This exemption is designed to prevent disclosure of properly classified records, release of which would cause some “damage” to the national security.
It covers records 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 an executive order.
In 1995, President Bill Clinton issued an executive order intended to limit the circumstances under which government agencies can classify information and to hasten the declassification of records for which classification has become unnecessary after the passage of time or a change in circumstances.21
In 2003, President George W. Bush amended the Clinton order, eliminating its instruction that agencies should not classify records if there was “significant doubt” that disclosure could harm national security. The Bush order also called for automatic classification of foreign government information when disclosure is not authorized, under a presumption that disclosure would damage national security.22
Bush’s Executive Order 12,958 allows for the classification of records in certain categories. If the records you seek do not fit into any of the categories, they should not have been classified at all. Records that are classifiable concern military plans, weapons or operations; foreign government information; intelligence sources, methods or cryptology; scientific, technological or economic matters relating to national security; U.S. government programs for safeguarding nuclear materials or facilities; vulnerabilities or capabilities of systems, installations or projects relating to national security; or weapons of mass destruction.
Records in these areas can be classified if “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.”
Still, the proper classification of just a few pages of a report does not mean that the remaining non-sensitive portions can be cloaked in secrecy. The government must justify the withholding of each document, and within each document it must justify the withholding of every paragraph, sentence, word and phrase. Just because information is in the possession of the Central Intelligence Agency or the Department of Defense or Department of State does not necessarily mean it is classified.
In 2006, the U.S. District Court in Manhattan held that Exemption 1 protected past and present photographs of inmates housed at the military base at Guantanamo Bay, Cuba, because of the safety risks to the detainees and their families from terrorist organizations.23
In addition, a category of information often referred to as “sensitive but unclassified” and related to homeland security has burgeoned since Sept. 11, 2001. This information may still, in many cases, be released via a FOIA request. Since such “SBU” information is not technically classified, it can only be withheld if another FOIA exemption applies.
If your FOIA request is denied and you ultimately file a lawsuit, the agency will submit affidavits to the court explaining the nature of the withheld information and that it is classified. The courts often give substantial deference to these affidavits.
Essentially, the court will defer to the agency and not even review the information to determine whether it was properly classified (and thus properly withheld under FOIA) if the agency has a “reasonable” basis for finding potential harm, the information falls within the claimed exemption and there is no evidence that the agency acted in bad faith. In these cases, the suit may be dismissed at an early stage.
Alternatively, the judge may review the documents in private if he or she is unable to determine whether the claimed exemption was properly applied on the basis of the agency’s public descriptions alone. Sometimes judicial inspection can be helpful in securing access to historical records that were obviously classified merely to prevent political repercussions.
Agencies might avoid a decision on the release of classified records if the fact the records even exist is itself classifiable. In a FOIA case involving a request for records pertaining to a ship, the Glomar Explorer, an appeals court allowed the CIA to neither confirm nor deny the existence of the requested records. The “Glomar” response has been routinely invoked since. When agencies neither confirm nor deny the existence of records, requesters should not presume that the records exist.24 The government has become fairly adept at applying the response to categories of records and invoking it whether or not the records actually exist. Unfortunately, agencies are also using the Glomar response while invoking the privacy exemptions as well the exemption for national security.
For the requester who seeks classified records, the most important question is whether to file a FOIA request at all.
Under the Bush executive order, a requester can seek mandatory declassification review rather than file a FOIA request. However, unlike denial of a FOIA request, a denial of mandatory declassification review request cannot be appealed to a court. Instead, such appeals are made to the Interagency Security Classification Appeals Panel (ISCAP). In a 2007 report to the President, ISCAP said it had declassified material in 61 percent of appeals.
Also, under mandatory declassification review, reviewers have a longer time to inspect records and do not have to abide by expedited processing requirements, but the requester does not have to pay fees as with FOIA.
Typically, the mandatory declassification review process is better suited to processing requests for specifically identifiable documents that the requester knows are classified. In contrast, the FOIA process is better suited to handle requests for large amounts of information or for more general requests.
Regulations to implement the Bush executive order require a requester to decide between FOIA and mandatory declassification review up front. The requester may not make a FOIA request and seek declassification review for the same classified records. Faced with a request for both, an agency will require the requester to elect one process or the other. If the requester fails to choose, the agency will treat the request as a FOIA request. If the requester simply seeks the information without mentioning either FOIA or mandatory declassification review, the agency will probably categorize the request as a FOIA request.25
Furthermore, a requester cannot seek mandatory declassification review within two years of filing a FOIA request for the same information.
21 Executive Order No. 12,958, 3 C.F.R. 333 (1995).
22 Executive Order No. 13,292, titled “Further Amendment to Executive Order No. 12,958, as Amended, Classified National Security Information,” 68 Fed. Reg. 15,315 (March 28, 2003).
23 Associated Press v. Dep’t of Defense, 462 F.Supp.2d 573 (S.D.N.Y. 2006).
24 Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C. Cir. 1976).
25 32 CFR 2001.33(f)