Dispersal Authority: The Difficulties of Coordination
A trend toward increased authority for individual agencies and less coordination among agencies has marked the evolution of information security policy. With each of the last three executive orders governing that policy -- beginning with the Nixon order in 1972 -- there has been a movement toward greater decentralization. Individual agencies have gained enormous authority in the implementation of the executive orders, deciding how and what will be declassified. Furthermore, current declassification practices give agencies power over records in which they have an interest which are held by other agencies. The massive backlog of old classified records of historical value is partly due to complex and time consuming interagency procedures. This paper examines the trend toward greater dispersal of authorities, explores the problems with this policy, and discusses some of the current recommendations for increasing agency wide coordination.
Executive Order 11652, signed by President Richard Nixon in March, 1972, gave each federal agency primary responsibility for declassifying the classified records it had created. The order stated that "Information or material may be downgraded or declassified by the official authorizing the original classification, by a successor in capacity or by a supervisory official of either." The order also allowed the delegation of declassification authority to "an official specifically authorized under regulations issued by the head of the Department."1
For material created by agencies that no longer existed, the Nixon order directed that each Department in possession shad be deemed to be the originating Department for all purposes under this order. Such information or material may be downgraded and declassified by the Department in possession after consulting with any other Departments having an interest in the subject matter."2 For material that had already been transferred to the National Archives at the date the order went into effect, the Archivist of the United States had the authority to downgrade and declassify material but only by following the "pertinent regulations" of the originating agency.3
One of the major contributions of Executive Order 11652 was to establish a target date of thirty years, at which time all but the most sensitive federal records were to be declassified and made available to researchers at the National Archives. The decision to keep records closed beyond thirty years rested solely with the agency head. The order stated that "All information and material classified after the effective date of this order shall . . . become automatically declassified at the end of thirty full calendar years after the date of its original classification except for such specifically identified information or material which the head of the originating Department personally determines in writing at that time to require continued protection because such continued protection is essential to the national security or disclosure would place a person in immediate jeopardy."4
Thirty-year-old information before the effective date of the order was to be "systematically reviewed" for declassification by the National Archives, with the stipulation that reviewers "separate and keep protected only such information or material as is specifically identified by the head of the Department" as too sensitive for declassification.5 In order to implement that directive, the National Archives, facing review of millions of documents, had to increase the declassification staff by 100 positions.6 Although the Archives became the agency primarily responsible for doing the actual work of reviewing declassification, the ultimate authority for declassifying those thirty-year-old records still lay with the agencies that had originated them. Agencies under the Nixon order also retained full responsibility for systematically reviewing material as it reached the thirty-year deadline, and many agencies in the mid-1970s instituted substantial declassification programs.
Although the Nixon order gave primary authority for declassification to agency heads, it also created a review and monitoring panel composed of representatives from the government agencies most involved in classifying and declassifying information. This "Interagency Classification Review Committee" was to "oversee Department actions to ensure compliance with the provisions" of the order. Specifically, the Committee had the authority to hear appeals of classification and declassification decisions. It was empowered to "consider and take action on suggestions and complaints from persons within or without the government with respect to the administration" of the order.7 The role of such a review panel is discussed in greater detail in the fourth paper, but here it is important to note that the panel established a mechanism for interagency cooperation on the issue of information security and access.
President Jimmy Carter's Executive Order 12065 took essentially the same approach as its predecessor had in regard to declassification authority. The order reiterated the Nixon order provision that gave primary responsibility for declassification of a given document to the official who originally authorized its classification.8 Additionally, agencies retained significant authority over the declassification of information, even when they no longer physically possessed the document containing the information. E.O. 12065 stated that material transferred to the National Archives could be declassified or downgraded by the Archivist but only "in accordance with this Order, the directives of the Information Security Oversight Office, and the agency guidelines."9
The Carter administration's policy on systematic declassification relied on agency control of exemptions to the twenty-year rule and the required use of agency guidelines. The Carter order established twenty years as the target for declassification review and gave agency heads and officials designated by the President the authority to extend classification beyond twenty years. To expedite the declassification process the order stated that "Within 180 days after the effective date of this Order, the agency heads . . . shall, after consultation with the Archivist of the United States and review by the Information Security Oversight Office, issue and maintain guidelines for systematic review covering twenty-year old classified information under their jurisdiction....These guidelines shall be authorized for use by the Archivist of the United States and may, upon approval of the issuing authority, be used by any agency having custody of the information....."10 Since many agencies failed to prepare the required guidelines, the declassification efforts of the Carter years were seriously hampered.
