DROWNING IN A SEA OF FAUX SECRETS: POLICIES ON HANDLING OF CLASSIFIED AND SENSITIVE INFORMATION ======================================================================= HEARING before the SUBCOMMITTEE ON NATIONAL SECURITY, EMERGING THREATS, AND INTERNATIONAL RELATIONS of the COMMITTEE ON GOVERNMENT REFORM HOUSE OF REPRESENTATIVES ONE HUNDRED NINTH CONGRESS SECOND SESSION __________ MARCH 14, 2006 __________ Serial No. 109-167 __________ Printed for the use of the Committee on Government Reform Available via the World Wide Web: http://www.gpoaccess.gov/congress/ index.html http://www.house.gov/reform _____ U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 2006 29-385 PDF For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON GOVERNMENT REFORM TOM DAVIS, Virginia, Chairman CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California DAN BURTON, Indiana TOM LANTOS, California ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois CHRIS CANNON, Utah WM. LACY CLAY, Missouri JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland DARRELL E. ISSA, California LINDA T. SANCHEZ, California JON C. PORTER, Nevada C.A. DUTCH RUPPERSBERGER, Maryland KENNY MARCHANT, Texas BRIAN HIGGINS, New York LYNN A. WESTMORELAND, Georgia ELEANOR HOLMES NORTON, District of PATRICK T. McHENRY, North Carolina Columbia CHARLES W. DENT, Pennsylvania ------ VIRGINIA FOXX, North Carolina BERNARD SANDERS, Vermont JEAN SCHMIDT, Ohio (Independent) ------ ------ David Marin, Staff Director Teresa Austin, Chief Clerk Phil Barnett, Minority Chief of Staff/Chief Counsel Subcommittee on National Security, Emerging Threats, and International Relations CHRISTOPHER SHAYS, Connecticut, Chairman KENNY MARCHANT, Texas DENNIS J. KUCINICH, Ohio DAN BURTON, Indiana TOM LANTOS, California ILEANA ROS-LEHTINEN, Florida BERNARD SANDERS, Vermont JOHN M. McHUGH, New York CAROLYN B. MALONEY, New York STEVEN C. LaTOURETTE, Ohio CHRIS VAN HOLLEN, Maryland TODD RUSSELL PLATTS, Pennsylvania LINDA T. SANCHEZ, California JOHN J. DUNCAN, Jr., Tennessee C.A. DUTCH RUPPERSBERGER, Maryland MICHAEL R. TURNER, Ohio STEPHEN F. LYNCH, Massachusetts JON C. PORTER, Nevada BRIAN HIGGINS, New York CHARLES W. DENT, Pennsylvania Ex Officio TOM DAVIS, Virginia HENRY A. WAXMAN, California Lawrence J. Halloran, Staff Director and Counsel J. Vincent Chase, Chief Investigator Robert A. Briggs, Clerk Anna Laitin, Minority Professional Staff Member C O N T E N T S ---------- Page Hearing held on March 14, 2006................................... 1 Statement of: Blanton, Thomas S., director, National Security Archive, George Washington University, Washington, DC; Anna K. Nelson, distinguished historian in residence, American University, Washington, DC; and Matthew M. Aid, Washington, DC......................................................... 301 Aid, Matthew M........................................... 332 Blanton, Thomas S........................................ 301 Nelson, Anna K........................................... 324 Weinstein, Allen, Archivist of the United States, National Archives and Records Administration; J. William Leonard, Director, Information Security Oversight Office, National Archives and Records Administration; Davi M. D'Agostino, Director, Defense Capabilities and Management, U.S. Government Accountability Office; Robert Rogalski, Acting Deputy Under Secretary of Defense, Counterintelligence and Security, U.S. Department of Defense; and Glenn S. Podonsky, Director, Office of Security and Safety Performance Assurance, U.S. Department of Energy........... 231 D'Agostino, Davi M....................................... 243 Leonard, J. William...................................... 238 Podonsky, Glenn S........................................ 271 Rogalski, Robert......................................... 257 Weinstein, Allen......................................... 231 Letters, statements, etc., submitted for the record by: Aid, Matthew M., Washington, DC, prepared statement of....... 334 Blanton, Thomas S., director, National Security Archive, George Washington University, Washington, DC, prepared statement of............................................... 305 D'Agostino, Davi M., Director, Defense Capabilities and Management, U.S. Government Accountability Office, prepared statement of............................................... 245 Kucinich, Hon. Dennis J., a Representative in Congress from the State of Ohio, prepared statement of................... 17 Leonard, J. William, Director, Information Security Oversight Office, National Archives and Records Administration, prepared statement of...................................... 240 Maloney, Hon. Carolyn B., a Representative in Congress from the State of New York, prepared statement of............... 163 Nelson, Anna K., distinguished historian in residence, American University, Washington, DC, prepared statement of. 327 Platts, Hon. Todd Russell, a Representative in Congress from the State of Pennsylvania, prepared statement of........... 350 Podonsky, Glenn S., Director, Office of Security and Safety Performance Assurance, U.S. Department of Energy, prepared statement of............................................... 272 Rogalski, Robert, Acting Deputy Under Secretary of Defense, Counterintelligence and Security, U.S. Department of Defense, prepared statement of............................. 259 Shays, Hon. Christopher, a Representative in Congress from the State of Connecticut: Prepared statement of.................................... 6 Various reports and letters..............................3, 168 Waxman, Hon. Henry A., a Representative in Congress from the State of California, prepared statement of................. 10 Weinstein, Allen, Archivist of the United States, National Archives and Records Administration, prepared statement of. 234 DROWNING IN A SEA OF FAUX SECRETS: POLICIES ON HANDLING OF CLASSIFIED AND SENSITIVE INFORMATION ---------- TUESDAY, MARCH 14, 2006 House of Representatives, Subcommittee on National Security, Emerging Threats, and International Relations, Committee on Government Reform, Washington, DC. The subcommittee met, pursuant to notice, at 2:04 p.m., in room 2154, Rayburn House Office Building, Hon. Christopher Shays (chairman of the subcommittee) presiding. Present: Representatives Shays, Kucinich, Maloney, Van Hollen, and Waxman. Staff present: Lawrence Halloran, staff director and counsel; J. Vincent Chase, chief investigator; Robert A. Briggs, analyst; Marc LaRoche, intern; Karen Lightfoot, minority communications director/senior policy advisor; David Rapallo, minority chief investigative counsel; Anna Laitin and Andrew Su, minority professional staff members; Earley Green, minority chief clerk; and Jean Gosa, minority assistant clerk. Mr. Shays. A quorum being present, the Subcommittee on National Security, Emerging Threats, and International Relations hearing entitled, ``Drowning in a Sea of Faux Secrets: Policies on Handling of Classified and Sensitive Information,'' is called to order. It has been said, bureaucracies always seek the path of least disclosure. During the cold war, the innate tendency to excessive secrecy was useful against the monolithic threat of Soviet military and industrial espionage. But today, against the polymorphic perils of stateless terrorism, the reflexive concealment of broad categories of official information harms more than enhances national security. Unreformed habits of secrecy blind us to the dispersed shards of information that, if linked, could reveal the enemy's shadowy plans. Recent reports of a secret program to reclassify previously declassified documents reflect the stubborn refusal of many cold warriors to move from the ``need to know'' to the ``need to share'' security paradigm. Operating since 1999, the program culled materials from public archives that had already been viewed, copied, or republished. Claiming the bureaucratic ``equities,'' code for ``turf,'' had been ignored in the rush to declassify, the reclassifiers have taken tens of thousands of pages from the open files in what I would refer to as an arrogant and futile attempt to unwrite history. Many of the documents deal with issues having no current security implications. As a result, obvious non-secrets, like the stunning wrong estimate in 1950 that the Chinese would not enter the Korean War, are once again stamped ``secret.'' This absurd effort to put the toothpaste back into the tube persists, despite the growing consensus supported by testimony before this subcommittee that from 50 to 90 percent of the material currently withheld should not be classified at all. The inbred penchant for over-classification has also spawned a perverse offspring in the form of a vast and rapidly growing body of pseudo-secrets withheld from public view in the name of national and homeland security. As this subcommittee learned in two previous hearings on post-September 11th barriers to information sharing, what is not classified can still be kept from the public through the use of ``Sensitive But Unclassified,'' designated as SBU, designations, like, for instance, ``For Official Use Only,'' [FOUO], or ``Official Use Only,'' [OUO], and there are countless others. The unchecked proliferation of documents bearing these and other access restriction labels is choking what the 9/11 Commission said should be, must be free-flowing pathways for critical information about an adaptable, decentralized foe. After our hearing last year, Mr. Waxman and I asked key cabinet departments how many documents they had shielded with SBU markings over the past 4 years. Claiming the task so burdensome and the numbers so large, they could not even venture an estimate. At the same time, we asked the Government Accountability Office [GAO], to examine policies and procedures on FOUO and OUO documents at the Department of Defense and Energy, respectively. Stamping something ``For Official Use Only'' should only mean someone has determined the information may meet the limited criteria for exemption from automatic public release under the Freedom of Information Act [FOIA]. But increasingly in this security-conscious era, SBU designations are being misused as an unregulated form of ``classification light.'' I am going to digress a second. A case in point: The report from the Department of Homeland Security Inspector General bears this ominous-looking green cover warning recipients the document is ``For Official Use Only.'' The report is an audit of screening done on trucks carrying municipal solid waste from Canada into the United States. It is 18 pages long. The IG was good enough to send along an unclassified summary of what is really an already unclassified FOUO report. This is the summary. It is one page. So our conclusion is apparently there is a great deal the public should never know about Canadian garbage. Can you believe it? [The information referred to follows:] [GRAPHIC] [TIFF OMITTED] T9385.001 [GRAPHIC] [TIFF OMITTED] T9385.002 Mr. Shays. In a report released today, GAO finds a lack of clear standards governing the use of the FOUO and OUO labels. Almost anyone can apply the ``Official Use Only'' restriction and no one can make it go away unless someone happens to request the document under the FOIA, but then they have to know the document exists. Against a rising tide of global terrorism, we are drowning in a sea of our own faux secrets, hiding public information from its real owners, the public, behind spurious FOUO and OUO labels. To right the balance between the public's right to know and countervailing public interest in security and privacy, the habits of secrecy must give way to the culture of shared information. Our discussion today is timely. This is, and I kid you not, Sunshine Week 2006, the second annual observance by organizations and individuals seeking greater openness in government. At the same time, policies and procedures on classification, reclassification, and designation of sensitive but unclassified material appear to be rushing headlong in the opposite direction. We are joined by two panels of highly qualified and knowledgeable witnesses, including the Archivist of the United States. We welcome him. We look forward to all their testimony and to a constructive discussion of what can be done to sustain and enhance the public's access to their information. [The prepared statement of Hon. Christopher Shays follows:] [GRAPHIC] [TIFF OMITTED] T9385.003 [GRAPHIC] [TIFF OMITTED] T9385.004 Mr. Shays. At this time, the chair would acknowledge we have both the ranking member of the full committee and the ranking member of the subcommittee and I would call on the ranking member of the subcommittee if he has a statement. Mr. Kucinich. I do have a statement, but I would more than be willing to defer to the ranking member of our full committee. Please, Mr. Waxman. Mr. Waxman. Well, thank you very much, Mr. Kucinich and Mr. Chairman, for the opportunity to make this opening statement. As Mr. Shays indicated, this week is openness and transparency for government because it is called Sunshine Week. These are the bedrock principles of our democracy. Unfortunately, sunshine rarely penetrates the inside of the Bush administration. They have a penchant for secrecy. It is legendary and the examples are numerous. The Vice President refused to reveal which campaign contributors and energy executives had special access to his energy task force. The President rolled back Reagan-era regulations on the release of Presidential records. The Department of Health and Human Services withheld estimates of the true cost of the Medicare prescription drug legislation. And the Defense Department redacted hundreds of Halliburton overcharges from audits given to the United Nations. This is not a new issue. In September 2004, I released a comprehensive report on secrecy in the Bush administration. The report found that the Nation's open government laws had been repeatedly eroded during the first 4 years of the Bush administration, while laws authorizing secret government action had been systematically expanded. These trends have continued and worsened in the months since I released that report. Last month, researchers discovered that the administration had been secretly removing thousands of previously classified documents that had been publicly