Order Code RL33494
Security Classified and Controlled Information:
History, Status, and Emerging Management
Updated February 11, 2008
Harold C. Relyea
Specialist in American National Government
Government and Finance Division
Security Classified and Controlled Information: History,
Status, and Emerging Management Issues
The security classification regime in use within the federal executive branch
traces its origins to armed forces information protection practices of the World War
I era. The classification system — designating information, according to prescribed
criteria and procedures, protected in accordance with one of three levels of
sensitivity, based on the amount of harm to the national security that would result
from its disclosure — attained a presidential character in 1940 when President
Franklin D. Roosevelt issued the initial executive order prescribing these information
Refinements in the creation, management, and
declassification of national security information followed over the succeeding
decades, and continue today. In many regards, these developments represent attempts
to narrow the bases and discretion for assigning official secrecy to executive branch
documents and materials. Limiting the quantity of security classified information has
been thought to be desirable for a variety of important reasons: (1) promoting an
informed citizenry, (2) effectuating accountability for government policies and
practices, (3) realizing oversight of government operations, and (4) achieving
efficiency and economy in government management.
Because security classification, however, was not possible for some kinds of
information deemed in some quarters to be “sensitive,” other kinds of designations
or markings came to be applied to alert federal employees regarding its privileged or
potentially harmful character. Sometimes these markings derived from statutory
provisions requiring the protection of a type of information; others were
administratively authorized with little detail about their use.
In the current environment, still affected by the long shadow of the terrorist
attacks of September 11, 2001, several issues have arisen regarding security
classified and controlled information. Volume is a concern: 8 million new
classification actions in 2001 jumped to 14 million new actions in 2005, while the
quantity of declassified pages dropped from 100 million in 2001 to 29 million in
2005. Expense is vexing: $4.5 billion spent on classification in 2001 increased to
$7.1 billion in 2004, while declassification costs fell from $232 million in 2001 to
$48.3 million in 2004, according to annual reports by the Information Security
Oversight Office (ISOO) of the National Archives and Records Administration
(NARA). Some agencies were recently discovered to be withdrawing archived
records from public access and reclassifying them. Critically evaluating this activity,
ISOO has indicated that the federal government needs to apply a more integrated
approach among the classifying agencies. The force of, and authority for,
information control markings, other than security classification labels, have come
under congressional scrutiny, prompting concerns about their number, variety, lack
of underlying managerial regimes, and effects. Among those effects, contend the
Government Accountability Office and the manager of the Information Sharing
Environment for the intelligence community, is the obstruction of information
sharing across the federal government and with state and local governments. These
and related matters, including remedial legislation (H.R. 984, H.R. 4806), are
examined in this report, which will be updated as events warrant.
Classification Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Control Markings Discovered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Control Markings Today . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Comparison of Sensitive Security Information (SSI) Policies . . . . . . . . . . . . . . . 12
USDA Marking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
USDA Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
TSA/DOT Marking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
TSA/DOT Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Management Regime Comparison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Implications for Information Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Improving Classified Information Life Cycle Management . . . . . . . . . . . . . . . . 27
Remedial Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Related Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
List of Tables
Table 1. Management of Security Classified Information and SSI Compared . . 24
Table 2. Information Moving In and Out of Classified Status . . . . . . . . . . . . . . . 28
Table 3. ISCAP Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Security Classified and Controlled
Information: History, Status, and Emerging
Prescribed in various ways, federal policies may require the protection of, or
provide a privileged status for, certain kinds of information. For the legislative
branch, for example, the Constitution, in Article I, Section 5, specifies that each
house of Congress “shall keep a Journal of its Proceedings, and from time to time
publish the same, excepting such Parts as may in their Judgment require Secrecy.”
In the next section of the article, a privileged status for certain remarks of Members
is established when the Constitution indicates that “for any Speech or Debate in
either House, they shall not be questioned in any other Place.”
Within the executive branch, it seems likely that one of the earliest-felt needs
for secrecy concerned preparations and plans for the defense of the country.
Following long-standing military practice, General George Washington and other
officers in the Continental Army, seeking to ensure the protection of information,
had written “Secret” or “Confidential” on strategic communiques to each other in the
field and to headquarters. There was no immediate formalization of this practice by
the new federal government, but it was from these roots that security classification
would emerge. That history is briefly reviewed in the next section of this report.
The application of security classification subsequently came to be regulated
through a narrowing of the bases and discretion for assigning official secrecy to
executive branch materials. Due to that and other information management
developments, new kinds of designations or markings came to be used to alert federal
employees about the privileged status or sensitive content of a record or document.
Sometimes these markings derived from statutory provisions requiring the protection
of a type of information; many others were administratively created, but lacked
detailed management regimes. Early congressional experience with these other
markings is examined, providing a background for considering some of the current
issues they raise.
Finally, the report considers some long-standing difficulties attending the
management of security classified information — controlling the volume of such
material and attendant costs. It looks, as well, at recent efforts by some agencies to
withdraw archived records from public access and reclassify them, activity which the
Information Security Oversight Office (ISOO) of the National Archives and Records
Administration (NARA) critically evaluated and, as a reform for the underlying
problem, suggested a more integrated approach among the classifying agencies.
Current security classification arrangements, prescribed by an executive order
of the President, trace their origins to a March 1940 directive issued by President
Franklin D. Roosevelt as E.O. 8381.1 This development was probably prompted
somewhat by desires to clarify the authority of civilian personnel in the national
defense community to classify information, to establish a broader basis for protecting
military information in view of growing global hostilities, and to manage better a
discretionary power seemingly of increasing importance to the entire executive
branch. Prior to this 1940 order, information had been designated officially secret
by armed forces personnel pursuant to Army and Navy general orders and
regulations. The first systematic procedures for the protection of national defense
information, devoid of special markings, were established by War Department
General Orders No. 3 of February 1912. Records determined to be “confidential”
were to be kept under lock, “accessible only to the officer to whom intrusted.” Serial
numbers were issued for all such “confidential” materials, with the numbers marked
on the documents, and lists of same kept at the offices from which they emanated.
With the enlargement of the armed forces after the entry of the United States into
World War I, the registry system was abandoned, and a tripartite system of
classification markings was inaugurated in November 1917 with General Orders No.
64 of the General Headquarters of the American Expeditionary Force.
During World War II, in addition to the President’s order and prevailing armed
forces directives on marking and handling classified information, the Office of War
Information, in September 1942, issued a government-wide regulation on creating
and managing classified materials. Among other ad hoc arrangements of the era,
personnel cleared to work on the Manhattan Project for the production of the atomic
bomb, in committing themselves not to disclose protected information improperly,
were “required to read and sign either the Espionage Act or a special secrecy
agreement,” establishing their awareness of their secrecy obligations and a fiduciary
trust which, if breached, constituted a basis for their dismissal.2
A few years after the conclusion of World War II, President Harry S. Truman,
in February 1950, issued E.O. 10104, which, while superseding E.O. 8381, basically
reiterated its text, but added to Restricted, Confidential, and Secret a fourth Top
Secret classification designation, making American information security categories
consistent with those of our allies.3 At the time of the promulgation of this order,
however, plans were underway for a complete overhaul of the classification program,
which would result in a dramatic change in policy.
3 C.F.R., 1938-1943 Comp., pp. 634-635.
Anthony Cave Brown and Charles B. MacDonald, eds., The Secret History of the Atomic
Bomb (New York: Dial Press/James Wade, 1977), p. 201.
3 C.F.R., 1949-1953 Comp., pp. 298-299.
E.O. 10290, issued in September 1951, introduced three sweeping innovations
in security classification policy.4 First, the order indicated the Chief Executive was
relying upon “the authority vested in me by the Constitution and statutes, and as
President of the United States” in issuing the directive. This formula appeared to
strengthen the President’s discretion to make official secrecy policy: it intertwined
his responsibility as Commander in Chief with the constitutional obligation to “take
care that the laws be faithfully executed.”5 Second, information was now classified
in the interest of “national security,” a somewhat new, but nebulous, concept, which,
in the view of some, conveyed more latitude for the creation of official secrets. It
replaced the heretofore relied upon “national defense” standard for classification.
Third, the order extended classification authority to nonmilitary entities throughtout
the executive branch, to be exercised by, presumably but not explicitly limited to,
those having some role in “national security” policy.
The broad discretion to create official secrets granted by E.O. 10290 engendered
widespread criticism from the public and the press. In response, President Dwight
D. Eisenhower, shortly after his election to office, instructed Attorney General
Herbert Brownell to review the order with a view to revising or rescinding it. The
subsequent recommendation was for a new directive, which was issued in November
1953 as E.O. 10501.6 It withdrew classification authority from 28 entities; limited
this discretion in 17 other units to the agency head; returned to the “national defense”
standard for applying secrecy; eliminated the “Restricted” category, which was the
lowest level of protection; and explicitly defined the remaining three classification
areas to prevent their indiscriminate use.7
Thereafter, E.O. 10501, with slight amendment, prescribed operative security
classification policy and procedure for the next two decades. Successor orders built
on this reform. These included E.O. 11652, issued by President Richard M. Nixon
in March 1972,8 followed by E.O. 12065, promulgated by President Jimmy Carter in
June 1978.9 For 30 years, these classification directives narrowed the bases and
discretion for assigning official secrecy to executive branch documents and materials.
Then, in April 1982, this trend was reversed with E.O. 12356, issued by President
Ibid., pp. 789-797.
In Environmental Protection Agency v. Mink, Supreme Court Associate Justice Byron
White, delivering the majority opinion, proffered that “Congress could certainly have
provided that the Executive Branch adopt new procedures” for the security classification of
information, “or it could have established its own procedures — subject only to whatever
limitations the Executive [or constitutional separation of powers] privilege may be held to
impose upon such congressional ordering.” 410 U.S. 73, 83 (1973).
