Balancing the Rights of Individuals with the Needs of Society:
Executive Orders (E.O.), the FOIA, and the Privacy Act and
Their Impact on the Classification and Access to Government Information
Dr.
Question: How do we balance the rights and needs issue?
Concern: international political and military developments since World War II; domestic politics; and technological advancements (universities’ mission to advance knowledge and industries ability to apply it)
EO Responsibility: Executive Branch (POTUS), and Executive agencies interpretations (i.e., they define and categorize material) with judicial review
Weather reports can be classified information?
State Department’s Biographic Register (a.k.a. Stud Book), official use only starting in 1974?
EO Scope: Indian affairs, national parks, price controls, emergency agencies. Proclamation = executive order. Fire prevention week.
EO Definition: “…never been defined by law or regulation.” (Schmeckebier and Easton, p. 341).
EO History: State Department began assigning numbers in 1907.
EO
Identification: Document Catalog,
Code of Federal Regulations, or Public Papers of the Presidents. Executive Order 10006 (
Freedom of Information Act exceptions (b) (1) “specifically required by Executive order to be kept secret in the interest of national defense or foreign policy...”
·
E.O. 8381 (1940,
· E.O. 10104 (1951, Truman)—“Ditto as above…as Requiring Protection Against the General Dissemination of Information” authorized Secretary of Defense, Army, Navy and Air Force to use top secret, secret, confidential, and restricted categories, again without definition.
· E.O. 10290 (1951, Truman)—“Prescribing Regulations Establishing Minimum Standards…” defines security information, classification and declassification, downgrades and upgrades, marking and appropriate classifying authority. Still doesn’t define the four categories, but extends the scope beyond the military. Concept of over classification “security information shall be assigned the lowest classification consistent with its proper protection.”
·
E.O. 10501 (Eisenhower)—“Safeguarding Official Information in
the Interests in the Defense of the
Top Secret: “defense information or material which requires the highest degree of protection, whose defense aspect is paramount…and the unauthorized disclosure of which could result in exceptionally grave damage to the nation…”
Secret: “defense information or material the unauthorized disclosure of which could result in serious damage to the nation…”
Confidential: “defense information or material the unauthorized disclosure of which could be prejudicial to the defense interests of the nation.”
· E.O.—Kennedy and Johnson apparently never modified nor revoked prior EO.
· E.O. 11652 (Nixon)—“Classification and Declassification of National Security Information and Material” states “in no case shall information be classified in order to conceal inefficiency or administrative error.” Also, provides for some automatic declassification which he promised in a press conference: “immediate and systematic declassification.” For example, top secret automatically downgraded at end of the second calendar year; downgraded to confidential at the end of the fourth calendar year; and declassified at the end of the tenth calendar year.
· E.O. Ford apparently never modified or revoked prior EO, but did vote against FOIA amendments as a member of Congress.
· E.O. 12065 (Carter)—allowed classification only is disclosure could reasonable be expected to cause “at least identifiable damage to national security.” “Automatic declassification no more than six years later.”
Creation of an Information Security Oversight Office (1980).
· E.O. 12356 (Reagan; effective 1 August 1982)—Less stringent restraints—“reasonably…be expected to cause damage to national security.” Warning to contractors, licensees, and grantees that they are subject to appropriate sanctions for improperly handling classified information. No mandatory review. 78% less declassification of material in 1982. By FY 1989, 501,794 decisions: 49% secret; 49% confidential; and 2% top secret, according to the ISOO in GAO.
“Information shall be considered for classification if it concerns:
1. Military plans, weapons, or operation
2. Vulnerabilities or capabilities
3. Foreign government information [content or format]
4. Intelligence
5. Foreign relations or activities
6. Scientific, technical, or economic matters
7. Safeguarding nuclear materials
8. Cryptology
9. Confidential source
10. Other categories…as determined by the Executive branch.
National
Security Decision Directives (NSDD), a series issued by President Reagan and
his assistants, are similar to the NSC numbered papers, dating from 1947. In this case, number 145 “National Policy on
Telecommunications and Automated Information Systems Security” is classified
for reasons of national security, but signed into being in September 1984. John Poindexter, the National Security Advisor,
acting under this authority signed a directive on
Although
it initially sounded parallel to the “restricted” category, but its scope
included all information in any of these six areas: human, financial, industrial,
agricultural, technological, and law enforcement.
