A 25th birthday present

Many documents were ‘automatically declassified’ at the end of 2006, but that does not necessarily mean you can see them — yet.

From the Winter 2007 issue of The News Media & The Law, page 32.

By Nathan Winegar

Eternal life as a classified document was truncated for some records on Dec. 31, when a new information policy went into effect eliminating the ability of government agencies to indefinitely shield some information from release.

The Bush administration’s New Year’s resolution of “automatic declassification” came in the form of Executive Order 13292, which established new standards and timetables for handling the three levels of classified information: “top secret,” “secret,” and “confidential.”

But while “automatic declassification” has a nice ring to it, journalists and historians who breathlessly contacted the National Archives and Records Administration wondering when they could get their hands on the millions of documents affected by the new policy learned quickly that bureaucratic obstacles, secrecy-driven and otherwise, still block their disclosure.

As the National Archives put it in a “fact sheet” it developed in the wake of initially rosy press reports about the new policy, “There is no ‘vault-full’ of previously classified records that became automatically available to the public on January 1, 2007.”

‘Tempering expectations’

J. William Leonard, director of the Information Security Oversight Office at the National Archives, said he has found himself “tempering expectations” of some people who expected an avalanche of new documents to become available due to automatic declassification.

“That’s really not what’s happened,” Leonard said. “What I try to convey to people is that researchers and historians have experienced the benefits over the past several years.”

Specifically, Leonard said government agencies have been forced to prepare for the deadline by putting more resources into declassification work. Any benefit of this added attention has been accruing for researchers gradually in recent years, and did not suddenly appear on Dec 31.

This new policy originated in 1995, when then-President Clinton ordered agencies’ historically significant records automatically declassified 25 years after their initial classification, with the first batch scheduled for October 2001.

Prior to Clinton’s executive order, information could be classified indefinitely and agencies were charged with systematically reviewing the need to protect historically significant records. However, there were no consequences for failing to conduct such an independent review, and therefore few agencies did. Thus, it was left to individual public requesters to press their case that a particular document no longer needed protection.

When George W. Bush assumed the presidency in 2001, he extended the declassification deadline to April 2003 to allow agencies additional time to comb through millions of documents. In March 2003, Bush disappointed critics by extending the deadline again, this time to Dec. 31, 2006, but he surprised some by not scrapping the program altogether.

Obstacles to release

Today, with the new policy in place, historically significant classified material must go through two layers of processing, one legal and the other logistical, before there is a chance it will be released to the public.

First, automatic declassification really means mandatory review of classified material to determine whether it should be declassified, remain classified pursuant to one of the exceptions articulated in the executive order, or be referred to another government agency for review.

The executive order spells out eight exemptions to automatic declassification, ranging from “foreign government information” to “weapons of mass destruction.” Additionally, an agency can only declassify documents that contain information exclusive to the agency. If another agency’s information is included in a document, it must be referred to that agency for review, delaying its release.

Even if a document is declassified, there may be other legal hurdles blocking its release. The Freedom of Information Act has exemptions, including, for example, personal privacy, that may bar a document’s release.

When information clears the first hurdle of declassification, it faces another obstacle in the form of transfer to the National Archives for “archival processing.” Due to a lack of resources at the Archives, there is a backlog of hundreds of millions of pages waiting for processing, which means everything from cataloging them to preparing them in the proper acid-free storage containers to ensure long-term preservation.

Reversing the burden

Despite these significant barriers, open government advocates see value in the new system.

The major benefit is the shift in agency mindset from assuming a document can be classified indefinitely to requiring a reason for a document’s continued shielding. Or, as the National Archives puts it in its fact sheet, automatic declassification “reverses the resource burden.”

Instead of devoting resources to the expensive task of maintaining vast stores of classified information and the sporadic, at best, review of the continued need for secrecy of those documents, agencies must now expend resources to demonstrate why historic documents need to remain classified.

“I would say that this is not a meaningless event,” said Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists. “The automatic declassification deadline was a signal to government agencies that classification is not forever. Records will be declassified and if an agency wants to prevent that, it has to take the initiative to seek and receive approval for an exemption to declassification for a finite period.

“That is a profound change. It rewrites the software of the classification system. It does not mean an avalanche of new documents on January 1, but it does mean that over time there will be a steady continuing release of older classified documents.”