- Email: [email protected]
Progress and problems in declassifying U.S. government records
Journal of Government Information 30 (2004) 443 – 450
Progress and problems in declassifying U.S. government records James David National Air and Space Museum, Smithsonian Institution, Washington, DC 20560, USA Available online 11 November 2004
Abstract For the first time ever, Executive Order 12958 signed in 1995 established a process to greatly reduce the huge number of classified federal records accumulated since world war II. Although some progress was made under it, subsequent orders and legislation significantly decreased its effectiveness. The U.S. government must take certain actions now to reverse this trend. Published by Elsevier Inc. Keywords: Government records; United States; Declassification
Since World War II, the U.S. government has accumulated a mountain of classified records—literally billions of pages of paper records (textual records) and many thousands of cubic feet of photographs, films, maps, charts, magnetic tapes, hard drives, floppy discs, CDROMS, and other non-textual records. Through the years there have been varying legal authorities under which information that no longer merits protection could be declassified and the records made available to the public for the first time. Until 1995, however, these processes were generally ineffective and few records were opened up. During that year, President Clinton signed Executive Order (E.O.) 12958, which radically changed the declassification procedure. For the first time, there was a requirement to review records for declassification, coupled with serious consequences for inaction—the records would be automatically declassified and opened to the public E-mail address: [email protected]. 1352-0237/$ - see front matter. Published by Elsevier Inc. doi:10.1016/j.jgi.2004.09.002
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beginning in 2000 unless steps had been taken to exempt them. As a result, the Executive Branch began reviewing and declassifying large numbers of records. Most organizations, however, could not meet the obligations and deadlines of E.O. 12958. Subsequent executive orders, therefore, reduced the requirements and extended the deadlines. Legislation has imposed new obligations for re-reviewing records and, at times, has cut the funding available for declassification programs. Not surprisingly, the declassification effort has slowed down considerably as a result.1 This article will first describe the three different types of classified information. It will next discuss the declassification procedure established by E.O. 12958 and the changes to it resulting from later executive orders. Lastly, the article will evaluate the progress and problems in the declassification effort and offer recommendations for improvements.2
1. The three types of classified information There have been three distinct and separate categories of information that have been classified over the years. The first is National Security Information (NSI). The current system of classification of NSI is set forth in E.O. 13292, signed by President Bush in March 2003. It is the latest in a series of executive orders on NSI that date back to World War II. In general conformance with its predecessors, E.O. 13292 preserves the classification of information under predecessor orders and mandates that newly created information in eight broad areas be classified, ranging from bmilitary plans, weapons systems, or operationsQ to bscientific, technological, or economic matters relating to the national security, which includes defense against transnational terrorism.Q The records containing the information are marked Top Secret, Secret, or Confidential, depending on the damage to national security reasonably expected to occur from its unauthorized disclosure. The order continues the provisions of E.O. 12958 that require personnel classifying information to set a date or event within twenty-five years for the automatic declassification of that information. If no such date or event can be determined, the information can be classified between ten and twenty-five years. Agencies can extend the duration of classification under certain circumstances.3 The second category of classified information is that generally relating to nuclear weapons and atomic energy. The original authority in this area was the Atomic Energy Act of 1946, which was superseded by the Atomic Energy Act of 1954. Among other things, this statute mandates information be classified as Restricted Data (RD) if it concerns (1) the design or manufacture of atomic weapons, (2) the production of special nuclear materials, (3) nuclear propulsion of aircraft, spacecraft, and naval vessels. It also requires information be classified as Formerly Restricted Data (FRD) if it concerns the military utilization of nuclear weapons.4 Any information that is classified as RD or FRD is also classified as NSI, but not vice versa. The third category is Sensitive Compartmented Information (SCI), which is information bconcerning or derived from intelligence sources, methods, or analytical processes, which
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is required to be handled with formal access controls established by the Director of Central Intelligence.Q5 It is designated by codewords representing information in a broad area and additional codewords representing more specific types of information under each general area. The codeword themselves are classified, and only in recent years have a few been declassified (for example, bRUFFQ which covers imagery from certain overhead platforms). Just as with RD and FRD, any information classified as SCI is also classified as NSI, but not vice versa.