available on the shelves of the National Archives. Some of these documents were more than 50 years old and already had been published in books and journals. According to these researchers, one of the documents is a 1948 memorandum regarding delays in implementing Project Ultimate, a CIA program to drop propaganda leaflets out of hot air balloons to the citizens of Eastern Europe, and this memo was published already in a 1996 State Department volume. Yet incredibly, this 58-year-old document has now been removed from the shelves, according to the researchers. There are a lot of questions about the administration's actions to which we don't have the answers. Who oversees this program? Under what legal authority are they operating? And why is the order governing this program evidently still classified? I hope we can begin to get answers to these questions at today's hearing. Another important issue we will consider today is the administration's abuse of designations such as ``Sensitive But Unclassified'' to block the public release of government information. Many of these designations have no basis in statute, no criteria for use, no limitations on who can withhold documents using these designations. Last year, Chairman Shays and I sought documents from three agencies, the Defense Department, State Department, and the Department of Homeland Security, that had been restricted as ``Sensitive But Unclassified'' or ``For Official Use Only.'' To date, we have received none of these documents. It is particularly telling that in their responses, the agencies claimed they had no way to provide such information because they don't keep track of it. As another agency wrote, there is no regulatory or other national policy governing the use of ``For Official Use Only,'' this designation, as opposed to the controls on classified national security information. A year ago, I wrote to Chairman Shays about the abuses of these pseudo- or faux classifications. My letter described specific examples where documents were restricted from public dissemination because they would be embarrassing, not because they would jeopardize national security. Today, we are going to hear from the GAO about the results of its investigation into the management of these types of documents by two agencies, the Department of Energy and the Department of Defense. As GAO will testify, neither of these departments have clear policies regarding the designations and neither has adequate oversight of their use. Mr. Chairman, I have criticized the administration for its secrecy. I have even criticized the Republican Congress for failing to conduct meaningful oversight of the Bush administration. I think that has become a failure to do our constitutional responsibilities. It undermines accountability and it creates a climate in which secrecy flourishes. I think this is a hearing that is very much worth holding and I commend the chairman for calling the hearing. It won't undo the consequences of years of neglect, but I think it is an important step in the right direction and it illustrates how far things have gone, to the point now where it is so absurd that we can no longer ignore this business of classifying, reclassifying, declassifying, re-reclassifying, playing games with classifications, not for national security but simply to keep everybody in the dark, not just the enemies, but our own citizens and people in government itself. So I commend you for holding this hearing and I am pleased that we are going to hear from these witnesses scheduled today who can maybe bring a greater light to the dark spot in the whole issue of openness in government and sunshine. Thank you. Mr. Shays. I thank the gentleman. [The prepared statement of Hon. Henry A. Waxman follows:] [GRAPHIC] [TIFF OMITTED] T9385.005 [GRAPHIC] [TIFF OMITTED] T9385.006 [GRAPHIC] [TIFF OMITTED] T9385.007 [GRAPHIC] [TIFF OMITTED] T9385.008 Mr. Shays. At this time, the chair would recognize Mr. Kucinich, the ranking member of the committee. Mr. Kucinich. Thank you very much, Mr. Chairman. I might note to my good friend, Mr. Waxman, you just mentioned that they reclassified that information about dropping propaganda out of hot air balloons. I think the reason why they reclassified it is that they are still doing it here in Washington. [Laughter.] I want to thank the chairman for holding the third subcommittee hearing on this important oversight issue, and I want to note that this hearing is being held during what American newspaper editors have declared as National Sunshine Week, but it may be that the administration's song will be, ``The Sun Will Come Out Tomorrow,'' not today, so it is imperative that Congress exercises its oversight responsibility and that we hold Federal agencies accountable for the millions of classification and declassification decisions they exercise every day. The results of our review can be measured through a variety of statistics, but in the end, we must ask two fundamental questions. First, do we still have an open government? And second, are we safer as a result of these classification decisions? I think the answer to both questions is no. By any measure, the administration has been classifying documents at a dizzying pace. Under this administration, more agencies have been given authority to classify documents and over 50 new security designations, including ``Sensitive But Unclassified'' and ``For Official Use Only'' have been created. Over 4,000 Federal employees now have original classification authority, and nearly $8 billion a year is spent to classify documents, $8 billion. Meanwhile, declassification has slowed to a crawl. But we must also look at what kind of information this administration is classifying. Is it sensitive, a threat to our national security if released to the public? According to researcher Matthew Aid, thousands of documents from the cold war era have been increasingly removed from the National Archives over the past 7 years and subsequently reclassified. Much of this trove consists of innocuous historical information from the cold war era and is being kept from the public's view. According to the Washington Post, even documents about the Cuban missile crisis, one of the most important events in our Nation's history, are still being denied to historians. It is well past the 25-year limit in which most Federal documents have to be declassified. Declassification is an essential tool to watchdog the actions of our government. For example, documents declassified just last year concern Luis Posada Carriles, a CIA operative involved in the 1976 bombing of a Cubana Airlines flight that killed 73 passengers. They show the complicity and support our government gave to his violent acts. After escaping from a Venezuelan prison in 1985, Posada worked in El Salvador on the Iran-Contra program and he admitted to a string of hotel bombings in Havana and various assassination attempts of Fidel Castro. Last year, Mr. Posada snuck into the United States and is attempting to seek asylum here. Despite requests from both Venezuela and Cuba to extradite him, the Department of Homeland Security has refused to deport him. In effect, the Bush administration--the Bush administration--is harboring an international terrorist, and documents released by the National Security Archives show the full extent of CIA involvement in those operations. If this is how the administration treats so-called historical information, how do you think they treat materials that could inform public policy debates today or protect our Nation against terrorist threats? That is one of the reasons, Mr. Chairman, why I introduced a resolution of inquiry on the Dubai port deal. We want to know how it came about. Maybe the deal is dead, maybe it is not, but the public has a right to know how it came about in the first place and the only way you can do that is to get the public records. In April 2004, only 1 day before Secretary Rice was forced to testify before the 9/11 Commission, the administration suddenly declassified a key memo from former Counterterrorism Chief Richard Clarke to Secretary Rice warning her about the al Qaeda threat and calling for a meeting of principal security heads. Mr. Clarke's memo had been written in January 2001, more than 9 months before the tragic attacks. Let me give you another example. Last week, the Department of Justice released e-mails from David Kris, an Associate Deputy Attorney General with the knowledge of the administration's justifications for its domestic wiretapping program. Mr. Kris argues that the Department's arguments were weak, had a slightly after-the-fact quality to them, and even surmised that they reflected the Vice President's philosophy that the best defense is a good offense. Yet only following a Federal court order and a Freedom of Information lawsuit did the Justice Department search for and release unclassified documents that relate to justification of the eavesdropping program, and after 2\1/2\ months of searching, the Justice Department said it found only some e-mails and transcripts of public interviews with the Attorney General. The rest of the material apparently still remains classified. Finally, a March 3rd Wall Street Journal editorial entitled, ``Open the Iraq Files'' highlights the fact that there are millions of documents captured in Iraq and Afghanistan, collectively referred to as the Harmony Program, which have now been classified. The Harmony Program supposedly contains information about Saddam Hussein's so-called weapons programs, about the Niger uranium connection, and even about Iraq's support of a terrorism program and lists of potential terrorists threats. These documents would undoubtedly better inform the American public and elected officials as we continue to debate our foreign policy in those parts of the world, yet you can bet they won't see any light of day anytime soon. So our Nation is neither safer nor more open. We spend more and more each year to classify documents and declassify fewer and fewer Federal records. Moreover, the Government Accountability Office has told the Congress, and what journalists and historians report to us, is that implementation of classification policy is inconsistent. Training in classification procedures and Freedom of Information policies differ across Federal agencies. Review of classification decisions, supervision of officials, and cross-agency communication are sparse, at best. Mr. Chairman, we need to take another look at the laws and regulations that guide classification policies. I believe the current system is out of control. I hope we can work together in a bipartisan manner to reverse the momentum that we lost. Let us make sure sunshine is present throughout the Federal Government, not just for 1 week, but that it shines forth each and every day. Thank you, and I want to welcome the witnesses, and I have, without objection, various documents that I want to submit into the record. Mr. Shays. I thank the gentleman. [The prepared statement of Hon. Dennis J. 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[GRAPHIC] [TIFF OMITTED] T9385.151 Mr. Shays. At this time, the chair would recognize Mr. Van Hollen. Mr. Van Hollen. Thank you, Mr. Chairman. I want to thank you and Mr. Kucinich for holding these hearings and thank the witnesses for being here. The latest episodes we have seen of the administration scrambling to reclassify information that had been declassified is just the latest sign of an obsession with secrecy over the public interest. I think it is amazing now that an individual working for the government could be criminally liable for providing to a Member of Congress in an unclassified setting a document that had been published by the U.S. Government. That turn of events, it seems to me, shows how we have our policies just turned on their head. I would just like to very briefly read from the 9/11 Commission, which was a bipartisan commission that identified this over-classification problem as a national security problem, where they stated that the security concerns need to be weighed against the cost. ``Current security requirements nurture over-classification and excessive compartmentalization of information among agencies. Each agency's incentive structure opposes sharing, with risks but few rewards for sharing information. No one has to pay the long-term costs of over-classifying information, though these costs, even in literal financial terms, are substantial.'' There are no punishments for not sharing information, and they go on to talk about this issue. It seems to me that from a pure national security perspective, in this day and age where we learned from over- compartmentalization before September 11th the dangers to our national security of people not talking to each other, we should learn the lessons of more sharing of information. Instead, what we have seen is an effort to use the classification system not to hide information from our enemies, but in many cases, to hide embarrassing analyses and facts from the Congress and the American people. So I hope, Mr. Chairman, that we will continue to explore this area. The other thing that, of course, I think, rankles many people is not just the classification process, but the random ad hoc declassification process, where all of a sudden you read that the administration has released classified information selectively for their own political benefit. I mean, we read now in the Valerie Plame case, oh, yes, well, they were able to leak classified information to the press. Why? Because the Vice President has the ability to declassify whenever he decides to declassify something. That breeds cynicism in the system and public distrust. If we think that the administration or any executive branch agency is playing politics with the release of classified information, is playing politics with the classification of information, it will undermine the public's trust in our entire system and breed increasing cynicism, and I think that is what we are seeing, Mr. Chairman. So hopefully, we can begin to shine a little sunshine on this and reverse that cynicism. Thank you. Mr. Shays. I thank the gentleman. At this time, the chair would recognize the gentlelady from New York, Mrs. Maloney. Mrs. Maloney. Again, I want to thank the Subcommittee on National Security