On 11 November 1986, Diane Fountaine, head of the Pentagon’s Information
Systems Directorate, was directed to study ways to censor public data bases;
investigate proof of identity (e.g., biometry, retina scans—260 variables—or
hand geometry; password timing and frequency analysis; and fingerprint scan—35
variables); monitor all online sessions; and require providers (vendors) to
report online “suspicious behavior.” In
March 1987, Frank Carlucci rescinded the October 1986 directive, but the NSDD
was still in effect. For a good background book on this topic, read
Christopher Simpson’s National Security Directives of the Reagan and Bush
Administrations: The Declassified History of
* The other categories are unclassified and limited official use only (which is the same as SBU); some settings involve FSNs and so documents may also be marked “NOFORN”.
· E.O. 12829 (Bush the first); never modified or revoked prior EO. However, E.O. 12829 “National Industrial Security Program” did address leased government information.
· E.O. 12958 (Clinton; 17 April 1995)—“Classified National Security Information” stated that the duration must be established by the classifier; 10 year maximum duration with 8 relatively narrow exceptions. Declassification of older material: 25 years and older: automatic, whether reviewed or not with 7 narrow categories of exceptions. Oversight: NSC, overall policy direction with ISOO overseeing the program. Classification of top secret (“exceptionally grave damage”), secret (“serious damage”), and confidential (“damage”). Allows portion marking.. Creation of a declassification database.
As a result of this EO, 21M military documents from WWII and another 23M from 1946-1964 including 5.8M “secret files” from the US Army about the Vietnam War became declassified. Another 325M are still stored at the National Archives; and another 100+M await in the CIA, Pentagon, and other Executive branch agencies.
· E.O. 12972 defines agency as “executive agency” and defines military department as 5 USC 102.
· E.O. 13291 (G.W. Bush; 3 March 2003)—“Further Amendment to Executive Order 12958, As Amended, Classified National Security Information” at http://www.fas.org/sgp/bush/eoamend.html quietly delays the automatic declassification to at least 2006. Deletes the unappointed Declassification Advisory Board and the so-called Moynihan Board (a.k.a. the Public Interest Declassification Board) created by Section 703 of the Intelligence Authorization Act for FY 2001 (PL 106-567).
Between 1993 and 2000, the Clinton Administration
also created a new category called the Presidential Review Directive (PRD)
series. Used to direct executive departments
and agencies to undertake specific reviews and analyses related to national
security matters, they are also, called Presidential Decision Directive (PDD).
The series is numbered 1 through 66[?], but are classified for reasons
of national security. However, it is clear that PRD/PDD 29 of
Declassified material from a variety of agencies (including the CIA, the FBI, and the State Department) covering most major domestic and international events of the post-World War II era can be found via Gale’s “Declassified Documents Reference System: the United States” at http://galenet.galegroup.com/servlet/DDRS;jsessionid=A4A27B0110F7376510375568F95778D7?locID=tradeshow1
Question: What right, if any, do we have to know about government agencies and their internal workings?
B. Stake a claim for records, being as specific as possible—avoid large “broad and complex” requests, but no necessity to state a “demonstrated, specific need”
1.
Record means “… information that would be an agency record subject to the
requirements of this section when maintained by an agency in any format, including
an electronic format.” Department of
Justice v. Reporters Committee for Freedom of the Press (489
US 749 ) wherein Supreme Court argued, as recently as 22 March
1989, that “electronic databases of compiled information do not directly reveal
government operations or activities and thus FOIA requests for such information
should be denied.”
C. Look at the FR for existence of “current index” and GM for “description of organization…, methods and functions…, rules of procedure and description of forms…, substantive rules…, and amendment, revision, or repeal of the foregoing.”
