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Scaling Back

Excessive classification has the attention of the nation's archivist and some in Congress, who are fighting to curb the trend.…

Excessive classification has the attention of the nation’s archivist and some in Congress, who are fighting to curb the trend.

From the Spring 2006 issue of The News Media & The Law, page 7.

By Corinna Zarek

The shroud of secrecy under which government sometimes operates may be slowly lifting on some fronts. Consider a recent audit of classified documents at the National Archives, reports acknowledging the lack of agency standards for “sensitive but unclassified” (SBU) designations, and legislation to wipe out such pseudo-classifications.

All were discussed at the March hearing of a House subcommittee whose chairman, Rep. Christopher Shays (R-Conn.), called reclassification efforts at the Archives an “absurd effort to put the toothpaste back into the tube” and pseudo-classifications &#151 SBU, “for official use only” (FOUO) and “official use only” (OUO) &#151 “spurious” labels.

“Increasingly, in this security-conscious era, SBU designations are being misused as an unregulated form of ‘classification-lite,'” said Shays, chairman of the House Subcommittee on National Security, Emerging Threats and International Relations. “To right the balance between the public’s right to know and countervailing public interests in security and privacy, the habits of secrecy must give way to the culture of shared information.”

Archiving Secrets

The National Archives, the official repository of records from all three branches of government, prides itself on being “in the access business, not the classification business,” according to Archivist Allen Weinstein. But in December, when researchers pointed out previously available documents disappearing from the shelves, purportedly because they were improperly declassified, Weinstein ordered a closer look.

The 60-day endeavor conducted by the Archives’ Information Security Oversight Office to discover what had been withdrawn, when and under whose authority, showed that some 25,315 records had been removed by different agencies since 1995 under 10 unrelated efforts. And while 64 percent of those documents were properly reclassified as secret, about 36 percent were “clearly inappropriate for continued classification,” according to ISOO’s report. Current standards for classification were set forth in 1995 in Executive Order 12958.

“Classification is a critical tool to protect our nation from harm, but it must be used properly,” ISOO director J. William Leonard said at a press conference. “For years, we’ve been confounded by the nemesis of overclassification and it’s time we stop talking about it and do something about it. To be effective, we must use it with precision.”

Included in the 64 percent properly reclassified as secret were documents created as unclassified or that only had a secret name in the “cc” line on a letter, Leonard said. The ISOO report also noted many instances where withdrawal of a record &#151 especially an older record &#151 actually drew undue attention to it, increasing the potential damage its release could cause national security. These records, ISOO concluded, were instances where even though the record met the standard for continued classification, “insufficient judgment was applied to the decision to withdraw the record from public access.”

Any document whose contents had been publicly disseminated was automatically deemed properly declassified, Leonard said. Both he and Weinstein added that people with copies of reclassified documents will not be sought out and are “absolutely not” at risk if they should ever publish information from them. “When the American people come to the National Archives, they shouldn’t have to worry about the government figuring out who looked at what,” Weinstein said.

In the future, agencies that wish to re-evaluate declassified records must act according to new guidelines that will inform the public when records are being re-reviewed, will limit agencies’ re-review period to 180 days and will give the Archives final approval on whether a document may be removed. ISOO will offer training and also require agencies to provide periodic reports on their re-review efforts.

“We shouldn’t be waiting until records are 50 years old to audit them and determine if they were properly classified,” Leonard said. “Re-review efforts should be rare and infrequent because it’s going against the stream.”

Pseudo-Standards

Declaring information “sensitive but unclassified” &#151 not classified but of potential harm to national security if released &#151 has long been in agencies’ arsenals to prevent release of information. But without guidelines or standards among the agencies to determine what can be designated SBU, as pointed out in a March report by the Government Accountability Office, the agencies lack clear guidance on how to stamp documents within these so-called pseudo-classification designations.

Agencies have 56 different SBU designations, and none are governmentwide, the report showed. The Department of Energy alone has 16 separate SBU designations and it, along with the Department of Defense, base their OUO and FOUO designations on information that has the “potential to cause foreseeable harm to governmental, commercial, or private interests” if made public, or that falls under at least one of eight exemptions to the Freedom of Information Act.

Shays’s March 14 hearing coincidentally fell during “Sunshine Week,” which is devoted to open government. Among those testifying was Davi D’Agostino, the GAO director of defense capabilities and management, who said there is no training and oversight for use of pseudo-classifications. “Without training and oversight, no department can assure it’s following policies,” said Agostino, one of the authors of the GAO report, “Managing Sensitive Information: Departments of Energy and Defense Policies and Oversight Could be Improved.”

She also pointed out a “lack of clarity in key areas that could lead to inconsistencies” that “could result in over- and under-protection.”

Additionally, D’Agostino noted that Energy Department officials are receptive to citing the underlying FOIA exemption that allowed it to designate a record FOUO or OUO, but that Defense Department officials did not agree with that standard.

Former Defense Department Under Secretary Robert Rogalski said “everyone in DoD” has the authority to classify information, subject to a supervisor’s approval. That means 2.5 million people can keep information from the public, and it “is possible a supervisor never even sees it,” he said. Rogalski, who worked in the areas of counterintelligence and security, said DoD would “strive for a balance between proper safeguarding and the public’s interest and right to know” and agreed that training would be a key element in preventing abuse of pseudo-classification designations.

The National Security Archive, a private research organization housed at George Washington University that maintains the nation’s largest collection of declassified documents, also put out a report on sensitive unclassified information in March.

The study used FOIA requests to determine which agencies have policies on declaring information sensitive and found that most create their own standards &#151 and that 28 separate policies exist within the agencies that handle most of the government’s FOIA requests.

“We believe that the diversity of policies, the ambiguous and incomplete guidelines, the lack of monitoring, and the decentralized administration of information controls on sensitive unclassified information . . . means that neither Congress nor the public can really tell whether these sensitive unclassified information policies are actually working to safeguard our security, or are being abused for administrative convenience or coverup,” Archive Director Tom Blanton said in prepared testimony at the subcommittee hearing.

Reforming SBU

On the heels of the Archives reclassification revelation and the Shays pseudo-classification hearing, Reps. Tom Davis (R-Va.) and Henry Waxman (D-Calif.) introduced a measure to reform SBU policies and guidelines. Called “The Executive Branch Reform Act of 2006,” the legislation would, among other things, phase out pseudo-classification designations.

Agencies would first report on their use of pseudo-classification designations, which Archivist Weinstein would compile and present to Congress. The Archivist would then set forth regulations to ban the use of these designations if they are not rooted in a federal law and, if he sees fit, set forth new agencywide standards for safeguarding sensitive information.

The bill, H.R. 5112, was unanimously approved in the House Government Reform Committee in April, but has not been put on the schedule for consideration by the full House yet, said Robert White, a spokesman for the Committee on Government Reform.

Groups including the American Library Association, the Project on Government Oversight and OMB Watch have come forward in support of the bill.