August 4, 2022
Procedures for Declassifying Intelligence of Public Interest
Congress occasionally considers whether to declassify
direct the declassification of intelligence information after
intelligence on issues of important public interest. Such
consulting with the originating agency head.
intelligence, for example, may provide evidence of war
Exemptions from Automatic Declassification
crimes, insight into diplomatic initiatives, or transparency
E.O. 13526 provides for exempting information from
into government activities. While some Members of
automatic declassification in two situations:
Congress may disagree over the types of intelligence
information that warrants declassification, some Members
(1) in particular circumstances where continued classification is
may also view existing executive branch policy governing
necessary if the original classification authority can show, for
the routine declassification of material as inadequate in the
example, that declassification would reveal the identity of a
face of a more pressing need to inform the public.
human source, or the relationship with the intelligence service of a
foreign government, or facilitate the development of weapons of
Procedures established in both the executive branch and
mass destruction; or
legislative branch provide for initiating action to declassify
intelligence. Each involves a deliberate process for
(2) where declassification is appropriate “in some exceptional
evaluating the need to serve the public interest alongside
cases [where] the need to protect such information may be
the requirement to protect intelligence sources and methods.
outweighed by the public interest.”
In 2015, the Director of National Intelligence (DNI) issued
Declassification by Congress
Principles of Intelligence Transparency of the Intelligence
Community to facilitate decisions on making information
publicly available to increase the public’s understanding of
Section 8 of Senate Resolution 400, 94th Congress,
the Intelligence Community’s mission and activities while
2nd Sess. (1976)
continuing to protect national security. These principles
Standing rules of the Senate Select Committee on
included “providing timely transparency on matters of
Intelligence (SSCI) give the committee the authority to
public interest,” or explaining why, in particular
declassify and publicly disclose information in its
circumstances, information cannot be made public.
possession, after a vote affirming that the disclosure would
serve the public interest. Rules require the committee to
This product provides an overview of common legislative
notify and consult with the Senate Majority and Minority
and executive branch procedures for declassifying
Leaders prior to the SSCI notifying the President. This
intelligence. For some procedures, Congress retains the
procedure, however, gives the President an opportunity to
final authority on whether or not to declassify information.
object in writing to the disclosure within a five-day window
For others, the President makes the final determination. Still
of being notified of the SSCI vote. The President must
others can be requested by any U.S. person of an
provide the reasons for why the national interest in keeping
originating agency, which makes the final determination.
the information classified outweighs the national interest. In
Automatic Declassification
such instances, the question of disclosure is referred to the
entire Senate in closed session for consideration. The
Executive Order (E.O.) 13526, Classified National Security
Senate can approve or disapprove the disclosure of all or
Information, signed by President Barack Obama on
part of the information in question, or refer all or part of the
December 29, 2009, provides guidance to federal agencies
information back to the SSCI for a final decision.
on classification and declassification of information. The
originating agency that classifies particular intelligence
In 2014, for example, the SSCI voted to send the Executive
information also has the authority to declassify it, consistent
Summary, Findings and Conclusions of the SSCI’s 2014
with the guidelines provided in E.O. 13526, which
report on the Central Intelligence Agency’s detention and
references but does not define the term public interest. The
interrogation program to the President for declassification
original classification authority establishes a date for
and public release. In this instance, the President agreed to
declassification, which can be up to 25 years from the date
direct a declassification review and release of the
the information was initially classified. If the original
document.
classification authority does not specify a date for
declassification, the information will be automatically
Clause 11(g)(1) of House Rule X
declassified after 10 years. The original classification
Standing rules of the House of Representatives also allow
authority may decide to declassify information earlier than
the House Permanent Select Committee on Intelligence
the established date if it determines the information no
(HPSCI) to disclose classified information after a vote by
longer meets the standards for classification. In addition to
the committee that it would be in the public interest to do
the original classification authority, the DNI, or—if the
so. The HPSCI must notify the President, who then has an
DNI directs—the Principal Deputy DNI, may declassify or
opportunity to object in writing within five days of
notification, providing reasons for why national security
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Procedures for Declassifying Intelligence of Public Interest
interests outweigh the public interest. The HPSCI may then,
Mandatory Declassification Review under the provisions of
by majority vote, refer the matter to the House with a
Section 3.5 of E.O. 13526. If requested, an originating
recommendation. If the House does not approve the HPSCI
agency must conduct the review (thus, it is “mandatory”). A
recommendation, the matter is referred back to the HPSCI
request must describe the documents requested in sufficient
for further review.
