Report, Legislation Drive Push to End Pseudo-Classification of Information

No government-wide policies or procedures currently exist to guide agencies through deciding what information should be withheld from the public due to its "sensitive but unclassified" nature. The federal agencies are also without uniform rules that govern who makes such designations and how such information is handled, according to a new report from the Government Accountability Office (GAO). Legislation introduced by Reps. Tom Davis (R-VA) and Henry Waxman (D-CA), unanimously approved by the House Committee on Government Reform, would remedy many of the problems identified in the GAO report. The GAO report, Information Sharing, was released to the public on April 17. It finds that federal agencies have 56 different "sensitive but unclassified" (SBU) designations, 16 of which are at the Department of Energy. GAO found a conspicuous lack of internal controls for handling SBU information. No government-wide definitions for SBU are in place, despite responsibility for such definitions having been given to the Office of Management and Budget and then to the Department of Homeland Security. Even within the agencies, a majority reported not having policies detailing the procedures or standards for applying a SBU designation. Most of the agencies also "have no policies for determining who and how many employees should have authority" to make SBU designation. Support systems are limited that train agency staff on making designations or on auditing practices to determine the utility and accuracy of such designations. "More than 4 years after September 11, the nation still lacks government-wide policies and processes to... improve the sharing of terrorism-related information that is critical to protecting our homeland," according to the GAO. Not only do agencies have trouble sharing information with each other, but also there is a problem of the SBU designation being misapplied. "This could result in either unnecessarily restricting materials that could be shared or inadvertently releasing materials that should be restricted." Most information-sharing challenges, according to the report, were caused by the unevenness of SBU practices between agencies and the concern that another agency would not appropriately handle an agency's sensitive information. Such problems often prevent critical information from reaching the local level and have led to the over-sharing of non-critical information that can often swamp smaller state and local agencies. First responders, for instance, "reported that the multiplicity of designations and definitions not only causes confusion but leads to an alternating feast or famine of information." Hearings conducted by Rep. Christopher Shays (R-CT) and the House Subcommittee on National Security, Emerging Threats and International Relations reached a similar conclusion: lack of clarification often leads to overclassification and a failure of government accountability. In response to this growing problem, Davis and Waxman introduced the Executive Branch Reform Act earlier this month. The bill would increase disclosure in the executive branch with provisions requiring key executive branch employees to file quarterly lobby communication disclosure forms. The bill would also enforce a two-year cooling off period between government employment and working as a lobbyist, and would strengthen national security whistleblower protections. Moreover, the bill would reform federal SBU policies. Specifically, it would:
  • Require federal agencies to submit a report to the National Archivist, regarding who can designate information as SBU, the financial costs associated with categorizing documents as SBU, and the extent to which SBU designations are used to restrict the release of information that is not authorized to be withheld;
  • Require the National Archivist to issue a report on SBU agency practices and recommendations that "would improve public access to information"; and
  • Ban the use of all SBU designations that are not defined by federal statute or executive order except in rare cases.
Such reforms would pave the way to a uniform federal government SBU policy that, as documented by the GAO report, is badly needed. Effective reform would mitigate the concern of public release of sensitive information, while enabling the sharing of critical information across local and federal agencies. Uniform policy should protect against over-classification and maximize open government and accountability. The Executive Branch Reform Act passed out of committee 26-0 and is expected to be included in the House lobbying and ethics reform package later this month. A similar bill has not been introduced in the Senate.
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