for their continued work on really sensitive issues of our country. I want to cite the chairman's efforts on the creation of the 9/11 Commission report and then working with me and many others to author the recommendations into law and to finally pass it. We all understand that classification is necessary. Maintaining access to sensitive information helps ensure the safety of all Americans. No one can argue that. However, over the last few years, a number of us have become very concerned with the dramatic surge in what is being classified and the advent of new pseudo-classifications of information. At the last hearing the subcommittee held on the subject, I held up a poster of a redacted copy of a staff report from the 9/11 Commission. Black ink was practically poured over the whole document. What was amazing about the redactions on this poster were that they clearly covered up public testimony that was available on the Internet. Holding them side to side, we found one redacted line that read, literally--you can't make this stuff up--this was the line: ``This, this, this, and this.'' That was redacted. It was more bad English than sensitive information, and that is our concern here. There is a huge upswing in classified information, a result of more information that needs to be classified or is it just really more convenient to keep it classified? Is information kept classified because it is embarrassing? That is another concern. Or inconvenient? We know that under an Executive order signed by President Clinton, we were able to declassify 864 million documents, but another Executive order by the Bush administration has halted these efforts by allowing officials to classify information even when there is significant doubt that this information needs to be classified. I know that I have had to fight for the release of information held by government. I had a bill in on the Nazi War Crimes Disclosure Act. It has been years since World War II. It became law in 1998 and we really disclosed more information than we have had since the Nuremberg trials, and this was important for us to understand many things, not only our history but now to address informers and security matters in today's troubled times. I am very concerned about the uniformity, the point that my colleague made that some ridiculous items are classified and then some information that may help a political cause, such as the Valerie Plame case, is released. I also am concerned about that there is no review. Say you get a document back, like the 9/11 Commission report that was all redacted. How do we appeal to see if this is really, truly something that should be redacted or not? There is no appeal process. I think that the right of citizens to have access to their government files when this is appropriate helps build strength and support for our democracy. So I want to thank Chairman Shays for holding this hearing and really for his continued work on it. I think it is important. I think it is an important part of our government and I think it does need to be reviewed. I find it infuriating--can I add this? I have constituents who come to me and they have tried to get documents from the EPA or whatever. The document comes back completely redacted. I mean, what kind of response is that? Who do they appeal when it concerns their family farm or their family business? I think this is a serious matter and I appreciate the chairman looking at it. Mr. Shays. I thank the gentlelady from New York. [The prepared statement of Hon. Carolyn B. Maloney follows:] [GRAPHIC] [TIFF OMITTED] T9385.152 [GRAPHIC] [TIFF OMITTED] T9385.153 [GRAPHIC] [TIFF OMITTED] T9385.154 [GRAPHIC] [TIFF OMITTED] T9385.155 Mr. Shays. Let me just take care of a few business items before we swear you in, and thank you all for your patience. I ask unanimous consent that all members of the subcommittee be permitted to place an opening statement in the record and the record remain open for 3 days for that purpose. Without objection, so ordered. I ask further unanimous consent that all witnesses be permitted to include their written statements in the record, and without objection, so ordered. I ask even further unanimous consent that the following be made part of the record: A GAO report titled ``Managing Sensitive Information: Departments of Energy and Defense Policies and Oversight Could Be Improved;'' George Washington University National Security Archive report, ``Pseudo Secrets: Freedom of Information Audit of Sensitive But Unclassified (SBU) Policies in the U.S. Government;'' a letter from Senator Jim Bunning Concerning the improvement of storage of classified information by defense contractors; and finally, a letter from Mr. Lamar Waldron from Marietta, Georgia, concerning the reclassification of government records. Without objection, the reports and correspondence will be made part of the record. [Note.--The GAO report entitled, ``Managing Sensitive Information, Departments of Energy and Defense Policies and Oversight Could be Improved,'' may be found in subcommittee files.] [The information referred to follows:] [GRAPHIC] [TIFF OMITTED] T9385.156 [GRAPHIC] [TIFF OMITTED] T9385.157 [GRAPHIC] [TIFF OMITTED] T9385.158 [GRAPHIC] [TIFF OMITTED] T9385.159 [GRAPHIC] [TIFF OMITTED] T9385.160 [GRAPHIC] [TIFF OMITTED] T9385.161 [GRAPHIC] [TIFF OMITTED] T9385.162 [GRAPHIC] [TIFF OMITTED] T9385.163 [GRAPHIC] [TIFF OMITTED] T9385.164 [GRAPHIC] [TIFF OMITTED] T9385.165 [GRAPHIC] [TIFF OMITTED] T9385.166 [GRAPHIC] [TIFF OMITTED] T9385.167 [GRAPHIC] [TIFF OMITTED] T9385.168 [GRAPHIC] [TIFF OMITTED] T9385.169 [GRAPHIC] [TIFF OMITTED] T9385.170 [GRAPHIC] [TIFF OMITTED] T9385.171 [GRAPHIC] [TIFF OMITTED] T9385.172 [GRAPHIC] [TIFF OMITTED] T9385.173 [GRAPHIC] [TIFF OMITTED] T9385.174 [GRAPHIC] [TIFF OMITTED] T9385.175 [GRAPHIC] [TIFF OMITTED] T9385.176 [GRAPHIC] [TIFF OMITTED] T9385.177 [GRAPHIC] [TIFF OMITTED] T9385.178 [GRAPHIC] [TIFF OMITTED] T9385.179 [GRAPHIC] [TIFF OMITTED] T9385.180 [GRAPHIC] [TIFF OMITTED] T9385.181 [GRAPHIC] [TIFF OMITTED] T9385.182 [GRAPHIC] [TIFF OMITTED] T9385.183 [GRAPHIC] [TIFF OMITTED] T9385.184 [GRAPHIC] [TIFF OMITTED] T9385.185 [GRAPHIC] [TIFF OMITTED] T9385.186 [GRAPHIC] [TIFF OMITTED] T9385.187 [GRAPHIC] [TIFF OMITTED] T9385.188 [GRAPHIC] [TIFF OMITTED] T9385.189 [GRAPHIC] [TIFF OMITTED] T9385.190 [GRAPHIC] [TIFF OMITTED] T9385.191 [GRAPHIC] [TIFF OMITTED] T9385.192 [GRAPHIC] [TIFF OMITTED] T9385.193 [GRAPHIC] [TIFF OMITTED] T9385.194 [GRAPHIC] [TIFF OMITTED] T9385.195 [GRAPHIC] [TIFF OMITTED] T9385.196 [GRAPHIC] [TIFF OMITTED] T9385.197 [GRAPHIC] [TIFF OMITTED] T9385.198 [GRAPHIC] [TIFF OMITTED] T9385.199 [GRAPHIC] [TIFF OMITTED] T9385.200 [GRAPHIC] [TIFF OMITTED] T9385.201 [GRAPHIC] [TIFF OMITTED] T9385.202 [GRAPHIC] [TIFF OMITTED] T9385.203 [GRAPHIC] [TIFF OMITTED] T9385.204 [GRAPHIC] [TIFF OMITTED] T9385.205 [GRAPHIC] [TIFF OMITTED] T9385.206 [GRAPHIC] [TIFF OMITTED] T9385.207 [GRAPHIC] [TIFF OMITTED] T9385.208 [GRAPHIC] [TIFF OMITTED] T9385.209 [GRAPHIC] [TIFF OMITTED] T9385.210 [GRAPHIC] [TIFF OMITTED] T9385.211 [GRAPHIC] [TIFF OMITTED] T9385.212 [GRAPHIC] [TIFF OMITTED] T9385.213 [GRAPHIC] [TIFF OMITTED] T9385.214 [GRAPHIC] [TIFF OMITTED] T9385.215 [GRAPHIC] [TIFF OMITTED] T9385.216 [GRAPHIC] [TIFF OMITTED] T9385.217 [GRAPHIC] [TIFF OMITTED] T9385.218 Mr. Shays. We have two panels today and I will introduce the first panel. We have Professor Allen Weinstein, Archivist of the United States, National Archives and Records Administration; Mr. J. William Leonard, Director, Information Security Oversight Office, National Archives and Records Administration; Ms. Davi M. D'Agostino, Director, Defense Capabilities and Management, U.S. Government Accountability Office; Mr. Robert Rogalski, Acting Deputy Under Secretary of Defense, Counterintelligence and Security, Department of Defense; and Mr. Glenn S. Podonsky, Director, Office of Security and Safety Performance Assurance, U.S. Department of Energy. If all of you would stand, I will swear you in as is our practice. Raise your right hands. [Witnesses sworn.] Mr. Shays. For the record, all the witnesses have responded in the affirmative. We again thank you for your patience in hearing our perspectives. It hopefully will help you sense where we are coming from and the kinds of points that you need to make. As you know, we have a 5-minute rule, but I roll over the clock if you go over. I just don't want you to think you have to stop right at 5, but as close to 5 as you can will be appreciated, and we will start with you, Professor. STATEMENTS OF ALLEN WEINSTEIN, ARCHIVIST OF THE UNITED STATES, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION; J. WILLIAM LEONARD, DIRECTOR, INFORMATION SECURITY OVERSIGHT OFFICE, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION; DAVI M. D'AGOSTINO, DIRECTOR, DEFENSE CAPABILITIES AND MANAGEMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE; ROBERT ROGALSKI, ACTING DEPUTY UNDER SECRETARY OF DEFENSE, COUNTERINTELLIGENCE AND SECURITY, U.S. DEPARTMENT OF DEFENSE; AND GLENN S. PODONSKY, DIRECTOR, OFFICE OF SECURITY AND SAFETY PERFORMANCE ASSURANCE, U.S. DEPARTMENT OF ENERGY STATEMENT OF ALLEN WEINSTEIN Mr. Weinstein. Chairman Shays, Mr. Van Hollen, members of the subcommittee, I wish to thank you for holding this very important hearing today on issues relating to information access restrictions and for inviting me to testify. I am especially pleased to be joined this afternoon as a witness before the subcommittee by my able colleague, Bill Leonard, who heads the Information Security Oversight Office [ISOO], an office within the National Archives and Records Administration. Mr. Chairman, I appreciate the opportunity for Mr. Leonard and myself to share with you and other members of the subcommittee NARA's response to the situation which we have confronted in the past several weeks. In late February, in response to complaints received from a group of historians and researchers regarding agency classification activity which has resulted in a number of historical documents being withdrawn from the open shelves at the National Archives and Records Administration, I began several actions as part of a review of the reclassification of documents. Weeks ago, the Information Security Oversight Office [ISOO], initiated an audit to identify the number of records withdrawn from the open shelves over the past several years, to identify who initiated the withdrawal action, and to identify the authorization and justification for the withdrawal. The audit involves consultation with both affected agencies and with members of the research community. The audit will result in a public report designed to provide the greatest feasible degree of transparency to this classification activity, and the audit will be available within the next 60 days. ISOO will issue annual updates providing insight into any similar activity conducted in the future, and these updates will be included in ISOO's annual report to the President on implementing Executive Order 12958, as amended. Mr. Chairman, these immediate steps on my part were followed by consultations with concerned researchers, after which I announced additional actions as part of the ongoing investigation into the withdrawal of previously declassified records at the Archives. These steps included the imposition of a moratorium on other agency personnel identifying for withdrawal for classification purposes any--I stress any-- declassified records currently on the public shelves at the National Archives until our audit is complete. I also called for a summit with national security agencies involved with these withdrawal efforts. At the summit with Federal agency officials on March 6th, I stressed the commitment of the National Archives to maintain a balanced approach by acknowledging the importance of protecting national security while at the same time recognizing the public interest in having archival records maximally available. I stressed the commitment of the National Archives to continue to work cooperatively with the agencies while urging the agencies to move swiftly on returning documents back to the open shelves when appropriate. I stressed also the need to consider creating a National Declassification Initiative to replace the current agency-centered approach to declassification. This new initiative, the Centralized Declassification Program, would be coordinated by the National Archives. Representatives of the Federal agencies who attended this summit unanimously agreed to support the moratorium on identifying for withdrawal any new material currently on the open shelves at the Archives. They were also supportive in principle of the concept of the National Declassification Initiative. Mr. Chairman and members of the subcommittee, Bill Leonard will provide further details concerning NARA's and specifically ISOO's response to the challenges of implementing our recent directives and proposals. As the Archivist of the United States, however, I am here today to bear witness to the seriousness with which the National Archives treats its responsibilities in this area. At the National Archives, the core goals of our mission statement commit us to preserving and processing records for opening to the public as soon as legally possible and providing prompt, easy, and secure access to our holdings. Mr. Chairman, members of the subcommittee, I place an extremely high value on maintaining public credibility, trust, and respect for the process of classification and the process of declassification, respect which is earned by responsible stewardship, including efforts to ensure that no information--I stress, no information--is withheld unnecessarily. Thank you, Mr. Chairman and members of the subcommittee, for your time and attention. Mr. Shays. Thank you, and let me take this opportunity to thank you for all of your good work. Mr. Weinstein. Thank you. Mr. Shays. Thank you, sir. [The prepared statement of Mr. Weinstein follows:] [GRAPHIC] [TIFF OMITTED] T9385.219 [GRAPHIC] [TIFF OMITTED] T9385.220 [GRAPHIC] [TIFF OMITTED] T9385.221 [GRAPHIC] [TIFF OMITTED] T9385.222 Mr. Shays. Mr. Leonard. STATEMENT OF J. WILLIAM LEONARD Mr. Leonard. Thank you, Mr. Chairman, Mr. Waxman, Mr. Van Hollen, other members of the subcommittee. I want to thank you for holding this hearing this afternoon on issues