3 C.F.R., 1949-1953 Comp., pp. 979-986.
U.S. Commission on Government Security, Report of the Commission on Government
Security (Washington: June 1957), pp. 155-156.
3 C.F.R., 1971-1975 Comp., pp. 678-690.
3 C.F.R., 1978 Comp., pp. 190-205.
Ronald Reagan.10 This order expanded the categories of classifiable information,
mandated that information falling within these categories be classified, authorized
the reclassification of previously declassified documents, admonished classifiers to
err on the side of classification, and eliminated automatic declassification
President William Clinton returned security classification policy and procedure
to the reform trend of the Eisenhower, Nixon, and Carter Administrations with E.O.
12958 in April 1995.12 Adding impetus to the development and issuance of the new
order were changing world conditions: the democratization of many eastern European
countries, the demise of the Soviet Union, and the end of the Cold War.
Accountability and cost considerations were also significant influences. In 1985, the
temporary Department of Defense (DOD) Security Review Commission, chaired by
retired General Richard G. Stilwell, declared that there were “no verifiable figures
as to the amount of classified material produced in DOD and in defense industry each
year.” Nonetheless, it concluded that “too much information appears to be classified
and much at higher levels than is warranted.”13 In October 1993, the cost of the
security classification program became clearer when the General Accounting Office
(GAO) reported that it was “able to identify government-wide costs directly
applicable to national security information totaling over $350 million for 1992.”
After breaking this figure down — it included only $6 million for declassification
work — the report added that “the U.S. government also spends additional billions
of dollars annually to safeguard information, personnel, and property.”14 E.O. 12958
set limits for the duration of classification, prohibited the reclassification of properly
declassified records, authorized government employees to challenge the classification
status of records, reestablished the balancing test of E.O. 12065 (weighing the need
to protect information vis-a-vis the public interest in its disclosure), and created two
review panels — one on classification and declassification actions and one to advise
on policy and procedure.
Most recently, in March 2003, President George W. Bush issued E.O. 13292
amending E.O. 12958.15 Among the changes made by this directive were adding
infrastructure vulnerabilities or capabilities, protection services relating to national
security, and weapons of mass destruction to the categories of classifiable
information; easing the reclassification of declassified records; postponing the
automatic declassification of protected records 25 or more years old, beginning in
3 C.F.R., 1982 Comp., pp. 166-178.
See Richard C. Ehlke and Harold C. Relyea, “The Reagan Administration Order on
Security Classification: A Critical Assessment,” Federal Bar News & Journal, vol. 30, Feb.
1983, pp. 91-97.
3 C.F.R., 1995 Comp., pp. 333-356.
U.S. Department of Defense, Department of Defense Security Review Commission,
Keeping the Nation’s Secrets (Washington: GPO, 1985), pp. 48-49.
U.S. General Accounting Office, Classified Information: Costs of Protection Are
Integrated with Other Security Costs, GAO Report GAO/NSIAD-94-55 (Washington: Oct.
1993), p. 1.
3 C.F.R., 2003 Comp., pp. 196-218.
mid-April 2003 to the end of December 2006; eliminating the requirement that
agencies prepare plans for declassifying records; and permitting the Director of
Central Intelligence to block declassification actions of the Interagency Security
Classification Appeals Panel, unless overruled by the President.
The security classification program has evolved over 66 years. One may not
agree with all of its rules and requirements, but attention to detail in its policy and
procedure result in a significant management regime. The operative presidential
directive, as amended, defines its principal terms. Those who are authorized to
exercise original classification authority are identified. Exclusive categories of
classifiable information are specified, as are the terms of the duration of
classification, as well as classification prohibitions and limitations. Classified
information is required to be marked appropriately along with the identity of the
original classifier, the agency or office of origin, and a date or event for
declassification. Authorized holders of classified information who believe that its
protected status is improper are “encouraged and expected” to challenge that status
through prescribed arrangements. Mandatory declassification reviews are also
authorized to determine if protected records merit continued classification at their
present level, a lower level, or at all. Unsuccessful classification challenges and
mandatory declassification reviews are subject to review by the Interagency Security
Classification Appeals Panel. General restrictions on access to classified information
are prescribed, as are distribution controls for classified information. The ISOO,
within NARA, is mandated to provide central management and oversight of the
security classification program. If the director of this entity finds that a violation of
the order or its implementing directives has occurred, it must be reported to the head
of the agency or to the appropriate senior agency official so that corrective steps, if
appropriate, may be taken. In general, very little of this management structure
attends information control markings other than Confidential, Secret, and Top Secret.
Control Markings Discovered
In March 1972, a subcommittee of the House Committee on Government
Operations — now the House Committee on Government Reform — launched the
first oversight hearings on the administration and operation of the Freedom of
Information Act (FOIA). Enacted in 1966, the FOI Act had become operative in July
1967. In the early months of 1972, the Nixon Administration was developing new
security classification policy and procedure, which would be prescribed in E.O.
11652, issued in early March. The subcommittee’s strong interest in this directive
was reflected in its unsuccessful attempt to receive testimony from one of the
directive’s principal architects, David Young, Special Assistant to the National
Security Council. The subcommittee sought his testimony as it examined the way
in which the new order “will affect the economic and efficient operation of our
security classification system, the rationale behind its various provisions, and
alternatives to the present approach.”16 Although Young, through White House
Letter to David Young, Apr. 24, 1972, appearing in U.S. Congress, House Committee on
Government Operations, U.S. Government Information Policies and Practices — Security
Counsel John Dean III, declined the invitation to testify, the subcommittee was more
successful in obtaining department and agency responses to its August 1971
questionnaire, which, among other questions, asked, “What legend is used by your
agency to identify records which are not classifiable under Executive Order 10501
[the operative order at the time] but which are not to be made available outside the
government?”17 Of 58 information control markings identified in response to this
question, the most common were For Official Use Only (11 agencies); Limited
Official Use (nine agencies); Official Use Only (eight agencies); Restricted Data (five
agencies); Administratively Restricted (four agencies); Formerly Restricted Data
(four agencies); and Nodis, or no dissemination (four agencies). Seven other
markings were used by two agencies in each case.18 A CRS review of the agency
responses to the control markings question prompted the following observation:
Often no authority is cited for the establishment or origin of these labels; even
when some reference is provided it is a handbook, manual, administrative order,
or a circular but not statutory authority. Exceptions to this are the Atomic
Energy Commission, the Defense Department and the Arms Control and
Disarmament Agency. These agencies cite the Atomic Energy Act, N.A.T.O.
related laws, and international agreements as a basis for certain additional labels.
The Arms Control and Disarmament Agency acknowledged it honored and
adopted State and Defense Department labels.19
At a May 1, 1972, hearing on the relationship of the FOI Act to the security
classification system, Chairman William S. Moorhead of the Foreign Operations and
Government Information Subcommittee (Committee on Government Operations)
wondered aloud how the act’s nine exemptions to the rule of disclosure could be
expanded to the multiple information control markings which the departments and
agencies had indicated they were using.20 The following day, when the hearing
continued, William D. Blair, Jr., Deputy Assistant Secretary for Public Affairs at the
Department of State, explained that some information control markings were used
to route otherwise classified information to a limited group of recipients, “those
people who have responsibility for the subject matter concerned.” He then addressed
the relationship question raised by Chairman Moorhead, saying:
But if a question came in under the Freedom of Information Act or from the
Congress or other representative of the public for that given document, the fact
that it is marked, let’s say, NODIS, is not relevant. What is relevant to the
making available of that document to the public is whether or not it was properly
Classification Problems Involving Subsection (b)(1) of the Freedom of Information Act (Part
7), hearings, 92nd Cong., 2nd sess. (Washington: GPO, 1972), pp. 2452-2453.
U.S. Congress, House Committee on Government Operations, U.S. Government
Information Policies and Practices — Security Classification Problems Involving
Subsection (b)(1) of the Freedom of Information Act (Part 7), hearings, 92nd Cong., 2nd sess.
(Washington: GPO, 1972), p. 2930 (emphasis in original).
See ibid., pp. 2933-2934.
Ibid., p. 2932.
Ibid., p. 2284.
classified under the Executive order and whether or not the Freedom of
Information Act, for example, once we have reviewed the document, still
pertains, whether we feel that the need for the classification still pertains and
whether, in fact, we are authorized under the act to withhold it.21
A moment thereafter, he explained another marking, which was not applied to
route classified information, but apparently had the same effect as a security
classification protective marking:
“Limited official use” is not a fixed distribution channel, such as some of these
other terms you have mentioned. It simply is an administrative red flag put on
that document which means that the document should be given the same degree
of protection, physical protection as a classified document even though it is not,
under the Executive order, classifiable.22
However, when asked if, in applying this particular marking, “you mean to
exclude all individuals outside the Department, subject to the Freedom of
Information Act, where they can go to court to obtain it,” Blair’s response indicated
that the use of the marking was somewhat more complicated than functioning as a
parallel security label, when he said:
Not necessarily sir. That may be the case. For instance, one set of files on which
we use “Limited official use” quite commonly is personnel files. Well, we would
be very likely to deny those personnel files if they were requested by a member
of the public, on quite different grounds from classification — on grounds of
invasion of privacy. But on the other hand we may use a term like “Limited
official use” on an internal advisory document which we may be authorized
under the Freedom of Information Act to withhold if it were requested; but we
might decide not to claim that authority.23
Although an attempt was made to obtain further explanation of how information
control markings were used, the questioner, a subcommittee staff member, concluded
“that all you have convinced me of is to reinforce my belief that a distribution
marking is merely a more restrictive or stricter type of classification marking.”24
Later in the hearing, in an exchange with the subcommittee’s staff director,
DOD General Counsel J. Fred Buzhardt made another attempt to clarify the use of
In the first place, you have a determination as to whether the material is to be
classified. Once the decision is made that the information should be classified,
then the limitation of access has to do with the protection of that which is
classified. We also have the responsibility to control the dissemination. That is
what these access limitations are for, to control dissemination, to confine access
Ibid., pp. 2477-2478.
