THE WHITE HOUSE
WASHINGTON
March 19, 2002
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND
AGENCIES
FROM:
ANDREW H. CARD,
JR.
Assistant to the President and Chief of Staff
SUBJECT:
Action to Safeguard Information Regarding Weapons
of Mass Destruction and Other Sensitive Documents Related to Homeland
Security
As noted in many discussions during the past several months, you and your
department or agency have an obligation to safeguard Government records
regarding weapons of mass destruction. Weapons
of mass destruction include chemical, biological, radiological, and
nuclear weapons. Government information, regardless of its age, that could
reasonably be expected to assist in the development or use of weapons
of mass destruction, including information about the current locations
of stockpiles of nuclear materials that could be exploited for use in such
weapons, should not be disclosed inappropriately.
I asked the Acting Director of the Information Security Oversight Office
and the Co-Directors of the Justice Department's Office of Information and
Privacy to prepare guidance for reviewing Government information in your
department or agency regarding weapons of mass
destruction, as well as other information that could be misused to harm
the security of our Nation and the safety of our people. Their guidance is
attached, and it should be distributed to appropriate officials within your
department or agency, together with this memorandum, to assist in your
undertaking an immediate reexamination of current measures for identifying and
safeguarding all such information at your department or agency.
All departments and agencies should review their records management
procedures and, where appropriate, their holdings of documents to ensure that
they are acting in accordance with the attached guidance. They should report
the completion, or status, of their review to my office through the Office of
Homeland Security no later than 90 days from the date of this memorandum.
If agency officials need assistance in determining the classification
status of records related to the development or use of weapons
of mass destruction, they should contact the Information Security
Oversight Office, at 202-219-5250. For assistance in determining the
classification of nuclear and radiological weapons classified under the Atomic
Energy Act, they should contact the Department of Energy's Office of Security,
at 202-586-3345. If they need assistance in applying exemptions of the Freedom
of Information Act (FOIA) to sensitive but unclassified information, they
should contact the Justice Department's Office of Information and Privacy (OIP),
at 202-514-3642, or consult OIP's FOIA Web site at www.usdoj.gov/04foia/index/html
[sic].
Information Security Oversight Office
National Archives and Records Administration
700 Pennsylvania Avenue, NW
Washington, DC 20408
March 19, 2002
MEMORANDUM FOR DEPARTMENTS AND AGENCIES
FROM:
LAURA L.S. KIMBERLY
Acting Director
Information Security Oversight Office
RICHARD L. HUFF
DANIEL J. METCALFE
Co-Directors
Office of Information and Privacy
Department of Justice
SUBJECT:
Safeguarding Information Regarding Weapons of
Mass Destruction and Other Sensitive Records Related to Homeland
Security
At the request of the Assistant to the President and Chief of Staff, we have
prepared this memorandum to provide guidance for reviewing Government
information regarding weapons of mass destruction,
as well as other information that could be misused to harm the security of our
nation or threaten public safety. It is appropriate that all federal
departments and agencies consider the need to safeguard such information on an
ongoing basis and also upon receipt of any request for records containing such
information that is made under the Freedom of Information Act (FOIA), 5 U.S.C.
§ 552 (2000). Consistent with existing law and policy, the appropriate steps
for safeguarding such information will vary according to the sensitivity of
the information involved and whether the information currently is classified.
I. Classified Information
- If the information currently is classified and is equal to or less than
25 years old, it should remain classified in accordance with Executive
Order 12958, Sec. 1.5 and Sec. 1.6. Although classified information
generally must be declassified within 10 years of its original
classification, classification or reclassification may be extended for up
to 25 years in the case of information that could reasonably be expected
to "reveal information that would assist in the development or use of
weapons of mass destruction." Id.,
Sec. 1.6(d)(2).
- If the information is more than 25 years old and is still classified, it
should remain classified in accordance with Executive Order 12958, Sec.
3.4(b)(2), which authorizes agency heads to exempt from automatic
declassification any "specific information, the release of which
should be expected to ... reveal information that would assist in the
development or use of weapons of mass
destruction." (Agencies should note that the automatic
declassification date for any classified information over 25 years old
that involves the equities of more than one agency was extended under
April 2003 by Executive
Order 13142. Agencies have until then to exempt such information from
automatic declassification under any one of the pertinent exemption
categories in Executive Order 12958, Sec. 3.4(b).)
In this regard, agencies should note that Department of Defense (DOD)
information that involves the equities of more than one DOD component is
considered to have multi-agency equities. Information maintained by the
Defense Technical Information Center (DTIC) or the National Archives and
Records Administration (NARA) also is deemed to have multi-agency
equities, i.e., those pertaining to DTIC or NARA and those pertaining to
the component agency or agencies that created the information.
II. Previously Unclassified or Declassified Information
- If the information, regardless of age, never was classified and never
was disclosed to the public under proper authority, but it could
reasonably be expected to assist in the development or use of weapons
of mass destruction, it should be classified in accordance with
Executive Order 12958, Part 1, subject to the provisions of Sec. 1.8 (d)
if the information has been the subject of an access demand (or Sec 6.1(a)
if the information concerns nuclear or radiological weapons).
- If such sensitive information, regardless of age, was classified and
subsequently was declassified, but it never was disclosed to the public
under proper authority, it should be reclassified in accordance with
Executive Order 12958, Part 1, subject to the provisions of Sec. 1.8(d) if
the information has been the subject of an access demand (or Sec 6.1(a) if
the information concerns nuclear or radiological weapons).
III. Sensitive But Unclassified Information
In addition to information that could reasonably be expected to assist in
the development or use of weapons of mass
destruction, which should be classified or reclassified as described in
Parts I and II above, departments and agencies maintain and control sensitive
information related to America's homeland security that might not meet one or
more of the standards for classification set forth in Part 1 of Executive
Order 12958. The need to protect such sensitive information from inappropriate
disclosure should be carefully considered, on a case-by-case basis, together
with the benefits that result from the open and efficient exchange of
scientific, technical, and like information.
All departments and agencies should ensure that in taking necessary and
appropriate actions to safeguard sensitive but unclassified information
related to America's homeland security, they process any Freedom of
Information Act request for records containing such information in accordance
with the Attorney
General's FOIA Memorandum of October 12, 2001, by giving full and careful
consideration to all applicable FOIA exemptions. See FOIA Post,
"New Attorney General FOIA Memorandum Issued" (posted 10/15/01)
(found at www.usdoj.gov/oip/foiapost/2001foiapost19.htm),
which discusses and provides electronic links to further guidance on the
authority available under Exemption 2 of the FOIA, 5 U.S.C. § 552 (b)(2), for
the protection of sensitive critical infrastructure information. In the case
of information that is voluntarily submitted to the Government from the
private sector, such information may readily fall within the protection of
Exemption 4 of the FOIA, 5 U.S.C. § 552 (b)(4).
As the accompanying memorandum from the Assistant to the President and
Chief of Staff indicates, federal departments and agencies should not hesitate
to consult with the Office of Information and Privacy, either with general
anticipatory questions or on a case-by-case basis as particular matters arise,
regarding any FOIA-related homeland security issue. Likewise, they should
consult with the Information Security Oversight Office on any matter
pertaining to the classification, declassification, or reclassification of
information regarding the development or use of weapons of mass destruction,
or with the Department of Energy's Office of Security if the information
concerns nuclear or radiological weapons.
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