relating to information access restrictions as well as for inviting me to testify today. The classification system and its ability to restrict the dissemination of information, the unauthorized disclosure of which would cause harm to our Nation, its citizens, and our institutions, represent the fundamental tool at the government's disposal to provide for the common defense. The ability to surprise and deceive the enemy can spell the difference between success and failure on the battlefield. Similarly, it is nearly impossible for our intelligence services to recruit human sources, who often risk their lives aiding our country, which obtain assistance from other countries' intelligence services, unless such sources can be assured complete and total confidentiality. Likewise, certain intelligence methods can work only if the adversary is unaware of their existence. Finally, the successful discourse between nations often depends upon constructive ambiguity and plausible deniability as the only way to balance competing and divergent national interests. As with any tool, the classification system is subject to misuse and misapplication. When information is improperly declassified or is not classified in the first place, although clearly warranted, our citizens, our democratic institutions, our homeland security, our interactions with foreign nations can be subject to potential harm. Conversely, too much classification, or the failure to declassify information as soon as it no longer satisfies the standards for continued classification, or inappropriate reclassification, unnecessarily obstructs effective information sharing and impedes an informed citizenry, the hallmark of our democratic form of government. In the final analysis, inappropriate classification activity of any nature undermines the integrity of the entire process and diminishes the effectiveness of this critical national security tool. Consequently, inappropriate classification or declassification puts today's most sensitive secrets at needless increased risk. Recent attention focused on withdrawal of previously declassified records from the open shelves of the National Archives exemplifies how the classification system can be misapplied. While an audit of this activity by my office is still underway and I do not want to presuppose final results, at this time, we see the need to address a number of issues that I have outlined in detail in my written statement. In response to these challenges, I am pleased to report that the principal agencies involved in conducting classification reviews of records accessioned into the National Archives have agreed in principle to create a pilot National Declassification Initiative with the objective of more effectively integrating the work they are doing in this area. This initiative is intended to address the policies, procedures, structure, and resources needed to create a more reliable executive branch-wide declassification program. While the details of this proposal need to be further developed and implemented during the weeks and months to come, I do anticipate significant progress in this area. As Director of ISOO, I believe the keys to success of a National Declassification Initiative are to ensure that it has the authority, the expertise, and the resources to ensure that decisions to either declassify or to continue the classification of historically valuable permanent records of the Federal Government are appropriate and reflect the best informed judgment of all parties. There are a number of examples where a concerted executive branch-wide approach has worked in the past. Furthermore, I believe that a National Declassification Initiative could assist in the development of standardized guidelines and protocols, provide a forum for agencies to better understand the various dynamics entailed in assessing and determining the appropriate action to take following a declassification review, and assure greater consistency in results. This initiative, representing a confederation of existing agency authorities, expertise, and resources, could also help fill critical training voids for agency personnel involved in declassification reviews. Ideally, we would eventually streamline the multiple independent agency reviews of the same material and therefore be substantively more efficient and effective than the current declassification review process. Again, I thank you for inviting me here today, Mr. Chairman, and would be happy to answer any questions you may have. Mr. Shays. Thank you very much. [The prepared statement of Mr. Leonard follows:] [GRAPHIC] [TIFF OMITTED] T9385.223 [GRAPHIC] [TIFF OMITTED] T9385.224 [GRAPHIC] [TIFF OMITTED] T9385.225 Mr. Shays. Ms. D'Agostino. STATEMENT OF DAVI M. D'AGOSTINO Ms. D'Agostino. Good afternoon, Mr. Chairman and members of the subcommittee. I am pleased to be here today before you to discuss GAO's work on how the Departments of Energy and Defense, DOE and DOD, manage information that is unclassified but sensitive. DOE and DOD use the designations, as you mentioned, Mr. Chairman, OUO and FOUO, respectively, to refer to this information. My testimony is based on our report that you released today here at this hearing on managing sensitive information at those Departments. Those Department base their programs, in large part, on the exemptions under the Freedom of Information Act [FOIA], that deal with information that is not national security classified but otherwise may be exempt from public release. In this report, we reviewed the policies, procedures, and criteria the Departments use to manage OUO and FOUO information. We also looked at the Departments' training and oversight programs related to this and determined the extent to which those programs provide assurances that personnel properly identify and mark information. In summary, DOE and DOD both have policies in place to implement their programs, but our analysis of these policies showed a lack of clarity in some key areas that could lead to inconsistencies and errors. First, DOD policies remain unclear as to which office is in charge of DOD's FOUO programs, since responsibilities shifted in October 1998 to what is now the Under Secretary of Defense for Intelligence. DOD officials have told us that at the end of January 2006, they started to coordinate a revised regulation that will emphasize management of the FOUO program. Second, unlike DOE requirements, DOD policies do not require staff marking a document to note the FOIA exemptions used as a basis for designating it FOUO. In our view, if DOD required personnel to take the extra step of including the reason they are marking the document FOUO at the time they create it, it would help ensure that the personnel has made a thoughtful determination and improve the oversight of the program. Third, both Departments' policies are unclear regarding what point a document should be marked as OUO or FOUO. If a document might contain such information but is not marked when it is created, you run the risk that the document might be mishandled and that risk increases. Fourth, neither Departments' policies identify what would be an inappropriate use of the FOUO or OUO designation. Without such guidance, the Departments cannot be confident that their personnel will not use these markings to conceal mismanagement, inefficiencies, or administrative errors, or to prevent embarrassment. Finally, neither Department has an agency-wide requirement that personnel be trained before they designate documents as OUO or FOUO, nor do they conduct oversight to ensure that information is appropriately identified and marked. Without training or oversight, neither Department can assure itself that personnel are complying with their own policies. We recommended that both Departments clarify their policies and guidance in these areas and establish training and oversight systems to conduct oversight periodically. DOE and DOD agreed with most of our recommendations in their comments on our draft report. DOD did disagree that personnel designating a document as FOUO should also mark the document with the FOIA exemption or the reason that may apply. We continue to believe this recommendation has merit because it would cause personnel to make a more thoughtful determination before marking the document, and since it is provisional, it would not prejudice a separate independent decision to release or deny the release of a document under a FOIA request. In closing, the lack of clear policies and effective training and oversight in DOE's and DOD's programs could result in over- and under-protection of unclassified yet sensitive government documents. Having clear policies and procedures in place can mitigate the risk of program mismanagement and help the Departments assure the OUO-FOUO information is appropriately marked and handled. Mr. Chairman, members of the subcommittee, this concludes my oral statement. I would be happy to respond to any questions. Mr. Shays. Thank you. There will be questions. Thank you so much. [The prepared statement of Ms. D'Agostino follows:] [GRAPHIC] [TIFF OMITTED] T9385.226 [GRAPHIC] [TIFF OMITTED] T9385.227 [GRAPHIC] [TIFF OMITTED] T9385.228 [GRAPHIC] [TIFF OMITTED] T9385.229 [GRAPHIC] [TIFF OMITTED] T9385.230 [GRAPHIC] [TIFF OMITTED] T9385.231 [GRAPHIC] [TIFF OMITTED] T9385.232 [GRAPHIC] [TIFF OMITTED] T9385.233 [GRAPHIC] [TIFF OMITTED] T9385.234 [GRAPHIC] [TIFF OMITTED] T9385.235 [GRAPHIC] [TIFF OMITTED] T9385.236 [GRAPHIC] [TIFF OMITTED] T9385.237 Mr. Shays. Mr. Rogalski. STATEMENT OF ROBERT ROGALSKI Mr. Rogalski. Good afternoon, Chairman Shays and distinguished members of the subcommittee. I appreciate the opportunity to meet with you today to discuss how DOD handles both classified and sensitive information. Within DOD, my office is responsible for developing policies that address both controlled unclassified information, which we refer to as CUI, and classified national security information. This responsibility is executed on behalf of the Secretary of Defense and the Under Secretary of Defense for Intelligence, two of the Department's designated senior agency officials in accordance with Executive Order 12958, as amended, Classified National Security Information. As I stated earlier, the Department uses a generic term, controlled unclassified information, to refer to all unclassified information that has been determined to require, for various reasons, some type of protection or control. CUI markings such as FOUO serve to inform DOD personnel that the information may qualify for withholding from public release and require some degree of safeguarding. It does not mean it is automatically withheld. It must first go through a review process before a release or denial determination is made. We agree with the GAO that there are areas where our FOUO program could be strengthened. As they have recommended, we are updating our CUI policy on how we handle FOUO and are improving training within the Department. Classification of national security information is, of course, more of a challenge because of the balance that must take place between the need for proper safeguarding and the need for openness that is fundamental to our society. While we understand the need for openness, we also have a responsibility to the American public to protect information that ensures our continued freedom. We in the Department also have the added challenge of ensuring sound classification principles are applied in a high-tempo operational environment. We may sometimes take a more conservative approach to classification so as not to endanger personnel and operations. That is why the Department is committed to ensuring that our classifiers take their responsibilities seriously, are well trained, and are accountable for their actions. There are a number of things the Department has done to clarify and emphasize classification management. The Secretary of Defense and the Under Secretary of Defense for Intelligence have both conveyed their personnel commitment to a strong information security program. Classification authorities have been reminded of their responsibility to properly classify information. Training requirements have been issued, and positions requiring original classification authority are subject to continuous review with the goal of reducing those positions. Additionally, since fiscal year 2004, DOD has reduced original classification decisions approximately 33 percent. The DOD Director of Security meets quarterly with senior security personnel from the military departments, defense agencies, and combatant command and emphasizes, among other things, their responsibility to have a strong classification management program. The Defense Security Service Academy is working on new training courses to enhance classification and declassification, to include computer-based training that will be more accessible to a larger audience. We just conducted a DOD-wide security managers' conference last week where we were able to convey to an audience of approximately 800 DOD security professionals updates and reminders on classification management and CUI policies that they will take back to their organizations. I would like to add that we support the National Archives on recent actions that have been taken with regard to the declassification effort. We support the moratorium on pulling records off the open shelves until ISOO completes their audit. We also support establishing a standard protocol for pulling records. We believe establishing a National Declassification Center will facilitate uniform declassification decisions. Obviously, authorities and resources will need to be addressed. In closing, the Department has solid policies in place that are relevant and upon which we can continue to build. We have accomplished much to bring education and emphasis to important classification management issues to reduce over-classification. We will reemphasize current markings and review of CUI-FOUO. The Department takes its responsibility to protect information very seriously and strives to achieve the right balance between proper safeguarding and the need for openness in our democracy. Again, I thank you for the opportunity to brief you on the Department's policies and look forward to the discussion on this important topic. Mr. Shays. Thank