Ibid., p. 2478.
Ibid., p. 2479.
to the people who have a need to know to work with the information. It is a
protection device. We must use protective devices of some sort.25
Asked if the control markings, such as eyes only, were applied to material that
was not classified, Buzhardt said:
I presume you wouldn’t find “eyes only” in an authorized way upon any
document that was not classified by one of the classifiers. Once it is classified
you can use limitations on distribution to protect it. That is a protective device.26
To this response, Blair added:
The purpose of classification is to determine what information is or is not
available to the public outside of the government. These labels that you are
referring to have nothing to do with that. They have absolutely no value for
determining what information or what document may be given to a member of
the public. They are simply a mailing device, if you like, a means by which a
superior determines which of his subordinates he wishes to deal with this
particular matter and be aware of this particular information.27
These explanations of information control markings being used as devices to
limit the distribution of classified information within DOD and the State Department,
however, did not appear to extend to all such markings. Blair, for instance, had
testified that the Limited official use marking was applied, in his words, “quite
commonly” to personnel files, which, for the most part, were not security classifiable
materials at that time. Several entities indicating they used information control
markings had no original classification authority. These included, among others, the
American Revolution Bicentennial Commission (ARBC), the Department of Housing
and Urban Development, and the Federal Trade Commission (FTC).28 Does this
situation mean that the control markings of these entities were applied only to limit
the distribution of classified information received from other agencies? That is
possible, but seems unlikely. The ARBC control marking, Administratively
confidential, appears to have been designed for information of a different character
from national security classified materials, while the FTC label, For staff use only,
does not appear to have provided much limitation on the distribution of classified
Before this phase of the oversight hearings on the FOI Act concluded, the
subcommittee received testimony from Assistant Attorney General Ralph E. Erickson
of the Office of Legal Counsel, Department of Justice, on May 11, 1972. During the
course of his appearance before the subcommittee to discuss E.O. 11652, the use of
control markings to limit the distribution of classified information was raised with
the following question from the subcommittee’s staff director:
Ibid., p. 2497.
Ibid., pp. 2497-2498.
See ibid., p. 2935.
Can you assure us today that these kinds of distribution access stamps will not
be used on unclassified material in any Executive agency or department? If you
can guarantee that, then I will go along and say [Section] 4(a) is a big
improvement. But I do not think that is going to be the case from other testimony
we have had. I think people are going to substitute LIMDIS, NODIS, and all
these other stamps for the stamps authorized under the Executive order and we
are going to proliferate more and more and more.29
Erickson offered a two part response:
First, it is our hope within the Department of Justice and I think in other
agencies, too, that the use of this sort of a restricted distribution will be severely
limited or removed. But, more importantly, it [Section 4(a)] specifically limits
the use of such designations to the point where they must conform with the
provision of this order and would have no effect in terms of classification. It will
not prevent the information from otherwise being made available. It may in part
restrict the distribution within the department but certainly if a request were
made under the Freedom of Information Act it has no applicability.30
He assured his questioner that control markings used to limit the distribution of
classified information “will not have any effect on disclosure” under the FOI Act, and
would not, in themselves, be a bar to disclosure.
Later, in May 1973, when reviewing this phase of the subcommittee’s oversight
hearings, a report by the parent Committee on Government Operations commented:
One of the difficult problems related to the effective operation of the security
classification system has been the widespread use of dozens of special access,
distribution, or control labels, stamps, or markings on both classified and
unclassified documents. Such control markings were not specifically authorized
in Executive Order 10501, but have been utilized for many years by many
executive agencies having classification authority and dozens of other agencies
who do not possess such authority. The use of such stamps has, in effect, been
legitimized in section 9 of the new Executive Order 11652.31
On this matter, the report concluded that, “while there is a clear rationale for the
use of such access or control markings, the basic problem is the effect of the
proliferation of their use on the effective operation of the classification system. This
problem,” it continued, “fully explored with executive branch witnesses during the
hearings, is one that this committee believes should be carefully monitored by the
[newly created] Interagency Classification Review Committee and by department
Ibid., pp. 2705-2706.
Ibid., p. 2706.
U.S. Congress, House Committee on Government Operations, Executive Classification
of Information — Security Classification Problems Involving Exemption (b)(1) of the
Freedom of Information Act (5 U.S.C. 552), H.Rept. 93-221, 93rd Cong., 2nd sess.
(Washington: GPO, 1973), p. 75.
heads to assure that it does not interfere with the overall effectiveness and integrity
of the classification system.”32
Control Markings Today
That such interference with the security classification program by these types
of information control markings — in terms of both their confusion and presumed
coequal authority with classification markings — has occurred in the post-9/11
environment may be discerned in a press account. In late January 2005, GCN
Update, the online, electronic news service of Government Computer News, reported
that “dozens of classified Homeland Security Department documents” had been
accidently made available on a public Internet site for several days due to an apparent
security glitch at the Department of Energy. Describing the contents of the
compromised materials and reactions to the breach, the account stated the
“documents were marked ‘for official use only,’ the lowest secret-level
classification.” The documents, of course, were not security classified, because the
marking cited is not authorized by E.O. 12958. Interestingly, however, in view of the
fact that this misinterpretation appeared in a story to which three reporters
contributed, perhaps it reflects, to some extent, the current state of confusion about
the origin and status of various new information control markings which have
appeared of late.33 In some instances, the phraseology of the markings is new, and,
in at least one case, the asserted authority for the label is, unlike most of those of the
past, statutory. Among the problems they generate, however, the one identified over
three decades ago by the House Committee on Government Operations endures.
Broadly considering the contemporary situation regarding information control
markings, a recent information security report by the JASON Program Office of the
MITRE Corporation proffered the following assessment:
The status of sensitive information outside of the present classification system
is murkier than ever.... “Sensitive but unclassified” data is increasingly defined
by the eye of the beholder. Lacking in definition, it is correspondingly lacking
in policies and procedures for protecting (or not protecting) it, and regarding how
and by whom it is generated and used.34
A contemporaneous Heritage Foundation report appeared to agree with this
The process for classifying secret information in the federal government is
disciplined and explicit. The same cannot be said for unclassified but securityrelated information for which there is no usable definition, no common
Ibid., p. 78.
Patience Wait, “DHS Classified Briefings Leaked Through Energy System,” GCN Update,
Jan. 27, 2005, available at [http://www.gcn.com/online/vol1_no1/34907-1.html]; credited
as contributing to this story were GCN staff writers Susan M. Menke and Mary Mosquera.
MITRE Corporation, JASON Program Office, Horizontal Integration: Broader Access
Models for Realizing Information Dominance (McLean, VA: Dec. 2004), p. 5.
understanding about how to control it, no agreement on what significance it has
for U.S. national security, and no means for adjudicating concerns regarding
appropriate levels of protection.35
Concerning the current Sensitive But Unclassified (SBU) marking, a 2004 report
by the Federal Research Division of the Library of Congress commented that
guidelines for its use are needed, and noted that “a uniform legal definition or set of
procedures applicable to all Federal government agencies does not now exist.”
Indeed, the report indicates that SBU has been utilized in different contexts with little
precision as to its scope or meaning, and, to add a bit of chaos to an already
confusing situation, it is “often referred to as Sensitive Homeland Security
Assessments of the variety, management, and impact of information control
markings, other than those prescribed for the classification of national security
information, have been conducted by CRS, GAO, and the National Security Archive,
a private-sector research and resource center located at The George Washington
University. In March 2006, GAO indicated that, in a recent survey, 26 federal
agencies reported using 56 different information control markings to protect sensitive
information other than classified national security material.37 That same month, the
National Security Archive offered that, of 37 agencies surveyed, 24 used 28 control
markings based on internal policies, procedures, or practices, and eight used 10
markings based on statutory authority.38 These numbers are important in terms of the
variety of such markings. GAO explained this dimension of the management
[T]here are at least 13 agencies that use the designation For Official Use Only
[FOUO], but there are at least five different definitions of FOUO. At least seven
agencies or agency components use the term Law Enforcement Sensitive (LES),
including the U.S. Marshals Service, the Department of Homeland Security
(DHS), the Department of Commerce, and the Office of Personnel Management
(OPM). These agencies gave differing definitions for the term. While DHS does
not formally define the designation, the Department of Commerce defines it to
include information pertaining to the protection of senior government officials,
and OPM defines it as unclassified information used by law enforcement
personnel that requires protection against unauthorized disclosure to protect the
James Jay Carafano and David Heyman, “DHS 2.0: Rethinking the Department of
Homeland Security,” Heritage Special Report SR-02 (Washington: Dec. 13, 2004), p. 20.
U.S. Library of Congress, Federal Research Division, Laws and Regulations Governing
the Protection of Sensitive but Unclassified Information, by Alice R. Buchalter, John Gibbs,
and Marieke Lewis (Washington: Sept. 2004), p. i.
U.S. Government Accountability Office, Information Sharing: The Federal Government
Needs to Establish Policies and Processes for Sharing Terrorism- Related and Sensitive but
Unclassified Information, GAO Report GAO-06-385 (Washington: Mar. 2006), pp. 5, 25.
