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FOIA Update: Executive Order Comparison Chart

FOIA Update
Vol. XVI, No. 2

Executive Order Comparison Chart

New Executive Order No. 12,958 Old Executive Order No. 12,356
Requires agencies to commit resources and to take specific actions within limited time periods if they want to maintain classification of records of permanent historical value. Agencies required to take specific actions and commit resources in order to declassify records; otherwise, most records retain their classification status indefinitely.
Specifies that most information classified under this order remains classified for a period of 10 years only, subject to narrow exceptions. § 1.6 No such time limit; information remained classified as long as national security required. § 1.4
If there is "significant" doubt, information shall not be classified; provision does not create any judicial review right. § 1.2(b) In case of "reasonable" doubt, information protected as classified, pending final agency decision within 30 days. § 1.1(c)
Eliminates previous presumption that certain particular categories of national security information are classified. § 1.6(d)(5) Release of foreign government information, identity of confidential foreign source, or intelligence sources or methods was presumed to cause damage to national security. § 1.3(c)
Prohibits reclassification of any information that is disclosed under proper authority. § 1.8(c) President, agency head, or other official as specified in order could reclassify information previously declassified and disclosed if the information required protection in the interests of national security and was retrievable by the agency. § 1.6(c)
Information may be classified after receipt of FOIA/PA request or Mandatory Declassification Review (MDR) request only by specified senior agency officials and only on a document-by-document basis. § 1.8(d) Agency head or other official as specified in order could classify or reclassify information after receipt of FOIA/PA request or MDR request. § 1.6(d)
Authorizes a "balancing test" in the declassification process; provision does not create any judicial review right. § 3.2(b) Contained no "balancing test" provision.
Requires "classified why" markings on each document, giving concise reasons for classification. § 1.7 No such requirement.
Use of "Originating Agency's Determination Required" (OADR) as declassification instruction not permitted. § 1.7 Authorized use of "OADR" as declassification marking, although agencies were encouraged to name a date or event. § 1.5
Authorized holders (i.e., personnel at the agency or at another agency) encouraged to challenge classification decisions, without retribution. § 1.9 No such provision.
Requires automatic declassification of permanently valuable records over 25 years old, with 9 limited exceptions. Applies to records classified under prior orders. Five-year deadline for accomplishment. § 3.4 No such requirement.
Requires all agencies to establish "systematic declassification review" programs. § 3.5 Except for records at the National Archives, systematic review was encouraged but not required. § 3.3
Requires establishment by the National Archives of a governmentwide declassification database. § 3.8 No such requirement.
Establishes new Interagency Security Classification Appeals Panel for review of MDR decisions, classification challenges by agency personnel, and agency requests for exemptions. § 5.4(b) Agencies' MDR decisions could not be appealed to any outside entity, except in the case of donated historical records maintained by the National Archives. § 3.4 No such provisions for the remaining two actions.
Establishes new Information Security Policy Advisory Council of nongovernment experts to recommend subject areas for systematic declassification review and to advise on classification system policies. § 5.5 No such provision.

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Updated December 6, 2022