you, sir. [The prepared statement of Mr. Rogalski follows:] [GRAPHIC] [TIFF OMITTED] T9385.238 [GRAPHIC] [TIFF OMITTED] T9385.239 [GRAPHIC] [TIFF OMITTED] T9385.240 [GRAPHIC] [TIFF OMITTED] T9385.241 [GRAPHIC] [TIFF OMITTED] T9385.242 [GRAPHIC] [TIFF OMITTED] T9385.243 [GRAPHIC] [TIFF OMITTED] T9385.244 [GRAPHIC] [TIFF OMITTED] T9385.245 [GRAPHIC] [TIFF OMITTED] T9385.246 [GRAPHIC] [TIFF OMITTED] T9385.247 [GRAPHIC] [TIFF OMITTED] T9385.248 Mr. Shays. Mr. Podonsky. STATEMENT OF GLENN S. PODONSKY Mr. Podonsky. Thank you, Mr. Chairman and members of the subcommittee, for inviting me to testify regarding the Department of Energy's policies and practices for the protection of sensitive unclassified information as they relate to the information contained in the GAO report, ``Managing Sensitive Information: Departments of Energy and Defense Policies and Oversight Could Be Improved.'' Classified and other sensitive information are among the national security-related assets in our custody that we protect in accordance with the requirements of law, regulations, and national policies. After reviewing the GAO report, the Department agrees with all of the findings contained. They were accurate and we concur that the report's recommendations should be implemented. Before I discuss issues of specific interest to this subcommittee, I would briefly like to describe my office's responsibilities in this area. Our Federal and contractor-line managers at all levels of the Department are responsible for ensuring that our information is properly protected. My office has a broad range of responsibilities associated with protecting information within the Department. These include developing Department-wide information protection policies addressing the identification, marking, and protection of classified information and the various categories of sensitive unclassified information; conducting formal document control training; providing technical assistance to sites to improve their information protection programs; and providing independent oversight to assess the effectiveness of the information protection programs throughout the Department. In 2003, as a direct result of the recommendation by the Commission on Science and Security, known as the Hamre Report, the Department established its first agency-wide process for identifying and protecting sensitive information that we call ``Official Use Only,'' [OUO]. This information is defined as classified information that has the potential to damage governmental, commercial, or private interests and which may be exempt from public release under the FOIA. The purpose of our OUO program is to provide a means to control sensitive unclassified information and protect it from inappropriate disclosure; limit information protected from disclosure to that which is legally exempt under FOIA; provide guidance for consistent and accurate identification of OUO information; standardize the identification, marking, and protection of OUO information; and facilitate the appropriate sharing of unclassified information. Access to OUO information is not overly restrictive. OUO information may be provided to individuals inside or outside the Department that need the information to perform their job or other DOE-authorized activity. Since OUO information is not classified, a security clearance is not required. The only requirement is a need to know. Overall, our OUO program is intended to provide a formal, workable process to identify, control, and protect certain sensitive unclassified information while making that information readily available for legitimate use. We believe our program will be even more effective with the implementation of the GAO recommendations contained in their report. As previously stated, we found that the report was a fair evaluation of the Department of Energy's program and the findings to be accurate as well as useful. In response to the GAO report, we are revising our order and manual to define inappropriate uses of OUO designation. We are revising our program directives to require specific initial and refresher training, clearly identify the scope and content of that training, and assign responsibilities for ensuring that the training is developed and conducted. We are developing a process to evaluate the identification, marking, and protection of OUO information and incorporate that process into our independent oversight program. We are also modifying our policy directives to require the incorporation of similar evaluations into line management, field oversight, and local self- assessment activities. Turning just for a moment to our congressionally mandated effort to review documents released to the National Archives by other agencies under the Atomic Energy Act. The Department of Energy controls the dissemination and declassification of restricted data, which can be defined as nuclear weapon design, nuclear material production, and naval reactor information, loosely. We have dual responsibility with the Department of Defense for formerly restricted data, which is information concerning the military utilization of nuclear weapons. During our review of records at NARA, we have never reclassified information that was declassified. The restricted data and formerly restricted data information that we found was classified at the time of the Executive Order 12958, classified national security information when it was issued, and remains classified. We have ensured that these documents are properly marked and protected as restricted data or formerly restricted data. In conclusion, Mr. Chairman, we want to assure you and the members of the subcommittee, the Department strives to protect all sensitive information in our possession as required and permitted by applicable laws, regulations, and Executive orders. Our OUO program is designed to provide a reasonable level of protection to sensitive unclassified information while still accommodating our own and others' needs to use that information to conduct business and to address the legitimate and recognized needs of the public to have access to that information. We believe our responses to the GAO recommendations will strengthen our program's ability to achieve those goals. Thank you. Mr. Shays. Thank you, gentlemen. [The prepared statement of Mr. Podonsky follows:] [GRAPHIC] [TIFF OMITTED] T9385.249 [GRAPHIC] [TIFF OMITTED] T9385.250 [GRAPHIC] [TIFF OMITTED] T9385.251 [GRAPHIC] [TIFF OMITTED] T9385.252 [GRAPHIC] [TIFF OMITTED] T9385.253 [GRAPHIC] [TIFF OMITTED] T9385.254 [GRAPHIC] [TIFF OMITTED] T9385.255 [GRAPHIC] [TIFF OMITTED] T9385.256 Mr. Shays. I am going to call on Mr. Waxman first, with the concurrence of Mr. Kucinich, but I just want to say for the record, I think we have a huge problem and I will be looking to you all to help us figure out how we get headed in what I would call the right direction. So I would like to come out of this knowing what we could be doing about it. At this time, the chair would call on Mr. Waxman. Mr. Waxman, you will have the floor for 10 minutes. Mr. Waxman. Thank you very much, Mr. Chairman. I want to focus my questions on the allegations of researchers who claim that the administration has been secretly removing documents from the National Archives that have already been declassified. Mr. Weinstein and Mr. Leonard, can you help us understand what is going on here? What agency is in charge of this program today? Mr. Weinstein. That is a difficult question to answer. Let me explain why, Mr. Waxman. There has been speculation about the National Archives having secret agreements with various, multiple Federal agencies authorizing the re-review of declassified documents. I would like to clarify for the record that to the best of the knowledge of the Archivist, NARA has one classified Memorandum of Agreement pertaining to the issue of re-review, one. The Memorandum of Agreement [MOA], is with a component of the Department of Defense and remains classified. The MOA is procedural in nature and deals with such things as proper archival procedures for handling accessioned records, recording any decisions made by the agency, and ensuring that the records are managed according to NARA requirements, and I cannot say anything more about the MOA, which gets to the heart of your question, I am afraid, in an open session because it contains classified information. Mr. Waxman. So what---- Mr. Shays. Are you sure it is actually sensitive information? Mr. Weinstein. I was told classified, Mr. Chairman. Mr. Waxman. Therefore, would one assume it is the Department of Defense that is taking the action, since that is the only group you have a Memorandum of Understanding? Mr. Weinstein. As I recall your question, it went to the heart of who was in charge of this process. Mr. Waxman. Who are the agencies in charge of the program, the whole process of reclassifying these documents? Mr. Weinstein. That is what this audit is determined to find out, and if you can bear with us until the audit is completed, I think we will have an answer that will---- Mr. Waxman. So we don't know who it is, but can you tell us what authority they are operating under to pull these documents from the shelves? These documents were already declassified. What authority do they have to do this? Mr. Leonard. Just to buildupon what Professor Weinstein indicated, in addition to the Department of Defense activity, Mr. Podonsky indicated that the Department of Energy has been conducting re-review of material at the National Archives since the late 1990's, as well as on occasion the Central Intelligence Agency has done it, as well, too. If there is a common thread, this does not address every-- -- Mr. Waxman. Let me ask the question---- Mr. Leonard. Sure. Mr. Waxman [continuing]. And then we will see if you have a direct answer to the question, and if you don't, why. We don't know exactly who is doing this and you have not been able to respond to us under what authority they are doing it. Mr. Leonard. I was just about to get to that, Mr. Waxman. Mr. Waxman. OK. Mr. Leonard. The authority that they are doing it under is under the framework of the Executive order. Only agencies that have originated the information have the authority to declassify it. So one of the most common situations that has arisen is where, for example, if an agency declassifies its own records but it contains information that belongs to another agency and they did not afford that other agency the opportunity to review those records prior to the declassification action, pursuant to the order, that is not classification under proper authority, and so---- Mr. Waxman. So this isn't pursuant to a Memorandum of Understanding with the National Archives. It is pursuant to an Executive order? Mr. Leonard. Yes, sir. Mr. Waxman. OK. Now, it is hard to still, even with that explanation, understand how these examples we have of records from 50 years ago would be changed---- Mr. Leonard. The simple answer is they don't. The exemplars that were provided to my office early this year as well as that has received coverage in the press, those exemplars clearly do not adhere to the classification standards of the order and are inappropriate---- Mr. Waxman. Well, let me---- Mr. Leonard [continuing]. And--I am sorry---- Mr. Waxman [continuing]. Turn to the questions I have about the audit itself that you are going to be doing. Mr. Weinstein. Congressman, could I respond just a half-a- second to that? Mr. Waxman. Yes. Mr. Weinstein. In response to Mr. Leonard's advice that he has just given to you, to me, and in response to the situation, I took the actions which I took, which were based obviously on the fact that I could see no sensible use in classifying things that are 50 years old that have already been declassified. Mr. Waxman. Well, you called a halt to any further removal of documents while you conduct your audit, is that right? Mr. Weinstein. Yes, that is correct. Mr. Waxman. What was it that led you to decide to take this measure? Why did you conclude that these agencies should stop what they are doing until you examined their actions? Mr. Weinstein. Well, to begin with, Congressman, I wasn't aware of their actions and it was important for me to become aware of those actions. I learned about their actions from the New York Times, the way the American public did. Having been Archivist for a year, that struck me as being a rather impossible and absurd way to learn to know what is happening at your own agency and I acted immediately. Mr. Waxman. So you acted immediately and you stopped any removal of documents, and I am certainly pleased you are investigating the matter. Researchers are saying that there is an interagency memorandum and the only one that you are aware of is the one that the National Archives has with the Department of Defense? Mr. Weinstein. Component of the Department of Defense, yes, sir. Mr. Waxman. And what does that Memorandum of Understanding say? Mr. Weinstein. Well, as I indicated, Congressman, I would be happy to discuss this in a closed session, but unfortunately, for this discussion, it contains classified information which I am not prepared to discuss in open session. Mr. Waxman. And why is it classified? Mr. Weinstein. Pardon? Mr. Waxman. Why is it classified? Mr. Weinstein. Why is it classified? Mr. Waxman. Yes. Mr. Weinstein. I don't know. Mr. Waxman. Is there something in the Memorandum of Understanding itself that will harm national security if it gets out? Mr. Weinstein. I think I probably have to stand by my previous answer, Congressman. Mr. Waxman. That you can't say that in open session. Mr. Weinstein. I would be happy to discuss it in a closed session. Mr. Waxman. Has there been any discussion within the administration about declassifying this Memorandum of Understanding, if you know? Mr. Weinstein. That I know of? Yes, I would say there has been. Mr. Waxman. And who wanted the MOU released and who didn't want it released? Mr. Weinstein. Let me say that if it was released, I would have no trouble in conveying it, and that is as far as I would go on that square. Mr. Waxman. Does the MOU include any mechanisms to check against officials making these absurd classification decisions? Mr. Weinstein. That is tough for me to answer, Congressman, as you might appreciate given what I said