Promoting Openness and Accountability by Making Classification a Two-Way Street

Promoting Openness and Accountability by Making Classification a Two-Way Street
Posted by William H. Leary on December 29, 2009 at 02:38 PM EST
President Obama has issued a new executive order on “Classified National Security Information” (the Order) that addresses the problem of over-classification in numerous ways and will allow researchers to gain timelier access to formerly classified records. Among the major changes are the following:

•It establishes a National Declassification Center at the National Archives to enable agency reviewers to perform collaborative declassification in accordance with priorities developed by the Archivist with input from the general public.
•For the first time, it establishes the principle that no records may remain classified indefinitely and provides enforceable deadlines for declassifying information exempted from automatic declassification at 25 years.
•For the first time, it requires agencies to conduct fundamental classification guidance reviews to ensure that classification guides are up-to-date and that they do not require unnecessary classification.
•It eliminates an Intelligence Community veto of certain decisions by the Interagency Security Classification Appeals Panel that was introduced in the Bush order.
While the Government must be able to prevent the public disclosure of information that would compromise the national security, a democratic government accountable to the people must be as transparent as possible and must not withhold information for self-serving reasons or simply to avoid embarrassment.

President Obama’s new Order strikes a careful balance between protecting essential secrets and ensuring the release of once sensitive information to the public as quickly and as fully as possible. It also comes after extensive online engagement with the public where more than 150 detailed and helpful comments from various stakeholders were received through the White House website.

This new Order replaces Executive Order 12958 that was issued by President Clinton in 1995 and later amended by President Bush in 2003. The President also issued a memorandum to heads of departments and agencies that directs additional steps agencies should take as they implement the Order.

On January 21, 2009, President Obama signed a memorandum to the heads of executive departments and agencies, calling for the Government to become more transparent and collaborative. In a May 27 memorandum, he directed the National Security Advisor to lead a review of EO 12958 and recommend revisions that improve transparency, openness, and interagency collaboration in the Government’s treatment of national security information. The May 27 memorandum identified six priorities for this review:

(i) establishing a National Declassification Center (NDC) to facilitate collaborative declassification review among government officials;
(ii) addressing the problem of over-classification;
(iii) facilitating the sharing of classified information among appropriate parties;
(iv) appropriately prohibiting reclassification of previously declassified material;
(v) specifying appropriate procedures for classification, safeguarding, accessibility, and declassification of information in the electronic environment; and
(vi) otherwise improving openness and transparency in the Government’s classification and declassification program, while affording necessary protection to the Government’s legitimate interests.

The new Order takes numerous steps to address the six priorities set forth in the President’s May 27 memorandum. First, the Order establishes the NDC within the National Archives to streamline declassification processes, facilitate quality-assurance measures, and implement standardized training regarding the declassification of records determined to have permanent historical value. The Archivist of the United States will develop priorities for declassification activities under the NDC’s purview, with input from the general public and after taking into account researcher interest and the likelihood of declassification.

Second, the Order takes steps to address the problem of over-classification. It greatly strengthens the requirements for training and oversight of all original classification authorities and the much larger number of derivative classifiers. It also directs that information not be classified (or be classified at a lower level) when “significant doubt” exists about the need to classify it. The new EO also tightens the standards for keeping information classified for more than 25 years.

Third, the Order facilitates greater sharing of classified information among appropriate parties, including State, local, and tribal governments. It calls for the greatest possible access to classified information by authorized persons. The Order also significantly modifies the “third agency rule” to permit re-dissemination of classified documents by receiving agencies without the approval of the originating agency, except when the originating agency has indicated on the documents that such prior approval is required.

Fourth, the Order significantly tightens restrictions on reclassification of information after its declassification and release under proper authority, particularly with respect to records that are in the legal custody of the National Archives. Fifth, the Order enhances the appropriate classification and declassification of electronic information by mandating the use of standardized electronic protocols and formats.

Finally, the new Order adopts a number of additional changes in standards, procedures, and deadlines designed to promote greater openness and transparency in the Federal Government’s classification and declassification programs. For example, it directs agencies to align their declassification activities with the priorities established by the NDC and strengthens the standards agencies must meet to exempt any record from automatic declassification at 25 years.

The Implementation Memorandum. The supplemental memorandum directs the heads of executive departments and agencies to take certain actions to implement more effectively the classification and declassification procedures established by the new Order. The memorandum instructs the Director of the Information Security Oversight Office to publish a periodic status report on agency implementation of the Order.

The memorandum also directs agencies, under the direction of the NDC, to take steps to eliminate the backlog of more than 400 million pages of accessioned Federal records previously subject to automatic declassification in order to permit public access to these records no later than December 31, 2013.

In addition, the memorandum stresses the principle that delegations of original classification authority must be held to the minimum necessary to implement the EO. These delegations should be made only to those individuals or positions with a demonstrable and continuing need to exercise original classification authority.
Lastly, in order to promote new technologies to support declassification, the memorandum directs the Secretary of Defense and the Director of National Intelligence to support research to assist the NDC in addressing cross-agency challenges associated with declassification.