National Security Archive, Pseudo-Secrets: A Freedom of Information Act Audit of the
U.S. Government’s Policies on Sensitive Unclassified Information (Washington: Mar. 2006),
sources and methods of investigative activity, evidence, and the integrity of
pretrial investigative reports.39
Apart from the numbers, however, is another aspect of the management
problem, which GAO described in the following terms:
There are no governmentwide policies or procedures that describe the basis on
which agencies should use most of these sensitive but unclassified designations,
explain what the different designations mean across agencies, or ensure that they
will be used consistently from one agency to another. In this absence, each
agency determines what designations to apply to the sensitive but unclassified
information it develops or shares.40
Comparison of Sensitive Security
Information (SSI) Policies
To identify some of the management problems and concerns attending current
information control markings, the following case study comparison is provided.
Sensitive Security Information (SSI) refers to a specific category of government
information that has been deemed to require protection against unauthorized
disclosure. It is both a concept and a control marking used by the Department of
Agriculture (USDA), on the one hand, and jointly by the Transportation Security
Administration (TSA) of the Department of Homeland Security as well as by the
Department of Transportation, on the other hand, but with different underlying
authorities, conceptualizations, and management regimes for it.
Sensitive Security Information (SSI) appears to be a relatively new information
concept and control marking for USDA. Other similar designations, however, are
also in use within the department. An information security program statement
indicates that “USDA refers to unclassified sensitive information as ‘Sensitive
Security Information’ (SSI). Basically,” it continues, “it’s to be treated the same as
‘Sensitive But Unclassified Information’ or ‘For Official Use Only Information.’”41
As a USDA website page, this document provides links to a USDA SSI cover sheet
and the department’s SSI management regulation, both of which are printable, and
a brief Power Point presentation designed to assist USDA employees in
understanding the SSI concept. Another USDA website page provides more details
concerning For Official Use Only (FOUO) and similar designations. It states at the
U.S. Government Accountability Office, Information Sharing: The Federal Government
Needs to Establish Policies and Processes for Sharing Terrorism- Related and Sensitive but
Unclassified Information, p. 24.
Ibid., p. 5.
U.S. Department of Agriculture, Personnel and Document Security Division, Office of
Procurement and Property Management, “Information Security Program,” undated, available
outset that FOUO “is a document designation, not a classification,” and explains that
this term is used by “a number of other federal agencies to identify information or
material which, although unclassified, may not be appropriate for public release.”
Some of these other agencies are identified, as are some agencies which use different,
but comparable, designations, which are provided as well. The discussion of FOUO,
which relies upon Department of Defense policy and practice, cautions that
information so marked “does not mean it is automatically exempt from public release
under” the Freedom of Information Act (FOIA), specifies how unclassified
documents and materials containing FOUO shall be marked and safeguarded, and
warns that “[a]dministrative penalties may be imposed for misuse of FOUO
information,” as well as criminal penalties, “depending on the actual content of the
information (privacy, export control, etc.).”42
Sensitive but Unclassified (SBU) information is discussed in Chapter 10, part
2, of the USDA Cyber Security Manual, Series 3500, also known as DM3550-02 of
February 17, 2005. SBU information is identified, in part, in terms of examples,
which include: “Social Security Numbers, Employee Emergency Data, For Official
Use Only Documents, For Limited Official Use Documents, Funding/Budget
Documents, Grant/Contract Documents, IT [information technology] Security Plans,
Formulas/Trade Secrets, Internet Protocol (IP) Addresses, Network Design
Diagrams.”43 Thus, another information control designation, For Limited Official
Use, is identified, and, furthermore, the chapter states that “SBU information also
includes Sensitive Security Information (SSI),” but notes, as the examples reflect,
“the SBU category contains information that is not security related but is still
sensitive in terms of its risk of exposure.”44 Thereafter, the chapter refers to
“SBU/SSI.” Various procedures for the processing, handling, and storage of
SBU/SSI are specified.45 Among these is a stipulation that access to SBU/SSI “will
be provided to employees with a Need-To-Know,” a standard long-governing access
to security classified information. Furthermore, “when SBU/SSI data must be shared
with contractors and entities outside USDA a Non-Disclosure Agreement Form ...
must be executed ... to preclude possible organizational or personal conflicts of
interest.”46 A copy of this agreement is provided at the end of the chapter. It
concludes with a specification of various management responsibilities.
U.S. Department of Agriculture, Personnel and Document Security Division, Office of
Procurement and Property Management, “For Official Use Only (FOUO) and Similar
Designations,” undated, available at [http://www.usda.gov/da/ocpm/Security%20Guide/
U.S. Department of Agriculture, Office of the Chief Information Officer, USDA Cyber
Security Manual, Series 3500, Chapter 10, part 2 (DM3550-002), Feb. 17, 2005, p. 8,
chapters separately dated and available at [http://www.ocio.usda.gov/directives/index.html].
Ibid., p. 1.
Ibid., pp. 3-4.
Ibid., p. 4 (emphasis in original).
The control and protection of Sensitive Security Information (SSI) is discussed
in USDA Departmental Regulation 3440-002 of January 30, 2003.47 The regulation
specifies that the “USDA will withhold from release sensitive information that is not
appropriate for public disclosure consistent with laws, regulations and court
decisions,” but also stresses that, “if USDA originates documents that it believes
should be classified, Departmental Administration (DA) should be notified as soon
as possible.” As noted earlier, the Secretary of Agriculture was presidentially
authorized to classify information originally as Secret (but not Top Secret) in
September 2002. The regulation also proffers the following proscription:
“Information must not be designated as Sensitive Security Information (SSI) to
conceal violations of law; inefficiency; administrative error; prevent embarrassment
to a person, organization, department or agency; or restrain competition.” This ban
is similar to one prescribed for security classification.48
The regulation provides a lengthy definition of SSI, set out below:
Sensitive Security Information means unclassified information of a sensitive
nature, that if publicly disclosed could be expected to have a harmful impact on
the security of Federal operations or assets, the public health or safety of the
citizens of the United States or its residents, or the nation’s long-term economic
prosperity; and which describes, discusses, or reflects:
The ability of any element of the critical infrastructure of the United
States [also defined in the regulation] to resist intrusion, interference,
compromise, theft, or incapacitation by either physical or computerbased attack or other similar conduct that violates Federal, State, or local
law; harms interstate, international commerce of the United States; or
threatens public health or safety;
Any current viable assessment, projection, or estimate of the security
vulnerability of any element of the critical infrastructure of the United
States, specifically including, but not limited to vulnerability assessment,
security testing, risk evaluation, risk-management planning, or risk audit;
Any currently applicable operational problem or solution regarding the
security of any element of the critical infrastructure of the United States,
specifically including but not limited to the repair, recovery, redesign,
reconstruction, relocation, insurance, and continuity of operations of any
U.S. Department of Agriculture, Control and Protection of “Sensitive Security
Information,” Departmental Regulation 3440-002, Jan. 30, 2003, available at
Section 1.7 of E.O. 12958, as amended, states, in part: “(a) In no case shall information
be classified in order to: (1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency; (3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest
of the national security. (b) Basic scientific research information not clearly related to the
national security shall not be classified.”
As a fourth item in the above quoted definition of SSI, the regulation provides
the following categories “for illustration purposes only as examples of the types of
information (regardless of format) that may be categorized as SSI.”
1. Physical security status of USDA laboratories, research centers, field
facilities, etc., which may also contain vulnerabilities;
Investigative and analytical materials concerning information about
physical security at USDA facilities such as the above-named facilities;
Information that could result in physical risk to individuals;
Information that could result in serious damage to critical facilities
and/or infrastructures; [and]
Cyber Security information, which includes, but is not limited to
a. Network Drawings or Plans
b. Program and System Security Plans
c. Mission Critical and Sensitive Information Technology (IT)
Systems and Applications
d. Capital Planning and Investment Control Data (I-TIPS)
e. IT Configuration Management Data and Libraries
f. IT Restricted Space (Drawings, Plans and Equipment Specifications
as well as actual space)
g. Incident and Vulnerability Reports
h. Risk Assessment Reports, Checklists, Trusted Facilities Manual and
Security Users Guide [and]
i. Cyber Security Policy Guidance and Manual Chapters
Specific responsibilities are prescribed for senior USDA officials, heads of
department organizations, the Office of the Chief Information Officer, and the Office
of the General Counsel. Among the responsibilities specified for USDA agencies
and staff offices are the following:
Ensure that adequate security measures and procedures are
implemented to protect SSI.
Ensure that employees of their organization are aware of their
responsibility to protect SSI.
Determine the potential harm resulting from the loss, misuse, or
unauthorized access to or modification of SSI in their custody.
Ensure that prompt and appropriate disciplinary action is taken
against personnel responsible for unauthorized disclosure of SSI.
Regarding FOIA requests for access to SSI, the regulation instructs that these
should be processed “in accordance with USDA regulations and the Attorney
General’s FOIA Memorandum of October 12, 2001,” which is appended to the
regulation, “with consideration of all applicable FOIA exemptions, including” four
identified as “Potentially Applicable to SSI.”
The departmental regulation does not cite any statutory authority for its
Originally established within the Department of Transportation (DOT) by the
Aviation and Transportation Security Act (ATSA) of 2001,49 the Transportation
Security Administration (TSA) was subsequently transferred to the newly created
Department of Homeland Security (DHS) by the Homeland Security Act of 2002.50
The ATSA was signed into law two months after the September 11 terrorist attacks
on the World Trade Center and the Pentagon. Shortly thereafter, in a February 15,
2002, notice, DOT announced that TSA was assuming civil aviation security
functions and responsibilities as provided by the ATSA, as well as those being
transferred which had previously been performed by the Federal Aviation
Administration (FAA), another DOT subunit.51 A week later, DOT issued in final
form, without prior notice or opportunity for public comment, new civil aviation
security rules.52 These rules were prompted by the enactment of the ATSA and the
assumption of FAA civil aviation security functions and responsibilities by the TSA.
