Procedures for Declassifying Intelligence of Public Interest

Procedures for Declassifying Intelligence of Public Interest

Updated August 10, 2023
Procedures for Declassifying Intelligence of Public Interest
The classification regime exists as a means of safeguarding
the established date if it determines the information no
sensitive intelligence sources and methods, or other kinds
longer meets the standards for classification. In addition to
of sensitive national security information that is relevant to
the original classification authority, the DNI, or—if the
the national security of the United States. On occasion,
DNI directs—the Principal Deputy DNI, may declassify or
Congress may consider declassifying intelligence, or other
direct the declassification of intelligence information after
types of national security information, when the public
consulting with the originating agency head.
interest may outweigh the national interest in keeping it
Exemptions from Automatic Declassification
classified. Such intelligence, for example, may provide
E.O. 13526 provides for exempting information from
evidence of war crimes, insight into diplomatic initiatives,
automatic declassification in two situations:
or transparency into government activities. While some
Members of Congress may disagree over the types of
(1) in particular circumstances where continued classification is
intelligence information that warrants declassification,
necessary if the original classification authority can show, for
Members may also view existing executive branch policy
example, that declassification would reveal the identity of a
governing the routine declassification of information as
human source, or the relationship with the intelligence service of a
inadequate in the face of a more pressing need to inform the
foreign government, or facilitate the development of weapons of
public.
mass destruction; or
Procedures established in both the executive and legislative
(2) where declassification is appropriate “in some exceptional
branches provide for initiating action to declassify
cases [where] the need to protect such information may be
intelligence. Each involves a deliberate process for
outweighed by the public interest.”
evaluating the need to serve the public interest alongside
the requirement to protect intelligence sources and methods.
Declassification by Congress
In 2015, the Director of National Intelligence (DNI) issued
Section 8 of Senate Resolution 400, 94th Congress,
Principles of Intelligence Transparency of the Intelligence
2nd Sess. (1976)
Community to facilitate decisions on making information
publicly available to increase the public’s understanding of
Standing rules of the Senate Select Committee on
the Intelligence Community’s mission and activities while
Intelligence (SSCI) give the committee the authority to
continuing to protect national security. These principles
declassify and publicly disclose information in its
included “providing timely transparency on matters of
possession, after a vote affirming that the disclosure would
public interest,” or explaining why, in particular
serve the public interest. Rules require the committee to
circumstances, information cannot be made public.
notify and consult with the Senate Majority and Minority
Leaders prior to the SSCI notifying the President. This
This product provides an overview of common legislative
procedure gives the President an opportunity to object in
and executive branch procedures for declassifying
writing to the disclosure within a five-day window of being
intelligence. For some procedures, Congress retains the
notified of the SSCI vote. The President must provide the
final authority on whether or not to declassify information.
reasons for why the national interest in keeping the
For others, the President makes the final determination. Still
information classified outweighs the public interest. In such
others can be requested by any U.S. person of an
instances, the question of disclosure is referred to the entire
originating agency, which makes the final determination.
Senate in closed session for consideration. The Senate can
Automatic Declassification
approve or disapprove the disclosure of all or part of the
information in question, or refer all or part of the
Executive Order (E.O.) 13526, Classified National Security
information back to the SSCI for a final decision.
Information, signed by President Barack Obama on
December 29, 2009, provides guidance to federal agencies
Clause 11(g)(1) of House Rule X
on classification and declassification of information. The
Standing rules of the House of Representatives also allow
originating agency that classifies particular intelligence
the House Permanent Select Committee on Intelligence
information also has the authority to declassify it, consistent
(HPSCI) to disclose classified information after a vote by
with the guidelines provided in E.O. 13526, which
the committee that it would be in the public interest to do
references but does not define the term public interest. The
so. The HPSCI must notify the President, who then has an
original classification authority establishes a date for
opportunity to object in writing within five days of
declassification, which can be up to 25 years from the date
notification, providing reasons for why national security
the information was initially classified. If the original
interests outweigh the public interest. The HPSCI may then,
classification authority does not specify a date for
by majority vote, refer the matter to the House with a
declassification, the information would be automatically
recommendation. If the House does not approve the HPSCI
declassified after 10 years. The original classification
authority may decide to declassify information earlier than
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Procedures for Declassifying Intelligence of Public Interest
recommendation, the matter is referred back to the HPSCI
detail to enable the agency to locate them with reasonable
for further review.
effort. According to E.O. 13526, cases involving
declassification in the public interest must be: “referred to
Statutory Action
the [originating] agency head or the senior agency official.
Congress has the ability to direct a declassification review
That official will determine ... whether the public interest in
and release of classified intelligence through statutory
disclosure outweighs the damage to the national security
action. Section 310 of the Intelligence Authorization Act
that might reasonably be expected from disclosure.”
for Fiscal Year 2022 (Division X of P.L. 117-103), for
Agencies develop their own procedures for handling
example, directed the DNI, in coordination with elements of
requests. If a request for mandatory declassification review
the Intelligence Community, to “appropriately” declassify
is denied, agencies have their own processes for handling
and share with the public information relating to the
appeals, determinations of which are normally made within
September 11, 2001 terrorist attacks.
60 days of filing. In the event an appeal within the
Declassification by the President
originating agency is denied, further appeals can be made to
the Interagency Security Classification Appeals Panel
(ISCAP).
Public Interest Declassification Board