D. Agencies can establish, but must publish regulations for, multi-track processing of requests
1. A “compelling need….shall be made by a statement certified…to be true and correct to the best of the person’s knowledge and belief” (section E, vi) can fast track
2. An “expedited processing” within 10 days of receipt of claim.
E. Otherwise, response/acknowledgement (not necessarily an answer with documents) within 10 days originally, now 20 business days—essentially one month later.
F. “Reasonable standard charges” for searching and document preparation; direct cost recovery only, but advance payment if costs are likely to exceed $250; claim exemption as scholars, journalists/reporters
G. Exemptions (Section b):
1. EO intend records “to be kept secret in the interest of national defense or foreign policy”;
2. Criminal investigations or enforcement proceedings;
3. “internal personnel rules and practices of an agency;
4. “trade secrets and commercial or financial information”—SDC Development Corporation v. Mathews (542 F. 2d 1116) re 1976 NLM’s MEDLARS bibliographic records
5. “personnel and medical files…clearly unwarranted invasion of personal privacy;” and
6. “geological and geophysical information and data, including maps, concerning wells.”
H. Reporting: 1 February agencies report to AG: decisions not to comply, number of appeals, number of requests pending, total number of requests, median days to process, fees collected, and FTE staff involved. AG reports by 1 April on DoJ efforts to “encourage agency compliance with this time section.”
Question: Is there a “substantial legal basis” for withholding records versus “presumption of disclosure”?
Recent History: On 4 October 1993, AG Janet Reno, under President Clinton, rescinded the long-standing 1981 DoJ guidelines which would have defended an executive agency, versus AG John Ashcroft, under President Bush, who reasserts executive agency withholding a range of material, including “sensitive business information,” due to “privacy…privilege…national security” in a memorandum of 12 October 2001; see http://www.usdoj.gov/04foia/011012.htm.
Question: What right, if any, do you have to privacy?
1. American Revolution and the Fourth Amendment
2. Louis D. Brandeis and Samuel D. Warren, “The Right to Privacy” Harvard Law Review (1890)
3. Courts and state legislatures in the middle decades of the 20th century
4. Computer technology of the 1960s and onward
III.
Privacy Act of 1974 (S. 3418; Public Law 93-579; 5 USC 552A), effective
According to Library of Congress’ Congressional Research Service, “provides certain safeguards for individuals against invasion of privacy by Federal agencies and permits them to see most records pertaining to them maintained by the Federal Government.” Think of it as a kind of “omnibus ‘code of fair information practices.’"
Recent
History: President Bush the 1st tried to use the U.S. Department
of State’s file on Clinton for his possible anti-war efforts abroad in the
1960s and 1970s, especially a rumor that he wrote a letter while at Oxford
inquiring about revoking his US citizenship and becoming a British citizen. Actress Rebecca Schaeffer and Senator Boxer’s
1993 “Driver’s Privacy Protection Act;” see (18 USC 2721-2725).
Legislative
History:
DOJ and OMB provides a regular update at http://www.usdoj.gov/04foia/04_7_1.html
Secrecy of Communication, Communication Act of 1934, section 223 (“indecent information”—censorship struck down by two federal courts and may be before the US Supreme Court next) and 605, unencrypted :
"No person receiving, assisting in receiving, transmitting, or assisting in the transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance purport, effect or meaning thereof, except through authorized channels of transmission or reception...on demand of other lawful authority. No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, or purport, effect, or meaning of such intercepted communication to any person" (emphasis added). Amended in 1968; NSA, operating without statutory charter, and other agencies (i.e., Bureau of Narcotics and Dangerous Drugs, CIA, Department of Defense, FBI, CIA, and Secret Service) which had access to international telegrams between August 1945 and May 1975.
Awareness:
The National Security Archive, an “independent non-governmental research institute
and library” housed at George Washington University’s Gelman Library maintains
a collection of government records accessed via the FOIA; see http://www.gwu.edu/~nsarchiv/ as well
as:
“The NSA User's Guide to the FOIA” at http://www.gwu.edu/%7Ensarchiv/nsa/foia/guide.html
“How to Make a FOIA Request” at http://www.gwu.edu/%7Ensarchiv/nsa/foia/howtofoia.html