On to Chapter Twelve.
DECLASSIFYING CLASSIFIED INFORMATION
Certain requirements must be met before information can be classified. Those requirements were discussed in earlier chapters. When circumstances change, the classified information may no longer meet all of those requirements, and it should be considered for declassification or downgrading. This chapter describes declassification of information principles. In the following chapter, downgrading classified information is discussed.
Information may be declassified only by certain government employees who have been granted declassification authority.* However, government employees who are responsible for declassification matters frequently ask government-contractor classification personnel to make recommendations as to which classified information should be considered for possible declassification. Therefore, both government classification personnel and government-contractor classification personnel need to be aware of declassification of information principles.
* Note that there are distinctions between declassifying information and declassifying documents or materials. Only government employees can declassify information. Documents or materials, which are classified because of the information that they contain or reveal, may be declassified by certain specifically designated government-contractor employees as well as by certain government employees. The decisions made by government-contractor employees with respect to declassification of documents or materials must be based on classification (declassification) guidance provided by the government.Declassification principles are similar to the previously discussed principles for the original classification of NSI. However, there are some substantive differences with respect to declassifying RD and FRD as compared with the declassification of NSI. Therefore, declassification of atomic energy information (RD and FRD) will be discussed separately from NSI declassification. The declassification of RD and FRD is described in the next section. A later section describes the declassification of NSI.
DECLASSIFICATION OF RESTRICTED DATA AND
FORMERLY RESTRICTED DATA
Declassification of classified atomic energy information (RD and FRD) is of particular interest because it is usually scientific or technical information (the major classification interest in this document) and because of the unique policies and procedures that the United States has directed toward the control of that information.+ The reasons for the stringent statutory control of atomic energy information are difficult to understand without some knowledge of the circumstances under which those controls were first instituted. To facilitate that understanding and because the background information is not readily available elsewhere, this section on the declassification of RD and FRD contains a greater than normal amount of background information.
+ See A. S. Quist, Security Classification of Information. Volume 1. Introduction, History, and Adverse Impacts, K/CG-1077/V1, Martin Marietta Energy Systems, Inc., Oak Ridge, Tennessee, September 1989, Chaps. 4 and 5, for more details on the history of classification and declassification of atomic energy information.Control of atomic energy information began in early 1939, when some U.S. physicists first realized that it might be possible to build an atomic bomb. These scientists took an unprecedented (for university scientists) step by voluntarily withholding certain basic scientific information on nuclear fission from publication. Although the first attempt at obtaining wide acceptance of this atomic energy information-control policy was not successful, another effort was initiated in late 1939 and was successfully achieved by mid-1940. This purely voluntary effort to control basic scientific atomic energy information was initiated and implemented by the U.S. scientific community--the U.S. military disclaimed any interest in controlling this information.
From about midyear 1940 until midyear 1942, civilian organizations of the U.S. Government managed the atomic energy program and instituted rigorous controls on atomic energy information. In June 1942, the U.S. Army assumed responsibility for the atomic bomb project (the Manhattan Project) and established additional rigid controls on atomic energy information. The importance of controlling information about atomic bomb development was especially emphasized in a June 29, 1943, letter from President Roosevelt to Dr. J. Robert Oppenheimer, Director of the Los Alamos Laboratories of the Manhattan Project:
The fact that the outcome of your labors is of such great significance to the Nation requires that this program be even more drastically guarded than other highly secret war developments. I have therefore given directions that every precaution be taken to insure the security of your project and feel sure that those in charge will see that these orders are carried out.1The use of atomic bombs produced by the Manhattan Project was a major factor in ending World War II. The awesome power of those weapons, their sudden and dramatic appearance as weapons of war, the extreme secrecy of the Manhattan Project, and the swift surrender of Japan after their first use made a very strong impression on the U.S. public and Congress. The desire of the public and Congress to maintain a U.S. monopoly on atomic bombs led to the very strict controls on atomic energy information that were included in the Atomic Energy Act of 1946. That act and its successor Atomic Energy Act of 1954 are the only U.S. statutes ever enacted that classify information.* The provisions of these two atomic energy acts and their legislative history show that U.S. policy is very strongly directed at stringently controlling atomic energy information that can be used for military purposes.
* Although these acts do not actually state that RD or FRD are classified information, the consequences of the information control provisions in these acts are that RD and FRD are classified information.Before discussing declassification of RD and FRD under the currently applicable Atomic Energy Act of 1954, earlier actions declassifying atomic energy information during the Manhattan Project and declassifying RD under the Atomic Energy Act of 1946 will be described. Such descriptions will provide a perspective on the policy for the control of atomic energy information in the United States. Additional historical aspects of the declassification of atomic energy information have been discussed elsewhere in some detail.2
Declassification of Atomic Energy Information
Under the Manhattan Project
The terms RD and FRD were not used to identify the Manhattan Project's classified atomic energy information. The term RD was first defined by the Atomic Energy Act of 1946. The term FRD was not invented until some time after the Atomic Energy Act of 1954 was enacted. "Classified atomic energy information" is used in this section and throughout this document to denote information that could meet the definition of RD or FRD pursuant to the Atomic Energy Act of 1954.
