FOIA Update: New Executive Order on Classification of National Security Information Issued

January 1, 1995

FOIA Update
Vol. XVI, No. 2
1995


New Executive Order on Classification
of National Security Information Issued

After spending more than two years in the planning stages, a new executive order on national security classification has been issued -- an order which should yield much additional disclosure of government information, especially in older records, after it takes effect this fall.

On April 17, President Clinton issued Executive Order No. 12,958, entitled "Classified National Security Information," to supersede the existing such executive order (E.O. 12,356) that was issued by former President Reagan more than a decade ago. New E.O. 12,958 will take effect after a 180-day implementation period on October 14 of this year. It makes major changes in the system by which information is classified on national security grounds throughout the executive branch, which in turn will affect agency activity under Exemption 1 of the Freedom of Information Act.

The issuance of this new executive order culminates more than two years of development and deliberations both within and outside of the executive branch. Its development began in April 1993, when President Clinton issued Presidential Review Directive 29 to establish an interagency task force to revise the federal government's information-security system in light of the end of the Cold War. This governmentwide revision process was coordinated by the Information Security Oversight Office (ISOO), under the auspices of the National Security Council, and it included all of the federal departments and agencies of the intelligence community, together with OMB. As part of this process, views were sought from interested Members of Congress, nongovernmental organizations, and individuals as well.

Major New Executive Order Provisions

The new executive order differs from the previous one in its overall approach to the national security classification system, as well as in a number of specific new provisions. Most fundamentally, it alters the administrative dynamic of information classification by requiring agencies to expend more resources for any continued classification of a record, whereas under the old executive order it often was more costly for an agency to undertake declassification. Under E.O. 12,958, both limited classification and declassification are strongly emphasized through several changed provisions:

• Duration of classification. The new executive order, in Section 1.6, sets a 10-year limit on most new classification actions. No such limit existed under E.O. 12,356.

• Automatic declassification. The new executive order establishes an automatic declassification mechanism that likewise did not exist under the predecessor one. In section 3.4, it requires the automatic declassification of information that is more than 25 years old, with exceptions limited to only especially sensitive information designated as such by the heads of agencies. This major provision applies to information currently classified under any predecessor executive order and will lead to creation of a governmentwide declassification database. Under E.O. 12,958, agencies are given 5 years to accomplish this declassification mandate.

• Systematic declassification. For records that fall within any exception to the new executive order's automatic declassification mechanism, agencies are required to establish "a program for systematic declassification review" that will focus on a need for continued classification of such records. E.O. 12,958, Sec. 3.5(a). Under predecessor E.O. 12,356, such agency programs have been entirely voluntary, except for at the National Archives and Records Administration, which deals with volumes of long-classified files.

• Balancing test. For declassification decisions, E.O. 12,958 authorizes agencies to apply a balancing test--i.e., to determine "whether the public interest in disclosure outweighs the damage to national security that might reasonably be expected from disclosure." Sec. 3.2(b). Though the executive order specifies that the provision is implemented as a matter of administrative discretion and creates no new right of judicial review, it is significant that no such provision existed under predecessor E.O. 12,356.

• Classification determinations. While E.O. 12,958 maintains the existing three-tiered scheme for "Confidential," "Secret," and "Top Secret" information, it eliminates the current presumption found in E.O. 12,356 that certain types of information -- such as foreign government information, for example -- are classified. It also instructs that if there is any "significant doubt about the need to classify information, it should not be classified." E.O. 12,958, Sec. 1.2(b). In furtherance of that new provision, the executive order also provides a specific new mechanism through which classification determinations can be challenged within the federal government: "Authorized holders of information who, in good faith, believe that its classification is improper are encouraged and expected to challenge" such classification under Section 1.9 of the new order. And although the new executive order permits the classification of a record after an agency has received a FOIA request for it, it permits such action only with the "personal participation" of designated high-level agency officials and only on a "document-by-document basis." Sec. 1.8(d). A similar provision was contained in E.O. 12,356. (See chart on page 11.)

• Classification markings. Executive Order 12,958 contains some classification marking provisions that are different from those of any predecessor executive order. Most prominently, it will require for the first time that "a concise reason for classification" be stated on the face of each newly classified document. Sec. 1.7(a)(5). It also eliminates the use of the "OADR" ("Originating Agency's Determination Required") declassification instruction for newly created documents, mandates the use of portion markings to indicate levels of classification within documents, and calls for the use of classified addenda in cases in which classified information comprises "a small portion of an otherwise unclassified document." Sec. 1.7(g).

Classification Oversight

To provide oversight of individual agency classification determinations and agency implementation of the provisions of the new executive order, President Clinton established two new governmental entities through E.O. 12,958: the Interagency Security Classification Appeals Panel and the Information Security Policy Advisory Council.

The Interagency Security Classification Appeals Panel will consist of senior-level representatives of the Secretaries of State and Defense, the Attorney General, the Director of Central Intelligence, the Archivist of the United States, and the Assistant to the President for National Security Affairs. Among other things, this new body will adjudicate classification challenges filed by agency employees and will consider any agency request for exemption from E.O. 12,958's automatic declassification requirements. Sec. 5.4.

The Information Security Policy Advisory Council will consist of seven nongovernment experts appointed by the President to serve as a formal Federal Advisory Committee for the purpose of advising the executive branch on matters of national security classification policy, such as "subject areas for systematic declassification review" and any "policy issues in dispute." Sec. 5.5.

Additional oversight of agency classification activity will be provided by ISOO, which, among other responsibilities under E.O. 12,958, is now developing directives for the new executive order's implementation. ISOO will play a major governmentwide coordination role in implementing the new executive order, under the leadership of ISOO Director Steve Garfinkel. (See related feature on page 15.)

Upon signing this new executive order, President Clinton observed that it "will lift the veil on millions of existing documents, keep a great many future documents from ever being classified, and still maintain necessary controls over information that legitimately needs to be guarded in the interests of national security."


Special Double Issue

This special double issue of FOIA update includes the following national security-releated features:

• OIP Guidance: The Timing of New Executive Order Applicability

• Litigation Review: History of Exemption 1 Disclosure Orders

• Text of Executive Order No. 12,958

• Executive Order Comparison Chart

• Rosenfeld Decision Under Exemptions 1 and 7

• FOIA Focus: ISOO Director Steve Garfinkel

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