Transparency in Classification Act of 2020

II 116TH CONGRESS 2D SESSION S. 4806 To establish the Interagency Security Classification Appeals Panel, to provide agency and higher level reviews of classification decisions, to provide expedited review of classification decisions for members of Congress, and to provide protections for those challenging classification decisions, and for other purposes. IN THE SENATE OF THE UNITED STATES OCTOBER 19, 2020 Mr. MURPHY (for himself and Mr. WYDEN) introduced the following bill; which was read twice and referred to the Committee on Homeland Secu- rity and Governmental Affairs A BILL To establish the Interagency Security Classification Appeals Panel, to provide agency and higher level reviews of classification decisions, to provide expedited review of classification decisions for members of Congress, and to provide protections for those challenging classification decisions, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Transparency in Clas- 4 sification Act of 2020’’. 5 VerDate Sep 11 2014 20:52 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4806.IS S4806 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 4806 IS SEC. 2. FINDINGS. 1 Congress makes the following findings: 2 (1) A fundamental tenet of democracy is the 3 consent of the governed, which requires public 4 knowledge of governmental actions. As a result, few 5 government powers are more sacred than the ability 6 to decide which information should be withheld from 7 the public. 8 (2) The protection of our national security re- 9 quires that some of the work of the United States 10 Government be done such that this information is 11 protected if its disclosure could cause serious or 12 grave harm to national security and if such harm 13 does not outweigh the public’s right to know. 14 (3) Although the executive branch of the Fed- 15 eral Government has a responsibility to weigh the 16 public’s right to know when making classification de- 17 cisions, it does not always do so due to errors of 18 commission and omission. 19 (4) In order to ensure an informed public while 20 simultaneously protecting certain information that 21 would harm national security if divulged, checks and 22 balances are needed for the classification system. 23 (5) Congress, by virtue of its vital role in over- 24 sight, has an interest and responsibility to address 25 VerDate Sep 11 2014 20:52 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4806.IS S4806 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 4806 IS abuse and improper classification by the executive 1 branch of the Federal Government. 2 (6) Although section 552 of title 5, United 3 States Code (commonly known as the ‘‘Freedom of 4 Information Act’’) and other public access tools, in- 5 cluding Mandatory Declassification Review pursuant 6 to section 3.5 of Executive Order 13526 (50 U.S.C. 7 3161 note; relating to classified national security in- 8 formation), provide venues for declassifying records 9 that would not harm national security if divulged, 10 the lengthy time frame for these appeals renders 11 them ineffective in nourishing vital public debate. 12 (7) An accurate and limited classification sys- 13 tem supports both the public’s right to know and 14 government effectiveness through enabling policy co- 15 ordination, reducing costs of maintaining informa- 16 tion that need not be classified, and protecting the 17 integrity of the classification system. 18 (8) The national security of the United States 19 is enhanced both by laws permitting national secu- 20 rity agencies to occasionally limit access to sensitive 21 national security information through the classifica- 22 tion system, such as Executive Order 13526 (50 23 U.S.C. 3161 note; relating to classified national se- 24 curity information), and by an open debate on deci- 25 VerDate Sep 11 2014 20:52 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4806.IS S4806 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 4806 IS sions that affect the national security of the United 1 States. Both are central to the proper functioning of 2 the political institutions and democracy of the 3 United States. 4 (9) Allowing limitations on access as described 5 in paragraph (8) presents a potential for abuse, 6 where embarrassing or inconvenient information 7 could be classified for reasons other than national 8 security. This is prohibited by law, including by sec- 9 tion 1.7 of Executive Order 13526 (50 U.S.C. 3161 10 note; relating to classified national security informa- 11 tion). 12 (10) Ensuring national security agencies use 13 classification powers judiciously and in accordance 14 with the laws described in paragraph (8) requires a 15 recourse for authorized classification holders, includ- 16 ing all members of Congress, to challenge classifica- 17 tions decisions of agencies and appeal agency-level 18 classification decisions to an independent body. 19 (11) Since 1995, the Interagency Security Clas- 20 sification Appeals Panel (ISCAP) has provided the 21 public and users of the classification system with a 22 valuable forum for further review of classification 23 decisions. 