The first major declassification of U.S. atomic energy information occurred when an atomic bomb was dropped on Hiroshima, Japan, on August 6, 1945. This explosion revealed that a weapon based on nuclear fission could be produced.* When the fact that something can be done is made public, then other countries can proceed with confidence towards the same goal, knowing that it can be achieved. Thus, a major secret was disclosed when the first atomic bomb was used in warfare.
* The declassification action can be represented as follows: The fact that a nuclear fission bomb can be produced using enriched uranium is unclassified. This declassification action was inherent in the decision to drop an atomic bomb on Hiroshima. Similarly, another declassification occurred when the second atomic bomb was dropped on Nagasaki. That declassification action can be represented as follows: The fact that a nuclear fission bomb can be produced using plutonium is unclassified.The second major declassification of atomic energy information occurred when the Smyth Report3 was released to the public on August 11, 1945. This report gave a general account of all U.S. work leading to the production of nuclear weapons. Included in that general account was information that would be very helpful to other nations that wanted to develop nuclear weapons. However, Manhattan Project leaders concluded that the adverse impact of releasing that information was outweighed by several information release benefits. The declassification principles used for that decision are given below. However, two additional reasons for issuing the Smyth Report are of particular interest.4, 5, 6 First, the Smyth Report identified the information that could be discussed as unclassified and thereby helped preserve secrecy on the remaining classified information.+ Second, the Smyth Report provided general information about atomic energy to U.S. citizens to help them reach informed decisions about U.S. atomic energy policy matters.
+ Since the development of an atomic bomb was such a remarkable achievement, the Manhattan Project leaders recognized that there would be pressure from the press, politicians, public, and peers for more information from project personnel. Those leaders also realized that Manhattan Project personnel would be eager to discuss their achievements. Publishing the Smyth Report established boundaries for releasing such information and for unclassified discussions of those achievements.Several declassification principles guided the preparation of the Smyth Report. For atomic energy information to be included in the Smyth Report, it had to satisfy at least one requirement in each of the following three categories.I. (A) That it is important to a reasonable understanding of what had been done on the project as a whole or (B) That it is of true scientific interest and likely to be truly helpful to scientific workers in this country andAfter the end of World War II, there was much interest within the Manhattan Project in making available, for general scientific and technical use, more of the Manhattan Project atomic energy information. In November 1945 a Committee on Declassification was established by Gen. L. R. Groves, head of the Manhattan Project, to develop guidelines for declassifying additional atomic energy information. This committee is usually known as the Tolman Committee because physical chemist R. C. Tolman was its chairman. The Committee's first report stated the following as its general philosophy:
II. (A) That it is already known generally by competent scientists or (B) That it can be deduced or guessed by competent scientists from what is already known, combined with the knowledge that the project was in the overall successful or
III. (A) That it has no real bearing on the production of atomic bombs or (B) That it could be discovered by a small group (15 of whom not over 5 would be senior men) of competent scientists working in a well-equipped college lab in a year's time or less.7In accordance with your [Gen. Groves'] directive the Committee has considered the effect of release of information both on the national welfare and on the national security. In the interest of national welfare it might seem that nearly all information should be released at once. In the interest of national security a superficial consideration of the problem might lead to the conclusion that very little information should be released.The Tolman Committee used the following positive and negative criteria to guide the declassification of atomic energy information:
It is not the conviction of the Committee that concealment of scientific information can in any long term contribute to the national security of the United States. It is recognized that at the present time it may be inevitable that the policy of the Government will be to conceal certain information in the interest of national security. Even within this limitation there are many matters whose declassification would greatly help the progress of science without violating that policy. If we are looking to the national welfare or national security as they may be two decades from now the Committee has no doubt that the greatest strength in both fields would come from a completely free and open development of science.
Thus, the Committee is inclined to the view that there are probably good reasons for keeping close control of much scientific information if it is believed that there is a likelihood of war within the next five or ten years. It is also their view, however, that this would weaken us disastrously for the future—perhaps twenty years hence.8
Positive CriteriaThe Tolman Committee recognized that the need for classification of an item of information would change with time. The following were some reasons for such change:
