Exemption 1 to the federal Freedom of Information Act is the mechanism used most often by intelligence agencies to withhold classified information, and some of the most contentious and frustrating FOIA battles arise under this exemption.
It protects from mandatory disclosure matters that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.”1 President Obama issued the current governing Executive Order on Classified National Security Information, EO 13526, on December 29, 2009. This order supersedes the previous order issued by President Bush on March 25, 2003, EO 12958.
EO 13526 directs that information should not be classified where “there is significant doubt about the need to classify information.”2 Information can only be originally classified if it meets all four of the following conditions:
1. an “original classifying authority is classifying the information”;
2. “the information is owned by, produced by or for, or is under the control of the United States Government”;
3. “the information falls within one or more of the categories of information” for which classification is allowed; and
4. “the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.”3
As provided by EO 13526, only eight categories of information may be considered for classification:
1. “military plans, weapons systems, or operations”;
2. “foreign government information”;
3. “intelligence activities (including covert action), intelligence sources or methods, or cryptology”;
4. “foreign relations or foreign activities of the United States, including confidential sources”;
5. “scientific, technological, or economic matters relating to the national security”;
6. “United States Government programs for safeguarding nuclear materials or facilities”;
7. “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security”; or
8. “the development, production, or use of weapons of mass destruction.”4
An agency may only withhold records under Exemption 1 where the document is “classified in accordance with the procedural criteria of the governing Executive Order as well as its substantive terms,”5 and you may challenge whether the agency has met its burden on both elements.
1 5 U.S.C. § 552(b)(1).
2 Exec. Order No. 13526 § 1.1(b).
3 Id. at § 1.1(a).
4 Id. at §1.4.
5 Lesar v. U.S. Dep’t of Justice, 636 F.2d 472, 483 (D.C. Cir. 1980).