The Carter order also eliminated the Interagency classification Review Committee and created the Information Security Oversight Office (ISOO) and the Interagency Information Security Committee. ISOO had the capability for increased monitoring and reporting, which the old Nixon committee had not had. However, neither ISOO nor the new interagency committee provided for frequent meetings of high-level representatives of the key agencies to discuss not only broad policy but also specific declassification appeals.
The trend of increased autonomy for each agency continued in the 1982 Reagan Executive Order 12356, which remains in effect today. The order permits, but does not require, agencies to conduct systematic review programs of those records not already accessioned into the National Archives.11 Regarding agency responsibility, the executive order states that: "Information shall be declassified or downgraded by the official who authorized the original classification, if that person is still serving in the same position; the originators successor, a supervisory official of either; or officials delegated such authority in writing by the agency head or the senior agency official designated."12 This provision for delegating declassification authority has had the effect of significantly increasing the number of agency officials able to declassify records, but such an increase in declassifiers has not translated into more declassification actions. Agency autonomy extends to the systematic review of those classified records already in the possession of the National Archives. The order stipulates that "Such information shall be reviewed by the Archivist for declassification in accordance with systematic review guidelines that shall be provided by agency heads who originated the information."
The Reagan order introduced in very specific language the principle of declassification policy known generally as "equity." This term is used to describe an understanding between federal agencies whereby each agrees not to disclose classified information in its possession that was created by the other agency. The equity issue is further complicated by the fact that it refers to the broader and more nebulous category of "information," and not simply to "documents." The Reagan order explicitly relied on the broader category in stating that Agencies shall coordinate their review of classified information with other agencies that have a direct interest in the subject matter."13 In addressing the classification backlog, a State Department working group assigned in 1993 to study the cause of the enormous backlog of classified information noted that "other agency letterhead documents are much easier to identify and deal with than information or 'equity' in Department-originated records."14 The working groups report concluded that "Practices and policies followed heretofore in dealing with other agency information cannot fail to frustrate any attempt to accelerate the opening of Department records." Since the inception of the Reagan order it appears that use of "equity" has been on the increase, resulting in decreased access to federal records. The 1993 working group suggested that the proper way to resolve the problem would be to mandate that each agency be responsible for protecting its own information. It concluded that "the burden of identifying and determining the need for extended protection of information originated by other agencies must fall upon those agencies."15
The role of the Information Security Oversight Office (ISOO) has contributed to the decentralized nature of the agencies declassification work. Although ISOO under the Reagan order has had the "authority to convene and chair interagency meetings to discuss matters pertaining to the information security program," this authority has rarely been used.16 The Reagan order eliminated Carters Interagency Information Security Committee, which also had met seldom and had been fairly ineffectual.17
In its Directive No.l in 1982, as part of the implementation of Executive Order 12356, ISOO introduced "Originating Agencys Determination Required" (OADR), an ambiguous declassification designator which led to restricted access to federal records. The OADR determination means that material originated by one agency but physically located in the files of another agency must be referred to the originating agency for declassification. The large amount of effort and time required to complete the process required by OADR often has deterred agencies' declassification efforts and has prevented access to large amounts of material. Many people knowledgeable in national security classification issues agree that the use of OADR has contributed to the growing backlog of material awaiting declassification.