1. Advancement of general science.
2. Advancement of non-military aspects of nuclear science.
3. Advancement of military aspects of nuclear science.
4. Advancement of general technology.
5. Advancement of non-military aspects of nuclear technology.
6. Advancement of military aspects of nuclear technology.
7. Information already substantially known outside project.
8. Information readily obtainable by theory or minor experimentation.
1. Disclosure would jeopardize U.S. military security.
2. Disclosure would weaken U.S. position in international discussions.
3. Disclosure would jeopardize patent position.9
1. As experience is gained in declassification.Three classes (declassification categories) for atomic energy information were established by the Committee:11
2. As the state of general knowledge in the field changes.
3. As the state of the art changes.
4. As the international situation changes and as the formulation of policy by the government progresses.10
Class I. Information recommended for immediate declassification. [This class] includes basic scientific information which has little direct application to the problems of production or military utilization.For classification guidance purposes, the activities of the Manhattan Project were grouped into six major research and production areas (general, electromagnetic process to enrich uranium, diffusion processes to enrich uranium, plutonium production, nuclear weapon production, and medical information). Project information in each of these six areas was assigned to one of the three declassification categories.
Class II. Information whose declassification would conduce to the national welfare and to long term national security, so that the date of declassification should depend on estimates as to the probability and imminence of war. [This class] includes certain basic scientific information which would be of great value to the development of science but which has a direct bearing on production or military utilization. It also includes technological information which would be of great importance for the peacetime utilization of atomic energy but which also has importance for production or military utilization.
Class III. Information not at present recommended for declassification, and whose declassification should await a real reduction in the threat of atomic warfare. [This class] includes information which has immediate application to the problems of military utilization but for the most part has little application to the development of science or to peacetime utilization. Included in this class are statements with regard to production capacities, amounts of active material on hand, present output of bombs, stock pile of bombs, etc.
The Tolman Committee's declassification standards for the three classes of atomic energy information can be summarized as follows, arranged from the most stringent to least stringent declassification standard:
TC1. Do not declassify this information because critical national security considerations are much more important than information disclosure benefits.The Tolman Committee Report provided the general policies, principles, and detailed guidance for the Manhattan Project's first declassification guide, which was dated March 30, 1946. President Truman made the final decision approving that declassification guide.12
TC2. Do not declassify this information because national security considerations are more important than information disclosure benefits, even though the risks and benefits are of about equal value.
TC3. Declassify this information because it has little national security significance and its publication would provide important benefits to general scientific and technical progress.
Declassification Under the Atomic Energy Act of 1946
The Atomic Energy Act of 1946 became effective on January 1, 1947. That act stated the U.S. atomic energy policy to be that the "common defense and security" of the United States was the paramount factor in atomic energy matters.*
* "It is hereby declared to be the policy of the people of the United States that, subject at all times to the paramount objective of assuring the common defense and security, the development and utilization of atomic energy shall, so far as practicable, be directed toward improving the public welfare, increasing the standard of living, strengthening free competition in private enterprise, and promoting world peace" (emphasis added) [Atomic Energy Act of 1946, §1(a); 60 Stat. 756].This was also mentioned in the act's policy statements to control RD and to declassify RD:
It shall be the policy of the [Atomic Energy] Commission to control the dissemination of restricted data in such a manner as to assure the common defense and security (emphasis added).13The declassification standard, publication "without adversely affecting the common defense and security," was very rigorous. Further, declassification of RD required the approval of the five AEC Commissioners and therefore such declassification was not procedurally easily accomplished. It is not surprising that relatively little RD was declassified under the 1946 act.
The term "restricted data" . . . shall not include any data which the Commission from time to time determines may be published without adversely affecting the common defense and security (emphasis added).14
During 1947 the AEC stated that it supported the Manhattan Project's declassification policy as established by the Tolman Committee.15, 16 The AEC's policy on information control was summarized in 1950 as follows [It is perhaps worthy of mention that in 1950 H. D. Smyth was one of the five AEC Commissioners. Dr. Smyth seems to have taken a particular interest in information dissemination and control matters.]:
The AEC's Eighth Semiannual Report stated that the AEC's information control policy was guided by three basic principles:
CONTROL OF INFORMATION
The Commission has continued to give careful consideration to the basic policies underlying the control of information. The Commission, guided by the pertinent provisions of the Atomic Energy Act, has determined that information should be controlled so as to promote the common defense and security by--
a) Withholding from those whose objectives may be inimical to the interests of the United States, information which could be used by them to the detriment of this Nation's security.The secrecy classification to be applied to any item of information thus depends upon a balance between the value of that information to inimical interests and the value expected to accrue to the United States through its dissemination.
b) Providing adequate information for a vigorous and efficient pursuit of the goals of this Nation's atomic energy and related programs, in a manner consistent with democratic traditions.
In its consideration of policies in such matters, the Commission has recognized that the essential assets of the United States in atomic energy, as in other fields, are the ability and experience of industry, the knowledge and enthusiasm of scientists, and the maintenance of momentum in all technical fields. Many of these assets lie outside the Commission's organization and depend to an essential degree upon scientists, technicians, and industrialists having free access to adequate information.
