of classified information for any other purpose than that for which it was provided without the prior written approval of the United States.
(INSERT FOREIGN GOVERNMENT ENTITY) shall have a security system and security measures in place based on the basic principles and minimum standards of security laid down in its laws and regulations, in order to ensure that an equivalent level of protection is applied to classified information.
(INSERT FOREIGN GOVERNMENT ENTITY) shall ensure that all individuals having access to classified information are informed of their responsibilities to protect the information in accordance with applicable laws and regulations.
No individual shall be entitled to have access to classified information received from the United States solely by virtue of rank, appointment, or security clearance. Access to classified information shall be granted only to those individuals whose official duties require such access and who, where needed, have been granted the requisite personnel security clearance in accordance with the prescribed standards of (INSERT FOREIGN GOVERNMENT).
The United States shall ensure that all classified information is adequately protected until custody of the information is transferred to (INSERT FOREIGN GOVERNMENT ENTITY). (INSERT FOREIGN GOVERNMENT ENTITY) shall ensure that all classified information is adequately protected as soon as it has custody of the information released to it.
In accordance with applicable laws and regulations, (INSERT FOREIGN GOVERNMENT ENTITY) shall ensure the security of facilities and establishments where classified information released to it by the United States is kept, and shall ensure for each such facility or establishment that all necessary measures are taken to control and protect the information.
(INSERT FOREIGN GOVERNMENT ENTITY) shall not store this information on electronic media, or transmit this information by electronic means, until such time that the parties may enter into a bilateral agreement authorizing electronic storage and transmission in accordance with United States security policies and regulations.
The United States has complete discretion concerning downgrading or declassification of its own classified information. (INSERT FOREIGN GOVERNMENT ENTITY) shall not downgrade the security classification or declassify classified information received from the United States, notwithstanding any apparent declassification instructions on the document, without the prior written consent of the United States.
The United States shall be informed upon discovery of any proven or suspected loss or compromise of its classified information, and (INSERT FOREIGN GOVERNMENT ENTITY) shall initiate an investigation to determine the circumstances.
At such time as the released information is no longer valid or in use, (INSERT FOREIGN GOVERNMENT ENTITY) shall return it to the United States, or shall destroy it and notify the United States of its destruction.
(INSERT Post or Department of State Bureau) avails itself of this opportunity to renew to (INSERT FOREIGN GOVERNMENT ENTITY) the assurances of its highest consideration.
Embassy of the United States of America, U.S. Embassy ___________, DATE