24 VerDate Sep 11 2014 20:52 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4806.IS S4806 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 4806 IS (12) Since the founding of the Interagency Se- 1 curity Classification Appeals Panel, however, the 2 work of the Panel has been constrained by a lack or 3 resources, including classified communication tech- 4 nology and dedicated staff, as well as limited 5 progress on much-needed governmentwide mod- 6 ernization of the classification system. This has cre- 7 ated a backlog of more than 1,000 cases. 8 (13) Since 2000, the Public Interest Declas- 9 sification Board (PIDB) has provided a vital role in 10 supporting the public interest in classification policy 11 and classification decisions, including the vital role 12 of responding to requests from Congress to consider 13 the classification decisions of specific records. This 14 advisory role plays a separate, complementary role 15 to the Interagency Security Classification Appeals 16 Panel, which is able to declassify records through its 17 appeal function. 18 (14) Section 2302(b)(9)(A) of title 5, United 19 States Code, prohibits the head of an agency from 20 taking or failing to take, or threatening to take or 21 fail to take, a personnel action against certain em- 22 ployees because of the exercise of an appeal, com- 23 plaint, or grievance right granted by any provision 24 of law. 25 VerDate Sep 11 2014 20:52 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4806.IS S4806 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 4806 IS SEC. 3. DEFINITIONS. 1 In this Act: 2 (1) AGENCY, CLASSIFIED MATERIAL OR 3 RECORD, DECLASSIFICATION, AND NATIONAL SECU- 4 RITY.—The terms ‘‘agency’’, ‘‘classified material’’, 5 ‘‘classified record’’, ‘‘declassification’’, and ‘‘national 6 security’’ have the meanings given such terms in sec- 7 tion 709 of the Public Interest Declassification Act 8 of 2000 (Public Law 106–567; 50 U.S.C. 3355g). 9 (2) AUTHORIZED USERS OF THE CLASSIFICA- 10 TION SYSTEM.—The term ‘‘authorized user of the 11 classification system’’ means an official or contractor 12 of the Federal Government who is authorized to ac- 13 cess classified material or records. 14 (3) CLASSIFICATION DECISION.— 15 (A) IN GENERAL.—The term ‘‘classifica- 16 tion decision’’, means a decision regarding 17 whether any correspondence, memorandum, 18 book, plan, map, drawing, diagram, pictorial or 19 graphic work, photograph, film, microfilm, 20 sound recording, videotape, machine readable 21 records, and other documentary material, re- 22 gardless of physical form or characteristics, re- 23 quires protection against unauthorized disclo- 24 sure in the interests of the national security of 25 the United States. 26 VerDate Sep 11 2014 20:52 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4806.IS S4806 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 4806 IS (B) INCLUSION.—Such term includes the 1 following: 2 (i) An original classification decision. 3 (ii) A decision creating a derivative 4 classification. 5 (iii) A decision creating a classifica- 6 tion by compilation. 7 (iv) Any decision creating any similar 8 classification pursuant to a provision of 9 law in effect on the day before the date of 10 the enactment of this Act. 11 (4) PANEL.—The term ‘‘Panel’’ means the 12 Interagency Security Classification Appeals Panel 13 established under section 4(a). 14 SEC. 4. INTERAGENCY SECURITY CLASSIFICATION AP- 15 PEALS PANEL. 16 (a) ESTABLISHMENT.—There is established within 17 the executive branch of the United States a panel to be 18 known as the ‘‘Interagency Security Classification Appeals 19 Panel’’. 20 (b) PURPOSES.—The purposes of the Panel are as 21 follows: 22 (1) To provide the public and authorized users 23 of the classification system, including members of 24 Congress and employees and contractors of the legis- 25 VerDate Sep 11 2014 20:52 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4806.IS S4806 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 4806 IS lative branch of the Federal Government who are 1 authorized users of the classification system, with a 2 forum for further review of classification decisions 3 made by the heads of agencies. 4 (2) To provide a member of Congress a mecha- 5 nism for expedited review of a classification decision 6 that is relevant to an active public policy debate. 7 (c) DUTIES.—The duties of the Panel are as follows: 8 (1) Carrying out such activities as may be nec- 9 essary for the purposes set forth under subsection 10 (b). 