The importance of accountability to the public must be considered, likewise, in determining information-control policy. In a democracy, the people must be able to judge the action of their representatives and officials, and to pass intelligently on policy. The Commission believes that information about a public enterprise of such magnitude as the atomic-energy program should be withheld only for reasons soundly based upon the common defense and security.
The essential factors in appraising whether particular items of information must be kept secret depend in part on a technical judgment as to the pertinence of the information to the objectives of this Nation's over-all program. In forming this judgment, the Commission looks to key technical personnel associated with its activities. It also depends upon many factors of nontechnical nature such as, for example, matters related to military operations, civil defense, plant protection, or international relations. In this judgment the Commission must obtain the views of competent authorities in its own organization and in other agencies. The Commission recognizes that control of information requires constant exercise of judgment, in the last analysis, by every individual concerned with classified information.17
a) Weapons information, including design, production and stockpiles, should be kept secret.The principle for controlling information not falling within one of those three categories was, "Will the release of this information help the United States atomic energy program more than it will help the atomic energy program of a potential enemy?"19
b) Basic science should be free except where it is directly related to weapons.
c) Until international control is attained, there shall be no information exchanged with other nations on the use of atomic energy for industrial purposes.18
Declassification Under the Atomic Energy Act of 1954
The Atomic Energy Act of 1954 became effective on August 30, 1954, and is currently in effect. That act's definition of RD* was essentially the same as was in the Atomic Energy Act of 1946, but a new standard for declassifying RD was established by the 1954 Act:
The [Secretary of Energy] shall from time to time determine the data, within the definition of Restricted Data, which can be published without undue risk to the common defense and security and shall thereupon cause such data to be declassified and removed from the category of Restricted Data (emphasis added).20This "without undue risk" standard replaced the "without adversely affecting" standard of the 1946 act and made it easier to declassify RD. One of the major U.S. policy reasons for the change was to make it easier for some atomic energy information to be applied to civilian (peacetime) uses. Another reason was to enable some atomic energy information to be shared with other nations as part of our foreign policy (e.g., to implement the Atoms for Peace Program).
* The term Restricted Data means all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to [section 2162 of this title] [42 U.S.C. 2014(y)].
The 1954 act provided for the transclassification of RD to another category of atomic energy information, later designated as FRD:
The [Secretary of Energy] shall remove from the Restricted Data category such data as the [Secretary of Energy] and the Department of Defense jointly determine relates primarily to the military utilization of atomic weapons and which the [Secretary of Energy] and the Department of Defense jointly determine can be adequately safeguarded as defense information: Provided, however, That no such data so removed from the Restricted Data category shall be transmitted or otherwise made available to any nation or regional defense organization, while such data remains defense information, except pursuant to an agreement for co-operation entered into in accordance with [section 2164(b) of this title].21The 1954 Act also provided for the declassification of FRD:
In the case of Restricted Data which the [Secretary of Energy] and the Department of Defense jointly determine to relate primarily to the military utilization of atomic weapons [FRD], the determination that such data may be published without constituting an unreasonable risk to the common defense and security shall be made by the [Secretary of Energy] and the Department of Defense jointly, and if the [Secretary of Energy] and the Department of Defense do not agree, the determination shall be made by the President.22Note that the declassification standard for FRD is publication "without unreasonable risk" as compared to the "without undue risk" standard for declassification of RD. Presumably, an undue risk is not as large as an unreasonable risk since RD is more tightly controlled than FRD.* FRD is protected as NSI (except with respect to transmittal to other nations—see above) and therefore declassification standards for FRD would be expected to be similar to those for NSI. However, the declassification standard for FRD, "publication without constituting an unreasonable risk to the common defense and security," is not exactly the same as the NSI declassification standard, which is that disclosures (publication) "reasonably could be expected not to cause damage to the national security" (see below for a discussion of the standard for declassifying NSI).
* For example, within DOE and its contractors, a person with an L security clearance may have access to Secret information in the FRD and NSI categories but only to Confidential information in the RD category.Much RD and FRD have been declassified under the more liberal declassification standards of the Atomic Energy Act of 1954. However, not much information has been published about the declassification principles and balancing standards used to guide those declassification actions. Some information on those matters is contained in a 1974 AEC report on the AEC classification program.23 That report indicated that the AEC had generally followed the declassification philosophy of the Tolman Committee.23 The report also indicated that the following factors were considered in making recommendations on the declassification of RD and FRD:
(a) The published state of the art both in the United States and elsewhere.Those factors are risks and benefits of information disclosure (see Chapter 6), except for the first factor, which is an information control factor, and the last factor, which is a measure of the extent to which an adversary would be helped by the information disclosure.
(b) The value of the information to our classified programs.
(c) The value of the information to our unclassified programs.
(d) The effect that the information might have in assisting the development of a nuclear capability in other nations.
(e) The feasibility of providing adequate security protection.