2. The declassification procedure under E.O. 12958 and recent changes to it For many years after World War II, there was no requirement that the Executive Branch conduct a declassification review of its records. Although some of the early executive orders mandated that a specific date be established for the automatic downgrading of certain types of classified information, these procedures were unevenly implemented and proved ineffective in releasing many records to the public. Executive Order 11652, signed by President Nixon in 1972, required for the first time that all agencies and the National Archives conduct systematic declassification review of their permanent classified records thirty years old and older (fifty years old and older with respect to intelligence records). This provision was continued in President Carter’s E.O. 12065 from 1978. Because the Atomic Energy Act of 1954 has exclusive provisions for the declassification of RD and FRD, neither order applied to RD or FRD and, thus, many classified records did not even fall within their purview.6 Nevertheless, due to the new systematic declassification review requirement, a relatively large volume of records was reviewed for declassification and actually declassified for the first time ever. President Reagan’s E.O. 12356 of 1982, however, eliminated the requirement that agencies (except for the National Archives) conduct systematic declassification review. Not surprisingly, both the amount of records reviewed for declassification and the amount actually declassified dropped significantly. The paltry numbers continued through the thirteen years the order was in effect, and at the end of this period the amount of classified records had grown considerably.7 Executive Order 12958, signed by President Clinton in April 1995, drastically changed the existing declassification procedure. The new order provided in part that all permanent pre-1975 classified agency records and all pre-1975 classified presidential library records would be automatically declassified in April 2000 bwhether or not the records have been reviewed,Q unless they had been exempted. All such post-1975 records were to be automatically declassified twenty-five years after their creation unless they too had been exempted.8 Exemption of individual records could occur after actual review revealed that they contained information that still merited classification, and exemption of entire file series upon application by agencies to the White House. This was the first time an automatic declassification provision had been incorporated
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into an executive order. Finally, there was now a real incentive for agencies and presidential libraries to review their subject records. Executive Order 12958 also required once again that all agencies and the National Archives conduct systematic declassification review of their permanent classified records and presidential libraries of their classified records twenty-five years old and older, regardless of whether the records had been exempted from automatic declassification. Of course, records examined during systematic review that still merited classification under the relevant guidelines remain classified. For all practical purposes, the automatic declassification and systematic declassification review programs are so interrelated that they are one and the same. Because so many agencies and presidential libraries could not complete their work on the subject pre-1975 records by April 2000, extensions of the automatic declassification date were given. Executive Order 13142 from November 1999 basically extended the original date to April 2003.9 President Bush’s E.O. 13292 in turn established the new date of December 31, 2006 for the automatic declassification of all permanent pre-1981 classified agency records and all pre-1981 classified presidential library records, unless they have been exempted after actual review, exempted upon application to the White House, or one of several grounds for extension of this date applies. All such post-1981 records will be automatically declassified 25 years after their creation, unless they too have been exempted after actual examination, exempted upon application to the White House, or a basis for extension applies. The new order also retains the systematic declassification review requirements of E.O. 12958.10 It is important to note that both the automatic declassification and systematic declassification review provisions only apply to agency records that have been appraised as permanent. They do not apply to unappraised or temporary records. (Some agencies have huge numbers of unappraised records at Federal records centers and at the agencies themselves. Although not all will ultimately be appraised as permanent, those that will be will not fall under the purview of the orders until they are actually so appraised.)11 Furthermore, the two procedures only apply to NSI and SCI and not RD and FRD. As a result, massive numbers of records containing RD or FRD of the White House, National Security Council, Department of Energy (DOE) and its predecessors, Central Intelligence Agency, Department of Defense, Department of State, National Aeronautics and Space Administration, and other organizations are not even subject to the executive orders.
3. Progress and problems The progress under E.O. 12958 and the subsequent orders has unfortunately been mixed. There is no question that since 1995 far more records have been declassified than in any other comparable period. This is due in large part to the National Archives, presidential libraries, and selected agencies (the Air Force and Department of State being two notable examples) that have done an outstanding job of locating and reviewing their subject records by the established deadlines. At the same time, other agencies have little
