Persistent declassification problems include: How to handle the huge amount of classified material accumulating across the Government; Limited resources and lack of expertise within agencies to implement effective, sensible, and well-managed public access policies; Internal agency resistance to mandated declassification responsibilities; No identification, to date, of a method or process to protect our most sensitive secrets in a cost-effective way; A legacy of poor agency records management of information; and A lack of leadership insistence that recordkeeping and declassification should be priority agency missions. Ensuring proper and timely public access to still-classified government records requires focus, discipline, and good records management. These fundamentals are particularly important given the impact of new technologies on the creation of records, making it all the more critical that the Government find sensible and cost-effective ways to act in this area. As some in government already recognize, the basic challenge is to simultaneously manage two transitions: from paper-based to electronic records systems, and from performing declassification on an ad hoc basis to doing so in systematic, efficient, and cost-effective ways. Recognizing these challenges is the first step but, as described below, most agencies have not yet begun to adequately address them. Declassification Under Past Executive Orders Declassification has been addressed in some degree of detail in every national security executive order since President Eisenhower's Executive Order 10501. Certain requirements have been imposed repeatedly on agencies with the intent of ensuring that records no longer needing protection were regularly moved out of the classification system and made available to the public. Chief among these requirements, as illustrated in Table 1, are: Identifying and marking declassification dates or events when classifying; A balancing test directing that information be declassified if the public interest Establishing appeals processes and oversight structures; Establishing schedules (of time periods ranging from ten to thirty years) for systematically requiring a record's declassification review or release based on the type of information it contains; and Providing mandatory review procedures under which agencies or the public can request declassification of individual records. However, when agencies perceive that implementation of these key elements is largely optional, experience has shown that the goal of promoting more effective declassification is not achieved. For example, Executive Order 12356 instructed that rather than assigning a date or event for declassification at the time a record was created, a new marking "Originating Agency's Determination Required"-could be used. When OADR was applied to a record, no scheduled deadlines for declassification review applied. OADR soon became the default marking that classifiers across the Government used as a declassification instruction. By 1992, 95 percent of all documents classified that year were marked OADR. Executive Order 12356 also allowed, but did not require, systematic declassification. Agencies thus devoted few resources to it, contributing to a vast growth in the amount of classified records. 8 Executive Order 12958: A Renewed Focus on Declassification In 1995, with the stated goal of "seeking to bring the system for classifying, safeguarding, and declassifying national security information into line with our vision of American democracy in the post-Cold War world," President Clinton signed Executive Order 12958. Under this Order, records over 25 years old will be presumed declassified beginning in the year 2000 unless an agency acts to keep them classified based on an exemption provided in the Order. Agencies were given five years to complete their review of these older records, and in the Order's first year were to complete a declassification review of 15 percent of the records subject to the Order. Although agencies were required to submit declassification plans and proposals for the file series they intended to exempt from automatic release, not all submitted timely plans or provided many details about how they intend to implement the Order. Moreover, without feedback on those plans from the National Security Council or the Information Security Oversight Office (to which the plans were submitted), agencies have proceeded to implement those plans as originally drafted even if they might not fully reflect the letter or spirit of the Order. In addition, the Federal Bureau of Investigation (FBI) and the DoE received waivers from compliance with the automatic declassification provisions of the Order in exchange for their assurances that they would, on an expedited basis, undertake comprehensive reviews for possible release of their older records that are not classified pursuant to an executive order but nevertheless are unavailable to the public. However, to date no FBI records have been released under this agreement. The waiver for the FBI was based on its claim that privacy interests preclude public access to its older law enforcement records (although the Privacy Act does not apply to records that have been deposited at the National Archives, which is where many FBI records over 25 years old reside). The DoE's waiver was based on the fact that most of its records are not classified under an executive order but separately under the Atomic Energy Act. Thus, the FBI and the DOE have numerous records in which the public is interested that are not subject to the declassification provisions of this Order at all. Declassification under the Order in other agencies is occurring slowly. Many agencies have chosen to start with their least sensitive records. Others are reviewing and declassifying their most sensitive documents first, reasoning that if the Order's fiveyear deadline is not met, the remaining records potentially subject to automatic declassification will present a lower risk of damage upon release. One year after the Order took effect, certain agencies had done almost nothing to comply with its declassification provisions. On the other hand, within a year after the Order was issued the Commerce Department already had reviewed and released nearly all of its classified records subject to the Order (although its situation is not completely comparable to that of other agencies subject to the Order because it classifies very little information in the first place). The President's stated intent when signing