Why is ICE Reviewing and Redacting Documents Already in the Public Domain?
Why is Immigration and Customs Enforcement reviewing (and even redacting!) documents that are already publically available? In response to recent National Security Archive Freedom of Information Act (FOIA) requests on Project Gunrunner—a counter-arms trafficking operation—ICE provided 111 pages of documents that are already available in the public domain. This unsubstantial material included news clippings, media alerts, press releases, text of a congressional bill, and a copy of a congressional hearing testimony. Furthermore, these 111 pages were again arbitrarily reviewed by several agencies for potentially sensitive information.
The redacted information included the name of the Staff Superintendent of the Toronto Police, the office phone number and email of a member of the House of Representatives Committee on Homeland Security, and the name of a border agent who sang the national anthem at a Border Enforcement Special Taskforce (BEST) conference.
When questioned about the inclusion of news articles and media alerts in a FOIA release, a representative from the ICE FOIA office explained that most of this information is from the reading room on their website. The representative explained that when the request for information is about a commonly requested topic, they use their online reading room to search for information including all the information on the website. Due to the searching process, press releases and news clippings are found as responsive documents. Of course, most researchers check online reading rooms prior to making their requests.
ICE sure spent a lot of time, effort, and money to review unsubstantial news clippings and media alerts which were already available to the public.
A related problem is ICE’s continuing use of the markings “for official use only,” despite a May 2008 Bush memorandum advising against the use of this and and other variations of “Controlled Unclassified Information” (CUI). His memorandum called for a new framework in “designating, marking, safeguarding, and disseminating information designated as CUI,” so that a uniform classification system would be established and agencies could not “make up” their own classifications.
Why is this important? The director of the National Security Archive, Tom Blanton, has testified before congress on the problem of “pseudo-classification.” The information does not follow the classification criteria, but would still cause harm if it were released to the public. Therefore, it is “sort of” classified. Agencies use many different labels (as many as 130 different markings!) for “sensitive but unclassified” (SBU) information, but as Blanton explained, the SBU pseudo-classification systems “do not have checks and balances.” Not only is there a lack of transparency, but “every secrecy decision generates a stream of direct costs to the taxpayer, in addition to the indirect cost of inefficiency and information asymmetries,” Blanton testified. More than two years after the Bush memo, the problem remains.
In addition to over-classification, arbitrary reviews, and a lack of overall transparency, the use of SBU and other similar markings have created an incredible mess of inefficiency and confusion, underwritten by our taxpayer dollars.
President Obama has continued President Bush’s call for a simpler system to label both classified and controlled unclassified information. His May 27, 2009 Memorandum called for the creation of an inter-agency task force to review current procedures for categorizing and sharing SBU information. The outcome of the task force’s work is to provide a clear and effective set of rules for those who handle SBU information. The memorandum also reiterates Obama’s call for presumption in favor of openness, and in accordance with his January 2009 memorandum on transparency, open government and the FOIA.
Despite this clear call, it appears that even after years of executive mandates and discussions on the guidelines for properly handling CUI, many agencies, including ICE, have not yet taken the presidential directives to heart.
But, good news could be on the way. The National Archives and Records Administration’s CUI Timeline indicates that the fall of this year marks the beginning of the “Implementation Phase” of the new CUI policy. Additional executive direction to agencies regarding CUI policy is expected to be released soon.
Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, and author of the blog Secrecy News, explains that Obama’s forthcoming direction will set simpler, uniform policy markings for CUI, while safeguarding information that needs to be protected (but not classified) information, such as proprietary secrets and social security numbers.
What does this mean? Hopefully, a clearer set of expectations and direction on how to implement changes to CUI, agencies will be pressured into making substantial changes to their practice of marking and sharing documents.
Improved CUI procedures would ensure that substantially less government resources will be spent reviewing and redacting information that is already available in the public domain. We hope that difficult agencies—such as ICE—will soon heed Obama’s instructions to implement a “presumption of disclosure” and stop misusing the CUI label. Unfortunately, it appears some agencies will fight embracing openness until they are compelled to by the issuance of Obama’s new directive on CUI.