Sec. 5. Agency and higher level review of classification decisions
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/bill/116/s/4806/is/section-5A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Each head of an agency shall establish a process under which— an individual who is eligible to access classified material or a classified record that was the subject of a classification decision made by such head may request a review of such classification decision; the head of the agency reviews such classification decision pursuant to such request; and the head of the agency revokes, modifies, or sustains such classification decision. Under a process established by the head of an agency under paragraph (1)— an individual who is eligible to access classified material or a classified record that was the subject of a classification decision made by such head shall be able to request a review of such decision by submitting to the head, at any time, the request in writing; except as provided in subparagraph (C), for each request the head of the agency receives under subparagraph
(A)regarding a classification decision of the head of the agency, the head of the agency shall— not later than 60 days after the date on which the head of the agency receives the request, respond to the request by providing the requestor with— an acknowledgment that the head of the agency received the request; and a notice estimating when the head of the agency will complete a review of the request under subparagraph
(B)of paragraph
(1)and act on the request under subparagraph
(C)of such paragraph; and not later than 120 days after the date on which the head of the agency receives the request— complete a review of the request pursuant to subparagraph
(B)of paragraph (1); and pursuant to such review, act on the request under subparagraph
(C)of such paragraph; the head of the agency is not required to review a classification decision as described in subparagraph
(B)of paragraph
(1)or take an action under subparagraph
(C)of such paragraph if the classification decision was already reviewed pursuant to a substantially similar request under this subsection during the most recently 2-year period; the head of the agency may review a classification decision pertaining to classified material or a classified record that is subject to a request under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act ); requests for review under this subsection and responses to such requests are not themselves treated as classified material or classified records; any classified material or classified record that is the subject of a request under this subsection remains classified under this subsection until the head of the agency changes such classification under paragraph (1)(C) or such classification is changed by the Panel under subsection (b)(3); and priority is given to the review of a classification decision when an expedited review has been requested under subsection (d)(2). An individual who is eligible to access classified material or a classified record that was the subject of a classification decision made by the head of an agency may submit to the Panel a request to review such classification decision. A request submitted under subparagraph
(A)shall be submitted in writing. Except as provided in clause (ii), a request submitted under subparagraph
(A)need not be more specific than questioning why classified material or a classified record is or is not classified at a certain level. A request submitted under subparagraph
(A)with respect to a classification decision shall contain enough information to enable the executive secretary of the Panel to obtain pertinent documents about the request and the classification decision. Except as provided in subclause (II), a request submitted under subparagraph
(A)shall not include any classified material or records. If it is impossible for an individual to request under subparagraph
(A)a review of a classification decision without submitting classified material or a classified record along with the request, the submitter of the request may do so after first contacting the Panel and making prior arrangements for submittal of the classified material or classified record. The Panel shall establish and publicly announce an electronic mail address to which requests may be submitted under subparagraph (A). A requests submitted to the Panel under subparagraph
(A)shall be submitted not later than 60 days after— in a case in which the head of an agency provides a response to the submitter of the request in accordance with subsection (a)(2)(B), the date of the final agency decision arrived at pursuant to a review carried out pursuant to the request; or in a case in which the head of the agency fails to respond to the request in accordance with subsection (a)(2)(B), the date that is 60 days after the date on which the request was submitted to the head of the agency. If the executive secretary of the Panel determines that a request submitted under subparagraph
(A)is not submitted in accordance with the requirements of this section, the executive secretary shall— notify the submitter of the request, in writing, that the request was not submitted in accordance with the requirements of this section; and explain in detail how the request is deficient. The Panel shall review the following: A classification decision of the head of an agency pursuant to a request for review submitted under paragraph (1)(A), in a case in which the submitter of the request— previously submitted a request for review of the classification decision to the head of the agency in accordance with the process established by the head of the agency under subsection (a); and received, pursuant to such process, a final decision arrived at pursuant to a review conducted pursuant to the request; or did not receive a response as required by subsection (a)(2)(B). A classification decision of the head of an agency pursuant to a request for expedited review for Congress submitted under subsection (d)(3). After reviewing a classification decision of the head of an agency under paragraph
