July 14, 1998
ATTN: Robert J. Nassif
RE: LRM ID: RJN354 ENERGY Conference Document (staff level appeals) on HR 3616 National Defense Authorization Act for Fiscal year 1999
Dear Mr. Murr:
Thank you for the opportunity to comment on the Department of Energy conference document on H.R. 3616, the National Defense Authorization Act for Fiscal Year 1999, on the issue of Inspection of Permanent Records Prior to Declassification, Senate Section 3146. The National Archives and Records Administration (NARA) vehemently opposes this proposed language. The provision will serve to bring cost-effective declassification to a halt, and essentially gut the most critical provision of Executive Order 12958, "Classified National Security Information," which represents the administration's policy on declassification.
Passage of this provision would, in effect, completely nullify E.O. 12958 and place a tremendous declassification review resource burden on all agencies, not simply DOE. Comparatively few classified files outside the Department of Energy, the Nuclear Regulatory Commission, and limited units of the Department of Defense have any likelihood whatsoever of containing Restricted Data (RD) or Formerly Restricted Data (FRD) under the Atomic Energy Act. Experience should be the guiding force, not some unreasonable blanket rule. Agencies have learned and practiced how to anticipate and review these files. For example, agencies should not be required to "eyeball" every page of a box of classified documents dealing with the procurement of combat boots during World War II, nor the millions of other boxes that are just as unlikely to contain RD and FRD.
To require that every classified document in any file be reviewed visually for RD and FRD would be prohibitive in terms of resources. As we attempt to institute risk management principles into our security classification system, such a requirement would be more retrogressive than has ever been practiced since declassification efforts began in earnest in 1972. Without this requirement in the past, there is no evidence that declassification has had any effect on the proliferation of nuclear weapons.
In NARA, alone, there are over 495 million pages that would require page-by-page examination to identify the RD and FRD for review by DOE. NARA does not have the resources to carry out such a review, even if not constrained by the deadline for automatic declassification imposed by E.O. 12958. New classified records will be accessioned at a rate faster than NARA staff can review them. This could result in large amounts of records being automatically declassified under the terms of the Executive Order without any examination whatsoever, possibly leading to the declassification of sensitive information other than RD or FRD. Additionally, vast amounts of declassified records that are not RD or FRD would be indefinitely withheld from release, while the records are screened for RD or FRD. This would prompt an increase in FOIA requests by researchers trying to gain access to records, release of which is delayed by the need to screen every page.
NARA recognizes the importance of protecting RD and FRD information, but believes that this provision is unnecessarily strict. The majority of records series do not contain RD or FRD and it would be a waste of time and resources to screen these files for the possible misfiled document. We would strongly advocate that a risk assessment approach that combines a survey to identify those records series containing potentially exempt information with page-by-page review of only those series so identified is the most cost effective approach. It is also the approach that offers the best means of protecting all sensitive information, not just RD and FRD, while still acting within the spirit of E.O. 12958 to release information as quickly as possible and eliminate the backlog of unnecessarily classified information.
Thank you for the opportunity to comment, and if you have any further questions, please contact John Constance, NARA's Director of Congressional Affairs at (301)713-7340.
JOHN W. CARLIN
Archivist of the United States