11 (2) Conducting reviews under section 5(b). 12 (3) Such other duties as may be identified by 13 the President. 14 (d) MEMBERSHIP.— 15 (1) COMPOSITION.—Subject to paragraphs (2) 16 and (3), the Panel shall be composed of 6 members, 17 each of whom shall be appointed by one of the fol- 18 lowing: 19 (A) The Secretary of State. 20 (B) The Secretary of Defense. 21 (C) The Attorney General. 22 (D) The Archivist of the United States. 23 (E) The Director of National Intelligence. 24 (F) The National Security Advisor. 25 VerDate Sep 11 2014 20:52 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4806.IS S4806 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 4806 IS (2) ADDITIONAL MEMBERS UNDER CERTAIN 1 CIRCUMSTANCES.— 2 (A) MATTERS CONCERNING THE CENTRAL 3 INTELLIGENCE AGENCY.—Subject to paragraph 4 (3), when the Panel deliberates a matter con- 5 cerning classified material or records that origi- 6 nated with the Central Intelligence Agency or 7 when dealing with a support activity associated 8 with such a classified material or record, the 9 Panel shall, at the discretion of the Director of 10 the Central Intelligence Agency, consist of 7 11 members as follows: 12 (i) The 6 members of the Panel ap- 13 pointed under paragraph (1). 14 (ii) One member appointed by the Di- 15 rector of the Central Intelligence Agency. 16 (B) MATTERS CONCERNING CONGRESS.— 17 Subject to paragraph (3)(B), when the Panel 18 deliberates a matter concerning classified mate- 19 rial or records relating to congressional requests 20 or reporting requirements, the Panel shall con- 21 sist of 8 members as follows: 22 (i) The 6 members of the Panel ap- 23 points under paragraph (1). 24 VerDate Sep 11 2014 20:52 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4806.IS S4806 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 4806 IS (ii) One member chosen by the Sec- 1 retary of the Senate. 2 (iii) One member chosen by the Clerk 3 of the House of Representatives. 4 (3) QUALIFICATIONS AND STATUS.— 5 (A) FEDERAL EMPLOYEE STATUS.—Each 6 member of the Panel under paragraphs (1) and 7 (2)(A) shall be a full-time or permanent em- 8 ployee of the Federal Government who is in a 9 senior-level position, such as a member of the 10 Senior Executive Service. 11 (B) SECURITY CLEARANCE.—An individual 12 may not be selected to be a member of the 13 Panel unless, as of the day before the date of 14 such selection, the individual had a security 15 clearance at a level appropriate for purposes of 16 serving as a member of the Panel. 17 (4) CHAIRPERSON.— 18 (A) IN GENERAL.—The members of the 19 Panel appointed under paragraph (1) shall des- 20 ignate a chairperson from among the members 21 of the Panel. 22 (B) REPORTING.—The chairperson of the 23 Panel shall report directly to the Director of the 24 VerDate Sep 11 2014 20:52 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4806.IS S4806 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 4806 IS Information Security Oversight Office of the 1 National Archives and Records Administration. 2 (e) ADMINISTRATION.— 3 (1) EXECUTIVE SECRETARY.—The Director of 4 the Information Security Oversight Office of the Na- 5 tional Archives and Records Administration shall 6 serve as the executive secretary of the Panel. 7 (2) PROGRAM AND ADMINISTRATIVE SUP- 8 PORT.—The Director shall provide program and ad- 9 ministrative support for the Panel. 10 (3) BYLAWS.—Not later than 180 days after 11 the date of the enactment of this Act, the Panel 12 shall publish bylaws that clearly show how individ- 13 uals described in section 5(b)(1)(A) may submit re- 14 quests under such section. 15 (f) PUBLIC OBSERVER.— 16 (1) IN GENERAL.—The Panel shall select a 17 highly qualified, public observer who shall— 18 (A) participate in activities and delibera- 19 tions of the Panel; 20 (B) aid in transparency and provide an ex- 21 ternal, historical perspective to inform Panel 22 deliberations; and 23 (C) be vetted and provided an interim and 24 permanent security clearance. 25 VerDate Sep 11 2014 20:52 Oct 31, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4806.IS S4806 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 4806 IS (2) QUALIFICATIONS.—The Panel shall ensure 1 that a person selected to serve as a public observer 2 under paragraph (1)— 3 (A) has significant experience in examining 4 and assessing public access to classified files or 5 decisions in an academic, historic, or advocacy 6 role; 7 (B) has a history of independence and non- 8 partisan advocacy for transparency and open 9 debate relating to government records; and 10 (C) at the time of selection is not serving 11 in a publicly elected office and has not served 12 in a partisan elected office at any time during 13 the 5-year period ending on the date of selec- 14 tion. 15 SEC. 5. AGENCY AND HIGHE [Text truncated for display. Full text available on Congress.gov.]