Secrecy System Shows Signs of Contraction

The creation of new national security secrets dropped sharply in 2012, recently released government data show.  While the proper boundaries of official secrecy remain a matter of intense dispute, the secrecy system itself is showing surprising new signs of restraint and even contraction.

In 2012, the number of original classification decisions, or decisions to classify new information, decreased by 42 percent from the year before to 73,477, according to the latest annual report from the Information Security Oversight Office (ISOO).  This was the lowest reported level of new classification activity since at least 1989 and possibly longer.

Meanwhile, the number of executive branch officials who are authorized to generate new classified information also dropped last year to a record low of 2,326, the ISOO report said.

The 2012 ISOO Annual Report was transmitted to the President by ISOO Director John P. Fitzpatrick on June 20.

Significantly, the reductions in new secrecy activity are not considered to be a statistical fluke or within the range of normal variability but appear to be the consequence of deliberate policy choices, the ISOO Report said.

“A large part of this decrease [in original classification activity] can be attributed to the Fundamental Classification Guidance Review process and the appropriate recording of classification decisions in security classification guides,” according to ISOO.

The Fundamental Classification Guidance Review was a systematic examination of all government classification instructions that took place between 2010 and 2012 in an effort to validate current classification guidance and to eliminate obsolete or unnecessary secrecy requirements.

The argument for a fundamental review of classification policy was presented in a 2009 paper I wrote on “Reducing Government Secrecy: Finding What Works,” Yale Law & Policy Review, Spring 2009. That paper documented the failure of most classification reform initiatives over the past half century to reduce government secrecy, but also noted that some such initiatives had not failed. The Department of Energy’s Fundamental Classification Policy Review during the 1990s had been a notable success and, it was suggested, could serve as a template for a broader government-wide reconsideration of classification policy.

This proposal was briefed to the National Security Staff in July 2009, and was incorporated in President Obama’s December 2009 executive order 13526, although in attenuated form.  Unlike the earlier review done by the Energy Department, the Obama Fundamental Review did not provide for public comment at the beginning and before the end of the process, nor did it bring to bear (as it was supposed to) “the broadest possible range of perspectives” to critique current classification policy.  So the resulting reductions in secrecy are attenuated correspondingly.

Nevertheless, the newly reported data on reductions in original classification provide evidence that the secrecy system is not an autonomous entity beyond effective control, as might have been supposed, but that it can be modified and constrained by using the levers of public policy.

Other data reported in the new ISOO annual report indicate that classification error correction mechanisms are at least partially functional.

During 2012, government employees filed 402 internal classification challenges disputing the classification of particular items of information.  While the current classification status was affirmed in two-thirds of those cases, classification of the information was overturned in whole or in part in one-third of them.

Appeals of mandatory declassification review requests that had been denied by agencies also received a favorable reception in many cases from the Interagency Security Classification Appeals Panel.  Out of 163 documents considered by the Panel last year, prior agency classification decisions were fully affirmed in only 8 percent of the cases, while 39 percent of the documents were fully declassified at the direction of the Panel and 53 percent were partially declassified.

While all of this is quite encouraging, it does not mean that all is well in the classification system.

Derivative classification, or the application of previous classification decisions to new documents, increased by 3% to a new high of more than 95 million classification actions. (One would have expected the Fundamental Classification Guidance Review to have had greater impact on derivative classification — since it is based on the newly reviewed guidance — than it did on original classification, but that’s not what happened.)

The declassification process remains slow, cumbersome and predicated on an absolute risk avoidance standard that is simply unworkable.  Incredibly, the President’s directive to process the backlog of 25 year old historically valuable document for declassification and public release by December 2013 will apparently not be achieved, although the new ISOO report somehow neglects to mention this.

Nor has the problem of overclassification been solved.  Many classification decisions are still excluded from critical scrutiny and instances of overclassification are not hard to find. For example, the ISOO annual report states that although most agencies’ information security costs are public information, the estimated costs of security incurred by intelligence agencies are nevertheless classified, as in the past, “in accordance with Intelligence Community classification guidance.”  It’s hard to believe that any impartial observer would agree that these cost estimates are properly classified and that their disclosure would cause damage to national security.  (ISOO notes that the suppressed cost estimate is “approximately 20%” of the overall government total.)

Speaking of costs, the total cost of classification-related activities was $9.77 billion in 2012, ISOO noted. Though this figure remains historically high, it is over a billion dollars less than the year before.  In fact, it represents the first annual reduction in secrecy-related expenditures ever reported by ISOO.