A bill to reduce and standardize Controlled Unclassified Information (CUI) designations moved quickly through the House in July, passing in both committee and on the House floor just a single week after it was introduced by Reps. Henry Waxman (D-CA) and Tom Davis (R-VA). This bill, along with a similar piece of legislation that focuses solely on the Department of Homeland Security (DHS), now goes to the Senate where it may have a tougher time given the limited amount of legislative time left in this congressional session.

The Waxman-Davis bill, the Reducing Information Control Designations Act (H.R. 6576), gives new authority to the National Archives and Records Administration (NARA). Under the bill, the Archivist of the United States must establish narrowly constructed standards for CUI designations that maximize public access to information as well as develop penalties for employees and contractors who repeatedly fail to comply. NARA is already the statutory designee for setting classification standards. The act also calls for random audits of unclassified information with control designations by the inspector general of each federal agency.

Among the provisions that encourage greater openness, the bill seeks to clarify how agencies handle these designations, which are often not mandated by Congress, under the Freedom of Information Act (FOIA). Openness advocates have expressed concern that records were being withheld improperly under FOIA due to uncertainty caused by the use of control designations on unclassified documents. In her June 11 testimony to the Committee on Homeland Security, Meredith Fuchs of the National Security Archive recommended that agencies be discouraged from using CUI labels as "de facto determinations of FOIA exemption." If passed, the bill would prevent agencies from using the CUI markings to determine how information is disclosed under FOIA.

The bill would require training for employees and contractors on the proper use of CUI categorization and designations and would establish penalties for employees and contractors who repeatedly fail to comply with NARA-issued CUI standards.

The Congressional Budget Office (CBO) estimates that the total cost of random audits, training, and regulatory implementation over the 2009-2013 period will be approximately $45 million. While the legislation could have an impact on agencies not funded through annual appropriations, the CBO did not estimate any significant net increase in spending by such agencies, stating that "enacting the bill would have no significant impact on directing spending or revenues."

This legislation builds on the May 2008 memorandum issued by President Bush on CUI to establish rules governing its designation and sharing. While the memo was a step toward streamlining the problem of multiple pseudo-classification markings, it only required a standardized system for "terrorism-related information" and makes no statement on limiting the use of these markings. Further, the president's order pertains solely to material used in the Information Sharing Environment (ISE) created by the Intelligence Reform and Terrorism Prevention Act in 2004. That act called for reducing disincentives for information, but overclassification is still prevalent.

Waxman's bill is similar to, but broader in scope than, the Improving Public Access to Documents Act (H.R. 6193). Introduced by Rep. Jane Harman (D-CA) in June, H.R. 6193 seeks many similar changes but only for DHS, whereas H.R. 6576 will have an impact throughout the federal government. OpenTheGovernment.org has published a useful analysis of the differences between the two bills. Harman's bill passed the House at the same time as the Waxman bill and is also waiting for action in the Senate.

The two bills have now been referred to the Senate Committee on Homeland Security and Governmental Affairs. However, given that the Senate plans to reconvene in September for only three weeks, it is unlikely that it will be able to move these bills along with appropriations bills and other pressing matters that must be addressed before adjournment.

Overclassification Legislation

Both Waxman and Harman had also introduced related bills on overclassification, H.R. 6575 and H.R. 4806, respectively. However, in this case, it was Harman's bill, the Reducing Over-Classification Act, that the House passed, during the same July 30 voting session in which Waxman's CUI bill was passed. The legislation seeks to limit excessive classification at DHS with increased oversight by NARA, greater accountability for DHS employees who overuse classification stamps, and training of DHS employees.

Harman summarized the importance of this bill as it pertains to ensuring openness at DHS, stating, "Unfortunately, the amount of material that is classified is growing exponentially making it harder and harder for our first responders to do their jobs." If passed and implemented properly, the bill could establish DHS as an example to other agencies. Harman's overclassification bill has also been referred to the Senate Homeland Security and Governmental Affairs Committee and faces the same unlikelihood of passage given the Senate's tight September timeframe.