Senator Ron Wyden Secures Promise To Overhaul Classification System From Biden, Director Of National Intelligence (original) (raw)

from the a-bit-more-transparency-on-the-horizon dept

The Freedom of Information Act was enacted 55 years ago. To its credit, it has resulted in an unprecedented amount of access to documents and communications created by federal agencies.

But there has been a lot of resistance. Government agencies continue to abuse FOIA exemptions to withhold documents that shouldn’t be withheld. These efforts far too often force FOIA requesters to spend their time and money suing the government to obtain information that never should have been withheld.

That’s the backend opacity efforts the government deploys. On the front end, the government routinely classifies documents it would rather not release, whether or not the info contained is too sensitive to be handed over to the general public.

Many agencies — especially those that rub elbows with national security concerns — consider classification the default option. Once a document is classified, not even litigation will pry it loose. Documents can remain classified for decades, far exceeding the time period where the contained info might pose operational issues if made public.

But over-classification doesn’t work as well as certain government agencies and officials think it will. Sweeping massive stacks of innocuous paperwork under the classification rug may make FOIA request denials more routine, but it also encourages whistleblowers to leak documents containing information they believe the public should be made aware of. The government hides while FOIA requesters seek, but the more it hides, the more likely it is the wrongfully hidden documents will be leaked to journalists.

Even intelligence agencies have begun to recognize the downside of being too secretive. But that realization hasn’t stopped the over-classification of documents. And, despite admitting over-classification can often be counterproductive, agencies continue to resist presidential and congressional directives meant to limit abuse of document classification powers. According to a report from the DOJ Inspector General, executive branch agencies engaged in 95 million classification decisions in 2012 alone, most of those presumably finding in favor of opacity.

Fortunately, there are a couple of new sheriffs in town. President Joe Biden is sitting on top of the executive food chain with the power to change the way document classification is handled. To this end, Senators Ron Wyden and Jerry Moran have asked [PDF] the new president to update Executive Order 13526 — issued by Barack Obama in 2009 — to expedite the declassification of documents. This order created the National Declassification Center, something meant to address the declassification backlog, something created by decades of over-classification by agencies far more interested in secrecy than serving the public’s interests.

The other new sheriff in town is Director of National Intelligence Avril Haines. Unlike far too many of her predecessors, Haines agrees that over-classification and its attendant opacity is a problem. Because of Wyden and Moran’s willingness to press this issues, the Biden Administration and the new DNI will be overhauling the current — and currently broken — classification process.

In response to the joint Wyden-Moran letter, Director Haines announced a White House-led process to update the Executive Order, noting the Intelligence Community’s full support for the process and committing to including the views of Congress, advocacy organizations and academic partners. Additionally, Haines shared efforts currently underway within the Intelligence Community (IC) to improve the declassification process.

The changes are detailed (and somewhat redacted) in DNI Haines’ response to Wyden’s questions. The NSA will be working to automate some of the declassification process, utilizing software to make recommendations for potential declassification based on NSA rule sets. Once recommended by the software, documents will be reviewed and stripped of personally identifiable information before being made available to the public.

The CIA will engage in the same process, although it appears its implementation of automation will lag behind the NSA’s implementation. In both cases, the DNI expects improvements to start being shown sometime next year, with full rollout by the NSA expected later in 2023. The CIA’s program is expected to trail the NSA implementation, but the letter does not specify how far behind that implementation will be.

This is good news, especially if the projects remain on target. Unfortunately, it trails years of intelligence agencies recognizing the problems of over-classification but deciding it was a net gain for opacity to continue to over-classify documents. Large leaks of classified info by whistleblowers was apparently considered an acceptable tradeoff for increased opacity. Reversing years of standard opacity procedure is a big ask, but this appears to be a step in the right direction — one with at least a couple of power executive branch supporters.

Filed Under: avril haines, classification, declassification, foia, odni, over classification, ron wyden, transparency