Among them was a new part 1520 of Title 49 of the Code of Federal Regulations
concerning the protection of “Sensitive Security Information.” This new concept, it
was explained, “includes information about security programs, vulnerability
assessments, technical specifications of certain screening equipment and objects used
to test screening equipment, and other information.”53 A little over two years later,
however, these rules were superseded.
On May 18, 2004, DOT and DHS jointly published, as an interim, final rule
with request for comments, revised regulations concerning the protection of SSI. In
the summary, it was noted that “TSA is revising its regulation governing the
protection of sensitive security information (SSI) in order to protect the
confidentiality of maritime security measures adopted under the U.S. Coast Guard’s
regulations, published on October 22, 2003, implementing the Maritime
Transportation Security Act (MTSA) and other activities related to port and maritime
security.” It was further explained that, “with this revision to the regulations, TSA
is requiring employees, contractors, grantees, and agents of DHS and DOT to follow
the same requirements governing protection of SSI as those in the transportation
sector who are subject to the regulation.”54 The interim rule was issued as 49 C.F.R.
Part 15 for the Office of the Secretary of Transportation and as 49 C.F.R. Part 1520
for the TSA.
In the review of the statutory and regulatory background to the rule, the
observation was proffered that, “situations in which information constitutes both SSI
115 Stat. 597.
116 Stat. 2135 at 2185.
Federal Register, vol. 67, Feb. 20, 2002, pp. 7939-7940.
Ibid., Feb. 22, 2002, pp. 8340-8384.
Ibid., p. 8342.
Ibid., vol. 69, May 18, 2004, p. 28066.
and CII,” the latter being another type of data known as critical infrastructure
information, “may be limited.” Pursuant to the Critical Infrastructure Information
(CII) Act, a subtitle of the Homeland Security Act,55 CII, it was explained, “is
voluntarily submitted by the private sector to the Federal Government” and the
statute “generally prohibits Federal agencies from disclosing such information,
except within the Federal Government and to State and local governments in order
to protect critical infrastructure.” The following comparison was then offered:
information constituting SSI generally is not voluntarily submitted to the
government, which is required for the CII designation. In addition, SSI relates
to both critical and noncritical infrastructure assets. There may be cases,
however, where the owner or operator of a critical transportation asset
voluntarily submits information, such as a vulnerability assessment, to TSA or
the Coast Guard. If that information were to be designated by DHS as CII, it
would be governed by the requirements of handling of CII, rather than by the SSI
Another key difference between SSI and CII is the extent to which a Federal
employee may disclose such information. Under the SSI regulation, TSA may
disclose SSI to persons with a need to know in order to ensure transportation
security. This includes persons both within and outside the Federal Government.
The CII Act, however, generally prohibits disclosure of properly designated CII
outside the Federal Government. Thus, the interim final rule clarifies that in
cases where information is both SSI and CII, the receipt, maintenance, or
disclosure of such information by a Federal agency or employee is governed by
the CII Act and any implementing regulations, by not the interim final rule.56
The interim final rule was composed of 10 subsections. The first of these
pertained to the scope of the part, explaining it “does not apply to the maintenance,
safeguarding, or disclosure of classified national security information,” and the
second defined terms used in the part.57 The third subsection explained what
constituted SSI in the following terms:
(a) In general.... SSI is information obtained or developed in the conduct
of security activities, including research and development, the disclosure of
which ... would —
(1) Constitute an unwarranted invasion of privacy (including, but not
limited to, information contained in any personnel, medical, or similar file);
(2) reveal trade secrets or privileged or confidential information obtained
from any person; or
(3) Be detrimental to transportation safety.
(b) Information constituting SSI. Except as otherwise provided in writing
... in the interest of public safety or in furtherance of transportation security, the
following information, and records containing such information, constitute SSI:
(1) Security programs and contingency plans. Any security program or
security contingency plan issued, established, required, received, or approved by
DOT or DHS, including —
See 116 Stat. 2150.
Federal Register, vol. 69, May 18, 2004, p. 28069.
Ibid., pp. 28078, 28082.
(i) Any aircraft operator or airport operator security program or security
contingency plan under this chapter;
(ii) Any vessel, maritime facility, or port area security plan required or
directed under Federal law;
(iii) Any national or area security plan prepared under 46 U.S.C. 70103;
(iv) Any security incident response plan established under 46 U.S.C. 70104.
(2) Security Directives. Any Security Directive or order —
(i) Issued by TSA under 49 CFR 1542.303, 1544.305, or other authority;
(ii) Issued by the Coast Guard under the Maritime Transportation Security
Act, 33 CFR part 6, or 33 U.S.C. 1221 et seq. Related to maritime security; or
(iii) Any comments, instructions, and implementing guidance pertaining
(3) Information Circulars. Any notice issued by DHS or DOT regarding
a threat to aviation or maritime transportation, including any —
(i) Information Circular issued by TSA under 49 CFR 1542.303 or
1544.305, or other authority; and
(ii) Navigation or Vessel Inspection Circular issued by the Coast Guard
related to maritime security.
(4) Performance specifications. Any performance specification and any
description of a test object or test procedure, for —
(i) Any device used by the Federal government or any other person pursuant
to any aviation or maritime transportation security requirement of Federal law
for the detection of any weapon, explosive, incendiary, or destructive device or
(ii) Any communications equipment used by the Federal government or any
other person in carrying out or complying with any aviation or maritime
transportation security requirements of Federal law.
(5) Vulnerability assessments. Any vulnerability assessment directed,
created, held, funded, or approved by the DOT, DHS, or that will be provided to
DOT or DHS in support of a Federal security program.
(6) Security inspection or investigative information. (i) Details of any
security inspection or investigation of an alleged violation of aviation or
maritime transportation security requirements of Federal law that could reveal
a security vulnerability, including the identity of the Federal special agent or
other Federal employee who conducted the inspection or audit.
(ii) In the case of inspections or investigations performed by TSA, this
includes the following information as to events that occurred within 12 months
of the date of release of the information: the name of the airport where a
violation occurred, the airport identifier in the case number, a description of the
violation, the regulation allegedly violated, and the identity of any aircraft
operator in connection with specific locations or specific security procedures.
Such information will be released after the relevant 12-month period, except that
TSA will not release the specific gate or other location on an airport where an
event occurred, regardless of the amount of time that has passed since its
occurrence. During the period within 12 months of the date of release of the
information, TSA may release summaries of an aircraft operator’s, but not an
airport operator’s, total security violations in a specified time range without
identifying specific violations or locations. Summaries may include total
enforcement actions, total proposed civil penalty amounts, number of cases
opened, number of cases referred to TSA or FAA counsel for legal enforcement
action, and number of cases closed.
(7) Threat information. Information held by the Federal government
concerning threats against transportation or transportation systems and sources
and methods used to gather or develop threat information, including threats
against cyber infrastructure.
(8) Security measures. Specific details of aviation or maritime
transportation security measures, both operational and technical, whether applied
directly by the Federal government or another person, including —
(i) Security measures or protocols recommended by the Federal
(ii) Information concerning the deployments, numbers, and operations of
Coast Guard personnel engaged in maritime security duties and Federal Air
Marshals, to the extent it is not classified national security information; and
(iii) Information concerning the deployments and operations of Federal
Flight Deck Officers, and number of Federal Flight Deck Officers aggregated by
(9) Security screening information. The following information concerning
security screening under aviation or maritime transportation security
requirements of Federal law:
(i) Any procedures, including selection criteria and any comments,
instructions, and implementing guidance pertaining thereto, for screening of
persons, accessible property, checked baggage, U.S. mail, stores, and cargo, that
is conducted by the Federal government or any other authorized person.
(ii) Information and sources of information used by a passenger or property
screening program or system, including an automated screening system.
(iii) Detailed information about the locations at which particular screening
methods or equipment are used, only if determined by TSA to be SSI.
(iv) Any security screener test and scores of such tests.
(v) Performance or testing data from security equipment or screening
(vi) Any electronic image shown on any screening equipment monitor,
including threat images and descriptions of threat images for threat image
(10) Security training materials. Records created or obtained for the
purpose of training persons employed by, contracted with, or acting for the
Federal government or another person to carry out any aviation or maritime
transportation security measures required or recommended by DHS or DOT.
(11) Identifying information of certain transportation security personnel.
(i) Lists of the names of or other identifying information that identify
persons as —
(A) Having unescorted access to a secure area of an airport or a secure or
restricted area of a maritime facility, port area, or vessel; or
(B) Holding a position as a security screener employed by or under contract
with the Federal government pursuant to aviation or maritime transportation
security requirements of Federal law, where such lists are aggregated by airport;
(C) Holding a position with the Coast Guard responsible for conducting
vulnerability assessments, security boardings, or engaged in operations to enforce
maritime security requirements or conduct force protection;
(D) Holding a position as a Federal Air Marshal; or
(ii) The name or other identifying information that identifies a person as a
current, former, or applicant for Federal Flight Deck Officer.
(12) Critical aviation or maritime infrastructure asset information. Any
list identifying systems or assets, whether physical or virtual, so vital to the
aviation or maritime transportation system that the incapacity or destruction of
such assets would have a debilitating impact on transportation security, if the list
(i) Prepared by DHS or DOT; or
(ii) Prepared by a State or local government agency and submitted by the
agency to DHS or DOT.