detail to enable the agency to locate them with reasonable
effort. According to E.O. 13526, cases involving
Statutory Action
declassification in the public interest must be: “referred to
Congress also has the ability to direct a declassification
the [originating] agency head or the senior agency official.
review and release of classified intelligence through
That official will determine ... whether the public interest in
statutory action. Section 310 of the Intelligence
disclosure outweighs the damage to the national security
Authorization Act for Fiscal Year 2022 (Division X of P.L.
that might reasonably be expected from disclosure.”
117-103), for example, directed the DNI, in coordination
Agencies develop their own procedures for handling
with elements of the Intelligence Community, to
requests. If a request for mandatory declassification review
“appropriately” declassify and share with the public
is denied, agencies have their own processes for handling
information relating to the September 11 terrorist attacks.
appeals, determinations of which are normally made within
Declassification by the President
60 days of filing. In the event an appeal within the
originating agency is denied, further appeals can be made to
the Interagency Security Classification Appeals Panel
Public Interest Declassification Board
(ISCAP).
Requests for declassification can also be made to the Public
Interest Declassification Board (PIDB). The Public Interest
Declassification Act of 2000 (Title VII of P.L. 106-567)
Freedom of Information Act Request
established the Public Interest Declassification Board
Any U.S. citizen or permanent resident alien can also file a
(PIDB) to provide advice to the President and other senior
request under the Freedom of Information Act (FOIA) to
national security officials “on the systematic, thorough,
make records and information of any agency of the
coordinated, and comprehensive identification, collection,
executive branch of government public. This measure may
review for declassification, and release to Congress,
be of limited use as a means of declassifying information,
interested agencies, and the public of declassified records
however, since properly classified national security
and materials ... that are of archival value, including records
information is exempted from release under the FOIA.
and materials of extraordinary public interest.” The PIDB
However, a FOIA request could be made concerning
meets once a month to make recommendations on
information that is believed to no longer meet classification
declassification of records to the President who makes a
standards under E.O. 13526. It might include, for example,
final decision. In 2021, for example, the PIDB
information that is largely of historical value, the release of
recommended the President declassify and release
which would no longer compromise intelligence sources
particular records related to the September 11, 2001,
and methods or pose a risk to national security. If the
terrorist attacks. In making its recommendations, the PIDB
request is denied, a requestor can sue via the courts.
includes input from Congress “made by the committee of
Issues for Congress
jurisdiction or by a member of the committee of
jurisdiction, to declassify certain records, to evaluate the
Are Senate and House rules that give the congressional
proper classification of certain records, or to reconsider a
intelligence committees the authority to initiate a
declination to declassify specific records” (50 U.S.C.
declassification action in the public interest effective in
§3355(b)(5)).
protecting sources and methods while ensuring the
public interest is well served?
Executive Order
The President has the authority to declassify documents in
Does the PIDB provide an effective means for Congress
the public interest that originated in any department or
to work with the President on declassification decisions
agency of the executive branch. A recent example is
in the public interest?
Executive Order 14040, Declassification Reviews of
Certain Documents Concerning the Terrorist Attacks of
September 11, 2001, signed by President Joseph R. Biden
Relevant Legislation
Jr. on September 3, 2021. This executive order directed
5 U.S.C. §552, Freedom of Information Act
government departments and agencies that originated
50 U.S.C. §3355, Public Interest Declassification Act
records pertaining to September 11 to conduct
declassification reviews to disclose as much of this material
as possible in the public interest.
Other Resources
E.O. 13526, Classified National Security Information
Declassification by an Agency
32 CFR 2001.33, Mandatory Review for Declassification
Mandatory Declassification Review
32 CFR 2003, Interagency Security Classification Appeals Panel
Declassification in the public interest may result from a
(ISCAP) Bylaws, Rules, and Appeal Procedures
favorable decision by an originating agency following a
Mandatory Declassification Review. Any U.S. citizen,
permanent resident alien, or U.S. organization can request a
https://crsreports.congress.gov
Procedures for Declassifying Intelligence of Public Interest
Michael E. DeVine, Analyst in Intelligence and National
Security
IF12183
Disclaimer
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https://crsreports.congress.gov | IF12183 · VERSION 1 · NEW