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to show even after the more than eight years the declassification procedures have been in place. A key question upon the signing of E.O. 12958 was how many subject records were there? The Information Security Oversight Office (ISOO), the primary office with oversight responsibility under the order, stated that it could not determine the total figure.12 However, several agencies did furnish estimates in their proposed compliance plans submitted to ISOO in late 1995. Some holdings were small, such as those of the U.S. Information Agency (13 million pages) and the Arms Control and Disarmament Agency (3.2 million pages). Others were huge, including the Department of Defense (1.5 billion pages) and the Central Intelligence Agency (166 million pages).13 Some agencies, including the Federal Bureau of Investigation, never came up with any estimate. Because of the relatively short period in which to provide the proposed compliance plans and the difficulties involved in arriving at the estimates (for example, due to incomplete or nonexistent finding aids or inventories), not all the estimates were accurate. Furthermore, the use of only bpagesQ in quantifying the subject holdings was often erroneous because many permanent classified records are maps, charts, photographs, films, magnetic tapes, and other non-textual records. Lastly, it must be recalled that the executive orders only apply to classified agency records that have been appraised as permanent. The large numbers of unappraised records across the Executive Branch that should be permanent will not be subject to the orders until they are actually so appraised. Sixteen agencies submitted lists of file series they proposed for exemption from automatic declassification. Six withdrew their requests, and the White House in 1999 approved in whole or part the remaining ten lists as follows: (1) Army (27 million pages or 10% of its subject records), (2) Central Intelligence Agency (94.5 million pages or 60% of its subject records), (3) Defense Intelligence Agency (26 million pages or 38% of its subject records), (4) Office of the Secretary of Defense (7.3 million pages or 30% of its subject records), (5) Joint Chiefs of Staff (1.5 million or 17% of its subject records), (6) National Security Agency (27.6 million pages or 38% of its subject records), (7) National Security Council (65,000 pages or 15% of its subject records), (8) National Reconnaissance Office (720,000 pages or 63% of its subject records), (9) President’s Foreign Intelligence Advisory Board (77,5000 pages or 48% of its subject records), (10) Department of State (1.6 million pages or 3.8% of its subject records).14 The most comprehensive exemption, though, was not granted in 1999 but four years earlier. In October 1995, the directors of ISOO and the Federal Bureau of Investigation signed an agreement exempting all of the agency’s records from automatic declassification on the basis that their release would balmost invariably violate the Privacy Act of 1974.Q15 Once again, the use of only bpagesQ in describing the exempted records is incorrect. Undoubtedly, some of the exempted records are non-textual records. As mentioned above, the current executive order permits agencies to propose other specific file series for exemption from automatic declassification at any time up to the date of their automatic declassification. The only available source of information on the progress in the declassification effort is the annual report ISOO prepares and sends to the President. Beginning with the 1996
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report, they have simply set forth the total number of pages declassified for each agency and the National Archives and Records Administration (this presumably covers both the National Archives and presidential libraries). ISOO reports prior to 1996 listed both the number of pages reviewed for declassification and the number of pages actually declassified, which is a much more useful measure. For unknown reasons, however, ISOO discontinued this practice. The ISOO reports disclose that in Fiscal Year (FY) 1996, the Executive Branch declassified 196 million pages, 204 million pages in FY 1997, 193 million pages in FY 1998, 127 million pages in FY 1999, 75 million pages in FY 2000, 100 million pages in FY 2001, 44 million pages in FY 2002, and 43 million pages in FY 2003 (a total of 982 million pages).16 For several reasons, though, the numbers that some individual agencies are credited with in the reports, and thus the totals, do not appear to be entirely accurate. First, it is likely that some agencies are reporting to ISOO the total number of pages reviewed and not the number actually declassified. Second, there is some indication of at least partial duplication between the reported figures for the National Archives and Records Administration and the individual agencies. This would not be surprising, considering the review process at a National Archives. It is quite possible that agency reviewers perform an initial declassification review (because the agency has given no declassification authority to the National Archives) and the National Archives then conducts a subsequent review or processes the records. Both the agency and National Archives in these circumstances can claim credit. Third, the use of bpagesQ as the only standard of measurement is erroneous since some agencies are reviewing and declassifying non-textual records. Even with these qualifications, however, there is no question that the Executive Branch has declassified far more records in the short period E.O. 12958 and the two subsequent orders have been in effect than in any comparable period. Regardless of the exact numbers of records declassified, it is important to note that the public cannot access any declassified records until several steps have been taken. First, declassified agency records that are at Federal records centers or the agencies themselves have to be transferred to a National Archives (neither Federal records centers nor agencies have the mandate nor the resources to make records available to the public). Second, after the records are initially reviewed and declassified, they are subject to a DOE-ordered rereview to prevent the inadvertent release of RD and FRD. The records cannot be made available to the public until the re-review has been performed or the DOE has determined a re-review is unnecessary. The authority for this wide-ranging power is contained in the FY 1999 National Defense Authorization Act, and the plan developed to implement it is commonly referred to as the Kyl Plan.17 The practical effect of this is to increase greatly the time between when records are declassified and when they are actually made available to the public. Third, after the DOE has completed action, National Archives personnel have to process the records before the public can examine them (among other things, this entails withdrawing the still-classified records and preparing bpull cardsQ for them). In short, it can be, and often is, many years between the time a record is declassified under the executive orders and the public obtains access to it.
