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New law will alter handling of sensitive information

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NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Freedom of Information   ·   Oct. 11, 2006

NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Freedom of Information   ·   Oct. 11, 2006

New law will alter handling of sensitive information

  • After three years, an agency must justify the continued withholding of anything labeled “sensitive security information” under a law passed last week.

Oct. 11, 2006  ·   A little-noticed provision of a bill to fund the Department of Homeland Security signed by President Bush last week makes significant changes to how agencies handle unclassified information that is withheld from the public for security reasons.

While the rules apply to all agencies within the department, the new law targets the Transportation Security Administration’s use of “sensitive security information,” or SSI, a label affixed to information deemed too much of a security threat to release.

Critics have accused the TSA of overusing the designation to shield itself from criticism.

The new law creates a procedure for reviewing SSI after three years to determine if the reasons for withholding the information from the public are still valid. It also establishes a mechanism for utilizing SSI in civil federal court cases, allowing lawyers who obtain proper security clearances to view the information.

Under the new rules, if a public requester seeks access to a piece of information labeled SSI that is three years old, it must be “reviewed in a timely manner” to see if it still warrants SSI protection. To make the determination, an agency official will see if it falls within one of a dozen categories of information that remains protected. If the information falls outside the categories, the information must be released unless the agency can cite a “rational reason” for its continued protection.

The three-year review period brings the handling of SSI more in line with that of classified information, which prior to this new law had the distinction of being both more potentially damaging than SSI if released, but also more likely to be released eventually because it is subject to an automatic review process.

Steven Aftergood, the director of the Project on Government Secrecy for the Federation of American Scientists, said that while no one disputes that certain TSA practices and policies must be kept secret out of security concerns, he thinks the agency has overused the SSI designation.

His group recently published a study of the categories of information withheld from the public under SSI that has led him to believe the scope of the TSA’s designations exceed the scope of national security.

“It is a sizeable number of documents … and you wonder if it is all necessary,” he said. “A lot of it is security related and maybe is justified in its SSI designation. The rest of it is a little hard to tell.”

Whether the three-year review period will result in greater openness remains to be seen. But the new procedure for handling SSI in civil court cases could have an immediate impact in one highprofile lawsuit.

Some family members and other victims of the Sept.11 terrorist attacks have sued airlines and the government over the security procedures in place on that day for protecting airliners. The case has proceeded at a glacial pace because the TSA, citing SSI rules, has refused to disclose much of the information sought by the plaintiff’s lawyers in that case.

Under the new law, lawyers can access some SSI if they can show a “substantial need” and are willing to undergo an extensive background check.

(Department of Homeland Security Appropriations Act, 2007)NW

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