Obama Issues Order on Sensitive Information

5 November 2010

President Obama Nov. 4 established a new system for the handling of certain sensitive government documents.

The announcement pledges to replace  “inefficient, confusing patchwork” that ” has resulted in inconsistent marking and safeguarding of documents, led to unclear or unnecessarily restrictive dissemination policies, and created impediments to authorized information sharing. “

“To address these problems, this order establishes a program for managing this information, hereinafter described as Controlled Unclassified Information, that emphasizes the openness and uniformity of Government-wide practice.”

Under the new policy, agencies would use only one term, “Controlled Unclassified Information,”  to describe documents that officials believe should be safeguarded but that are not delicate enough to warrant being classified. That label would replace almost 120 markings that various agencies had developed to protect information.

“The  Executive Order on “Controlled Unclassified Information”  builds on recommendations from open government groups and the findings of the National Security Archive’s 2006 audit of “Pseudo-Secrets” that uncovered 28 different and uncoordinated policies on marking and restricting official unclassified information,” according to an NSA comment.

It continued:

“Over the years, government officials came up with more than 100 creative acronyms like LOU or UCNI or SHSI or SBU to stamp as secret those records that did not qualify for the normal national security classification system,” remarked Tom Blanton, director of the Archive.  “The new Order will bring some much-needed standards and restrictions to this out-of-control bureaucratic process – and help fulfill President Obama’s pledges for a more open government.”

Patrice McDermott, director of the OpenTheGovernment.org coalition, commented that “The [previous] Bush policy and earlier drafts could have created a fourth level of classification. Instead, this Order is a victory for openness, for both our community and the Administration. We applaud the Administration for the time, effort, and thoughtful consideration of input from inside and outside government it took to make this the outcome.”

The Archive carried out in 2006 the first government-wide audit of sensitive-but-unclassified information policies, sparking Congressional hearings on the subject.  At the time, Archive director Blanton testified to the U.S. House of Representative Committee on Government Reform that “We believe the diversity of policies, the ambiguous and incomplete guidelines, the lack of monitoring, and the decentralized administration of information controls on sensitive unclassified information – all of which is evident in our Audit results – means that neither the Congress nor the public can really tell whether these sensitive unclassified information policies are actually working to safeguard our security, or are being abused for administrative convenience or coverup.”

Subsequently, then- Archive general counsel Meredith Fuchs worked with OMB Watch and OpenTheGovernment.org to lead a process of developing policy recommendations for the Presidential transition of 2008-2009, including specific limits on the sensitive-but-unclassified category – limits that now have found official expression in the new Executive Order.

The new policy also won praise from other groups.

A detailed description on a blog run by the Federation of American Scientists stated:

By prohibiting the use of such improvised markings and by adopting a standard CUI marking which is subject to external approval and oversight across the executive branch, the new policy is expected to facilitate information sharing among agencies without fostering new secrecy.

The same report also notes:

Significantly, the executive order on CUI does not create any new authority to withhold information from disclosure.  It limits the use of the CUI marking to information that is already protected by statute, by regulation or by government-wide policy.  Furthermore, it requires agencies to gain the approval of the CUI “Executive Agent” before using the CUI marking on any particular category of information.  And it mandates that all such approved categories are to be made public on an official Registry.

In short, the CUI program seems well-crafted to streamline information handling in the executive branch without creating any new obstacles to public access.

Separately,  Gary D. Bass, Executive Director of OMB Watch, said, “This order creates a fair and public process that acknowledges the need for some information control categories while also making clear the need to limit them. As always, implementation will determine if this policy succeeds or fails.”

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