Requests for declassification can also be made to the Public
Interest Declassification Board (PIDB). The Public Interest
Freedom of Information Act Request
Declassification Act of 2000 (Title VII of P.L. 106-567)
Any U.S. citizen or permanent resident alien can also file a
established the Public Interest Declassification Board
request under the Freedom of Information Act (FOIA) to
(PIDB) to provide advice to the President and other senior
make records and information of any agency of the
national security officials “on the systematic, thorough,
executive branch of government public. This measure may
coordinated, and comprehensive identification, collection,
be of limited use as a means of declassifying information,
review for declassification, and release to Congress,
since properly classified national security information is
interested agencies, and the public of declassified records
exempted from release under the FOIA. However, a FOIA
and materials ... that are of archival value, including records
request could be made concerning information that is
and materials of extraordinary public interest.” The PIDB
believed to no longer meet classification standards under
meets monthly to make recommendations on
E.O. 13526. It might include, for example, information that
declassification of records to the President who makes a
is largely of historical value, the release of which would no
final decision. In 2021, for example, the PIDB
longer compromise intelligence sources and methods or
recommended the President declassify and release
pose a risk to national security. If the request is denied, a
particular records related to the September 11 terrorist
requestor can sue via the courts.
attacks. In making its recommendations, the PIDB includes
input from Congress “made by
Issues for Congress
the committee of
jurisdiction or by a member of the committee of
• Are Senate and House rules that give the congressional
jurisdiction, to declassify certain records, to evaluate the
intelligence committees the authority to initiate a
proper classification of certain records, or to reconsider a
declassification action in the public interest effective in
declination to declassify specific records” (50 U.S.C.
protecting sources and methods while ensuring the
§3355(b)(5)).
public interest is well served?
Executive Order
• Does the PIDB provide an effective means for Congress
The President has the authority to declassify documents in
to work with the President on declassification decisions
the public interest that originated in any department or
in the public interest?
agency of the executive branch. One example is Executive
Order 14040, Declassification Reviews of Certain
Documents Concerning the Terrorist Attacks of September
Relevant Legislation
11, 2001, signed by President Biden on September 3, 2021.
5 U.S.C. §552, Freedom of Information Act
This executive order directed government departments and
50 U.S.C. §3355, Public Interest Declassification Act
agencies that originated records pertaining to September 11
to conduct declassification reviews to disclose as much of
this material as possible in the public interest.
Other Resources
National Security Strategy of the United States, October 2022
Declassification by an Agency
E.O. 13526, Classified National Security Information
Mandatory Declassification Review
32 CFR 2001.33, Mandatory Review for Declassification
Declassification in the public interest may result from a
32 CFR 2003, Interagency Security Classification Appeals Panel
favorable decision by an originating agency following a
(ISCAP) Bylaws, Rules, and Appeal Procedures
Mandatory Declassification Review. Any U.S. citizen,
permanent resident alien, or U.S. organization can request a

Mandatory Declassification Review under the provisions of
Section 3.5 of E.O. 13526. If requested, an originating
Michael E. DeVine, Analyst in Intelligence and National
agency must conduct the review (thus, it is “mandatory”). A
Security
request must describe the documents requested in sufficient
IF12183
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Procedures for Declassifying Intelligence of Public Interest

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