The use of OADR in the Reagan order probably contributed to the decision to eliminate the deadlines for systematic declassification required by the Nixon and Carter orders. President Nixons 1972 executive order had specified that at the time documents were created that they be stamped with a declassification date depending on the sensitivity of the material, after which information was to be automatically released. The Carter order in 1978 had established an automatic declassification date of six years for all material unless otherwise marked. Because these provisions had not been implemented, the Reagan order stipulated only that a declassification date or event be stamped on a document if one could be determined. Otherwise, the OADR designation would be used.
As long as OADR continues to be used, the number of classified documents are expected to continue to grow. A May 1993 General Accounting Office report cited increased use of the OADR designation as a prime reason for the failure of the classification/declassification system. It concluded: "Overuse of the OADR designation not only adds to the volume of classified information retained by the government but also increases the workload of those agencies eventually required to review it for declassification."18 Since the introduction of OADR in the early 1980s, fewer documents have been marked with a declassification date or event. Over this period use of the OADR designation has increased from 65 percent of classification actions to 95 percent. Since 1982, when ISOO directive No. 1 established thirty years as the minimum period after which systematic reviews could begin, virtually all classified documents marked OADR are likely to remain classified for at least 30 years, regardless of their original classification level.19
The General Accounting Office has recommended that the OADR designation be eliminated, arguing that this must occur if the information security system is to be streamlined.20 Historians contend that an undefined period of classification, which has been allowed by OADR, should no longer be permitted. Likewise, the closely related use of "equity" must be significantly restricted. Both severely complicate the declassification process through burdensome review procedures and cause lengthy access delays for documents that should be declassified.
The problems of interagency coordination of declassification led in part to passage in 1991 of legislation that required the State Department to publish its documentary history series on a thirty-year time line and to declassify all but its most sensitive records over thirty years old and make them available for use in the National Archives. The State Department Historical Office's attempts to compile the Foreign Relations of the United States (FRUS) series had faced numerous difficulties and delays caused by the current cumbersome process of overlapping agency authority for declassification. State Department historians holding the necessary security clearances open did not have access to records documenting foreign policy formulation that were held by other agencies.21 Given the broad participation of other agencies besides the State Department in making foreign policy, it not surprising that the accuracy of the FRUS series had suffered. The State Department Reauthorization Act for 1992-93, passed in 1991, attempted to address this problem by mandating that any arm of government involved in the formation of foreign policy must develop procedures. To coordinate with the State Department's Office of the Historian in selecting records for possible inclusion in the FRUS series." The Act also required such agencies to allow "full access to the original, unrevised records by such individuals holding appropriate security clearances as have been designated by the Historian as liaison" to that agency. Under the Reauthorization Act, each agency retained its own procedures for declassification review but was compelled to provide timely, written justification to the State Department for any material it did not wish to declassify for inclusion in the FRUS series.22
Another consequence of the Reagan policy has been considerable variation in review procedures within agencies as well. Consider, for example, the Department of Defense. The staff designated with declassification authority, the placement within the agency of the declassification function, the allocation of resources for declassification, and the relationship of the declassification function to the historical offices all vary significantly among the separate branches of the Department of Defense. For example, the Navy Historical Center has authority to declassify only what is in the custody of the 65,000 cubic feet Navy historical collection. The Navy Seas Systems Command, the Navy Air Systems Command, and the Office of Navy intelligence each have their own authority and declassification procedures. A very different system exists in the Army, where staff in the Center for Military History have authority to declassify a broad spectrum of historically significant Army records. Authority for declassification of Army records had resided in the Adjutant General's Office until 1987, when the Army Information Security Program was relocated under the Deputy Chief of Staff for Intelligence which relies on the Center for Military History for work on older records. The Army commands retain responsibility for declassification for current records and handle FOIA requests for these records.
