Regularizing the Declassification Review of Classified Congressional Records
The current process by which classified Congressional records are transferred to the National Archives & Records Administration (NARA), reviewed for declassification, and released to the public does not adequately reflect the importance of these records and the special status they must enjoy as records of the Legislative Branch that are managed by the Executive. At present, no formal procedures exist for the organized review of these records, and declassification only occurs as a result of ad hoc committee requests or occasional researcher mandatory declassification review (MDR) requests. These collections are unique in capturing concisely the views and dialogue of both senior executive and congressional officials. They are of immeasurable value to the historical record, and their declassification review should be regularized.
The classified records created and collected by the Congress provide extraordinary insight into the Legislative branch’s oversight and involvement in national security decision-making. Transcripts of closed session hearings often contain frank assessments from agency representatives on American foreign policy, military planning, intelligence activities, and other national security concerns, as well as candid exchanges and debates between these individuals and members of Congress regarding past and future policy decisions. This is information of constitutional significance; it demonstrates the interplay between the Legislative and Executive branches not available in any other records.
There are challenges associated with reviewing these records for declassification. Legislative branch records are not subject to the automatic declassification provisions of Executive Order 13526, “Classified National Security Information” (the Order); however, these records contain Executive branch classified information that would otherwise be exempted from declassification under section 3.3 of E.O. 13526.
A standardized process needs to be developed jointly with cognizant Legislative Branch officials to respect congressional ownership of these records and, consistent with House and Senate rules, ensure that these comprehensive collections of historical records are made available to the public in a manner befitting their distinct significance.
With the approval of Legislative branch officials, equity-holding agencies should review appropriate records to determine the suitability of their release. Because most of these records lack declassification markings or instructions, any initial review for declassification will be especially time-consuming. Furthermore, records of executive sessions, investigations, or nomination hearings that are less than 50 years old are subject to additional withholding restrictions under House and Senate Rules.
Memoranda of understanding between NARA and the Clerk of the House of Representatives and the Secretary of the Senate, respectively, should establish new procedures to enable and provide:
- Subject to Congressional approval, all appropriate classified committee records be transferred to NARA when they reach 25 years of age and be accompanied by folder title lists and box-level descriptions of the records. Whenever possible, folder title lists should be unclassified and made available to the public for MDR request purposes.
- Approved classified Congressional records between 25 and 50 years old continue to be accessible to researchers through the MDR process and eligible for declassification review through the National Declassification Center (NDC).
- With permission of the appropriate Congressional committees, the Office of the Historian at the Department of State to have access to House and Senate committee records 25 years old or older to identify especially significant records for possible inclusion in the Foreign Relations of the United States (FRUS) series. Congress prioritized these types of foreign policy records in Public Law 102-138, which codified the FRUS series in statute. Including representative Legislative records after they reach 30 years old will help fulfill the statute’s requirement that FRUS provide a “thorough, accurate, and reliable documentary record of major United States foreign policy decisions.” The NDC should give high priority status in their review plan to any Congressional records identified by the Historian’s Office and approved for review and release by the corresponding committees.
- The NDC to give high priority status to Congressional records over 50 years old in their review plan and conducts line-by-line reviews of these records.
- Congressional committees to authorize the NDC to make all declassified records over 50 years old immediately available to the public.
Limiting the comprehensive review of Congressional records to those collections over 50 years old acknowledges and accommodates Congressional prerogatives and significantly reduces the review burden as agencies ability to exempt records over 50 years old is restricted to only those specific topics under section 3.3(h) of the Order. These reviews would focus on identifying human intelligence sources and weapons of mass destruction information and would be limited primarily to those agencies (CIA, DOD, and DOE) which are best equipped to manage increases in workload. 
A regularized declassification process for Congressional records would guarantee the public access to as complete a record as possible of committee activities.  While new requirements will obligate Executive branch agencies, the NDC, and Congressional committees to augment their current practices, the enhanced commitment of all parties will ensure efficient archival processing and declassification. The implementation of a regularized review process will provide the public what they have heretofore lacked: access to a comprehensive documentary record of Congress’ contributions to national security and foreign policy decision-making.
 Sections 3.3(h) (2) and 3.3(h) (3) permit the exemption of additional information from declassification at 50 years with the approval of the Interagency Security Classification Appeals Panel (ISCAP). Should the ISCAP approve additional exemptions, other subject areas and agencies may need to be included in the review process.
 The records of the rare closed sessions of the full House and Senate that involved national security information could also be addressed, although the bulk of the records of interest are committee transcripts.