Executive Order 12958 was that its provisions should result in "large-scale declassification [that] won't be dependent on the availability of individuals to conduct a line-by-line review." Nevertheless, most agencies indicate that they intend to implement the Order by doing the costly line-by-line review (discussed more fully later in this chapter) that the Order sought to avoid. This approach is driven in part by the discovery that file descriptions only vaguely or sometimes incorrectly describe the contents and their classification levels. It also is being used because line-by-line review is the only way most agencies have ever processed records for public release. Declassification and the Freedom of Information Act The link between the FOIA and declassification of records is not always understood by government officials responsible for implementing the declassification provisions of executive orders. The FOIA originally was intended to serve primarily as a means of access to individual, relatively current records of the Government, not to large numbers of decades-old records of permanent historic value. However, due in part to the failure of agencies over the years to implement executive order provisions for regular release of records that no longer need protection, the FOIA by default became (along with mandatory declassification review under executive orders) one of the few means available to the public to get access to those materials. The primary experience most agencies have had with declassification has been through conducting line-by-line reviews of records in response to FOIA requests. The FOIA establishes a statutory right for any person to obtain copies of Federal agency records and is the primary vehicle for the public to obtain access to government records. Thirty years after its enactment, the FOIA's continuing significance and vitality stem from the legally enforceable rights it creates for requesters and the presumption of release that it establishes, limited only by the exemptions it provides that agencies may invoke to deny access. However, requesters and agencies alike find the FOIA an imperfect tool for obtaining the declassification of records. Effective use of the FOIA requires considerable patience and, often, significant financial and legal resources. Problems posed by the FOIA's current use as a primary mechanism for declassifying records include: Long delays that regularly occur and often stretch to years before agencies answer requests; Lack of public access to clear guidance on how files are kept, as well as to indexes to those files, which would encourage the filing of more specific requests and assist agencies in locating responsive records; Broad application of the FOIA's exemptions, particularly the interpretation of the Act's national security exemption (which allows only the withholding of information "properly classified" under an executive order); and Inadequate support of senior officials for agency FOIA operations, including a lack of resources to respond to the huge volume of FOIA requests filed each year.? Some archivists and historians believe that an overreliance on the FOIA as the means for declassification of historical records also hinders effective research. For example, the FOIA process makes individual records available to the person who requested them, but does not guarantee that the declassified records will be more widely released because there is no requirement that copies be placed in agency reading rooms, online, or at the National Archives. Additionally, the process of retrieving and reviewing individual records rather than declassifying entire record groups can skew the historical context of the records that are released. In enacting the Electronic Freedom of Information Amendments (EFOIA), signed into law on October 2, 1996, the Congress and the President took a step toward improving agency responsiveness to FOIA requests. These amendments clarify that the Act applies to records in electronic as well as paper format, while also giving agencies relief from some of the Act's administrative requirements. In the words of one of the Act's sponsors, the EFOIA is intended to "deliver common-sense efficiency and government accountability to the American people." Still, because of the sheer volume of classified material that has accumulated in agencies over the years, these recent amendments will not wholly cure the FOIA's shortcomings for public access to classified records. How Much Is Still Classified? The amount of classified material that the Federal Government has accumulated, much of which is more than a quarter-century old, is enormous. To comply with the mandate in Executive Order 12958 to process for automatic declassification all documents over 25 years old by the year 2000, agencies for the first time are comprehensively surveying their classified records holdings. In the process, they are discovering more and more records than were previously thought to exist. Many of these have never been evaluated to determine whether they are of permanent value (the threshold under the Federal Records Act for which agency records must be preserved for posterity) and are thus required to be processed for declassification under the Order. For example, the Washington National Records Center, a regional government storage facility, has between 4.3 and 5 million pages of documents that agencies have never assessed to determine whether they are permanent records." As Figure 2 illustrates, based on data provided by individual agencies, the Commission estimates that there are over 1.5 billion pages of records 25 years old and older still classified by the Federal Government. Of this amount, agencies currently plan to review less than one-half-approximately 719 million pages-under the automatic declassification provisions of the Order, meaning that agencies are exempting from automatic declassification over three quarters of a billion pages. A little over a year after Executive Order 12958 took effect, agencies had declassified about 57 million pages, less than one-tenth of what they had identified for review. Unless current agency plans change, public access to the hundreds of millions of exempted pages will occur either through the systematic declassification procedures required by Executive Order 12958 (which have yet to be established in most agencies), or through the current but inadequate system of individual requests filed under the Order's mandatory review process or the FOIA. Figure 2: Agency Declassification at a Glance |