(f) The extent to which classification would interfere with our progress in the field under consideration.
(g) The extent to which classification might adversely affect delivery schedules for items, e.g., weapons to stockpile.
(h) The extent of effort required in developing the information.23
The 1974 AEC report also described balancing standards (termed declassification policy statements) to use when declassifying RD and FRD. Five major RD and FRD information areas were listed in that report and a balancing standard (policy statement) was given for each area.23 Those five balancing standards are paraphrased and summarized as follows:
S1. Retarding the progress of inimical nations is more important than advancing U.S. progress.*Current DOE policy and standards for declassifying atomic energy information are contained in a 1974 classification policy guide. The basic principle to be used when declassifying atomic energy information was expressed as follows:
* This is a somewhat strange declassification standard, since it is difficult to retard the progress of an inimical nation by releasing information. This standard probably should have been stated as "Declassify only when the declassification will not assist the progress of an inimical nation."
S2. Declassify information only when such an action makes a contribution to U.S. progress which clearly outweighs the risk to the national defense and security of disclosing the information.
S3. Declassify only when the advantage to the U.S. clearly outweighs any advantage to an inimical nation.
S4. Advancing U.S. technology is more important than retarding the progress of inimical nations.
S5. Declassify only when the information disclosed is not vital to nuclear weapons or to military production reactors.
The principle underlying declassification policy is to achieve a balance between two aims: (1) promoting the common defense and security by maintaining at a minimum the declassification of information concerning the military aspects of atomic energy, and (2) promoting the scientific and peaceful applications of atomic energy to the maximum extent possible consistent with the common defense and security.23Declassification balancing standards were given for several areas of classified atomic energy information. Those standards are paraphrased and summarized as follows:
SA1. Declassify information only when it makes a contribution to U.S. progress which clearly outweighs the risk to the common defense and security of disclosing the information.A 1987 DOE report summarized DOE policy for declassifying atomic energy information. The underlying principle was stated as follows:
SA2. Declassify information only when the contribution to the scientific and peaceful applications of atomic energy clearly outweighs the risk of the disclosure.
SA3. The information should remain classified if it is essential primarily to military activities.
SA4. Declassify information only when clearly in the national defense interest.
SA5. Only that information essential primarily to defense activities need remain classified.
The principle underlying classification and declassification policy for atomic energy information is to achieve a balance between two aims: (1) assuring the common defense and security by controlling the declassification of information concerning the military aspects of atomic energy; and (2) promoting the dissemination of scientific and technical information relating to the peaceful applications of atomic energy consistent with the common defense and security. However, the Atomic Energy Act states that the paramount objective of protecting the common defense and security must be observed. A determination on the declassification or downgrading of information can proceed only after a careful balancing of the risk to the common defense and security against the benefit to our own program of the proposed action. In such a risk-benefit analysis, credibility of the DOE classification program is one of the factors considered. It is also particularly important to avoid revealing information that may contribute to horizontal (by a non-weapon state) or vertical (by a weapon state) proliferation.25That report also stated that when information was considered for possible declassification, the following factors were among those considered:
Impact on U.S. national security by release of the information.In 1990 DOE adopted new declassification procedures and stated that proposed declassification actions would be evaluated against the following criteria:
Benefit to the progress in a U.S. program.
Extent to which the information has been published, publicized, or otherwise disseminated.
Whether release of the information would strengthen the credibility of the classification program.
Extent to which technological progress has made the information less sensitive.
Importance of the information to public discussion and education.
Impact on a U.S. negotiation posture.
Extent to which the information has been compromised through unauthorized disclosure.
Extent to which the information can be duplicated through simple theoretical calculations and experiments.25
The extent to which the information would assist in the development of a nuclear weapons capability in non-nuclear weapon states or in improvements to the weapons in a nuclear weapon state.Except for the last two items on this list, the criteria are essentially risks and benefits to be considered when evaluating information for declassification. The last item on the list, which refers to published information, is really an information control matter. The next-to-last item, the cost of developing the information, is a measure of how much the declassification would help an adversary and is therefore not a risk but a factor to be used in evaluating several of the risks. DOE added the following additional criterion to this list in 1992:
The extent to which the information would assist in the production of special nuclear material.
The benefit to be realized by the U.S. program from the declassification action, including any significant technology commercialization potential.
The cost to the U.S. program by the continued classification of the information.
Any detrimental (or beneficial) effect release of the information might have on U.S. foreign relations, arms control negotiations, or treaty obligations.
Any impact on the credibility of the Department of Energy classification program by the continued classification of the information.
The cost in terms of time and money of acquiring the information.
