10 U.S.C. § 130c: Nondisclosure of…

Summary

Allows certain national security officials to keep foreign-government or international-organization information from public release when they decide all these are true: the material came from or was shared with a foreign government or international organization; that foreign government or organization is refusing public release or says so in writing; and either the foreign party asked in writing that it be kept secret, it was given to the U.S. on the condition it not be released, or the information falls in a category the official’s rules say would hurt the U.S. ability to get similar information in the future. If one national security official gives such information to another agency and says it is sensitive, that other agency must also keep it secret unless the first official allows disclosure. There are time limits. If the U.S. got the information before October 30, 2000 and it is more than 25 years old when a request is made, it may be kept only if the foreign party asks in writing for an extra period after being notified. For information received on or after October 30, 2000, it cannot be withheld past any date the foreign party specifies (if several, use the latest), and if no date is given and the information is over 10 years old when requested, it may be withheld only with a written extension request after notification. This does not cover information already classified under an Executive order as confidential, secret, or top secret. It also does not let officials hide information from Congress or from the Comptroller General (unless the GAO request involves presidentially designated foreign intelligence or counterintelligence). The named officials must write rules for these decisions and for notifying foreign governments and organizations. Definitions (one line each): national security official concerned = Secretary of Defense (for DoD), Secretary of Homeland Security (for the Coast Guard when it is not operating as a Navy service), and Secretary of Energy (for DOE national security programs); agency = federal agency as defined in 5 U.S.C. §552(f); international organization = organizations covered by the International Organizations Immunities Act, treaty-created public international organizations, and foreign official missions to those organizations (not U.S. missions).

Title 10, §130c

Armed Forces, Source: USLM XML via OLRC

(a)Exemption From Disclosure.—

The national security official concerned (as defined in subsection (h)) may withhold from public disclosure otherwise required by law sensitive information of foreign governments in accordance with this section.

(b)Information Eligible for Exemption.—

For the purposes of this section, information is sensitive information of a foreign government only if the national security official concerned makes each of the following determinations with respect to the information:

(1)That the information was provided by, otherwise made available by, or produced in cooperation with, a foreign government or international organization.

(2)That the foreign government or international organization is withholding the information from public disclosure (relying for that determination on the written representation of the foreign government or international organization to that effect).

(3)That any of the following conditions are met:

(A)The foreign government or international organization requests, in writing, that the information be withheld.

(B)The information was provided or made available to the United States Government on the condition that it not be released to the public.

(C)The information is an item of information, or is in a category of information, that the national security official concerned has specified in regulations prescribed under subsection (g) as being information the release of which would have an adverse effect on the ability of the United States Government to obtain the same or similar information in the future.

(c)Information of Other Agencies.—

If the national security official concerned provides to the head of another agency sensitive information of a foreign government, as determined by that national security official under subsection (b), and informs the head of the other agency of that determination, then the head of the other agency shall withhold the information from any public disclosure unless that national security official specifically authorizes the disclosure.

(d)Limitations.—

(1)If a request for disclosure covers any sensitive information of a foreign government (as described in subsection (b)) that came into the possession or under the control of the United States Government before October 30, 2000, and more than 25 years before the request is received by an agency, the information may be withheld only as set forth in paragraph (3).

(2)(A)If a request for disclosure covers any sensitive information of a foreign government (as described in subsection (b)) that came into the possession or under the control of the United States Government on or after the date referred to in paragraph (1), the authority to withhold the information under this section is subject to the provisions of subparagraphs (B) and (C).

(B)Information referred to in subparagraph (A) may not be withheld under this section after—

(i)the date that is specified by a foreign government or international organization in a request or expression of a condition described in paragraph (1) or (2) of subsection (b) that is made by the foreign government or international organization concerning the information; or

(ii)if there are more than one such foreign governments or international organizations, the latest date so specified by any of them.

(C)If no date is applicable under subparagraph (B) to a request referred to in subparagraph (A) and the information referred to in that subparagraph came into possession or under the control of the United States more than 10 years before the date on which the request is received by an agency, the information may be withheld under this section only as set forth in paragraph (3).

(3)Information referred to in paragraph (1) or (2)(C) may be withheld under this section in the case of a request for disclosure only if, upon the notification of each foreign government and international organization concerned in accordance with the regulations prescribed under subsection (g)(2), any such government or organization requests in writing that the information not be disclosed for an additional period stated in the request of that government or organization. After the national security official concerned considers the request of the foreign government or international organization, the official shall designate a later date as the date after which the information is not to be withheld under this section. The later date may be extended in accordance with a later request of any such foreign government or international organization under this paragraph.

(e)Information Protected Under Other Authority.—

This section does not apply to information or matters that are specifically required in the interest of national defense or foreign policy to be protected against unauthorized disclosure under criteria established by an Executive order and are classified, properly, at the confidential, secret, or top secret level pursuant to such Executive order.

(f)Disclosures Not Affected.—

Nothing in this section shall be construed to authorize any official to withhold, or to authorize the withholding of, information from the following:

(1)Congress.

(2)The Comptroller General, unless the information relates to activities that the President designates as foreign intelligence or counterintelligence activities.

(g)Regulations.—

(1)The national security officials referred to in subsection (h)(1) shall each prescribe regulations to carry out this section. The regulations shall include criteria for making the determinations required under subsection (b). The regulations may provide for controls on access to and use of, and special markings and specific safeguards for, a category or categories of information subject to this section.

(2)The regulations shall include procedures for notifying and consulting with each foreign government or international organization concerned about requests for disclosure of information to which this section applies.

(h)Definitions.—

In this section: (1)

(2)The term “agency” has the meaning given that term in section 552(f) of title 5.

(3)The term “international organization” means the following:

(A)A public international organization designated pursuant to section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) as being entitled to enjoy the privileges, exemptions, and immunities provided in such Act.

(B)A public international organization created pursuant to a treaty or other international agreement as an instrument through or by which two or more foreign governments engage in some aspect of their conduct of international affairs.

(C)An official mission, except a United States mission, to a public international organization referred to in subparagraph (A) or (B).

Notes & Related Subsidiaries

Editorial Notes

References in Text

The International Organizations Immunities Act, referred to in subsec. (h)(3)(A), is title I of act Dec. 29, 1945, ch. 652, 59 Stat. 669, which is classified principally to subchapter XVIII (§ 288 et seq.) of chapter 7 of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see

Short Title

note set out under section 288 of Title 22 and Tables.

Amendments

2002—Subsec. (h)(1)(B). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”. 2001—Subsec. (b)(3)(C). Pub. L. 107–107, § 1048(a)(3), substituted “subsection (g)” for “subsection (f)”. Subsec. (d)(1). Pub. L. 107–107, § 1048(c)(1), substituted “October 30, 2000,” for “the date of the enactment of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2002 AmendmentAmendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.

§130c Nondisclosure of Information: Certain Sensitive Information of Foreign Governments and International Organizations