This exemption is designed to prevent disclosure of properly classified records, release of which would cause some “damage” to the national security.

The exemption covers records that are:

(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national security or foreign policy and (B) are in fact properly classified pursuant to such Executive order.

In 1995, President Bill Clinton issued a long-awaited executive order intended to limit the circumstances under which government agencies could 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.²⁰

In 2003, President George W. Bush amended the Clinton order but did not replace it with a new one. The Clinton order had instructed agencies not to classify records if there were “significant doubt” that disclosure could harm national security. The Bush amendment eliminated that feature. The Bush order also calls for automatic classification of foreign government information when disclosure is not authorized, under a presumption that disclosure would damage national security.²¹

Executive Order 12,958 only allows classification of records in certain categories. If the records you seek do not fit any 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 matter relating to national security; U.S. government programs for safeguarding nuclear materials or facilities; or vulnerabilities or capabilities of systems, installations or projects relating to national security.

Under the executive order, a person may choose to seek mandatory declassification review rather than file a Freedom of Information Act request. The requester who does so will lose, at least for a time, the opportunity to argue in court for release of classified records. But the requester will gain the right to have an interagency panel review an agency’s decision to deny access to classified records. In its report to the president on its 2002 activities, the panel noted that it had reversed agency classification of information in 75 percent of the documents it reviewed.

You should probably choose to file an FOI request rather than seek declassification review if you have a large open-ended request that covers many classified and unclassified documents. If you choose the FOI route, remember that the proper classification of just a few pages of a report does not mean that the remaining nonsensitive 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 word, phrase, sentence and paragraph. Merely 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.

If you ultimately turn your FOI request into a lawsuit, there is a good chance that the judge will give substantial deference to the agency’s affidavits to the court that the withheld material is classifiable. The court may demand to see the documents in camera but only if the agency’s public descriptions are so insufficient that the court is unable to determine if the claimed exemption was properly applied. Sometimes judicial inspection can be especially helpful in securing access to historical records and documents that were obviously classified merely to prevent domestic political repercussions.

Agencies can often avoid a decision on the release of classified records if the fact of the existence of the records is itself classifiable. In a FOI case involving a request for records pertaining to the submarine retrieval ship the Glomar Explorer, an appeals court allowed the CIA to neither confirm nor deny the existence of the requested records.²² 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 do exist. 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 have begun to use the “Glomar” response in 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 FOI Act request at all. The executive order offers a person seeking classified information a chance to seek mandatory declassification review instead, and it may well be that the declassification review will free up more classified records faster.

The major difference between the two processes lies in the appeal systems. FOI requesters appeal denials of their requests within the agency and then to court. Under mandatory declassification review, the requester appeals an agency denial to the Interagency Security Classification Appeals Panel (ISCAP) for a decision.

Also, under declassification review, reviewers have a longer time to inspect records, do not have to abide by expedited review requirements and are not authorized to waive fees.

You should choose declassification review only if you have a fairly clear idea of the kinds of records you seek and that they are probably classified.

Regulations to implement the executive order require a requester to decide between FOI and mandatory declassification review up front. Seeking declassification review is an alternative to making a request under the FOI Act. The requester may not make an FOI request and seek declassification review for 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 FOI Act request. If the requester simply seeks the information without mentioning either FOI or mandatory declassification review, the agency will probably categorize the request as a FOI request.²³

If the requester is not specific about seeking declassification review, the agency will not begin that process.

Furthermore, a requester cannot seek mandatory declassification review within two years of filing an FOI request for the same information.

Next section: Internal Agency Rules