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4. Improvements in the declassification program There are several changes that should be made in the declassification procedures. At the top of the list is a return to the dual numbers ISOO reported until 1996—one for the total number of records reviewed and the other for the total number of records actually declassified. Furthermore, there should be a separate set of numbers for textual and nontextual records. If classified films are reviewed, for example, this fact should not be reported using bpagesQ as the standard of measurement. The second improvement is that the agencies, National Archives, and presidential libraries should provide brief, publicly accessible annual summaries of what records they have reviewed. One of the most difficult items for the public to learn is what records have been reviewed. For example, have the files of former Secretary of Defense Melvin Laird (in Record Group 330 at the Federal records center in Suitland, Maryland) been reviewed? What files of the National Security Agency (all of which are at the agency) been reviewed? Virtually all the organizations performing reviews maintain databases on what has been looked at, but only in a very few cases are they willing to share these with the public. Along these lines, Section 3.8 of E.O. 12958 mandated that ba Governmentwide database of information that has been declassifiedQ be established, but this was never done. Executive Order 13292 deleted this provision. Notwithstanding this, a requirement that publicly accessible annual summaries be prepared should be adopted by regulation or directive. The third improvement is the adoption of a policy that btop down, oldest firstQ governs declassification review. The most important records to the greatest number of researchers are those of top officials and advisory bodies. For example, the records of the Secretary and Deputy Secretary of Defense are of interest to more researchers than those of some office under the Assistant Secretary of Defense (Health and Medical). Not surprisingly, lower level records are often examined first because a higher percentage of them can be declassified. Members of the public have suggested a btop down, oldest firstQ policy at numerous meetings and conferences, but it has never been formally endorsed. It is now time to do so. In summary, E.O. 12958 introduced a radically new declassification procedure that initially promised to release vast numbers of records to the public. The procedure was too ambitious, though, and two subsequent executive orders scaled back the requirements of E.O. 12958 and extended the time for agencies and others to comply with them. Notwithstanding this, it cannot be disputed that far more progress has been made in the declassification field in the more than eight years E.O. 12958 and its successors have been in effect than in any other comparable period. The key to ensuring future success is not only defeating unjustified attempts for more exemptions and deadline extensions, but also working to see that adequate resources are committed to this vital task.
Notes 1. It should be noted that the procedures established by executive orders, the Freedom of Information Act (FOIA), and other means to review records for declassification only apply to Executive Branch records. There are no formal procedures established for the declassification review of Legislative or Judicial Branch records.
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2. This work will not discuss the FOIA or the Mandatory Declassification Review (MDR) procedure. These two declassification procedures are initiated by the public and are critical for ensuring the public has a means by which it can attempt to obtain information from the government. However, because neither procedure is designed to handle the declassification review of large numbers of records they are not dealt with here. Similarly, this work will not discuss the limited declassification reviews mandated by such legislation as the Nazi War Crimes Disclosure Act or the Japanese Imperial Government Disclosure Act of 2000. 3. Sections 1.2, 1.5, 1.6, E.O. 13292. 4. 42 United States Code 2011, et seq. 5. Director of Central Intelligence Directive 1/19—Security Policy for Sensitive Compartmented Information, p. 3. This is available on the Federation of American Scientists home page on the World Wide Web: http/:www.fas.org/irp/offdocs/dcid1-19.html. 6. The Atomic Energy Act of 1954 only requires that there be a continuous review of RD and FRD to determine which information may be declassified. It does not require that any types of information actually be declassified and, significantly, does not require that when information is declassified there be any review and declassification of the records containing such information. The records are of course subject to FOIA and MDR requests. The January 2001 Department of Energy publication, Restricted Data Declassification Decisions 1946 to the Present (RDD-7), is available on the Federation of American Scientist’s home page on the World Wide Web: http://www.fas.org/sgp/othergov/doe/index.html. 7. For example, from 1980 to 1982 over 140 million pages were reviewed for declassification and over 100 million pages were declassified. Annual Report to the President, FY 1984 (Washington, D.C.: Information Security Oversight Office, 1985), pp. 16-17. From 1982 to 1995 (the years E.O. 12356 was in effect) fewer than 100 million pages were declassified. Annual Report to the President, FY 1996 (Washington, D.C.: Information Security Oversight Office, 1997), p. 25. 8. Section 3.4, E.O. 12958. 9. Section 2, E.O. 13142. 10. Sections 3.3 and 3.4, E.O. 13292. The order permits agencies once again to apply for exemption of entire file series from automatic declassification on the basis that they contain information that balmost invariably falls within one or more of the exemption categories.Q The order also sets forth several new grounds for extending the automatic declassification date for up to five years, including the fact that the classified records are bmicroforms, motion pictures, audiotapes, videotapes, or comparable media that make a review for possible declassification exemptions more difficult or costly.Q 11. 32 Code of Federal Regulations 2001. 12. 1995 Report to the President (Washington, D.C.: Information Security Oversight Office, 1996), p. 10. 13. These compliance plans were available through ISOO or various informal advisory groups created by the agencies. 14. 1998 Report to the President (Washington, D.C.: Information Security Oversight Office, 1999), p. 5. 15. This agreement is on file at ISOO. 16. 2003 Report to the President (Washington, D.C.: Information Security Oversight Office, 2004), p. 22. 17. Section 3161, Public Law 105-261. The FY 2000 National Defense Authorization Act (Public Law 10665) extended the authority of DOE to re-review records that had been declassified and already made available to the public at the National Archives. At a November 2002 DOE/National Archives meeting, DOE stated that 210 million pages had been withdrawn from public access at the College Park National Archives and that it would not complete re-reviewing these records until 2006. James David is a curator at the Smithsonian’s National Air and Space Museum. He is the author of Conducting Post-World War II National Security Research in Executive Branch Records: A Comprehensive Guide, published by Greenwood Press in 2001. The opinions expressed here do not necessarily represent the views of the National Air and Space Museum or the Smithsonian Institution.
