Freedom of Information Act (FOIA)

INTERIM GUIDANCE 1605-2
March 21, 2006

SUBJECT: Special Access by Government Officials to Classified and Unclassified, Closed Federal Records in NARA's Legal Custody

TO: Office Heads, Staff Directors, ISOO, NHPRC, OIG

1. What is the purpose of this directive?
This directive establishes the special access procedures for providing U.S. Government officials and their designees access to closed Federal records, both classified and unclassified, in NARA's legal custody.

2. Authority for this directive

    a. 44 U.S.C. § 2108 (Federal Records Act)

    b. E.O. 12958, as amended, sec. 4.1(c) (Classified National Security Information)

    c. NARA Information Security Manual (INFO. SEC. 202), Chapter 2, Access, Reproduction, Accountability, and Control

    d. 18 U.S.C. Appendix 3 (Classified Information Procedures Act)

3. To what NARA records does this directive apply?
This directive:

    a. Applies to accessioned Federal records in NARA's legal custody and donated materials in the custody of the Office of Records Services - Washington, DC (NW) and the Office of Regional Records Services (NR).

    b. Does not apply to Presidential records and materials governed by the Presidential Records Act (PRA), the Presidential Recordings and Materials Preservation Act (PRMPA), or 44 U.S.C. § 2111 for donated presidential historical materials.

4. Which Government officials can request access to classified and closed, unclassified Federal records in NARA's legal custody?

    a. Requests by Federal agencies (both executive and legislative branch) must be made by a senior agency official (i.e., agency head, deputy agency head, office or division head or deputy).

    b. Requests from Congress must be made by the chairman of a full committee or subcommittee having jurisdiction over the subject matter.

    c. Requests involving judicial proceedings must be made by a court order signed by a Federal judge or a criminal grand jury subpoena.

    d. Requests by representatives of agency historical offices, such as the Department of State Office of the Historian, for use in official Government publications, such as the 'Foreign Relations of the United States', should be made directly to the Special Access/FOIA LICON staff. The requesting agency is responsible for obtaining authorization from the originating agency for access to classified information of other agencies as described in par. 6.

5. To whom in NARA must the request be sent?
Except as noted in par. 4.d., requestors must address official requests to NARA's General Counsel (NGC) and specify the records being requested and the purpose of the request. NGC will ensure that the request is from an appropriate official as described in par. 4.

6. What special requirements apply in order to receive access to classified records in NARA's legal custody?

    a. Access to classified information in NARA's legal custody is permitted:

        (1) Under the Interagency Agreement on Access for Official Agency Historians; or

        (2) When NARA receives written authorization from the originating or transferring agency; and

        (3) If the individual requesting access:

                A. Holds a security clearance at or above that of the classification level of the information to be viewed;

                B. Is engaged in official Government business;

                C. Has a need to know (cannot fulfill their appointed duties without access); and

                D. Has been given an initial security briefing, and completed the required SF 312, Classified Information Nondisclosure Agreement, and any limited access agreements, as appropriate, which are verified through the Security Management Branch (NASS).

    b. Before obtaining access to records in a classified research room, all individuals will be instructed to read and sign NARA Form 14128, Notice to Users of NARA Classified Research Rooms.

    c. Employees and contractors of Government entities other than NARA must provide written proof to NASS through their security office that they meet the access requirements in subpar. 6a.

    d. Regardless of clearance level and need to know, NARA does not grant access to classified information to individuals who do not meet the personnel security standards listed in E.O. 12968, Access to Classified Information. Additional restrictions to access for reasons other than national security may be addressed in 36 CFR Part 1256 or the donor's deed of gift for the collection being accessed.

    e. Requirements for removing copies of records and for creating and removing notes of the records are addressed in INFO. SEC. 202.

    f. When requests are received from any party involved in a prosecution under the Classified Information Procedures Act (18 U.S.C. Appendix 3), NARA requires that the Department of Justice obtain from the equity holder(s) the authorization for access to classified information in NARA's custody.

    g. If a congressional committee or a Federal agency wishes to publicly release any classified information to which it has gained access through the above procedure, it must request declassification of the information directly from each agency equity holder. Once the equity holders approve declassification, the congressional committee or Federal agency must notify NARA before releasing the information.

7. What restrictions apply to closed, unclassified Federal records in NARA's legal custody?

    a. Upon notification from NGC that a request has been properly made, the unit with custody of the records contacts the requester and arrange for review of the specific documents in a non-public area. Closed, unclassified records should generally not be reviewed in NARA's classified research rooms.

    b. If a congressional committee or a Federal agency wishes to publicly release any closed, unclassified information to which it has gained access through the above procedure, it may consult each agency with subject matter interest in the information on disclosure of the information. After those agencies have approved public release, the congressional committee or Federal agency must notify NARA before releasing the information.

8. How are records created by this directive maintained under the NARA records schedule?

    a. NGC maintains records under file number 1103-1b.

    b. NASS maintains records under items 258 and 315, as applicable.

    c. Custodial units maintain records under file numbers 1415-4 and 1417 through 1421, as applicable.

9. Where should I file this interim guidance?
File this interim guidance with INFO SEC 202, Chapter 2, Part 1.

10. Whom can I contact for more information?
For questions regarding this interim guidance, contact Gary M. Stern (NGC) in room 3110, AII; on 301 837-3026; or by e-mail.


ALLEN WEINSTEIN
Archivist of the United States

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