(13) Systems security information. Any information involving the security
of operational or administrative data systems operated by the Federal government
that have been identified by the DOT or DHS as critical to aviation or maritime
transportation safety or security, including automated information security
procedures and systems, security inspections, and vulnerability information
concerning those systems.
(14) Confidential business information. (i) Solicited or unsolicited
proposals received by DHS or DOT, and negotiations arising therefrom, to
perform work pursuant to a grant, contract, cooperative agreement, or other
transaction, but only to the extent that the subject matter of the proposal relates
to aviation or maritime transportation security measures;
(ii) Trade secret information, including information required or requested
by regulation or Security Directive, obtained by DHS or DOT in carrying out
aviation or maritime transportation security responsibilities; and
(iii) Commercial or financial information, including information required
or requested by regulation or Security Directive, obtained by DHS or DOT in
carrying out aviation or maritime transportation security responsibilities, but only
if the source of the information does not customarily disclose it to the public.
(15) Research and development. Information obtained or developed in the
conduct of research related to aviation or maritime transportation security
activities, where such research is approved, accepted, funded, recommended, or
directed by the DHS or DOT, including research results.
(16) Other information. Any information not otherwise described in this
section that TSA determines is SS under 49 U.S.C. 114(s) or that the Secretary
of DOT determines is SSI under 49 U.S.C. 40119. Upon the request of another
Federal agency, the Secretary of DOT may designate as SSI information not
otherwise described in this section.58
The fourth subsection generically identified persons subject to the requirements
of the part, and restrictions on the disclosure of SSI by these “covered persons” were
prescribed in the fifth subsection. These included taking “reasonable steps to
safeguard SSI in that person’s possession or control from unauthorized disclosure,”
and, when not in physical possession of SSI, storing it in “a secure container, such
as a locked desk or file cabinet, or in a locked room.” Unless otherwise authorized
in writing, SSI could be disclosed “only to covered persons who have a need to
know,” who were described in the sixth subsection. “If a covered person receives a
record containing SSI that is not marked,” he or she must so mark the material and
inform the sender of the need to so identify SSI. Furthermore, when a covered
person “becomes aware that SSI has been released to unauthorized persons,” he or
she “must promptly inform TSA or the applicable DOT or DHS component or
The seventh subsection pertained to marking records containing SSI, including
the front and back covers, the title page, and each page of the document with the
Ibid., pp. 28079-28080, 28082-28084.
Ibid., pp. 28080-28081, 28084.
Sensitive Security Information label. A distribution limitation statement was also
prescribed for inclusion with the marked record.60
SSI disclosure was discussed in the eighth subsection. Pursuant to “a proper
Freedom of Information Act or Privacy Act request,” a responsive record may be
disclosed “with the SSI redacted, provided the record is not otherwise exempt from
disclosure” under other provisions of these laws. The part did not preclude the
disclosure of SSI “to a committee of Congress authorized to have the information or
to the Comptroller General, or to any authorized representative of the Comptroller
General.” Discretionary allowance was made for the disclosure of SSI in an
administrative enforcement proceeding, but provision was made for requiring a
security background check for parties to the proceedings to whom SSI would be
The ninth subsection indicated that violation of the part “is grounds for a civil
penalty and other enforcement or corrective action ..., and appropriate personnel
actions for Federal employees.” The subsection continued, saying: “Corrective
action may include issuance of an order requiring retrieval of SSI to remedy
unauthorized disclosure or an order to cease future unauthorized disclosure.”62
Finally, the 10th subsection, while acknowledging Federal Records Act
requirements to preserve records containing documentation of a federal agency’s
policies, decisions, and essential transactions, authorized the destruction of SSI when
it is no longer needed to carry out agency functions. “A covered person,” according
to the subsection, “must destroy SSI completely to preclude recognition or
reconstruction of the information when the covered person no longer needs the SSI
to carry out transportation security measures,” but this provision “does not require
a State or local government agency to destroy information that the agency is required
to preserve under State or local law.”63
As produced in the 2004 edition of Title 49, Code of Federal Regulations, Part
15 cited one statutory provision as authority for its issuance: 49 U.S.C. 40119,
directing the conduct of research and development activities to develop, modify, test,
and evaluate a system, procedures, facility, or device to protect passengers and
property against acts of criminal violence and piracy in transportation. Part 1520,
however, cited several statutory provisions in this regard:
46 U.S.C. §§ 70102-70106, basically deriving from the MTSA, and
authorizing United States facility and vessel vulnerability
assessments, a national maritime transportation security plan,
security incident response plans for vessels and facilities that may be
involved in a transportation security incident, the issuance of
Ibid., pp. 28081, 28085.
Ibid., pp. 28081, 28085.
Ibid., pp. 28082, 28085.
transportation security cards, and the establishment of maritime
safety and security teams.64
46 U.S.C. § 70117, basically deriving from the MTSA, and
establishing a civil penalty for violations of the port security chapter
or any regulation issued pursuant to it.65
49 U.S.C. § 114, basically deriving from the ATSA and mandating
the TSA and the related DOT Transportation Security Oversight
Board,66 and which was subsequently amended by the Homeland
Security Act to authorize (with the addition of Subsection 114(s))
the prescribing of “regulations prohibiting the disclosure of
information obtained or developed in carrying out security under
authority of” the ATSA “if the Under Secretary decides that
disclosing the information would (A) be an unwarranted invasion of
personal privacy; (B) reveal a trade secret or privileged or
confidential commercial or financial information; or (C) be
detrimental to the security of transportation.”67
49 U.S.C. § 40113, prescribing general authority for the Secretary of
Transportation, Under Secretary of Transportation for Security, or
Administrator of the FAA, as appropriate, to take necessary action
to carry out this part, including conducting investigations,
prescribing regulations, standards, and procedures, and issuing
49 U.S.C. §§ 44901-44907, prescribing security requirements for the
Administrator of the FAA to prescribe regulations concerning the
screening of passengers and property, the conditions for refusal of
transport by intrastate and foreign air carriers, and the protection of
passengers and property on an aircraft operating in air transportation
or intrastate air transportation against an act of criminal violence or
aircraft piracy; to assess, in conjunction with the Director of the FBI,
current and potential threats to the domestic air transportation
system; and to not approve a security program of a foreign air carrier
unless it requires the foreign air carrier, in its operations to and from
airports in the United States, to adhere to the identical security
measures that the Administrator requires air carriers serving the
same airports to adhere to. These provisions also require, under
guidelines prescribed by the Secretary of Transportation, that an air
carrier, airport operator, ticket agent, or an individual employed by
same, receiving information about a threat to civil aviation provide
that information promptly to the Secretary; and direct the Secretary,
See 116 Stat. 2064 at 2068-2075.
116 Stat. 2084.
115 Stat. 597.
116 Stat. 2135 at 2312.
at intervals considered necessary, to assess the effectiveness of the
security measures at foreign airports served by an air carrier from
which a foreign air carrier serves the United States or that poses a
high risk of introducing danger to international air travel, as well as
other airports the Secretary considers appropriate.
49 U.S.C. §§ 44913-44914, concerning the deployment and purchase
of explosives detection equipment and the development of airport
49 U.S.C. §§ 44916-44918, directing the Administrator of the FAA
to require each air carrier and airport that provides for intrastate,
interstate, or foreign air transport to conduct periodic vulnerability
assessments of the security systems of that air carrier or airport, to
perform periodic audits of such assessments, and to conduct periodic
and unannounced inspections of security systems of airports and air
carriers to determine the effectiveness and vulnerabilities of such
systems;68 authorizing the Under Secretary for Transportation
Security to deploy and otherwise provide for the training,
supervision, equipping, and air carrier accommodation of federal air
marshals; and authorizing the development of detailed guidance for
a scheduled passenger air carrier flight and cabin crew training
program to prepare crew members for potential threat conditions.69
49 U.S.C. §§ 44935-44936, directing the Administrator of the FAA
to prescribe standards for the employment and continued
employment of, and contracting for, air carrier personnel and airport
security personnel, as well as requiring by regulation employment
investigations, including criminal history record checks, for
individuals employed in, or applying for, positions in airport
operations and security.
49 U.S.C. § 44942, authorizing the Under Secretary for
Transportation Security to establish performance goals and
objectives for aviation security.
49 U.S.C. § 46105, concerning the effectiveness of prescribed
regulations and orders of the Secretary of Transportation, Under
Secretary for Transportation Security, and Administrator of the FAA
regarding security duties and powers, as well as the amendment,
modification, suspension, or superseding of such issuances.
This represents a slight increase in statutory authority cited in support of Part
1520 as it appears in the 2004 Code of Federal Regulations when compared with the
version appearing in the 2002 edition.
Added by 110 Stat. 3253.
Added by 115 Stat. 606 and 610.
Management Regime Comparison
Presidentially prescribed arrangements for the management of classified national
security information have been operative for over half a century. The initial directive
in this regard, as noted earlier, was issued in March 1940, and, thereafter, successor
orders largely narrowed the bases and discretion for assigning official secrecy, and
increasingly detailed the management regime for security classified materials. In
Table 1 below, various aspects of the current management regime for classified
information, as prescribed by E.O. 12958, as amended, are set out in comparison with
the SSI management arrangements prescribed by USDA and TSA/DOT.