Progress and problems in declassifying U.S. government records James David National Air and Space Museum, Smithsonian Institution, Washington, DC 20560, USA Available online 11 November 2004
Abstract For the first time ever, Executive Order 12958 signed in 1995 established a process to greatly reduce the huge number of classified federal records accumulated since world war II. Although some progress was made under it, subsequent orders and legislation significantly decreased its effectiveness. The U.S. government must take certain actions now to reverse this trend. Published by Elsevier Inc. Keywords: Government records; United States; Declassification
Since World War II, the U.S. government has accumulated a mountain of classified records—literally billions of pages of paper records (textual records) and many thousands of cubic feet of photographs, films, maps, charts, magnetic tapes, hard drives, floppy discs, CDROMS, and other non-textual records. Through the years there have been varying legal authorities under which information that no longer merits protection could be declassified and the records made available to the public for the first time. Until 1995, however, these processes were generally ineffective and few records were opened up. During that year, President Clinton signed Executive Order (E.O.) 12958, which radically changed the declassification procedure. For the first time, there was a requirement to review records for declassification, coupled with serious consequences for inaction—the records would be automatically declassified and opened to the public E-mail address: [email protected]. 1352-0237/$ - see front matter. Published by Elsevier Inc. doi:10.1016/j.jgi.2004.09.002
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beginning in 2000 unless steps had been taken to exempt them. As a result, the Executive Branch began reviewing and declassifying large numbers of records. Most organizations, however, could not meet the obligations and deadlines of E.O. 12958. Subsequent executive orders, therefore, reduced the requirements and extended the deadlines. Legislation has imposed new obligations for re-reviewing records and, at times, has cut the funding available for declassification programs. Not surprisingly, the declassification effort has slowed down considerably as a result.1 This article will first describe the three different types of classified information. It will next discuss the declassification procedure established by E.O. 12958 and the changes to it resulting from later executive orders. Lastly, the article will evaluate the progress and problems in the declassification effort and offer recommendations for improvements.2
1. The three types of classified information There have been three distinct and separate categories of information that have been classified over the years. The first is National Security Information (NSI). The current system of classification of NSI is set forth in E.O. 13292, signed by President Bush in March 2003. It is the latest in a series of executive orders on NSI that date back to World War II. In general conformance with its predecessors, E.O. 13292 preserves the classification of information under predecessor orders and mandates that newly created information in eight broad areas be classified, ranging from bmilitary plans, weapons systems, or operationsQ to bscientific, technological, or economic matters relating to the national security, which includes defense against transnational terrorism.Q The records containing the information are marked Top Secret, Secret, or Confidential, depending on the damage to national security reasonably expected to occur from its unauthorized disclosure. The order continues the provisions of E.O. 12958 that require personnel classifying information to set a date or event within twenty-five years for the automatic declassification of that information. If no such date or event can be determined, the information can be classified between ten and twenty-five years. Agencies can extend the duration of classification under certain circumstances.3 The second category of classified information is that generally relating to nuclear weapons and atomic energy. The original authority in this area was the Atomic Energy Act of 1946, which was superseded by the Atomic Energy Act of 1954. Among other things, this statute mandates information be classified as Restricted Data (RD) if it concerns (1) the design or manufacture of atomic weapons, (2) the production of special nuclear materials, (3) nuclear propulsion of aircraft, spacecraft, and naval vessels. It also requires information be classified as Formerly Restricted Data (FRD) if it concerns the military utilization of nuclear weapons.4 Any information that is classified as RD or FRD is also classified as NSI, but not vice versa. The third category is Sensitive Compartmented Information (SCI), which is information bconcerning or derived from intelligence sources, methods, or analytical processes, which
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is required to be handled with formal access controls established by the Director of Central Intelligence.Q5 It is designated by codewords representing information in a broad area and additional codewords representing more specific types of information under each general area. The codeword themselves are classified, and only in recent years have a few been declassified (for example, bRUFFQ which covers imagery from certain overhead platforms). Just as with RD and FRD, any information classified as SCI is also classified as NSI, but not vice versa.
