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Federal agencies told to protect 'sensitive but unclassified' records

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  1. Freedom of Information

    NMU         WASHINGTON, D.C.         Freedom of Information         Mar 21, 2002    

Federal agencies told to protect ‘sensitive but unclassified’ records

  • The White House directed agencies to reexamine how they protect information that could be used by terrorists, ordering them to classify or keep classified information on weapons of mass destruction.

The White House ordered federal agencies to reexamine how they safeguard information that could be exploited by terrorists and report the results of their efforts to the Office of Homeland Security within the next 90 days.

The edict came in a memorandum dated March 19 from Andrew Card Jr., the White House chief of staff.

Card’s memo calls for classification or reclassification of information on weapons of mass destruction and revives dormant government efforts to withhold “sensitive but unclassified” information for national security reasons, even when the Freedom of Information Act’s exemption for national security does not apply.

Card solicited advice from the government’s chief FOI Act and classification authorities and included their guidance in his instructions to federal agencies. Those authorities also urged government officials to carefully consider the need to protect sensitive information from inappropriate disclosure.

The memorandum directs agencies to consider protection of information “on a case-by-case” basis and to evaluate sensitivity “together with the benefits that result from the open and efficient exchange of scientific, technical and like information.”

But the authors of this section, Richard Huff and Dan Metcalfe, co-directors of the Justice Department’s Office of Information and Privacy, emphasize that FOI requests for this information should only be processed in accordance with Attorney General John Ashcroft’s Oct. 12 memorandum “by giving full and careful consideration to all applicable FOIA exemptions.”

They specifically suggest, as they have before, that Exemption 2 can be used to protect information about the “critical infrastructure” where disclosure of internal agency records might cause a risk that laws or regulations could be circumvented. They also suggest that information voluntarily provided to the government by the private sector might fall under Exemption 4 which protects certain business information.

Sections of Card’s memo involving the classification of records appear to deal more narrowly with information involving weapons of mass destruction. The author of these provisions is Laura Kimberley, acting director of the Information Security Oversight Office.

The instruction tells agencies to keep as classified information that is already classified and that might “reveal information that would assist in the development or use of weapons of mass destruction.” The current classification order generally requires declassification of documents after 10 years but provides for extensions of up to 25 years for such information.

The new memorandum also directs agencies to use loopholes in the classification order to protect such weapons information that is more than 25 years old.

It directs agencies to classify such information if it has never been classified, no matter how old it is, so long as it has not been disclosed to the public under proper authority. And it directs reclassification of sensitive information concerning nuclear or radiological weapons if, although it had been declassified, it had never been disclosed under proper authority.

The first exemption to the FOI Act protects records that are “properly classified” under an executive order. The order that is in effect was created in October 1995 in the hope that it would help alleviate problems of excessive classification. It requires that where there is any “significant doubt about the need to classify information, it should not be classified.”


© 2002 The Reporters Committee for Freedom of the Press

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