OMB Watch Submits Recommendations on Handling Sensitive, Unclassified Information

On July 8, OMB Watch released a report that explores the impact of secrecy labeling practices within the federal government. The report, Controlled Unclassified Information: Recommendations for Information Control Reform, was submitted to the newly formed presidential task force established to review current policies and to reform the overuse of Sensitive but Unclassified (SBU) control markings.

The George W. Bush administration first established the term Controlled Unclassified Information (CUI) in a May 2008 memorandum intended to simplify the proliferation of terms used by federal agencies to label non-classifiable, but sensitive, information. The memo created the single CUI designation to refer to terrorism-related information, with an emphasis on increasing interagency information sharing. The need for improved information sharing increased considerably after the 9/11 Commission’s report identified the failure to share information as a critical governmental problem in the months before the attacks.

The OMB Watch report addresses certain key concerns with the CUI system and recommends the creation of a new CUI policy that ensures better public access to CUI-designated records. Although the current CUI reform effort simplifies the label framework and establishes consistent definitions and practices, the report argues that it falls short in important areas. These include the overuse of CUI markings, time limits and the implications for public access to the information, congressional and judicial use of CUI information, and the lack of oversight involved with CUI.

The report offers 15 specific policy recommendations for revising the CUI instructions that the Bush administration issued. Included in these recommendations are:

  • Affirm that a goal of the program is to reduce the amount of information being labeled CUI and include provisions to help limit use of the label
  • Make it a goal of the program, once the policies have been proven to work, to address the overuse of SBU labels in non-terrorism-related information
  • Establish clearer criteria of what information qualifies to be designated as CUI
  • Reliance on control labels in making FOIA determinations should be clearly prohibited
  • To maximize disclosure, require the use of portion marking of records so partial disclosures can be more readily implemented
  • Establish a time limit of no more than five years, after which CUI markings will automatically expire unless renewed by the agency that produced the record
  • Make clear that whistleblowers disclosing CUI records to uncover waste, fraud, and abuse will be protected from reprisal
  • Mandate training for agency officials and mechanisms, such as annual audits, for monitoring the system and ensuring compliance

On May 27, the Obama administration ordered the creation of a task force of agency representatives to address existing problems in the CUI reform effort. The presidential memo stated that issues the task force must consider in making recommendations include "protecting legitimate security, law enforcement, and privacy interests as well as civil liberties, providing clear rules to those who handle SBU information, and ensuring that the handling and dissemination of information is not restricted unless there is a compelling need." The interagency task force is to review existing practices on SBU and CUI, create metrics for measuring agency progress in implementing the CUI framework, and report back to the president on how to proceed further.

The task force has 90 days from its establishment to generate recommendations and submit them to the president. The task force has been receiving input from those outside of government through meetings with groups and through written comments and recommendations. The National Security Archive, for example, submitted comments expressing concerns that SBU labeling increases the likelihood that records will be withheld under the Freedom of Information Act. OMB Watch also provided its report to the CUI task force.

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