previously. Mr. Waxman. Mr. Chairman, given these responses and since so many of the details about this program remain classified, we are left with some significant questions. I would like to make two requests. First, Mr. Chairman, would the subcommittee send a request for the classified MOU that governs this program? And second, could the subcommittee also request a classified briefing on this program with all the relevant agencies to obtain answers to these pressing questions? Mr. Shays. That will happen. We will do that. It makes sense. I am almost tempted to just tell my counsel, respond in a way, as well, because I am finding this--I don't know, Mr. Weinstein, if part of your answers are almost the exact kind of problem that we are trying to make in this hearing. Is the reason why some information isn't being responded to Mr. Waxman because they would embarrass people or is there a legitimate reason to classify or to suggest that this can't be said publicly? Mr. Waxman. He's caught in a catch-22 because---- Mr. Shays. I know he is, but in a way, the bottom line is, there is almost an absurdity of going into having a classified hearing about something that is sensitive but unclassified. Mr. Waxman. But the MOU is presumably classified. Mr. Weinstein. Yes, sir. Mr. Waxman. So we want to get, one, a copy of the MOU---- Mr. Shays. Right. Mr. Waxman [continuing]. And I hope you support that request---- Mr. Shays. Yes. Mr. Waxman [continuing]. And second, we ought to get a classified briefing on this program, this whole program, because it is not just based on the MOU, but it seems to be based on some Executive order and all other agencies are involved---- Mr. Shays. Let me---- Mr. Waxman [continuing]. And we ought to see what is so pressing that---- Mr. Shays. I am going to start first to ask that it be declassified, that we can have it in a public setting. If it can't be declassified, then we will have a classified setting hearing. But you can be assured that there is going to have to be some real justification as to why it needs to be classified. Are you comfortable with that? Mr. Waxman. With your request that it be declassified and given to us, and if that is refused, you will request that it be given to us even though it is classified and hold a classified hearing on it. Mr. Shays. Right--no--yes--[laughter]--let me explain what I am asking. I am asking my staff to do this as counsel or someone with legal expertise because I find some of this almost silly and absurd. I find some of this destructive to our country, and I think what Mr. Waxman wants is very, very important, but I don't want to start doing the very thing that I am finding others doing. I don't want to start to suggest that some things need to be behind closed doors when, in fact, maybe they shouldn't be, and so that is what I am wrestling with. Mr. Halloran. Thank you, Mr. Chairman. For the record, to the Archivist, will the Archives provide the subcommittee under classified cover a copy of the Memorandum of Understanding, of Agreement? Mr. Weinstein. It is my understanding that is entirely appropriate, but I would like to turn to my counsel, if I may, just to be sure that I am not misstating anything here. [Pause.] Mr. Weinstein. One of the things about not being a lawyer, counselor, is one has to consult. The classifying authority, I have been told, is with the classifying agency, which would have to authorize the--without further action by the subcommittee, the release of the classified Memorandum of Agreement. Mr. Halloran. But you can't tell us to whom such a request would be directed? Mr. Weinstein. I suppose what we would do would be to convey your request to the classifying agency and try to get an immediate response so that we can accommodate the subcommittee. Mr. Leonard. Again, it is a Department of Defense component, so it makes it very easy. Mr. Waxman. So the classified agency is a Department of Defense component, is that---- Mr. Weinstein. That is what I said in my statement. Mr. Rogalski. Mr. Chairman, the MOU does belong to the Department of Defense in conjunction with NARA. We have received a FOIA request for that MOU. We are looking at that now to see if it can be sanitized. But let me assure you that the rationale for classifying that was done in accordance with what the Executive order determined by the original classification authority. So we certainly have no objection to providing you a classified briefing on that MOA. We do not have a problem and we are going through the process of seeing can it be sanitized now and being presented to you in an open forum. So that is happening as we speak. But again, I want to assure you that the basis for the classification, again, in my opinion, after reviewing that, was sound and between NARA and us. We can provide that to you. Mr. Shays. So the bottom line you are stating is that it was your recommendation that it be classified, or, excuse me, that you concurred with the recommendation of others that it be classified? Mr. Rogalski. My office concurred with the classification decision done by the original classification authority responsible for that document, that is correct. Mr. Shays. And you think it would be unlikely that if we asked that it be reviewed to be declassified, it would be unlikely it would be declassified? Mr. Rogalski. We can certainly review that and determine but I don't want to give you a document with all black lines on it, redacted. Mr. Shays. No---- Mr. Rogalski. I want to give you something that is beneficial---- Mr. Shays. And we don't want a sanitized version. We want the real thing and we will do it---- Mr. Waxman. Mr. Chairman, let us get both, because it may take them too long to figure out how to---- Mr. Shays. OK. Mr. Rogalski. And we have no problem briefing you on the rationale, the MOU and the rationale for the classification decision. Mr. Shays. I think Mr. Waxman's suggestion is important. Let us get the sanitized version that can be made public and then we would like to see the real McCoy. It will be a good opportunity for us to decide as a subcommittee whether we think there was justification for it being classified. I think that we will ask all the subcommittee members to see this document so that we--in the subcommittee to get their views, and we will issue a statement on what we think about that document and the justification we heard. Mr. Leonard. If I could just add, it will be withheld, I presume, Mr. Chairman---- Mr. Shays. Well, it may be sensitive but unclassified. Mr. Leonard. And if I could just add something here to further shed some light on the issue, again, the audit that is currently underway, and I don't want to presuppose any final results, but I can tell you one of the things that we ascertained very early on, the exemplars that were provided to our office and were released to the media and whatever, those exemplars were not pulled pursuant to that MOA. They were done--action taken quite a few years ago. Mr. Shays. At this time, the chair would recognize---- Mr. Waxman. Mr. Chairman, there is then the question of who did those and why---- Mr. Leonard. They were pulled by the CIA and they were pulled in response to a serious breakdown in quality control back in about the year 2000, where information that clearly was inappropriate for release ended up being released, and in an attempt to clean that up, it went too far the other way. Mr. Shays. With all due respect, about the year 2000, there is a big difference between the year 2000 and the year 2001. Was it in 2000? Mr. Leonard. I believe it was the year 2000, yes, sir. Mr. Shays. So it was the previous administration in that case? Mr. Leonard. Yes, sir. Mr. Waxman. The same CIA Director. [Laughter.] Mr. Weinstein. Mr. Chairman, if I could just add, what Bill Leonard has just mentioned gets to the heart of the complexity that I was discussing with Congressman Waxman of who did what, when, and related to your initial question. We hope to have as many answers to that question as we can put them into the audit and we will look forward to getting you a copy of that audit. Mr. Leonard. And actually, if I could just add, I mean, the whole confusion, the awkwardness and whatever cries out for transparency in this process. That is the one thing that we are committed to providing, not only transparency going back to 1995 for all such activity but continuing transparency for a number of good reasons. No. 1, to ensure that any action taken along these lines is absolutely, positively necessary because people know that people will be watching, but even more so, to prevent perceptions being created that, quite frankly, harm the Nation, harm the process, and are understandable but yet are unfortunate. Mr. Shays. Let me just say, I happen to have taken off my jacket. I was feeling a little warm. I would want any of our witnesses to feel that they could do the same thing. I don't want a double standard. I am being serious. If you would like to take off your jackets or coats, feel free. Mr. Van Hollen. Mr. Van Hollen. Thank you, Mr. Chairman. As you said, this whole process seems to have sort of an Alice in Wonderland quality to it. Let me just make sure I understand the memo. The memo is between the Archives and an agency of DOD, is that right? Mr. Leonard. Yes. Mr. Van Hollen. What was the classification level of that memo? Is it secret? Is it top secret? Mr. Leonard. I believe it is secret. Mr. Van Hollen. Secret, OK. Now, as I understand it, there were many documents that were reclassified outside of that particular agreement. Mr. Leonard. That is correct. Mr. Van Hollen. In other words, there were other government agencies that came in and reclassified documents, is that right? Mr. Leonard. Yes, sir. Mr. Van Hollen. OK, and those include the CIA and DOE? Mr. Leonard. That is correct. Mr. Van Hollen. Were there any others? Mr. Leonard. Not that I have identified yet, but again, that is the whole purpose of the audit, is to fully flesh that out. Mr. Van Hollen. All right. Now let me just focus on that category for a moment---- Mr. Leonard. Sure. Mr. Van Hollen. I understand this memorandum apparently regulates how the Archives deals with an agency of DOD, but let us take DOE, for example, since we have a representative from DOE here at the table and we don't have a CIA representative. Mr. Leonard. Sure. Mr. Van Hollen. If DOE wants to go back, they can reclassify documents under the Executive order, as I understand it, which they were the original classifier of, is that right? Mr. Leonard. Actually, the situation with DOE is even more unique since, as Mr. Podonsky explained, their information which pertains to nuclear weapons is actually outside the scope of the Executive order and is classified pursuant to statute, the Atomic Energy Act. Mr. Van Hollen. OK, so let me just make sure I understand. So you are saying the Executive order doesn't apply to DOE at all? Mr. Leonard. It doesn't apply to DOE, at least with respect to restricted data and formerly restricted data which deals primarily with nuclear weapons, yes, sir. Mr. Van Hollen. OK. So if DOE has documents that they originate at DOE, they are at the Archives now, right? Mr. Leonard. Yes, sir. Mr. Van Hollen. Now, they want to come in and reclassify documents. First of all, let me figure out how they got declassified to begin with. As I understand it, technically, DOE as the classifying agency, even under this other authority, are they still the ones that have the authority to declassify it and are they only ones that have the declassification authority? Mr. Leonard. They have the authority, and what happens in that case is what happens in other cases, as well, too, this kind of information will appear in another agency's record, for example, the Department of State, and when they go to declassify it, the person who does it does not necessarily recognize that, hey, wait a minute, there is information here that belongs to another agency. I can't take unilateral action on it. Mr. Van Hollen. I understand. I understand that. So when DOE is going in to reclassify, the first question I have is, are they going in to reclassify DOE information that has been declassified by the State Department or other agencies, or have they also gone in to reclassify DOE information that they originally declassified? Mr. Leonard. That is right on, because what has--again, our audit is in process, but one of the key issues that has come out very early on is that when agencies are re-reviewing for a specific purpose, if they come across additional information that they believe was inappropriately declassified, that likewise is being put aside. Mr. Weinstein. Let me add a little complexity even beyond that, Congressman Van Hollen, if I can. It is fair to say that we are learning more with each day of doing this audit, and it is fair to say that in my position as Archivist, I am learning even more because until the news media provided me with that information, that was my first knowledge of this program and all of its complexities and I am not sure I have the complete handle on the story now. As a result of this audit, I hope to have it, and when I have it, obviously, the subcommittee will have it, as well. Mr. Van Hollen. Thank you and I appreciate that. I understand. With the audit so far or with your research into this so far, you have discovered instances where the DOE has reclassified information that they themselves declassified? Just yes or no, if that is---- Mr. Leonard. That they themselves have declassified? Mr. Van Hollen. That they had originally declassified, and they have gone back to reclassify that. Mr. Leonard. It is unclear. I am not too sure if I have that depth of understanding. Mr. Podonsky. Let me, since it is a hypothetical, let me just--I recognize it is a hypothetical, but again, as I said in my testimony, the Department of Energy has not gone back into the National Archives and reclassified anything that was declassified. However, what we were asked to do in 1996 by the Congress is to go back in and take a look at all the records from other agencies that may have had RD or FRD, and then the Kyl amendment went in and said also go in and train other agencies to know how to look for RD or FRD, and then the Lott amendment said go in and also take a look at all documents