SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2014, Issue No. 4
January 14, 2014

Secrecy News Blog: http://blogs.fas.org/secrecy/

DECEMBER 2013 DECLASSIFICATION DEADLINE PASSES-- AND?

In a December 2009 memorandum, President Obama directed the newly established National Declassification Center (NDC) to process an estimated 400 million page backlog of historical records at the National Archives "in a manner that will permit public access to all declassified records from this backlog no later than December 31, 2013."

That December 31 deadline has now come and gone. So what happened? There are conflicting views about that.

The task was successfully completed, NDC Director Sheryl J. Shenberger told her staff in a December 31 email message. "I am delighted to announce your successful retirement of the 352M page backlog [according to the final page count, down from 400 million].... Your work will be directly responsible for providing access to historical records of all types and topics to the American people," she wrote.

But one dissenting observer said that any assertion that the backlog has now been declassified is "an elaborate subterfuge to re-brand failure as success. It is a study in mendacity." The observer noted that a huge chunk of the backlog has not been declassified, and that the majority of it is not accessible to the public in any case.

Beneath these contrasting assessments are disagreements about what the President actually ordered in 2009, what was supposed to be accomplished by the end of 2013, what was accomplished in fact, and what it all means.

The confusion probably stems in part from the wording of the 2009 Presidential memorandum, the relevant section of which was captioned "Declassification of Records of Permanent Historical Value."

Despite that promising title, the memo did not order declassification of any records at all.

Rather, NARA officials said, the presidential memorandum was intended to respond to a very specific problem, which hardly anyone outside of government recognized or was aware of. The problem was that hundreds of millions of pages of records that had already gone through declassification review were not reaching the public shelves, because agencies kept insisting on additional referrals and re-reviews to search for information that may have been missed on previous occasions.

The purpose of the Obama memo, they said, was to stop this endless merry-go-round of declassification review. The memo specified that any further referrals of records for agency review would be justified only in the case of records that could reveal a confidential human source or key design concepts for weapons of mass destruction. And even in those two cases, the follow-on reviews were to be completed by a date certain-- December 31, 2013.

This task appears to have been accomplished by the deadline.

But other things were not done:

Not all of the historical backlog was declassified as a result of the four-year process (especially since no new declassification reviews were performed). As of last June, the NDC was reporting a public release rate of 61% of documents that had completed all processing.

Moreover, not all of the documents in the backlog that were declassified were made accessible to the public. An estimated 128 million pages of records reached the public shelves at the National Archives, though with abbreviated indexing of documents compared to past practice. This was done to expedite the reduction of the backlog, but at a cost to the clarity, coherence and utility of the collections. More than 100 million other pages still require indexing and other archival processing.

This may be disappointing, but it should not be surprising. The notion that all or most of the backlog would be declassified and made available to the public was never a realistic possibility, said William J. Bosanko, Chief Operating Officer at the National Archives.

"That expectation was not aligned with the resources that were brought to bear," he said. Declassification does not equate to public release, he noted, and it could take years just to screen the declassified records for personal privacy information and other data that might be exempt from public release. "If someone doesn't want to see this as a victory, they can find lots of reasons to criticize it."

But he said that the implementation of the President's memo was in fact a remarkable achievement. It constituted a breakthrough in declassification policy because it required agencies to adopt an increased tolerance for risk of inadvertent disclosure of classified information.

Since repeated referrals of records for additional review were now blocked by the Obama policy (except in the two permitted cases), "agencies had no choice but to accept some risk" that information they preferred to withhold would be released, he said.

Even in those cases of backlog records suspected of containing WMD or human source information, reviewers only examined a tiny percentage of the relevant collections, not the entire set, and in all likelihood they missed some records that would have been exempt from disclosure.

"This is the first time that the Administration has accepted some finite risk" of inadvertent disclosure, Mr. Bosanko said. It could therefore represent a long-deferred turning point in declassification policy.

To the extent that agencies are willing (or are compelled) to renounce their claims to review records in which they have an interest (or an "equity"), the declassification process can be streamlined and made somewhat more rational.

Last year, the National Security Staff formally waived its equity in various National Security Council and White House records through the first Clinton Administration, according to a June 2013 notice from the Information Security Oversight Office. Refreshingly, the NSC instructed executive branch declassification reviewers *not* to refer most such records (with some exceptions) back to the White House for additional review.

The National Declassification Center and the CIA hosted a symposium today on Berlin in the Cold War, accompanied by the release of 11,000 pages of newly declassified records which are available online.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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