The published state of the art for the information in both the U.S. and in other countries.26
Any other national security impact or significance (e.g., the extent to which the information would assist an adversary nation to assess or counter the U.S. capabilities and limitations).27Table 11.1 summarizes the risk and benefit criteria that could be used when deciding whether to declassify RD or FRD. That table includes the 1990 and 1992 DOE criteria (expressed specifically in terms of risks and benefits) plus, as benefits, the importance of the information to public discussion and education (stated in the 1987 DOE report), the benefits to U.S. general progress in science and technology (stated in the Tolman Committee Report), and a catch-all "Any other significant benefit to the United States" that was added to be consistent with a similar criterion for determining risks. This table is essentially the same as Table 5.1, except that Table 11.1 is specific for declassifying RD or FRD.
The complete chronology of the information-control factors, the information-disclosure risks, and the information-disclosure benefits used for declassifying atomic energy information from 1945 to 1992 is summarized in Table 11.2. The last column of that table contains, as proposed comprehensive criteria, the information-control factors discussed in Chapter 4 and the risk and benefit criteria discussed in Chapter 5 and also given in Table 11.1.
Table 11.1. Criteria that could be used to determine the risks and benefits of disclosure
of scientific or technical information when considering whether to declassify
Restricted Data or Formerly Restricted Data
Criterion number Description Criteria for Determining Risks RC1 The extent to which the information could assist a non-nuclear weapon state in developing a nuclear weapon capability RC2 The extent to which the information could assist a nuclear weapon state in improving its nuclear weapons RC3 The extent to which the information could assist in the production of special nuclear material RC4 The detrimental effects that release of the information could have on U.S. foreign relations, arms control negotiations, or treaty obligations RC5 Any other national security impact or significance (e.g., the extent to which the information would assist other nations in assessing or countering U.S. capabilities and limitations) RC6 The detrimental effects that declassification of the information could have on the credibility of the Department of Energy classification program Criteria for Determining Benefits BC1 The benefits to the progress of the U.S. program that could be achieved from the declassification action BC2 The benefits to the U.S. program that could be achieved by eliminating the costs of continued classification of the information BC3 The benefits to the U.S. economy that could be realized by transferring the technology to U.S. industry for commercialization BC4 The benefits that could be realized by U.S. progress in science and technology, in general, if the information were declassified BC5 The benefits that release of the information could provide to U.S. foreign relations, arms control negotiations, or treaty obligations BC6 The importance of the information to public discussion and education BC7 Any other significant benefit to the U.S. BC8 The benefits that declassification of the information could have on the credibility of the Department of Energy classification program
The specific standards used by DOE for balancing risks and benefits of declassifying RD and FRD depend upon the area of atomic energy information in which the RD or FRD is included. Those standards were summarized and paraphrased earlier in this chapter. They may be compared with the proposed standards for classifying information that were given in Table 6.2.
RD may be declassified only by the DOE Director of Security Affairs. FRD may be declassified only by a joint determination of the DOE Director of Security Affairs and DoD.28, 29
DECLASSIFICATION OF NATIONAL SECURITY
Declassification Requirements Contained
in Executive Orders
The first two EOs on the classification of information, issued in 1940 and 1950, did not discuss declassifying or downgrading classified information.30 EO 10290, issued in 1951 as the third EO on classification of information, provided for review of classified information (currently termed NSI) for downgrading and declassification and for automatic declassification and downgrading of NSI after a specified event or date.31 Essentially the same declassification and downgrading provisions were included in EO 10501, issued in 1953.32 In 1961, EO 10501 was amended by EO 10964 to require that certain types of NSI be automatically downgraded or declassified at specified time intervals.33 The time intervals were to be measured from the date of issuance of the document containing the classified information. Required automatic downgrading or declassification was specified for some types of NSI in subsequent EOs until EO 12356 was issued in 1982. That EO, which currently governs the classification of NSI, does not require automatic downgrading or declassification of NSI. With respect to declassification and downgrading, EO 12356 states that:
Information shall be classified as long as required by national security considerations. When it can be determined, a specific date or event for declassification shall be set by the original classification authority at the time the information is originally classified.34The elimination of automatic downgrading or declassification requirements is recognition of the fact that the security sensitivity of most NSI does not decrease at a fixed rate with respect to elapsed time but is affected by events that cannot be predicted.35, 36 "Gone are the artificial 6- and 20-year limitations that substituted for judgment of original classification authorities."37 The elimination of those requirements is consistent with a 1974 statement by the DoD Director of Research and Engineering: "There can be no magic formula or standard for determining the number of years to retain classification on any particular piece of equipment or item of information."38
O 12065, the immediate predecessor to EO 12356, stated that "declassification of classified information shall be given emphasis comparable to that accorded classified information."39 A comparable directive was not included in EO 12356. EO 12065 also explicitly stated that information which continued to meet all classification requirements might sometimes be declassified when to do so was in the public interest.40 That provision was not included in EO 12356.*
* Central Intelligence Agency (CIA) information security regulations still include criteria for declassifying properly classified information when public interest in its disclosure outweighs the need to protect that information. Such properly classified information would not be disclosed if disclosure could reasonably be expected to (1) place a person's life in jeopardy, (2) adversely affect the public health and safety, (3) impede legitimate law enforcement functions, (4) impede the investigation of oversight functions of the Congress, (5) obstruct the fair administration of justice, or (6) deprive the public of information indispensable to public discussion on issues of crucial national importance. The balancing of the competing interests for those situations was to be carried out by a CIA official having Top Secret classification authority. The final decision rested with higher CIA authorities [32 CFR Part 1902.13, §§(c) and (d)].NSI can be declassified by the person originally classifying that information, that person's successor, supervisors of either, or other persons delegated such authority in writing by an agency head or other designated senior agency official.41 Within the DOE and its contractors, NSI can be declassified by the Original Classifier of such information (or successor to that person), the Director of Classification, or the Director of Security Affairs.+, 42