Table 1. Management of Security Classified Information
and SSI Compared
(49 CFR 15) (49
Principal terms defined
Original users of marking
No - generic
Delegation of marking
authority in writing
Exclusive categories of
Duration of marking or
Date or event for
Identity of original marker
Prohibitions and limitations
for markings specified
Authorized challenges on
propriety of marking
Mandatory reviews to
determine continued need
Appellate review of
unsuccessful challenges or
mandatory review outcomes
System oversight vested in
specified entity or official
In general, the management regime for SSI prescribed by USDA does not appear
to be as detailed as the regime prescribed by E.O. 12958, as amended, for classified
national security information. However, the USDA regime for SSI does appear to
be more detailed than the one prescribed by TSA for SSI, particularly regarding
specification of users of the marking authority, limiting the duration of marking or
protection, specifying prohibitions and limitations on the use of marking, and vesting
system oversight in Departmental Administration (DA). This comparison is based
upon the content of relevant regulations, but does not take into consideration actual
implementation or administrative practice regarding those regulations.
In June 2005, the Government Accountability Office (GAO) completed an
assessment of TSA management of SSI. Among the results of that assessment are
the following comments:
TSA does not have written policies and procedures, beyond its SSI
regulations, providing criteria for determining what constitutes
In addition to lacking written guidance concerning SSI designation,
TSA has no policies and procedures specifying clear
responsibilities for officials who can designate SSI.71
TSA lacks adequate internal controls to provide reasonable
assurance that its SSI designation process is being consistently
applied across TSA and for monitoring compliance with the
regulations governing the SSI designation process, including
ongoing monitoring of the process.72
TSA has not developed policies and procedures for providing
specialized training for all of its employees making SSI
designations on how information is to be identified and evaluated
for protected status.73
With a view to bringing “clarity, structure, and accountability to TSA’s SSI
designation process,” GAO recommended “that the Secretary of the Department of
Homeland Security direct the Administrator of the Transportation Security
Administration to take the following four actions”:
establish clear guidance and procedures for using the TSA
regulations to determine what constitutes SSI;
establish clear responsibility for the identification and designation
of information that warrants SSI protection;
U.S. Government Accountability Office, Transportation Security Administration: Clear
Policies and Oversight Needed for Designation of Sensitive Security Information, GAO
Report GAO-05-677 (Washington: June 2005), p. 3.
Ibid., p. 4.
Ibid., p. 5.
Ibid., p. 6.
establish internal controls that clearly define responsibility for
monitoring compliance with regulations, policies, and procedures
governing the SSI designation process and communicate that
responsibility throughout TSA; and
establish policies and procedures within TSA for providing
specialized training to those making SSI designations on how
information is to be identified and evaluated for protected status.74
Implications for Information Sharing
The importance of information sharing for combating terrorism and realizing
homeland security was emphasized by the National Commission on Terrorist Attacks
Upon the United States.75 When fashioning the Homeland Security Act of 2002,
Congress recognized that the variously identified and marked forms of sensitive but
unclassified (SBU) information could be problematic with regard to information
sharing. Section 892 of that statute specifically directed the President to prescribe
and implement procedures for the sharing of information by relevant federal
agencies, including the accommodation of “homeland security information that is
sensitive but unclassified.”76
On July 29, 2003, the President assigned this responsibility largely to the
Secretary of Homeland Security.77 Nothing resulted.
The importance of information sharing was reinforced two years later in the
report of the Commission on the Intelligence Capabilities of the United States
Regarding Weapons of Mass Destruction.78 Congress again responded by mandating
the creation of an Information Sharing Environment (ISE) when legislating the
Intelligence Reform and Terrorism Prevention Act of 2004.79 Preparatory to
implementing the ISE provisions, the President issued a December 16, 2005,
memorandum recognizing the need for standardized procedures for SBU information
and directing department and agency officials to take certain actions relative to that
objective.80 In May 2006, the newly appointed manager of the ISE agreed with a
Ibid., p. 7.
See U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11
Commission Report (Washington: GPO, 2004), pp. 416-419.
116 Stat. 2135 at 2253.
E.O. 13311 in 3 C.F.R., 2003 Comp., pp. 245-246.
See U.S. Commission on the Intelligence Capabilities of the United States Regarding
Weapons of Mass Destruction, Report to the President of the United States (Washington:
GPO, 2005), pp. 429-450.
118 Stat. 3638 at 3664.
The White House Office, Memorandum for the Heads of Executive Departments and
Agencies, “Guidelines and Requirements in Support of the Information Sharing
March GAO assessment81 that, oftentimes, SBU information, designated as such with
some marking, was not being shared due to concerns about the ability of recipients
to protect it adequately.82 In brief, it appears that pseudo-classification markings
have, in some instances, had the effect of deterring information sharing for homeland
Improving Classified Information Life Cycle
In the current environment, still affected by the long shadow of the terrorist
attacks of September 11, 2001, some long-standing difficulties attending the life
cycle management of security classified information have become particularly acute.
In July 2005, the New York Times observed editorially that the “Bush Administration
is classifying the documents to be kept secret from public scrutiny at the rate of 125
a minute. The move toward greater secrecy,” it continued, “has nearly doubled the
number of documents annually hidden from public view — to well more than 15
million last year, nearly twice the number classified in 2001.”83 As the number of
classification actions has been largely increasing, the editorial also noted, the volume
of declassified material has been decreasing, as the data in Table 2 below indicate.
The situation appears to have slightly improved in 2005. These activities have
related costs. Security classification expenses — which include personnel security,
physical security, education and training, and management and planning — far
exceed expenditures for declassification.
Some relief of the situation may result from the automatic action —
declassification, exemption for continued protection, or referral to other agencies —
on classified records 25 or more years old mandated by the Clinton executive order
and now scheduled to occur by December 31, 2006. Using agencies’ supplied
information concerning their efforts to meet the deadline, ISOO, as of September 21,
2005, estimated that 155 million pages of classified records were subject to automatic
action, and “believes, for the most part, that the Executive branch is progressing
toward fulfilling its responsibilities for these records by the deadline.” Of 46
agencies affected, “ISOO was confident that 22 of those agencies will be prepared
to implement the Automatic Declassification program by the deadline” and will
Environment,” Dec. 16, 2005, Washington, DC.
U.S. Government Accountability Office, Information Sharing: The Federal Government
Needs to Establish Policies and Processes for Sharing Terrorism- Related and Sensitive but
Unclassified Information, p. 25.
Prepared statement of Thomas E. McNamara, Program Manager for the Information
Sharing Environment, Office of the Director of National Intelligence, before the House
Committee on Homeland Security, Subcommittee on Intelligence, Information Sharing, and
Terrorism Risk Assessment, May 10, 2006, Washington, D.C., pp. 8-9.
Editorial, “The Dangerous Comfort of Secrecy,” New York Times, July 12, 2005, p. A22.
“work closely with the remaining 24 agencies to ensure that they allocate sufficient
resources to meet the requirement.”84
Table 2. Information Moving In and Out of Classified Status
New Classification Actions
Source: Data from U.S. National Archives and Records Administration, Information Security
Oversight Office, Report to the President 2001 (Washington: Sept. 2002), pp. 7-8, 16; U.S. National
Archives and Records Administration, Information Security Oversight Office, Report to the President
2002 (Washington: June 2003), pp. 14-15, 26; U.S. National Archives and Records Administration,
Information Security Oversight Office, Report to the President 2003 (Washington: Mar. 2004), pp.
20, 25; U.S. National Archives and Records Administration, Information Security Oversight Office,
Report to the President 2004 (Washington: Mar. 2005), pp. 15, 17; U.S. National Archives and
Records Administration, Information Security Oversight Office, Report to the President 2005
(Washington: May 2006), pp. 13, 15; U.S. National Archives and Records Administration,
Information Security Oversight Office, Report to the President 2006 (Washington: May 2007), pp.
6, 22, 29-30; U.S. National Archives and Records Administration, Information Security Oversight
Office, 2003 Report on Cost Estimates for Security Classification Activities (Washington: July 2004),
pp. 2-3; U.S. National Archives and Records Administration, Information Security Oversight Office,
Report on Cost Estimates for Security Classification Activities for 2004 (Washington: May 2005), p.
3; U.S. National Archives and Records Administration, Information Security Oversight Office, Report
on Cost Estimates for Security Classification Activities for 2005 (Washington: 2006), pp. 2, 5.
Whereas the automatic declassification effort is aimed at reducing the quantity
of older records which no longer merit protected status or preservation, the
Interagency Security Classification Appeals Panel (ISCAP), also created by the
Clinton order, is available to address qualitative issues concerning classified
information. ISCAP is composed of senior level representatives of the Secretary of
State, Secretary of Defense, Attorney General, Director of Central Intelligence,
Archivist of the United States, and Assistant to the President for National Security
Affairs. The President selects the panel’s chair from among its members. The
director of the Information Security Oversight Office (ISOO), which is the
government-wide overseer of the security classification program, serves as the
ISCAP executive secretary. The panel makes final determinations on classification
challenges appealed to it by government employees or the public; approves, denies,
or amends exemptions from automatic declassification sought by agencies; makes
final determinations on mandatory declassification review requests appealed to it;
U.S. National Archives and Records Administration, Information Security Oversight
Office, Report to the President 2005 (Washington: May 2006), p. 19.
and generally advises and assists the President in the discharge of his discretionary
authority to protect the national security of the United States. The recent review
activities of ISCAP are detailed in Table 3.
Table 3. ISCAP Decisions
Source: Data from U.S. National Archives and Records Administration, Information Security
Oversight Office, Report to the President 2001, p. 5; U.S. National Archives and Records
Administration, Information Security Oversight Office, Report to the President 2002, p. 9; U.S.
National Archives and Records Administration, Information Security Oversight Office, Report to the
President 2003, p. 9; U.S. National Archives and Records Administration, Information Security
Oversight Office, Report to the President 2004, p. 7; U.S. National Archives and Records
Administration, Information Security Oversight Office, Report to the President 2005 (Washington:
May 2006), p. 5; U.S. National Archives and Records Administration, Information Security Oversight
Office, Report to the President 2006 (Washington: May 2007), p. 6.