The Air Force is the only branch currently involved in a large scale systematic declassification project. In 1991 the Air Force undertook a special initiative to deal with its South East Asia records as a result of being overwhelmed by Freedom of Information Act requests. To reduce the FOIA burden, the Air Force declassification staff devised a plan to use reservists to declassify systematically large portions of their Vietnam, Korean War, POW-MIA, and Gulf War records. All those engaged in the project are part-time but the work force is equivalent to about ten to twelve full time staff.23
The effect of the Nixon, Carter, and Reagan executive orders on national security information has been a haphazard declassification system that fails to meet the need for adequate access to historically valuable government information. One of the most important reasons for the growth in historically valuable classified material has been that the chief burden for declassification has been placed on the National Archives, a small agency without the resources for the task. At the time that the Reagan order was issued in 1982 the historical profession was well aware that the National Archives did not have the funding necessary to conduct extensive declassification operations. Recognizing this problem the Council of the American Historical Association passed a statement on security classification of documents formulated by Dr. Gerhard Weinberg professor of history at the University of North Carolina which stated that "the capability of the National Archives to implement systematic declassification review must be guaranteed by a system of position allocations to the National Archives geared toward the volume of classified files generated by government agencies, with such allocations charged to the budgets of the agencies generating the classified records." Only then, the Council contended, will the National Archives be given a "real, not just a theoretical, opportunity to do its job."24
The work that the National Archives has been able to do on systematic declassification has been further complicated because agencies which originate classified material usually have attempted to maintain control over the material after it has been transferred to the Archives. Referring to its limited authority, then-Archivist of the U.S. Don W. Wilson remarked in 1990 that "the system is broken and should be fixed." Wilson cited delays built into the system by the role of the declassification guidance provided by those agencies with thirty-year-old material at the Archives. He explained that the declassification guidance is actually only "guidance for identification," since the Archives staff is limited to the clerical task of removing the records identified in the guidance and forwarding them to the originating agency for systematic review. As each originating department has its own guidelines for declassification review, further delays are encountered. The Pentagon alone has 19,000 guidelines for assisting declassifiers with identifying sensitive information related to countless numbers of weapon systems and policy decisions.25 Wilson also lamented the lack of efficient staff at the Archives for declassification work: "The lack of adequate declassification manpower has stifled our expectations."26
The Clinton administration's March 17, 1994 draft revision of the executive order on national security information attempts to return the responsibility for declassifying federal records to the agencies originating those records. This takes the fiscal burden off the National Archives. The draft order clearly states that "The originating agency shall take all reasonable steps to declassify classified information contained in records determined to have permanent historical value before they are accessioned into the National Archives."27
Under the language of the Clinton draft, individual agencies would also become responsible for the automatic declassification process. A major feature of the draft order is its provision requiring the automatic declassification of all classified information at twenty-five years of age. Unless an agency head submits written justification for a specific exemption from automatic declassification, the agency is required to make all twenty-five-year-old information available to the public. Agencies would also become responsible for systematic review of any material they may have exempted from automatic declassification. The March, 1994 Clinton draft stipulates that "Each agency that has originated classified information under this Order or its predecessors shall establish and conduct a program for systematic declassification review. This program shall apply to historically valuable records excepted from automatic declassification."28 To counter the use of OADR, the order requires classifiers to indicate a date or event when a document can be declassified without review or a specific reason why it should be exempted from automatic declassification.29
The National Archives would retain responsibility for systematic review of only that information in its custody at the effective date of the order. Even then the Archives would rely on the guidance of the originating agencies: These records shall be reviewed in accordance with the standards of this Order, its implementing directives, and declassification guides provided to the Archivist by each agency that originated the records. The Director of the Information Security Oversight Office shall assure that agencies provide the Archivist with adequate and current declassification guides."30
The Clinton administration executive order would have provided for the bulk declassification of a staggering volume of World War II material -- over one hundred thousand military records that have long been in the possession of the National Archives, most dating from the World War II era and the 1950s and 1960s, still await declassification review. Appropriately, Clinton planned to sign the order as part of the fiftieth anniversary of D-Day but yielded to protests from federal agencies that wanted more time to oversee the review of the documents, the perennial stumbling block in reform of the declassification process.
