SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2016, Issue No. 4
January 11, 2016

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

ISOO DIRECTOR FITZPATRICK MOVES TO NSC

John P. Fitzpatrick, the director of the Information Security Oversight Office (ISOO), left his position at the end of last week to join the National Security Council staff.

As ISOO director for the past four years or so, Mr. Fitzpatrick was responsible for oversight of national security classification and declassification activities government-wide.

"John led ISOO in carrying out the President's programs to improve transparency, openness, and access to information while ensuring that classified national security information is properly protected," wrote David S. Ferriero, Archivist of the United States, in a January 8 notice to employees of the National Archives, where ISOO is housed.

While there remains much to criticize in classification and declassification policy, Mr. Fitzpatrick presided over a four-year decline in original classification activity, such that by 2014 the number of new national security secrets created annually had dropped to the lowest ever reported by ISOO in its 35 year history.

The change in ISOO leadership comes at a delicate moment, since the entire national security classification system is supposed to go through a systematic recalibration, known as the Fundamental Classification Guidance Review, over the next 18 months. This secrecy re-booting process needs to be closely guided and nurtured if it is to yield optimal results.

But Mr. Fitzpatrick is not going very far, geographically or topically.

"Beginning Monday, 11 January, I will join the National Security Council Staff, Executive Office of the President, as Senior Director for Records Access and Information Security Management," he wrote in an email message. "There I will assist the NSC/EOP with a portfolio of federal information security policies for classified and controlled unclassified information (classification, declassification, safeguarding, etc.), the National Industrial Security Program and other related security efforts. I will also direct the staff who preserve, safeguard, review and help release NSC records via FOIA, automatic declassification and the like. It promises to be an exciting challenge."

HOUSE POISED TO PASS FOIA AMENDMENTS

The House of Representatives is expected to approve a new package of amendments to the Freedom of Information Act this week, in a bill known as the FOIA Oversight and Implementation Act of 2015.

The sponsors of the bill said it "would strengthen the Freedom of Information Act (FOIA) to increase transparency and accountability in government, and improve access to government records for citizens. It amends FOIA to provide for more disclosure of records, through both proactive disclosure and limitations on the use of exemptions. [It] also encourages enhanced agency compliance with statutory requirements and improves the FOIA process for both agencies and requesters."

The bill would codify a presumption of openness, limit the application of the exemption for deliberative records, facilitate electronic submission of FOIA requests, strengthen the Office of Government Information Services (the FOIA ombudsman), mandate Inspector General reviews of FOIA processing, and several other steps. Detailed justification for the bill is provided in a January 7 report from the House Committee on Oversight and Government Reform.

The bill was subsequently modified by the House Intelligence Committee to affirm that its provisions would not require the disclosure of properly classified information or of information that "would adversely affect intelligence sources and methods" that are protected. The term "adversely affect" is not defined but is clearly intended to limit disclosure.

Truth be told, the Freedom of Information Act is a strange law that seems engineered to create an unresolvable tension if not a complete stalemate.

The FOIA empowers individual members of the public (including me and you) to impose a legally binding obligation on a government agency. But while there are no limits on the number or type of requests that a requester may submit at no cost, agencies are nominally supposed to accommodate the demand within a fixed period and with fixed resources. And though it only takes minutes to submit a request, the time required by an agency to fulfill even a simple request is much longer. A sophisticated systems analysis is not needed to anticipate the growth of the backlogs that have in fact developed.

In a further conundrum, those agencies that are more responsive to the FOIA process thereby tend to generate more demand. There is little point in submitting a FOIA request to the Defense Intelligence Agency, to pick one example, because they won't produce a substantive response in this decade. But other agencies that do respond faithfully are rewarded-- with more requests.

The best way to untangle and realign these conflicting imperatives is not clear. More proactive disclosure of information might help, or it might simply shift the burden to more specialized and challenging requests. But just encouraging and making it easier to file FOIA requests is probably not the solution.

SEPARATION OF POWERS, AND MORE FROM CRS

The Congressional Research Service departed from its usual focus on current policy and legislative issues to produce a new disquisition on the separation of powers in the U.S. government.

The separation of powers doctrine "is rooted in a political philosophy that aims to keep power from consolidating in any single person or entity, and a key goal of the framers of the Constitution was to establish a governing system that diffused and divided power."

However, the branches do not always act in their own structural interests (as is often the case in congressional oversight of intelligence, for example). "Although each branch has strong incentives to protect its prerogatives, in many cases individual political actors have incentives that run counter to their institutional affiliation. In particular, political actors will often, quite reasonably, place the short-term achievement of substantive policy goals ahead of the long-term preservation of institutional power for their branch of government."

CRS concludes that "the contemporary balance of power between the President, Congress, and the courts is not the same as it was in 1789, and is perhaps not the balance intended or expected by the framers of the Constitution."

In any case, CRS says, "the relative power of the President, Congress, and the courts is not on any specific trajectory. At various times since the ratification of the Constitution, the power of each institution has been at times ascendant and at other times on the decline." See Separation of Powers: An Overview, January 8, 2016:

Other Congressional Research Service reports that were issued last week include the following.

History and Conflict at Malheur National Wildlife Refuge, CRS Insight, January 7, 2016:

Big Data in U.S. Agriculture, January 6, 2016:

Federal Health Centers: An Overview, January 6, 2015:

U.S. Foreign Assistance to Latin America and the Caribbean: Recent Trends and FY2016 Appropriations, January 7, 2016:

Escalating Violence in El Salvador, CRS Insight, January 7, 2016:

Perspectives on Enhanced Interrogation Techniques, January 8, 2016:

Electric Grid Physical Security: Recent Legislation, January 6, 2016:

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

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