+ Documents or materials containing NSI, RD, or FRD can be declassified, within DOE and its contractors, by the Director of Classification, Original Classifiers, or Derivative Declassifiers [DOE Order 5650.2B, "Identification of Classified Information," Dec. 31, 1991, Chap. V, Part A, §4(g)(2)(b); Chap. VI, Part A, §§2(a) and 2(b)(5)]. Custodians of classified documents or materials may declassify those documents or materials in accordance with a declassification notice from an authorized source [DOE Order 5650.2B, Chap. VI, Part A, §2(a)].Principles for Declassifying NSI Classified by Executive Order
The basic policy for declassifying NSI, as paraphrased from EO 12356 where the policy is expressed in terms of classifying information, is that NSI can be declassified if its disclosure reasonably could be expected to not cause damage to the national security.++ Table 11.3 compares the declassification policy for NSI with the previously given declassification policies for RD and FRD.
++ This policy for declassifying NSI is a paraphrase of EO 12356, Preamble, which states the government policy for classifying information, and §3.1(a), which authorizes declassification of information.Principles to use when declassifying information are similar to those used for classifying information. Three major steps are involved in classifying information: (1) determining whether the information is under governmental control, (2) evaluating the risks and benefits of information disclosure, and (3) balancing those risks and benefits.
Criteria for determining information-disclosure risks and benefits and the factors for evaluating those criteria were described in Chapter 5 with respect to deciding whether information was classified. Those criteria and factors are also applicable to declassifying information and so they will not be discussed further in this chapter.
Principles and standards to use when balancing information-disclosure risks and benefits were described in Chapter 6 with respect to classification of information decisions. Those principles and standards are also applicable to declassification actions and so they will not be discussed further in this chapter. The standards in Chapter 6 are consistent with the declassification policy given in EO 12356 (see above) when that policy is expressed in terms of net damage to the national security. That is, the classification (declassification) standards of Chapter 6 are consistent with EO 12356 policy when that policy is paraphrased to state that NSI can be declassified when its disclosure reasonably could be expected to not cause net damage to the national security.
The first major step in classifying information (i.e., determining whether the information is under governmental control) has not yet been mentioned in connection with declassification. That is because if the information is currently classified, then it is presumably also currently under governmental control. However, loss of governmental control may provide a reason for declassifying information.
Sometimes classified information that has not yet been declassified will appear in unclassified publications because of unauthorized disclosure, either deliberate or unintentional. In those situations that classified information is no longer totally under government control. A subsection of EO 12356 deals specifically with the publication of classified information.* It states that classified information "shall not be declassified automatically as a result of any unofficial publication or inadvertent or unauthorized disclosure in the United States or abroad of identical or similar information."43
* DOE has a "no comment" policy that forbids knowledgeable employees from making any comments concerning the appearance of classified information in an unclassified publication.DoD guidance specifically mentions the effect of open publication of classified information on declassification considerations:
Classified information shall not be declassified automatically as a result of any unofficial publication or inadvertent or unauthorized disclosure in the United States or abroad of identical or similar information. Appearance in the public domain of information currently classified or being considered for classification does not preclude initial or continued classification. However, such disclosures require immediate determination of the degree of damage to the national security and reevaluation of the information to determine whether the publication has so compromised the information that downgrading or declassification is warranted.44Courts have held that information in the public domain that is similar to classified information does not warrant the disclosure of the classified information. One court emphasized that the least "bit" of classified information requires protection.45 Another court held that classified information is not to be considered as declassified unless it has been officially disclosed.46 Thus, the appearance of classified information in an unclassified publication does not mean that the information has been declassified. In some situations "the effect of its classification has been lost, but in fact the information is still classified."*, 47
* With respect to the unauthorized release of classified information, it is said to be sometimes difficult to obtain official recognition of the fact that the effect of classification has been lost and that the rational course of action is to declassify the information. One author has stated that "one of the most costly and hardest to justify decisions is to classify a program, or certain information related to a program, after the information has been rather widely disseminated as unclassified. All classification management can do here is to present the best case possible that this is an unreasonable decision and will accomplish nothing" [W. N. Thompson, "Security Classification Management—Coordination Between Industry and DOD," J. Natl. Class. Mgmt. Soc., 4(2), 121–128 (1968), p. 126].Principles for Declassifying NSI Transclassified from RD
There is reason to believe that the declassification principles mentioned above should not apply to all NSI. There are two kinds of NSI: NSI classified under EO 12356 and NSI transclassified from RD. The Atomic Energy Act of 1954 authorizes the transclassification of certain RD to NSI:
The [Secretary of Energy] shall remove from the Restricted Data category such information concerning the atomic energy programs of other nations as the [Secretary of Energy] and the Director of Central Intelligence jointly determine to be necessary to carry out the provisions of section [102(d) of the National Security Act of 1947, as amended,] and can be adequately safeguarded as defense information.48A similar section of the 1954 act authorized the transclassification of certain RD to FRD (discussed previously in this chapter).
