Title 22

SECTION 9.9

9.9 Declassification and downgrading.

§ 9.9 Declassification and downgrading.

(a) Declassification processes. Declassification of classified information may occur:

(1) After review of material in response to a Freedom of Information Act (FOIA) request, mandatory declassification review request, discovery request, subpoena, classification challenge, or other information access or declassification request;

(2) After review as part of the Department's systematic declassification review program;

(3) As a result of the elapse of the time or the occurrence of the event specified at the time of classification;

(4) By operation of the automatic declassification provisions of section 3.3 of the Executive Order with respect to material more than 25 years old.

(b) Downgrading. When material classified at the Top Secret level is reviewed for declassification and it is determined that classification continues to be warranted, a determination shall be made whether downgrading to a lower level of classification is appropriate. If downgrading is determined to be warranted, the classification level of the material shall be changed to the appropriate lower level.

(c) Authority to downgrade and declassify. (1) Classified information may be downgraded or declassified by:

(i) The official who originally classified the information if that official is still serving in the same position and has original classification authority;

(ii) A successor in that capacity if that individual has original classification authority;

(iii) A supervisory official of either if the supervisory official has original classification authority;

(iv) Other Department officials specifically delegated declassification authority in writing by the Secretary or the Senior Agency Official; or

(v) The Director of the Information Security Oversight Office pursuant to Sec. 3.1(a) of E.O. 13526.

(2) The Department shall maintain a record of Department officials specifically designated as declassification and downgrading authorities.

(d) Declassification in the public interest. Although information that continues to meet the classification criteria of the Executive Order or a predecessor order normally requires continued protection, in some exceptional cases the need to protect information may be outweighed by the public interest in disclosure of the information. When such a question arises, it shall be referred to the Secretary or the Senior Agency Official for decision on whether, as an exercise of discretion, the information should be declassified and disclosed. This provision does not amplify or modify the substantive criteria or procedures for classification or create any substantive or procedural right subject to judicial review.

(e) Public disclosure of declassified information. Declassification of information is not, by itself, authorization for its public disclosure. Previously classified information that is declassified may be exempt from public disclosure under the FOIA, the Privacy Act, or various statutory confidentiality provisions. There also may be treaties or other international agreements that would preclude public disclosure of declassified information.

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