(2)and using past precedent to inform and to improve the efficiency of decision making, the Panel may, pursuant to a vote of the members of the panel— affirm the classification decision or a decision of the head arrived at pursuant to a review conducted pursuant to the process established by the head under subsection (a); reverse a decision described in clause (i), in whole or in part; or engage in dialogue with the head of the agency for further consideration of a decision described in clause (i). A decision to reverse under subparagraph (A)(ii) shall be made with an affirmative vote of at least a majority of the members of the Panel present for the vote. Not later than 2 business days after the Panel decides to take an action under subparagraph
(A)pursuant to a request for a review of a classification decision of the head of an agency, the executive secretary of the Panel shall notify the submitter of the request and the head of the agency in writing of the decision of the Panel. Except as provided in clause (ii), 10 days after the executive secretary of the Panel submits notice under subparagraph
(C)with respect to a decision of the Panel that classified material or a classified record should be declassified in whole or in part under subparagraph (A), the Panel shall publish notice of the decision of the Panel and the declassified material or record, unless the President overrules the decision of the Panel under subsection (c). In a case of a decision described in clause
(i)that is arrived at pursuant to a request for expedited review for a member of Congress submitted under subsection (d)(3), the Panel shall carry out clause
(i)as if the reference to 10 days were a reference to 2 days . If the Panel receives a request under paragraph (1)(A) with respect to a classification decision of the head of an agency, the executive secretary of the Panel shall notify the head of the agency of such request. For each request received by the Panel under paragraph (1)(A) pursuant to which the Panel will review a classification decision, the executive secretary of the Panel shall prepare a file and present pertinent portions of such file to the members of the Panel before any votes are taken with respect to the review. After receiving a request under paragraph (1)(A) for review of a classification decision of the head of an agency, the executive secretary of the Panel shall arrange for the transmittal of relevant classified material and records from the agency. Each head of an agency that receives a request from the executive secretary of the Panel for classified material or records that pertain to the review of a classification decision of the head pursuant to a request submitted under paragraph (1)(A) or a mandatory declassification review shall, within 3 business days— transmit the requested classified material, records, and documents to the executive secretary of the Panel; or provide the executive secretary of the Panel with access to such material, records, and documents. The Panel shall make available to the public on the website of the Panel the following: A log of all requests for review submitted to the Panel under paragraph (1)(A). The status of each request logged under subclause (I). A log of all actions taken and decisions made by the Panel under paragraph (3)(A). A justification for each decision logged under subclause (III). The Panel shall ensure that the website of the Panel serves as a public record to streamline decision making of the Panel and assist those submitting appeals under this section as well as other functions of the Panel in effect pursuant to an Executive order that was in effect before the date of the enactment of this, including functions relating to mandatory declassification review. Information described in clause (i), and such other information as the Panel considers relevant, shall be published under such clause in a tabular format that is contemporaneously updated and allows for the tracking and monitoring of individual requests. Such action-tracking system shall support the processing of requests and be updated with modern technology and modern formats as the Panel considers appropriate. Any classified material or record that is the subject of a classification decision that is the subject of a request for review under this subsection shall remain classified unless and until a final decision is made to declassify it. The executive secretary of the Panel shall maintain the files and records of the Panel pertaining to requests for review under this subsection in accordance with chapter 22 of title 44, United States Code (known as the Presidential Records Act ). Except as provided in subparagraph (B), during the 10-day period beginning on the date on which the head of an agency receives a notice under subparagraph
(C)of subsection (b)(3) that the Panel has decided to take an action under subparagraph
(A)of such subsection with respect to a classification decision or other decision of the head of agency, the head of the agency may submit to the President a petition to reverse or modify the decision of the Panel. In a case of a decision to act as described in subparagraph
(A)that is arrived at pursuant to a request for expedited review for a member of Congress submitted under subsection (d)(3), subparagraph
(A)shall apply as if the reference to 10-day period were a reference to 2-day period . In response to a petition under paragraph (1), the President may overrule or modify any decision of the Panel described in the petition. In a case in which the President acts to overrule or modify a decision of the Panel under subparagraph (A), such act shall be published under subsection (b)(4)(D) in the same manner as an action or decision of the Panel. A member of Congress may submit a request under subsection
