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FOIA Update: FOIA Focus: Steve Garfinkel

FOIA Update
Vol. XVI, No. 2

FOIA Focus:   Steve Garfinkel

In 1951, at the beginning of the Cold War, President Truman signed the first executive order for the protection of national security information at all federal executive branch agencies. Since that time, with each succeeding executive order, presidents have sought to develop a uniform classification system that holds classification activity to a minimum, promotes public access to information as soon as national security considerations permit, and appropriately safeguards national security information. The question that was first addressed by President Truman is fundamentally the same as the one presented today. It is a question of balance: How do you best allow maximum public access to records that shed light on federal government operations while at the same time protecting vital interests of national security?

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"The legal basis for the classification of national security information is in an executive order, not in a statute," says Steve Garfinkel, Director of the Information Security Oversight Office (ISOO), which is now part of the Office of Management and Budget. ISOO was created by President Carter in 1978 and now operates under the provisions of Executive Order No. 12,356 (issued by President Reagan in 1982) -- which is soon to be superseded by E.O. 12,958, issued by President Clinton on April 17. With a staff of 14, ISOO oversees the classification-security programs of the approximately 65 executive branch departments, agencies, and offices that create or handle national security information, and it reports to the President annually on their status. See FOIA Update, Winter 1985, at 1, 2.

ISOO has developed a liaison system in which one of its program analysts is assigned to each government agency and to the major components of the Department of Defense. The analysts conduct at least one formal on-site inspection each year, as well as special document reviews, to monitor agency compliance with the existing executive order. "It is our job to realize the President's goals of keeping classification activity to a minimum, while promoting public access to information as soon as national security considerations permit," explains Garfinkel.

Garfinkel and his staff at ISOO were the primary drafters of new E.O. 12,958, which establishes the first post-Cold War security-classification system. Garfinkel notes: "The big thing about the new executive order is that the burden has shifted 180° in terms of maintaining the classified status of information." In the past, in order to declassify information, an agency had to commit resources to the process of document review. "Now," he stresses, "if an agency does nothing, information will be declassified." Most newly classified information will be marked for automatic declassification after it is 10 years old and almost all information of permanent historic value will be automatically declassified once it is 25 years old.

Since 1972, there has been an alternate access procedure available to requesters who seek information that is classified under one of the provisions of the current executive order. Rather than submit a FOIA request for information that may be withheld under the FOIA's Exemption 1, any person may instead request a mandatory declassification review through the classifying agency. This alternative has been strengthened under E.O. 12,958. The new executive order, effective October 14, creates an Interagency Security Classification Appeals Panel to which a requester can appeal an agency's final mandatory declassification review decision. The new executive order also provides that the director of ISOO will be the executive secretary of this panel.

"It will be interesting to see if requesters make more mandatory review requests rather than use the FOIA," ISOO Director Garfinkel observes. "The six members of the panel will be senior-level representatives from six executive branch agencies. Historically, the judiciary has been more deferential to the executive branch than other members of the executive branch in national security matters."

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Steve Garfinkel was born and raised in Washington, D.C. He graduated from Anacostia High School and attended college and law school at The George Washington University in the nation's capital as well, earning a B.A. in Economics in 1967 and a law degree in 1970. He currently lives in Montgomery County, Maryland, where his wife Tillie is an elementary school principal.

After graduating from law school, Garfinkel worked in the General Services Administration's Office of General Counsel, where he was assigned to relatively new areas of the law -- including the FOIA and civil rights. He also served as the senior attorney for the National Archives and Records Service, which was then part of GSA. In 1980, he became the director of ISOO, which had been created not long before; he was the second person to hold this position.

Garfinkel emphasizes a key tenet of his long career of public service: "I've always believed that since this office is part of the executive branch it has common goals with other agencies whose classification decisions we oversee. We all work for the public. We all work for the President. My philosophy is to work with agencies in a cooperative manner. It is rarely effective to be confrontational."

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Updated August 13, 2014