that were already previously taken off the shelf at NARA. So hypothetically, we could be the agency that was doing it, but we are not. Mr. Leonard. Congressman, let me answer the question, try to be as direct as I can to your question. The Executive order has a very high threshold that if an agency declassifies information and for whatever reason changes their mind, they have a very high threshold to meet. Agencies to date have represented to me that they have never done that. Based upon what I know to date, I don't think that is necessarily the case. I think they have, in fact, done that for a variety of reasons, may not have understood it to be that, but I do believe that there have been instances where agencies have gone back and reclassified information that they themselves have previously declassified without meeting the threshold that is spelled out in the Executive order. Mr. Van Hollen. OK. Let me just also briefly try and understand the process by which this happens. Let us say that the CIA or DOE, say they want to come back and take a look at whether other agencies have declassified information that they were the original classifiers of. What do they do, come over to the Archives, they knock on the door and say, where are our files, and they go in? Does the Archives have any ability to make an independent determination about whether what these agencies are doing is appropriate or not appropriate? Mr. Leonard. The delineation of responsibilities is when records enter to the National Archives and when they are accessioned into the Archives, they are under the control and the custody of the National Archives. They belong to the Archives. So no agency can just simply come in and rifle through records on their own. Mr. Van Hollen. That is why you can have a moratorium? Mr. Leonard. The information that is contained in those records, when it is classified information, the classification authority over that information remains with the agency, and so when agencies exercise declassification authority or reclassification authority or say that this was declassified improperly, that is an authority that they have that the Archives does not have. The Archives cannot classify information on their own, and so the Archives is hard pressed from that perspective to challenge an agency with respect to exercising their classification authority. Mr. Van Hollen. Thank you, Mr. Chairman. I have a lot more questions, but I don't want to take up any more time, but thank you. Mr. Shays. Thank you for your questions. At this time, the chair would recognize Mrs. Maloney. Mrs. Maloney. I want to thank you, and I would like to ask the representative from the Department of Defense this question, Mr. Rogalski. I want to give an example of one audit and how there was no appeal process and then really ask all Members, where is the appeal process when there is a redaction. I cite the publicized case of the Iraqi oil money, the audit for the United Nations, where DOD had an audit through the DCAA, the contracting audit agency, about the overcharges, and in that audit they concluded that there was an overcharge to our government of over $200 million. During the audit and during the time that it was handed over to the United Nations and to the public, absolutely everything that mentioned the overcharge was redacted. It was reported in the paper that the audit was handed over to Halliburton and Halliburton made all the redactions, handed it back to DOD, and no one questioned this. It finally came out in the press. I would like to put this article into the record of this hearing. But my question is, I think that obviously this was an inappropriate redaction of information. Overcharging is illegal. It is wrong. It is our taxpayer money. In this case, it was the Iraqi oil money. It is a report to the United Nations. But when waste and abuse appears in our government, we don't want to have it redacted so that we can move forward watching taxpayers' money more appropriately. And my question really to the panel, and I will start with DOD, since that happened to have been a DOD contracting audit under DCAA, where is the appeal process? Where is the appeal process? Say I am a reporter, or even a staff member on this subcommittee, or a Member of Congress, and I see that everything in the report is redacted. Who do I appeal to that is an independent government professional who can decide whether it is in government's interest, the public interest, the taxpayer interest, the honesty interest to have that information revealed to government and to the appropriate overseers to correct it so that money is not wasted in the future? Mr. Rogalski. I am not familiar with the cases you describe, ma'am, but I can certainly take the question for the record and get that back to you if you would like more information on it. Mrs. Maloney. I will send it to you in writing. It was reported in the press widely. Mr. Rogalski. OK. There is an appeal process. We have FOIA offices throughout the Department of Defense. People are trained. They are familiar with the exemptions and people are allowed to go and appeal that determination once that document is released and---- Mrs. Maloney. And how do they appeal it? Do you need a lawyer to appeal? Mr. Rogalski. No, ma'am. They can come in as a citizen or whatever---- Mrs. Maloney. Take this example, that everything is redacted. I mean, to me, I think it is scandalous that it was given back to Halliburton and they are the ones who redacted it and that DOD then accepted it. But say I get a paper on a contract and everything is redacted. I mean, how do I appeal? I don't know what was in it. I can just say the entire page is redacted. The purpose of the audit was overcharges. Why in the world are you redacting overcharges, or what are the bases on which you can appeal? It has to have certain standards, right? Mr. Rogalski. Well, the standards are what is required under the FOIA, those exemption categories, and have we provided the rationale for that when you come in with that appeal. There are certain examples of where you see it, as you described earlier, blacked out, and I think those are wrong. Mistakes have been made. But I think part of us and what we are doing is having an education process, so before it is released for FOIA, people are doing the right thing. And we agree. We need more rigor in the process. I will not deny that. So---- Mrs. Maloney. What I don't like about this, I just came from a meeting earlier this morning with whistleblowers and there is no protection for whistleblowers, particularly in defense and national security. They were saying that if they don't toe the party line, then they lose their job, they lose their clearance, and they are made the evil ones. So here you are appealing to another person within the same department that shows a mismanagement in that department. That employee may know that their higher-ups may strip them of their jobs, their standing, their clearance, which has happened to 75 members of the government that are part of this organization that I met with earlier this morning. See, you are appealing to a group of people who are not covered under the Whistleblower Protection Act. In other words, if you don't toe the party line, you know, obviously someone wanted to cover up that these overcharges were there. Otherwise, they would have just put it out in the public to begin with. In other words, it is not working, and to say we should be more rigorous is not answering the problem. So I would like some comments from others. I think one of the biggest responsibilities all of us have is to maintain the faith and trust of the American people in our government, and when they read stories like this, it is upsetting to them. It sounds like their government wants to cover things up. And I would say that I think one of the strongest parts of our government is our ability to look at our problems, discuss them publicly, and make corrections. We certainly have made a lot of them in New York with the September 11th, with our security, to notice what we are doing wrong, to discuss it publicly, and then go forward. But things like this, these massive redactions for which no one really can appeal--people tell me when they appeal, they are appealing to the same agency. They just say, our redactions are appropriate. Get lost. There is really no independent place to go. I am not trying to point fingers at anybody, at any administration or any party or any department. I am just saying that I think this is a problem and if this continues, there is a lack of faith in the system. And when there is a lack of faith in the system, you have cynicism, you have people that don't support their government, and you have problems. You know, I am really seriously very disturbed about it and I would like to hear from anybody on the panel or any of my colleagues if they have an answer to this problem. Mr. Weinstein. Can I address that? Mrs. Maloney. Certainly. Mr. Weinstein. Congressman Maloney, what you are describing is obviously not a satisfactory situation, but let me give you a little personal response to what I take is a very personal reaction on your part. I am here today because I felt the head of the National Archives and Records Administration should be here, not simply the able, skilled professional, my colleague Bill Leonard, who is reflective of the other able, skilled professionals at this table. I am here because what the researchers and historians uncovered about a month ago is not a tolerable situation, not a situation that should be tolerated, and I have done what I can within the agency to bear witness to the need for change and the need for immediate change and the need for a genuine effort to persuade the public and to persuade our colleagues in this town of both parties, of both Houses of Congress, in the media, whomever, that we are on the case, that we are going to find out what happened and that information will become public, and that with the support, I am pleased to say, at the moment, of not just the researchers who brought forth this material, but with the support of the agencies that have been involved, as well, and I would like to keep that there because I think this is a moment when good changes can be made that please this country. But what recourse can we have? Often we don't have legal recourse, but we have a bully pulpit. We have the ability to speak out within government and to use that ability, and that is what I am trying to do here and that is what I suspect that my colleagues elsewhere in the government are also trying to do. So I respect your question. I don't have an answer to it because I don't have the technical answer to where---- Mrs. Maloney. I appreciate all your work, and I have done a lot of work with Archives. You have done a great job and we appreciate it. But I would like to ask Ms. D'Agostino with the Government Accountability Office, a nonpartisan factual organization--you do a great job for the American people--I see this as a problem. Do you have any solution to it of how do you appeal in any case? You could put it in the EPA, where someone goes in and closes down a business and they say it is, ``an illegal business,'' and then they redact the entire report on how they came to that decision. How does that small business person appeal? Members of the press tell me that if they ever question a redacted report that they receive from anybody, that it is like you are talking to a blank wall. Then another thing that I see in government that I find extremely disturbing is when they say it is under investigation. Therefore, we can't give you any information. That happens all the time. Many investigations on contracts or abuses on whatever, they will say, oh, we have referred it to our IG. It is under investigation. And for the next 5 years, you can't get any information. That is absolutely wrong and it happens all the time. I had a case today, an EPA case where they are investigating something, so my constituent cannot get any information and they may not be able to get information for 10 years because it is under investigation and the investigation may never end. May she answer? Mr. Shays. Yes, and then we need to move on. Mrs. Maloney. OK. Ms. D'Agostino. We actually run into ongoing investigation issues in our work for the Congress, as well, so there is not very much that we can do about it. We usually have to stand down and wait for an investigation to be completed before we can then do our work, so this happens to us, as well, even with our very broad authority. But basically, in terms of appeals, the first step would be to make a FOIA request and request that a document be reviewed under---- Mrs. Maloney. But I am talking about FOIA requests, when the FOIA requests come back completely redacted. Ms. D'Agostino. Right, and these appeals can be done through the judicial system. So you can take the issue to court. Mrs. Maloney. To court? Ms. D'Agostino. That is an option. Mrs. Maloney. But most people can't afford to go to court. Mr. Podonsky. Mrs. Maloney. Mr. Shays. Why don't you respond and then I am going to ask my questions. Mr. Podonsky. In the Department of Energy, Mrs. Maloney, if something was requested under the FOIA and the recipient is not satisfied, we have a separate office called the Office of Hearings and Appeals that reports directly to the Secretary and that would give your constituents the opportunity to go separate from the office that was responsible for redacting the document to begin with. Mrs. Maloney. And do all agencies have it, or is this unique to the Department of Energy? Mr. Podonsky. I don't know what the other agencies have. Mrs. Maloney. Thank you. Mr. Shays. I am going to yield myself time now to say that my focus--I think the whole issue of reclassification is interesting, but not really the issue that concerns me. I tend to think some is understandable. In one sense, I can explain it. I think there was a dispute between the President and Congress, I think in one or two instances, and the reason it was pretty focused on the Department of Energy was there was sensitive information given out that related to things that could be very destructive involving nuclear information. I understand that. But I think it is somewhat stupid, because I think once