2. The declassification procedure under E.O. 12958 and recent changes to it For many years after World War II, there was no requirement that the Executive Branch conduct a declassification review of its records. Although some of the early executive orders mandated that a specific date be established for the automatic downgrading of certain types of classified information, these procedures were unevenly implemented and proved ineffective in releasing many records to the public. Executive Order 11652, signed by President Nixon in 1972, required for the first time that all agencies and the National Archives conduct systematic declassification review of their permanent classified records thirty years old and older (fifty years old and older with respect to intelligence records). This provision was continued in President Carter’s E.O. 12065 from 1978. Because the Atomic Energy Act of 1954 has exclusive provisions for the declassification of RD and FRD, neither order applied to RD or FRD and, thus, many classified records did not even fall within their purview.6 Nevertheless, due to the new systematic declassification review requirement, a relatively large volume of records was reviewed for declassification and actually declassified for the first time ever. President Reagan’s E.O. 12356 of 1982, however, eliminated the requirement that agencies (except for the National Archives) conduct systematic declassification review. Not surprisingly, both the amount of records reviewed for declassification and the amount actually declassified dropped significantly. The paltry numbers continued through the thirteen years the order was in effect, and at the end of this period the amount of classified records had grown considerably.7 Executive Order 12958, signed by President Clinton in April 1995, drastically changed the existing declassification procedure. The new order provided in part that all permanent pre-1975 classified agency records and all pre-1975 classified presidential library records would be automatically declassified in April 2000 bwhether or not the records have been reviewed,Q unless they had been exempted. All such post-1975 records were to be automatically declassified twenty-five years after their creation unless they too had been exempted.8 Exemption of individual records could occur after actual review revealed that they contained information that still merited classification, and exemption of entire file series upon application by agencies to the White House. This was the first time an automatic declassification provision had been incorporated
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into an executive order. Finally, there was now a real incentive for agencies and presidential libraries to review their subject records. Executive Order 12958 also required once again that all agencies and the National Archives conduct systematic declassification review of their permanent classified records and presidential libraries of their classified records twenty-five years old and older, regardless of whether the records had been exempted from automatic declassification. Of course, records examined during systematic review that still merited classification under the relevant guidelines remain classified. For all practical purposes, the automatic declassification and systematic declassification review programs are so interrelated that they are one and the same. Because so many agencies and presidential libraries could not complete their work on the subject pre-1975 records by April 2000, extensions of the automatic declassification date were given. Executive Order 13142 from November 1999 basically extended the original date to April 2003.9 President Bush’s E.O. 13292 in turn established the new date of December 31, 2006 for the automatic declassification of all permanent pre-1981 classified agency records and all pre-1981 classified presidential library records, unless they have been exempted after actual review, exempted upon application to the White House, or one of several grounds for extension of this date applies. All such post-1981 records will be automatically declassified 25 years after their creation, unless they too have been exempted after actual examination, exempted upon application to the White House, or a basis for extension applies. The new order also retains the systematic declassification review requirements of E.O. 12958.10 It is important to note that both the automatic declassification and systematic declassification review provisions only apply to agency records that have been appraised as permanent. They do not apply to unappraised or temporary records. (Some agencies have huge numbers of unappraised records at Federal records centers and at the agencies themselves. Although not all will ultimately be appraised as permanent, those that will be will not fall under the purview of the orders until they are actually so appraised.)11 Furthermore, the two procedures only apply to NSI and SCI and not RD and FRD. As a result, massive numbers of records containing RD or FRD of the White House, National Security Council, Department of Energy (DOE) and its predecessors, Central Intelligence Agency, Department of Defense, Department of State, National Aeronautics and Space Administration, and other organizations are not even subject to the executive orders.
3. Progress and problems The progress under E.O. 12958 and the subsequent orders has unfortunately been mixed. There is no question that since 1995 far more records have been declassified than in any other comparable period. This is due in large part to the National Archives, presidential libraries, and selected agencies (the Air Force and Department of State being two notable examples) that have done an outstanding job of locating and reviewing their subject records by the established deadlines. At the same time, other agencies have little