Finally, an issue recently arose concerning the selective withdrawal of
declassified records from public access at the National Archives and Records
Administration (NARA) for reclassification. This activity came to public attention
on February 21, 2006, when the National Security Archive, a private sector research
and resource center located at The George Washington University, published a report
about the discovery on its website.85 A news account was also simultaneously
published in the New York Times.86 Initial reported indications were that, beginning
in 1999, intelligence agencies, pursuant to a secret agreement with the National
Archives and Records Administration (NARA), began secretly removing declassified
records from public access and had reclassified more than 55,000 of them. The effort
was apparently an attempt to reverse what some regarded as a hasty compliance with
the Automatic Declassification program prescribed in the Clinton order and directed
at classified records more than 20 years old. It was discovered, however, that several
Matthew M. Aid, Declassification in Reverse: The U.S. Intelligence Community’s Secret
Historical Document Reclassification Program, National Security Archive Report
(Washington: Feb. 21, 2006), available at [http://www.gwu.edu/~nsarchiv/NSAEBB/
Scott Shane, “U.S. Reclassifies Many Documents in Secret Review,” New York Times,
Feb. 21, 2006, pp. A1, A16.
of the reclassified documents had been previously published in the Department of
State’s history series, Foreign Relations of the United States. Other reclassified
records were regarded to be rather innocuous, such as a 1948 memorandum on a
Central Intelligence Agency (CIA) plan to float balloons over communist countries
in Eastern Europe and drop propaganda leaflets; a premature CIA assessment in
October 1950 that Chinese intervention in the Korean War was “not probable in
1950,” but actually occurred late in that month; and a 1962 telegram from
Ambassador to Yugoslavia George F. Kennan containing an English translation of
a Belgrade newspaper article on the Chinese nuclear weapons program. The Times
story indicated that the director of ISOO, after reviewing 16 withdrawn records and
concluding that none of them should have been reclassified, had ordered an audit of
the reclassification effort.
The results of the ISOO audit were released on April 26, 2006. Agencies
conducting the re-reviews of withdrawn records since 1995 included the CIA, the
Department of Energy, the Department of the Air Force (USAF), and the Federal
Emergency Management Agency. Their efforts “resulted in the withdrawal of at least
23,315 publicly available records; approximately 40 percent were withdrawn because
the reviewing agency purported that its classified information had been designated
unclassified without its permission and about 60 percent were identified by the
reviewing agency for referral to another agency for declassification or other public
disclosure review.”87 In reviewing a sample of 1,353 of the withdrawn records, ISOO
concluded that 64 percent of them “did, in fact, contain information that clearly met
the standards for continued classification,” said the audit report. ISOO also found
that 24% of the sampled records “were clearly inappropriate for continued
classification,” and “an additional 12 percent were questionable.” Overall, said the
audit report, “Depending upon the review effort, the sample of records withdrawn
clearly met the standards for continued classification anywhere from 50 percent to
98 percent of the time.”88
Why did this withdrawal and reclassification of records happen? ISOO offered
the following explanation:
There are a number of contributing factors to the issues identified by this audit.
Sufficient quality control and oversight by both the agencies and ISOO has been
lacking, as has proper documentation for declassification decisions. In addition,
NARA has, at times, acquiesced too readily to the re-review efforts or
withdrawal decisions of agencies. Additionally, NARA has not had the
necessary resources available to keep pace with agencies’ re-review activity, let
alone the overall declassification activity of the recent past which has resulted
U.S. National Archives and Records Administration, Information Security Oversight
Office, Audit Report: Withdrawal of Records from Public Access at the National Archives
and Records Administration for Classification Purposes (Washington: Apr. 26, 2006), p.
1; also see Christopher Lee, “Some Archives Files Wrongly Kept Secret,” Washington Post,
Apr. 27, 2006, p. A25; Scott Shane, “National Archives Says Records Were Wrongly
Classified,” New York Times, Apr. 27, 2006, p. A24.
U.S. National Archives and Records Administration, Information Security Oversight
Office, Audit Report: Withdrawal of Records from Public Access at the National Archives
and Records Administration for Classification Purposes, p. 1.
in the accumulation of hundreds of millions of previously classified pages which
require processing by NARA. The most significant deficiency identified by this
audit, however, was the absence of standards, including requisite levels of
transparency, governing agency re-review activity at NARA. Absent these,
NARA along with CIA and USAF resorted to ad hoc agreements that, in
retrospect, all recognize should never have been classified in the first place.89
Regarding remedial actions, the audit report offered the following:
As a result of this audit, the affected agencies have agreed to abide by interim
guidance that includes provisions that require the public to be informed that
records have been formally withdrawn from public access at NARA due to
classification action as well as how many records are affected. Prior to official
promulgation in regulation, this interim guidance will be fully coordinated, to
include an opportunity for public comment. In addition, in response to many of
the challenges highlighted by this audit, the principal agencies involved in
conducting classification reviews of records accessioned into NARA have
agreed, in principle, to create a pilot National Declassification Initiative, in order
to more effectively integrate the work they are doing in this area. This initiative
will address the policies, procedures, structure, and resources needed to create
a more reliable Executive branch-wide declassification program.
In response to the findings of this audit, the Director [of ISOO] is writing to all
agency heads asking for their personal attention in a number of critical areas, to
include facilitating classification challenges and routinely sampling current
classified information in order to determine the validity of classification actions.
In addition, ISOO will be initiating a number of training efforts in support of
these objectives. Finally, agency heads will be requested to provide a status
report within 120 days on the action taken with respect to these initiatives as well
as with regard to the recommendations contained within this audit report. ISOO
will report publicly on these actions.90
H.R. 984 (Waxman)
Executive Branch Reform Act of 2007. Among other provisions, Section 7
would require each federal agency, not later than six months after the date of the
enactment of the legislation, to submit to the Archivist of the United States and
specified congressional committees a report, with certain details, describing their use
of “pseudo” classification designations; would require the Archivist, not later than
nine months after the date of the enactment of the legislation, to issue to specified
congressional committees a report based on the agency submissions, as well as input
from the Director of National Intelligence, federal offices, and contractors, with an
opportunity for public comment on this report; would require the Archivist, not later
Ibid., p. 2.
than 15 months after date of the enactment of the legislation, to promulgate
regulations banning the use of “pseudo” classification designations, with standards
for exceptions for control markings other than those used for classifying national
security information; and would require the Archivist to review existing statutes that
allow agencies, offices, and contractors to control, protect, or otherwise withhold
information based on security concerns, and make recommendations on potential
changes to the statutes so reviewed with a view to improving public access to
information governed by them. Introduced February 12, 2007, and referred to the
Committee on Oversight and Government Reform.
H.R. 4806 (Harman)
Reducing Over-Classification Act. Requires the Secretary of Homeland
Security to develop a strategy that will (1) allow the security classification of records
only after unclassified, shareable versions of intelligence have been produced; (2)
develop a new “sensitive and shared” information program that will provide
protections for certain sensitive and unclassified information for limited periods of
time under narrowly tailored circumstances; (3) propose new incentives and
disincentives to encourage Department of Homeland Security personnel to classify
records properly and to use “sensitive and shared” markings sparingly; (4) create
training programs and auditing mechanisms for all department employees in order
to ensure that the mandated strategy is being implemented properly; (5) establish an
independent department declassification review board to expedite the declassification
of records when the need for public access outweighs the need to classify; and (6)
propose legislative solutions to ensure that the strategy is implemented in a way that
not only promotes security, but also fosters both information sharing and the
protection of privacy and other civil rights.91 Introduced December 18, 2007, and
referred to the Committee on Homeland Security.
National Security Archive. Pseudo-Secrets: A Freedom of Information Act Audit of
the U.S. Government’s Policies on Sensitive Unclassified Information.
Washington: March 2006. 50 pp.
U.S. Congress. House Committee on Government Reform. Subcommittee on
National Security, Emerging Threats, and International Relations. Emerging
Threats: Overclassification and Pseudo-Classification. Hearing, 109th
Congress, 1st Session. March 2, 2005. Washington: GPO, 2005. 205 pp.
U.S. Government Accountability Office. Information Sharing: The Federal
Government Needs to Establish Policies and Processes for Sharing TerrorismRelated and Sensitive but Unclassified Information. GAO Report GAO-06-385.
Washington: March 2006. 72 pp.
See Congressional Record, daily edition, vol. 153, Dec. 19, 2007, p. E2611.
——. Managing Sensitive Information: Departments of Energy and Defense
Policies and Oversight Could Be Improved. GAO Report GAO-06-369.
Washington: March 2006. 23 pp.
——. Transportation Security Administration: Clear Policies and Oversight Needed
for Designation of Sensitive Security Information. GAO Report GAO-05-677.
Washington: June 2005. 57pp.
U.S. Office of the Director of National Intelligence. Information Sharing
Environment Implementation Plan. Washington: November 2006. 160pp.
CRS Report RL33303. “Sensitive But Unclassified” Information and Other
Controls: Policy and Options for Scientific and Technical Information, by
Genevieve J. Knezo.
——. Federal Research Division. Laws and Regulations Governing the Protection
of Sensitive but Unclassified Information. By Alice R. Buchalter, John Gibbs,
and Marieke Lewis. Washington: September 2004. 28 pp.
U.S. National Archives and Records Administration. Information Security Oversight
Office. Audit Report: Withdrawal of Records from Public Access at the
National Archives and Records Administration for Classification Purposes.
Washington: April 26, 2006. 28 pp.