Document Friday: 54,651,765 US Documents Classified in FY 2009

More documents were classified and fewer were declassified in FY 2009 than in FY 2008, according to today’s hot doc, The Information Security Oversight Office’s Report to the President.  This trend of decreased access to information has continued since FY 2006.  However, ISOO noted that the 134 percent increase of classified information was “largely attributed to more accurate data provided by agencies.”  Previously, some agencies did not report classified electronic communication and documents.  Had earlier ISOO reports accounted for electronic classifications, the spike of increased classification between FY 2008 and 2009 would not have been as dramatic.  (See Steve Aftergood’s analysis of the report at Secrecy News.)

In a letter to the president, Director of ISOO William J. Bosanko stated that “Agencies must strike a balance between preserving, protecting, and advancing National Security and supporting the goal of conducting business in an open manner to the greatest extent possible.  Only then will the American people be fully confident that the classified national security information program serves them well.”  The report provides a fascinating and detailed glimpse into the US’s security classification regime but does not tackle the difficult problem of balancing classification with “conducting business in an open manner.”

The attached letter to the president listed two “positive developments” in FY 2009: the reduction in the delegation of original classification authority and an increase of “ten years or less” classifications.  While there was a ten percent decrease in original classifications –which ISOO claims are “the only new ‘secrets’”– the overall number of classified documents, including those with derivative, or secondary, classifications rose.  Intriguingly, the CIA reported making only four original classification decisions in FY 2009, calling into question the validity of some of the report’s statistics.

The second positive development cited in the report was that “agencies assigned a duration of ten years or less in the highest percentage of original classification decisions since FY 1996.” Presumably, this means agencies are using “secret” and “confidential” -rather than “top secret”- classifications more frequently.  Unfortunately, the report does not explain how a determination is made as to whether a document is sensitive for fewer or greater than ten years.  Additionally, the increase in the creation of “10 years or less” documents does not necessarily mean they will be available to the public earlier.  Documents are not automatically released to the public when they are due to become unclassified.  Almost always, they remain unavailable until requested through the Freedom of Information Act.  These requests can take years, even decades, to complete (even then, there is no guarantee the documents will be released); the National Security Archive’s FY 2009 FOIA Audit showed that the oldest pending FOIA request is more than eighteen years old.

The report also provides a very intriguing breakdown of the Mandatory Declassification Review process. The report shows that MDR backlogs are growing and that “agencies have been unable to keep pace with the influx of initial requests.”  Of the 3,102,323 pages of MDR requests processed between FY 1996 and FY 2009, 62 percent were declassified in full, 29 percent were declassified in part, and only 9 percent were denied.  Of the 66,555 pages of MDR requests that were administratively appealed within the agencies, 17 percent were declassified in full, 43 percent were declassified in part, and 40 percent were denied.  Finally, of the 841 documents reviewed by Interagency Security Classification Appeals Panel (the final chance to argue for a document’s release under MDR), 22 percent were declassified in full, 43 percent were declassified in part, and 35 were denied.  The lesson to requesters: ALWAYS EXHAUST YOUR APPEALS. As the statistics indicate, MDR is a highly effective mechanism for citizens to access classified documents; it is in the public interest that the Reviews are expedited and backlogs eliminated.

Perhaps the most important facet of the Report is its charge that “Most agencies need to improve the means by which authorized holders of classified information are alerted and reminded of the expectation for challenging classification.  We recommend greater commitment by senior management and special emphasis as part of agency security education and training programs.” Currently, the report states, individuals with access to classified information have “the responsibility to question the appropriateness of the classification of information.” Unfortunately, ISOO’s reviews “have revealed that many authorized holders of classified information are not aware of this provision, and therefore, do not challenge classification decision as much as should be expected in a robust system.”

In his 29 December 2009 Executive Order on Classified National Security Information, President Obama declared, “Protecting information critical to our Nation’s security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities.”  One fiscal year is clearly too short a period to judge Obama’s transparency and classification policies.  However, here’s to hoping that ISOO’s next report will show decreases in classification, increases in declassification, alleviation of MDR backlogs, and a rejuvenated “free flow of information both within the Government and to the American people.”