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to show even after the more than eight years the declassification procedures have been in place. A key question upon the signing of E.O. 12958 was how many subject records were there? The Information Security Oversight Office (ISOO), the primary office with oversight responsibility under the order, stated that it could not determine the total figure.12 However, several agencies did furnish estimates in their proposed compliance plans submitted to ISOO in late 1995. Some holdings were small, such as those of the U.S. Information Agency (13 million pages) and the Arms Control and Disarmament Agency (3.2 million pages). Others were huge, including the Department of Defense (1.5 billion pages) and the Central Intelligence Agency (166 million pages).13 Some agencies, including the Federal Bureau of Investigation, never came up with any estimate. Because of the relatively short period in which to provide the proposed compliance plans and the difficulties involved in arriving at the estimates (for example, due to incomplete or nonexistent finding aids or inventories), not all the estimates were accurate. Furthermore, the use of only bpagesQ in quantifying the subject holdings was often erroneous because many permanent classified records are maps, charts, photographs, films, magnetic tapes, and other non-textual records. Lastly, it must be recalled that the executive orders only apply to classified agency records that have been appraised as permanent. The large numbers of unappraised records across the Executive Branch that should be permanent will not be subject to the orders until they are actually so appraised. Sixteen agencies submitted lists of file series they proposed for exemption from automatic declassification. Six withdrew their requests, and the White House in 1999 approved in whole or part the remaining ten lists as follows: (1) Army (27 million pages or 10% of its subject records), (2) Central Intelligence Agency (94.5 million pages or 60% of its subject records), (3) Defense Intelligence Agency (26 million pages or 38% of its subject records), (4) Office of the Secretary of Defense (7.3 million pages or 30% of its subject records), (5) Joint Chiefs of Staff (1.5 million or 17% of its subject records), (6) National Security Agency (27.6 million pages or 38% of its subject records), (7) National Security Council (65,000 pages or 15% of its subject records), (8) National Reconnaissance Office (720,000 pages or 63% of its subject records), (9) President’s Foreign Intelligence Advisory Board (77,5000 pages or 48% of its subject records), (10) Department of State (1.6 million pages or 3.8% of its subject records).14 The most comprehensive exemption, though, was not granted in 1999 but four years earlier. In October 1995, the directors of ISOO and the Federal Bureau of Investigation signed an agreement exempting all of the agency’s records from automatic declassification on the basis that their release would balmost invariably violate the Privacy Act of 1974.Q15 Once again, the use of only bpagesQ in describing the exempted records is incorrect. Undoubtedly, some of the exempted records are non-textual records. As mentioned above, the current executive order permits agencies to propose other specific file series for exemption from automatic declassification at any time up to the date of their automatic declassification. The only available source of information on the progress in the declassification effort is the annual report ISOO prepares and sends to the President. Beginning with the 1996
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report, they have simply set forth the total number of pages declassified for each agency and the National Archives and Records Administration (this presumably covers both the National Archives and presidential libraries). ISOO reports prior to 1996 listed both the number of pages reviewed for declassification and the number of pages actually declassified, which is a much more useful measure. For unknown reasons, however, ISOO discontinued this practice. The ISOO reports disclose that in Fiscal Year (FY) 1996, the Executive Branch declassified 196 million pages, 204 million pages in FY 1997, 193 million pages in FY 1998, 127 million pages in FY 1999, 75 million pages in FY 2000, 100 million pages in FY 2001, 44 million pages in FY 2002, and 43 million pages in FY 2003 (a total of 982 million pages).16 For several reasons, though, the numbers that some individual agencies are credited with in the reports, and thus the totals, do not appear to be entirely accurate. First, it is likely that some agencies are reporting to ISOO the total number of pages reviewed and not the number actually declassified. Second, there is some indication of at least partial duplication between the reported figures for the National Archives and Records Administration and the individual agencies. This would not be surprising, considering the review process at a National Archives. It is quite possible that agency reviewers perform an initial declassification review (because the agency has given no declassification authority to the National Archives) and the National Archives then conducts a subsequent review or processes the records. Both the agency and National Archives in these circumstances can claim credit. Third, the use of bpagesQ as the only standard of measurement is erroneous since some agencies are reviewing and declassifying non-textual records. Even with these qualifications, however, there is no question that the Executive Branch has declassified far more records in the short period E.O. 12958 and the two subsequent orders have been in effect than in any comparable period. Regardless of the exact numbers of records declassified, it is important to note that the public cannot access any declassified records until several steps have been taken. First, declassified agency records that are at Federal records centers or the agencies themselves have to be transferred to a National Archives (neither Federal records centers nor agencies have the mandate nor the resources to make records available to the public). Second, after the records are initially reviewed and declassified, they are subject to a DOE-ordered rereview to prevent the inadvertent release of RD and FRD. The records cannot be made available to the public until the re-review has been performed or the DOE has determined a re-review is unnecessary. The authority for this wide-ranging power is contained in the FY 1999 National Defense Authorization Act, and the plan developed to implement it is commonly referred to as the Kyl Plan.17 The practical effect of this is to increase greatly the time between when records are declassified and when they are actually made available to the public. Third, after the DOE has completed action, National Archives personnel have to process the records before the public can examine them (among other things, this entails withdrawing the still-classified records and preparing bpull cardsQ for them). In short, it can be, and often is, many years between the time a record is declassified under the executive orders and the public obtains access to it.