it is out, it is out. So that is not what really bothers me. What bothers me is what we had in previous hearings, where even from the Department of Defense, our witness there said up to 50 percent was over-classified and the outside organizations were in the 50 to 90 percent range. What that says to me is that people who need this information won't get it. What bothers me, though, is the whole concept of ``For Official Use Only,'' but really the more broad category of ``Sensitive But Unclassified,'' SBUs. That is what I want to spend my time talking about. Ms. D'Agostino, even your agency is a major offender here. No, seriously. I mean, we are almost asking you to investigate yourself because almost everything you provide us is ``For Official Use Only.'' I am exaggerating slightly, but it is true. Tell me why. Ms. D'Agostino. Well, the GAO does not have classification authority, and as a result---- Mr. Shays. So let me translate. You do not have the capability to classify anything. Ms. D'Agostino. Correct. We give the documentation that we receive from other agencies the same protection that they do. In other words, we can't question their classification, say, of an FOUO document. I mean, we can question it, but basically if they say, look, this is FOUO and we have done a security review on your draft report and it is FOUO, then GAO must stand by---- Mr. Shays. Why is that? Maybe I need a little bit of an education on the whole concept of ``Sensitive But Unclassified.'' It is in the statute. There is a process. What is the process that justifies anyone talking about ``Sensitive But Unclassified?'' Ms. D'Agostino. I mean, I am prepared to talk about the FOUO category, but basically, that is based in large part in statute in the FOIA, the Freedom of Information Act, and the folks who have the authority to designate information as FOUO are the folks in the executive branch who provide us the information. Mr. Shays. Is it anybody? Could I write a document and say this is ``Sensitive But Unclassified?'' Ms. D'Agostino. In the Department of Defense, what our understanding is is the personnel of the Department are empowered to designate information---- Mr. Shays. Who empowers them? Ms. D'Agostino. They are empowered under the regulation that DOD follows for FOUO, the security regulation. Mr. Shays. I am sorry, I am not clear. Are you clear about this? You are looking at me like---- Ms. D'Agostino. No, no, no, no, no. I am just saying that GAO doesn't classify information. Mr. Shays. Let's get you out of the picture. Tell me about---- Ms. D'Agostino. Well, you were concerned that we were a big offender---- Mr. Shays. Well, I am concerned, but I don't want it to block you being comfortable telling me information. I am wrestling with the fact that it is almost like we have invented, like the executive branch has invented this process to which they then can run anywhere they want with it if they have it. Are you saying that when Congress passed the Freedom of Information law, we empowered this concept of ``Sensitive But Unclassified?'' Ms. D'Agostino. I didn't do a review of all ``Sensitive But Unclassified.'' I mean, we focused our work on the OUO and---- Mr. Shays. OK. Let us do OUO. Talk to me about them. Ms. D'Agostino. Again, DOE and DOD have their regulations and their programs that govern this, and information generated by personnel within those Departments that they believe fits within---- Mr. Shays. Mr. Rogalski, maybe you can walk me through it, and then Mr. Podonsky. Mr. Rogalski. They Department of Defense has a regulation called Information Security Regulation. We do not have, like we do original classification authorities, anyone in the Department of Defense is authorized to make that FOUO determination based on the guidance that is contained in the information---- Mr. Shays. Could you say that again? Everyone in the Department of Defense? How many employees do you have? Mr. Rogalski. Two-and-a-half million cleared people, something like that, but let me finish my sentence. Mr. Shays. Sure. I am sorry. I shouldn't interrupt you. Mr. Rogalski. Subject to a review by their supervisor. So there is an inherent responsibility for supervisors in the Department of Defense to ensure that their employees are following the guidance contained in any regulation, directive, instruction we have in the Department. So we have an Information Security Regulation that specifies what are the criteria for applying the FOUO marking. It talks about the FOIA, the nine exemption categories. The first one that automatically exempts is if it is classified. And one of the things the GAO report recommended and we strongly endorse is we need better training among our employees within the Department of Defense. So I think the way to achieve, I think, the balance you are looking for and the right thing to do is to put more rigor, have more standardized training, have uniformity across the Department, and so we recognize that and we have agreed to that in the GAO report and we are combining--we are including updated guidance in the rewrite of that 5201(R) regulation, the information for deregulation that is going to be published this year. So to answer your question, employees have the authority, subject to, like anything in the Department, review by their supervisor. Mr. Shays. Bottom line, every employee can designate it, but a supervisor has to sign off? Mr. Rogalski. It is not a sign-off per se, but it is a review. If a member of my staff generates a document, whether it is FOUO or classified, it---- Mr. Shays. There is a difference. There is a difference. The implication I had from listening to, and that is why I wanted to say it and I appreciate you clarifying it, was we may have 2 million-plus employees, but their supervisor has to, I thought, basically approve it. It is possible the supervisor never even sees it, correct? Mr. Rogalski. There is that possibility, but again, if that is an issue or problem, I believe that can be overcome through proper training, the supervisors understanding what their responsibilities are. But you are correct. Mr. Shays. OK. Mr. Podonsky. Mr. Podonsky. Relative to your question, Congressman Shays, prior to 2003, the Department had over 20 different markings for sensitive information. The Office of Classification went forward with, in implementing the recommendation of the Hamre Commission report that I mentioned in my testimony, to bring that down to one, OUO, and as the GAO report recognized and I also say it in my testimony, we fully agree with we need to do a much better job of defining who has the authority to do the OUO, the training to make sure that it is done properly, and most important of all, to have an independent oversight of what is being done with those documents. So every part of the recommendations in the GAO report hit the heart of the issues at the Department of Energy. I would say that we have a very able, professional, nonpolitical staff responsible for classification of documents, the OUO situation in the Department was not dissimilar to the Department of Defense other than the magnitude is much smaller because we only have 15,000 employees, of which 5,000 are classifiers, and our experience is mostly it is the 5,000 classifiers that are doing the OUO markings. Mr. Shays. I have questions for each of you. Ms. D'Agostino, I would like to know what is your response to DOD's objections to a GAO recommendation that DOD mark FOUO documents with the appropriate Freedom of Information Act, FOIA, exemption? Ms. D'Agostino. Well, I guess we separate the two processes that---- Mr. Shays. Put the mic a little closer to you. Ms. D'Agostino. I am sorry. Mr. Shays. No, I can hear you, but move it a little closer. Ms. D'Agostino. OK. If you think about a document as having a life cycle from the time it is created and marked by the person who created it, you have one separate process that deals with marking it to the time when, say, a FOIA request is made and this document comes through a totally separate process to be reviewed by a totally different group of people to determine whether or not it can be released to the public. So the marking is a handling advisory, cautionary, almost, mode for this document that tells people, you need to be careful with this information and handle it according to the rules. Then there is a completely separate process to decide, that is triggered by a FOIA request, whether or not this information, regardless of how it is marked, is releasable to the public, and the front-end process has no impact on the process to decide to release the information. So if there is a mistake made in the marking, or let us say it should have been marked and wasn't marked, it has no bearing on the decisionmaking that is done to release to the public under the FOIA request. This is why we do not believe that the Department of Defense argument that it provided in its comments on this particular recommendation is very strong. Mr. Shays. OK. Mr. Rogalski, maybe just a response. Mr. Rogalski. Sure. When we looked at the GAO recommendation, we looked at the investment that they were suggesting we do by having people make that FOIA exemption up front when that FOUO determination is made. Some considerations to that we looked at were, one, if that document was created in 1998 and then someone comes in with a FOIA request in 2005, that FOIA exemption applied in 1998 may be different. Therefore, we question what is the utility of having a FOIA exemption placed on the document at the date of creation. Second, our Office of General Counsel and the FOIA Office felt that if there was some type of litigation, an improper FOIA exemption was made on that, that could jeopardize anything that came up in a litigation. So that was our rationale on why we believe that we did not see the investment worth the return for putting that FOIA exemption on at the date of creation of that document. Mr. Shays. Let me ask counsel to respond. Mr. Halloran. Thank you. So the two rationale you pointed out, if the document is not going to be given out, why mark it at all at that point? If you are not going to specify why it may be non-disclosable, don't you invite abuse? Mr. Rogalski. Obviously, there is information in the Department of Defense that does not meet any threshold for being classified, but there is information that, based on the Information Security Regulations deserves some type of protection less of classification. What that does, it provides a degree of protection for that information. It advises that DOD employee, I just can't take this document, if it is unclassified or not marked FOUO, now I can just put it on the street, give it to a reporter, or whatever. So that FOUO provides a gate, if you will, before that information can be released. If it were not marked, then it presupposes you can release it, even though in the Department we have a security review for documents before they are released. Mr. Halloran. It is a gate without any reference to why there might be a gate, and the Department of Energy apparently hasn't had the legal problems DOD fears, have you? Mr. Podonsky. No. Mr. Halloran. Because, as Ms. D'Agostino said, the FOI review process as to what exemption it might apply for is an absolutely separate and independent determination of what someone might estimate when the marking is made. I just don't see the legal peril it puts you in. Mr. Rogalski. Well, fortunately or unfortunately, I am not a lawyer, so I think I need to take that as a question for record, have our FOIA office and our Office of General Counsel take that question and get back to you with a response, if that is suitable for you. Mr. Shays. That would be fine. I would just like, before I go to Mr. Kucinich and then the next panel, I would like some observations from Mr. Weinstein and Mr. Leonard on what we have just been talking about. Mr. Weinstein. Which specific aspect, Mr. Chairman? Mr. Shays. Just the questions that I have been asking. If you have no reaction, then you don't have to respond. Mr. Weinstein. I will pass to Mr. Leonard on that. Mr. Leonard. The whole issue of ``Sensitive But Unclassified,'' basically, from our perspective, there are two broad categories. There are specific information that the Congress has told executive branch agencies they must protect. As a Federal employee, I am liable from sanctions or even criminally for disclosure of certain kinds of Privacy Act information, protected critical infrastructure information, things along those lines. The list goes on and on where there are statutorily based restrictions and a lot of that information ends up with an FOUO designation on it, and in a way, it is a notification to a Federal employee that, hey, this is the stuff that you can be held subject to sanctions for if you improperly disclose. On top of that, there is another broad category of purely discretionary information that agencies can withhold under the FOIA if they choose, but they could also disclose. You know, there is such a wide disparity of information covered under this broad umbrella. Quite frankly, from someone who has almost 35 years' experience in the government, I have yet to be able to comprehend it to the point where I am comfortable and I think that is the biggest problem that the average Federal worker has in terms of there is just such a wide array of information that can be covered under this from different perspectives that the impulse is, well, what can I get into least trouble for? Mr. Shays. One of the things that I thought when I was elected to Congress when I had a briefing, that I would actually learn something I hadn't read in the New York Times, and I will never forget a Member of Congress, after being briefed and we were told solemnly that this was classified and so on, so the Member of Congress stood up and said, now this is classified, this is classified, this is classified, and he had about 10 items, and then he took a New York Times article and just read it point by point and each one of those articles was covered. I have read some things that are designated ``Sensitive But Unclassified'' that I think could be very awkward, not embarrassing but awkward and uncomfortable and not appropriate for someone to see, so I don't even want to imply that once in a while, I haven't read thing