Administration Revises Classification and Declassification Systems

1/12/2010

On Dec. 29, 2009, President Obama signed an executive order (E.O. 13526) to prescribe a uniform system of classifying and declassifying government information. The new order was welcomed by open government advocacy groups and will go into effect on June 27.

The order was a result of recommendations from National Security Advisor James Jones, which were formulated by interagency review pursuant to President Obama’s request in May 2009. The order was followed by a memorandum to agency heads on implementation and a presidential order clarifying authority to label records "top secret" or "secret" under E.O. 13526.

This executive order effectively revises an existing order, E.O. 12958, issued by President Bill Clinton in 1995 and amended by President George W. Bush in 2003. Among the changes the Obama executive order brings about are new declassification goals for historical records, the use of new technologies to expedite declassification, and a reduction in the number of original classification authorities.

The administration intends to reduce the backlog of records with historical value by devising a system to permit public access to backlogged records by no later than Dec. 31, 2013. The current backlog of federal records consists of more than 400 million pages. This process would be expedited by limiting the number of referral reviews these records would need before declassification unless they contain intelligence sources or design concepts concerning weapons of mass destruction. Currently, the declassification of records often requires referrals to several agencies with interests in the subject material. To ensure compliance, the Archivist of the United States is required to publicly report on the status of the backlog every six months.

Traditionally, declassification has been a paper-based review system, and it remains well behind the curve in use of new technologies. Government as a whole continues to struggle to incorporate new online technologies that the private sector has utilized for years. However, the potentially sensitive nature of the material being reviewed has created even greater hesitancy to experiment with such tools in the declassification process. The order requires that new technologies be pursued to better deal with the volume and complexity of the review process and keep the public better informed of decisions.

Over the years, the ability to classify a record has been delegated and extended to more and more people in agencies, which has been accompanied by, not too surprisingly, a considerable growth in the amount of material being classified. The order instructs agencies to reduce the number of people able to classify records in an effort to eliminate unnecessary classifications and reduce the total amount of information being classified. Eventually, such reductions should translate into smoother declassification reviews and fewer backlogs.

Additionally, the new order and the implementation memo establish:

  • A policy that no document may remain classified indefinitely. The new order says records must be designated for declassification at 10 or 25 years unless they include certain types of confidential or intelligence information, which may be classified for up to 50 years. In extraordinary cases, the information may be classified for up to 75 years. The order adds higher standards for agencies to meet in order to exempt a record from declassification. It also creates enforceable deadlines for declassifying information exempted from automatic declassification at 25 years. In no case can information be classified for more than 75 years.

  • A new National Declassification Center, which has already been created within the National Archives and Records Administration. The new center will develop declassification priorities after seeking public input and taking into account researcher interest and impact of declassification.

  • It eliminates a Central Intelligence Agency (CIA) veto of declassification decisions made by the Interagency Security Classification Appeals Panel that was established by the Bush administration.

Reportedly, the order had been subject to significant controversy and was delayed due to pressure from the intelligence community.

E.O. 12958 required the release of all classified documents 25 years or older unless a department or agency exempts them from disclosure. The limited resources that agencies have committed to preview information for possible disclosure have been overwhelmed by the amount of material being requested under the Freedom of Information Act (FOIA) or as part of the disclosures required under E.O. 12958. As a result, many agencies have enormous backlogs of documents awaiting review, as noted above.

The new order was needed to reduce these burdens and streamline the declassification process. To alleviate stresses, the order outlines how the new National Declassification Center should centralize the process to make more records available to the public more quickly and in a way that does not overly burden individual agencies. Currently, the National Archives and Records Administration is working with the Defense Change Management Organization to study how this can be done. Public input can be sent to NDC@nara.gov.

The process to revise the executive order included an unprecedented system for public input during the drafting phase. At the request of the Obama administration, the Public Interest Declassification Board (PIDB), a congressionally established advisory committee, solicited recommendations from the public. That was followed by a blog discussion in July to obtain additional public input on recommendations for a new order. The resulting order reflects many of the recommendations the public submitted to the PIDB. Meredith Fuchs of the National Security Archive stated that "the impact of the public on the final order demonstrates that, even in the national security realm, there is a role for an informed public."

As with many of the Obama administration’s new government openness policies, implementation is the next hurdle for the new classification/declassification effort. Agency buy-in will be an important factor in making the new system effective in bringing down the backlog. It remains to be seen if those intelligence agencies that resisted the direction of the new executive order will embrace the new program and its goals or remain reluctant participants.