(a)for review of a classification decision of the head of an agency. For purposes of this section and except as otherwise provided in this section, a member of Congress shall be treated as an individual who is eligible to access the classified material or a classified record that was the subject of a classification decision. When a member of Congress submits a request under subsection
(a)for review of the classification decision of the head of an agency and the member of Congress is a member of a committee of Congress that has jurisdiction over such agency, the member of Congress may request that the review be conducted on an expedited basis. A request submitted under subparagraph
(A)for expedited review of a classification decision shall include the following: An indication that the member of Congress is requesting an expedited review of the classification decision. A justification described in subparagraph (C). A justification described in this subparagraph regarding a request for an expedited review of a classification decision regarding classified materials or records is an explanation of the public interest in an expedited public release and access to such classified materials or records. In a case in which a justification cannot be made under subparagraph (B)(ii) by a member of Congress without the use or presentation of classified material or records, the member of Congress shall make a prior arrangement with the head of the agency for such presentation. Under any of the circumstances described in subparagraph (B), a member of Congress may submit a request to the Panel for expedited review of a classification decision of the head of an agency or a decision of the head of an agency reached pursuant to a review under subsection (a). The circumstances described in the subparagraph are the circumstances in which a member of Congress— submits to the head of an agency a request for a review of the classification decision of the head of the agency under subsection (a); the member of Congress is a member of a committee of Congress that has jurisdiction over such agency; and the member of Congress is not satisfied with the response of the head of the agency under such subsection; the member of Congress does not receive a response from the head of the agency in 5 or fewer business days regarding the request for review; or the head of the agency does not complete the requested review and decide on the matter set forth in the request in 10 or fewer business days. A request submitted under subparagraph
(A)shall include the following: An indication that the member of Congress is requesting an expedited review of the classification decision. A justification described in subparagraph (D). A justification described in this subparagraph regarding a request for an expedited review of a decision concerning a classification decision that pertains to classified materials or records is an explanation of the public interest in an expedited public release and access to such classified materials or records. In a case in which a justification cannot be made under subparagraph (C)(ii) by a member of Congress without the use or presentation of classified material or records, the member of Congress shall make a prior arrangement with the Panel for such presentation. If the Panel receives a request under subparagraph
(A)and determines that the justification included under subparagraph (C)(ii) is valid, the Panel shall prioritize review of the matters covered by the request over all other pending reviews before the Panel. An individual who is eligible to access classified material or a classified record may informally question the classification of such material or record. It is the sense of Congress that an individual who is eligible to access classified material or a classified record and who wishes to challenge such classification should do so informally before submitting a request for review under subsection (a). In this subsection: The term contractor employee means an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, of an agency. The term covered individual means an employee of an agency or a contractor employee— who, under this section, is eligible to request a review of a classification decision; and for whom the protection under section 2302(b)(9) of title 5, United States Code, does not apply. The term personnel action means, with respect to a covered individual— an appointment; a promotion; an action under chapter 75 of title 5, United States Code, or other disciplinary or corrective action; a detail, transfer, or reassignment; a reinstatement; a restoration; a reemployment; a performance evaluation under chapter 43 of title 5, United States Code, or under title 38, United States Code; a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph; a decision to order psychiatric testing or examination; the implementation or enforcement of any nondisclosure policy, form, or agreement; and any other significant change in duties, responsibilities, or working conditions. Any employee of an agency or contractor employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take, or threaten to take or fail to take, any personnel action against any covered individual because the covered individual— exercises the right of the covered individual under subsection
(e)to question informally the classification of a classified material or record; refuses to obey an order that would require the covered individual to violate, with respect to a classification decision, a law, rule, or regulation; or exercises the right of the covered individual, under this section, to request a review of a classification decision.