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4. Improvements in the declassification program There are several changes that should be made in the declassification procedures. At the top of the list is a return to the dual numbers ISOO reported until 1996—one for the total number of records reviewed and the other for the total number of records actually declassified. Furthermore, there should be a separate set of numbers for textual and nontextual records. If classified films are reviewed, for example, this fact should not be reported using bpagesQ as the standard of measurement. The second improvement is that the agencies, National Archives, and presidential libraries should provide brief, publicly accessible annual summaries of what records they have reviewed. One of the most difficult items for the public to learn is what records have been reviewed. For example, have the files of former Secretary of Defense Melvin Laird (in Record Group 330 at the Federal records center in Suitland, Maryland) been reviewed? What files of the National Security Agency (all of which are at the agency) been reviewed? Virtually all the organizations performing reviews maintain databases on what has been looked at, but only in a very few cases are they willing to share these with the public. Along these lines, Section 3.8 of E.O. 12958 mandated that ba Governmentwide database of information that has been declassifiedQ be established, but this was never done. Executive Order 13292 deleted this provision. Notwithstanding this, a requirement that publicly accessible annual summaries be prepared should be adopted by regulation or directive. The third improvement is the adoption of a policy that btop down, oldest firstQ governs declassification review. The most important records to the greatest number of researchers are those of top officials and advisory bodies. For example, the records of the Secretary and Deputy Secretary of Defense are of interest to more researchers than those of some office under the Assistant Secretary of Defense (Health and Medical). Not surprisingly, lower level records are often examined first because a higher percentage of them can be declassified. Members of the public have suggested a btop down, oldest firstQ policy at numerous meetings and conferences, but it has never been formally endorsed. It is now time to do so. In summary, E.O. 12958 introduced a radically new declassification procedure that initially promised to release vast numbers of records to the public. The procedure was too ambitious, though, and two subsequent executive orders scaled back the requirements of E.O. 12958 and extended the time for agencies and others to comply with them. Notwithstanding this, it cannot be disputed that far more progress has been made in the declassification field in the more than eight years E.O. 12958 and its successors have been in effect than in any other comparable period. The key to ensuring future success is not only defeating unjustified attempts for more exemptions and deadline extensions, but also working to see that adequate resources are committed to this vital task.
Notes 1. It should be noted that the procedures established by executive orders, the Freedom of Information Act (FOIA), and other means to review records for declassification only apply to Executive Branch records. There are no formal procedures established for the declassification review of Legislative or Judicial Branch records.
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2. This work will not discuss the FOIA or the Mandatory Declassification Review (MDR) procedure. These two declassification procedures are initiated by the public and are critical for ensuring the public has a means by which it can attempt to obtain information from the government. However, because neither procedure is designed to handle the declassification review of large numbers of records they are not dealt with here. Similarly, this work will not discuss the limited declassification reviews mandated by such legislation as the Nazi War Crimes Disclosure Act or the Japanese Imperial Government Disclosure Act of 2000. 3. Sections 1.2, 1.5, 1.6, E.O. 13292. 4. 42 United States Code 2011, et seq. 5. Director of Central Intelligence Directive 1/19—Security Policy for Sensitive Compartmented Information, p. 3. This is available on the Federation of American Scientists home page on the World Wide Web: http/:www.fas.org/irp/offdocs/dcid1-19.html. 6. The Atomic Energy Act of 1954 only requires that there be a continuous review of RD and FRD to determine which information may be declassified. It does not require that any types of information actually be declassified and, significantly, does not require that when information is declassified there be any review and declassification of the records containing such information. The records are of course subject to FOIA and MDR requests. The January 2001 Department of Energy publication, Restricted Data Declassification Decisions 1946 to the Present (RDD-7), is available on the Federation of American Scientist’s home page on the World Wide Web: http://www.fas.org/sgp/othergov/doe/index.html. 7. For example, from 1980 to 1982 over 140 million pages were reviewed for declassification and over 100 million pages were declassified. Annual Report to the President, FY 1984 (Washington, D.C.: Information Security Oversight Office, 1985), pp. 16-17. From 1982 to 1995 (the years E.O. 12356 was in effect) fewer than 100 million pages were declassified. Annual Report to the President, FY 1996 (Washington, D.C.: Information Security Oversight Office, 1997), p. 25. 8. Section 3.4, E.O. 12958. 9. Section 2, E.O. 13142. 10. Sections 3.3 and 3.4, E.O. 13292. The order permits agencies once again to apply for exemption of entire file series from automatic declassification on the basis that they contain information that balmost invariably falls within one or more of the exemption categories.Q The order also sets forth several new grounds for extending the automatic declassification date for up to five years, including the fact that the classified records are bmicroforms, motion pictures, audiotapes, videotapes, or comparable media that make a review for possible declassification exemptions more difficult or costly.Q 11. 32 Code of Federal Regulations 2001. 12. 1995 Report to the President (Washington, D.C.: Information Security Oversight Office, 1996), p. 10. 13. These compliance plans were available through ISOO or various informal advisory groups created by the agencies. 14. 1998 Report to the President (Washington, D.C.: Information Security Oversight Office, 1999), p. 5. 15. This agreement is on file at ISOO. 16. 2003 Report to the President (Washington, D.C.: Information Security Oversight Office, 2004), p. 22. 17. Section 3161, Public Law 105-261. The FY 2000 National Defense Authorization Act (Public Law 10665) extended the authority of DOE to re-review records that had been declassified and already made available to the public at the National Archives. At a November 2002 DOE/National Archives meeting, DOE stated that 210 million pages had been withdrawn from public access at the College Park National Archives and that it would not complete re-reviewing these records until 2006. James David is a curator at the Smithsonian’s National Air and Space Museum. He is the author of Conducting Post-World War II National Security Research in Executive Branch Records: A Comprehensive Guide, published by Greenwood Press in 2001. The opinions expressed here do not necessarily represent the views of the National Air and Space Museum or the Smithsonian Institution.