Here are some other changes in the executive order that advance the President’s agenda of greater openness and transparency:

1. Establish a National Declassification Center (NDC) – Section 3.7

•Establishes a National Declassification Center at the National Archives where agency reviewers will perform collaborative declassification review of archival records, under the administration of a Director appointed by the Archivist in consultation with his counterparts at the major national security departments.
•The general functions of the Center shall apply to all archival records, regardless of whether they have yet been accessioned into the National Archives, and all referral processing of accessioned records shall take place under the direction of the Center.
•Agencies will review archival records in accordance with priorities developed by the Archivist, with input from the general public, that take into account the level of researcher interest and the likelihood of declassification.
2. Take Effective Measures to Address the Problem of Over-Classification

•Provides that no information may remain classified indefinitely. Section 1.5(d)
•Emphasizes the requirement to identify describable damage to the national security before classifying information. Section 1.4
•Restores the presumption against classification and in favor of a lower level of classification in cases of “significant doubt.” Sections 1.1(b) and 1.2(c)
•Requires agencies to conduct fundamental classification guidance reviews to ensure that classification guides and other guidance reflect current conditions and to identify information that can be declassified. An unclassified version of a report on such reviews shall be made public by each agency. Section 1.9
•Mandates a review by all departments and agencies to ensure that delegations of original classification authority are as limited as possible. Presidential Memorandum
•Tightens the standards for keeping information classified for more than 25 years. Sections 3.3(b) and 3.3(h)
•Greatly strengthens requirements for the training of all original classification authorities (OCAs) and the much larger number of derivative classifiers. Sections 1.3(d) and 2.1(d)
•Adds a requirement to identify derivative classifiers by name or personal identifier on each document they derivatively classify. Section 2.1(b)(1)
•Mandates that agency self-inspection programs shall review original and derivative classification decisions and correct misclassification actions appropriately. Section 5.4(d)(4)
•Directs agency heads to establish an internal, secure capability to receive complaints regarding over-classification and to provide guidance to personnel. Section 5.4(d)(10)
3. Facilitate Greater Sharing of Classified Information Among Appropriate Parties

•Revises the Preamble to emphasize “the responsibility to provide information both within the government and to the American people.”
•Calls for maximum possible access to classified information by persons who meet standard criteria for access. Section 4.1(a)
•Calls for the greatest practicable use of standardized electronic protocols and formats in order to maximize the accessibility and safeguarding of classified electronic information. Section 4.1(f)
•Modifies the “third agency rule” to authorize re-dissemination of classified materials by third agencies, except in limited exceptional cases, without the approval of the originating agency. Section 4.1(i)
•Revises the definition of “need-to-know” to shift the focus to prospective recipients with a mission need for information rather than a determination made by “owners” of the information. Section 6.2(dd)
•Mandates the use of classified addendums or unclassified versions of documents whenever possible to facilitate greater information sharing. Section 1.6(g)
4. Appropriately Prohibit Reclassification of Information

•Prohibits the reclassification of information after its declassification and release under proper authority except when agencies can comply with significantly tightened restrictions, particularly regarding records that have been accessioned into the National Archives. Section 1.7(c)
5. Enhance Appropriate Classification and Declassification of Electronic Information

•Calls for the greatest possible use of standardized electronic protocols and formats. Section 4.1(f)
•Directs the NDC to develop solutions to challenges posed by electronic records, special media, and emerging technologies. Section 3.7(b)(5)
•Directs the linkage and effective utilization of existing databases and the use of new technologies to support declassification activities under the purview of the NDC. Section 3.7(b)(6)
•Calls for advanced research to identify ways of utilizing electronic technology to assist the NDC in addressing cross-agency challenges associated with declassification. Presidential Memorandum
6. Take Other Steps Necessary to Provide Greater Openness and Transparency in the Government’s Classification and Declassification Programs

•Sets deadlines for the declassification and release of an existing backlog of some 400 million pages of records previously subject to automatic declassification, which includes archival records related to military operations during World War II, Korea, and Vietnam. Presidential Memorandum
•Eliminates the Intelligence Community veto of declassification decisions made by the Interagency Security Classification Appeals Panel (ISCAP) regarding intelligence sources and methods. Section 5.3(f)
•Strengthens the standards that agencies must meet to exempt any records from automatic declassification at 25 years. Section 3.3(h)
•Identifies with greater specificity information that can be exempted from automatic declassification because it relates to intelligence sources and methods or military war plans. Section 3.3(b)
•Requires specific deadlines for the declassification of information exempted from automatic declassification at 25 years and prohibits classification beyond 75 years except in extraordinary cases and as approved by ISCAP. Section 3.3(h)
•Directs that the review of third agency referrals subject to automatic declassification shall be performed in a prioritized manner determined by the NDC rather than according to a rigid schedule. Sections 3.3(d)(3), 3.7(b)(1), and 3.7(d)
•Directs agencies to consider final decisions of the ISCAP when making declassification decisions. Section 3.1(i)
•Provides guidance for the first time regarding the declassification of non-archival and non-record material. Section 3.1(h)
•Limits the time span of records that may be included in a single integral file block for declassification purposes. Section 6.1(v)
•Provides that no information may be excluded from automatic declassification based solely on the physical type of the document/record in which it is found. Section 3.1(g)
•Requires a review of previously approved file series exemptions. Section 3.3(c)(4)
William H. Leary is Special Adviser to the National Security Advisor and Senior Director for Records and Access Management, National Security Staff