The 1995 legislation to appropriate funds for intelligence agencies included a very innovative strategy for providing funding for the declassification of historically significant records over twenty-five years old. The new law institutes a plan that requires each of the intelligence agencies--the CIA, NSA, and DIA--to allocate at least two percent of the portion of their budgets spent on "security, countermeasures, and related activities" for the development of a declassification program. Since these budgets are secret, it is unclear how much the two percent of the security portions will be; however, there are indications that this will be an increase over the current funds available for declassification. The allocation of these funds indicates Congress' commitment for securing a solution to the current classification problems and will provide the oversight committees with an opportunity to monitor more closely agency declassification programs. Furthermore, this percentage of the budget approach may set a precedent for other agencies to follow.31
In the view of the historical associations, the systematic declassification burden should no longer fall upon the limited resources of the National Archives, whose primary mission is to ensure the preservation of and access to government records, not to run a major declassification program. Federal agencies should either declassify documents before they are moved to the Archives, or provide adequate authority and money for the National Archives to carry out the declassification itself. Policies such as OADR should be eliminated and the widely practiced principle of "equity" should be reevaluated and sharply narrowed. Finally, authority to classify documents should no longer be delegated as frequently as it has been, and a mechanism for agency coordination and outside review should be established.
Decentralized authority has serious handicapped the declassification component of the national security information policy. It is time for a serious re-evaluation of such policies as OADR and "equity" that have contributed to cumbersome procedures. Yet even if new policies are adopted an interagency mechanism needs to be in place to implement a coordinated policy. The role of an interagency review panel in declassification policy is the subject of the fourth paper.
Paper Three - Endnotes
- President, Executive Order 11652, "Classification and Declassification of national Security Information and Material," Sec.3 (A).
- Ibid., Sec. 3 (D).
- Ibid., Sec. 3 (E).
- Ibid., Sec. 5 (E).
- Milton O. Gustafson, "Historians Access to Government Documents at Crisis Stage?", unpublished paper delivered to the Society for Historians of American Foreign Relations, (July 30, 1981), p. 6.
- President, Executive Order 11652, Section 7 (A).
- President, Executive Order 12065, "National security Information," Sec. 3-1.
- Ibid., Sec.3-203.
- Ibid., Sec.3-401, 402.
- Ibid., Sections. 3.1 (a), 3.3 (b), p. 34.
- President, Executive Order 12356, "National Security Information," 3 C.F.R., 1982 Comp., (April 6,1982), Sec.3.1, p. 34, Sec. 5.3 (a) (1) directs each agency to designate a "senior agency official to direct and administer its information security program."
- Executive Order 12356, Sec. 3.1 (a).
- Department of State, "Report of the Working Group on Opening the Department's 30-Year Old and Older Records," (June 16, 1993), p.2.
- President, Executive Order 12356 5.2 (b).
- The role of interagency committees is the subject of paper four.
- United States General Accounting Office, "Classified Information: Volume Could Be Reduced by Changing The Retention Policy," (May 1993), p. 24.
- Ibid., pp. 16-18.
- Ibid., p. 24.
- Department of State, Office of the Historian, "A Plan to Assure the Comprehensiveness and Accuracy of the Historical Foreign Affairs Record published in Foreign Relations of the United State," (March 14, 1991), pp. 1,3.
- 22 U.S.C., sec. 4353, (1991).
- Telephone conversation July, 1994 between Page Putnam Miller and Col. John Haynes, a member of the Air Force declassification team.
- "AHA Policy on Government Secrecy and Document Declassification," AHA Perspectives, vol. 21, February 1983, p. 4.
- Richard Holloran, "The Problem of Keeping So Many Secrets," New York Times, April 19, 1983.
- Don W. Wilson, "The Declassification of Records: Remarks by the Archivist of the United States," The Society for the History of Foreign Relations Newsletter, Vol. 21, #4, December 1990, p. 32-34.
- President, Draft Executive Order, "Classified National Security Information," (March 17,1994), Sec.3.3.
- Ibid., Sec.3.5 (a).
- Ibid., Sec.1.6-1.7.
- Ibid., Sec.3.5 (b).
- Public Law 103-359, The Intelligence Authorization Act for Fiscal Year 1995, Sec. 702.