Although FRD is treated like NSI in most respects, the 1954 act specifically requires that FRD be declassified by a joint determination of DOE and DoD, the two entities that also decide if RD can be transclassified to FRD (previously discussed in this chapter). The declassification standard for FRD was also established by the 1954 act (previously discussed in this chapter). That standard (publication without unreasonable risk to the common defense and security) is different than either the standard for RD (publication without undue risk to the common defense and security) or NSI (disclosure reasonably could be expected not to cause damage to the national security).
The unique requirements for declassifying FRD, even though FRD is generally protected like NSI, are consistent with the special concern that Congress has always had for atomic energy information. It is curious that the Atomic Energy Act does not also specify declassification procedures for the RD that has been transclassified to NSI. One might have expected a requirement that the declassification decision be made jointly by DOE and the Director of the Central Intelligence Agency (CIA). One might also expect that the declassification standard for this NSI should be based on the area of atomic energy information from which this NSI was transclassified, since there are different standards for the declassification of RD for the different areas of atomic energy information. Another consideration arises from the probability that the RD transclassified to NSI was probably obtained from intelligence sources and methods. The Director of the CIA is responsible for protecting intelligence sources and methods from unauthorized disclosure.49 Does the CIA have a veto power for any decision to declassify NSI that was transclassified to NSI from RD?
There is another unusual aspect to the declassification of transclassified NSI (NSI that was created by transclassifying RD). RD and FRD, once declassified, cannot be reclassified.*, 50 However, under certain circumstances EO 12356 permits declassified NSI to be reclassified.51 Therefore, if the same classification and declassification rules are applicable both to NSI classified under EO 12356 and to NSI transclassified from RD, then NSI transclassified from RD may be declassified and subsequently reclassified. Such an action would be inconsistent with the Atomic Energy Act's provision that forbids the reclassification of information that was once RD.50
SUMMARY OF DECLASSIFICATION PRINCIPLES
The criteria for determining the risks and benefits of information disclosure, for use in classification of information decisions, were summarized in Table 5.1 of Chapter 5. The same criteria should be used for determining the risks and benefits of declassifying information. Each risk and benefit must be evaluated to determine its magnitude so that risks can be balanced against benefits. For each risk and benefit there may be several evaluation factors that should be considered. The evaluation factors to use when determining whether information should be classified were summarized in Tables 5.2 and 5.3 of Chapter 5. Those same evaluation factors should be used in determining whether information should be declassified.
Standards to use to balance information-disclosure risks against information-disclosure benefits when making classification decisions were summarized in Table 6.2 of Chapter 6. Those same balancing standards should be used when determining whether information should be declassified.
Matters of proof in declassification decisions are summarized in Table 11.4 for each category of classified information, including the two subcategories of NSI (see above). See Table 6.3 for comparable matters of proof for classification decisions.
1. U.S. Atomic Energy Commission, "In the Matter of J. Robert Oppenheimer," Transcript of Hearing Before Personnel Security Board, Washington, D.C., April 12, 1954, through May 6, 1954, U.S. Govt. Printing Office, 1954, p. 30.
2. A. S. Quist, Security Classification of Information. Volume 1. Introduction, History, and Adverse Impacts, K/CG-1077/V1, Martin Marietta Energy Systems, Inc., Oak Ridge, Tennessee, September 1989, Chap. 5. Hereafter cited as "Quist."
3. H. D. Smyth, A General Account of the Development of Methods of Using Atomic Energy for Military Purposes Under the Auspices of the United States Government, 1940–1945, U.S. Govt. Printing Office, August 1945.
4. R. G. Hewlett and O. E. Anderson, Jr., The New World, 1939/1946, The Pennsylvania State University Press, University Park, Pa., 1962, pp. 400, 407. Hereafter cited as "Hewlett and Anderson."
5. L. R. Groves, Now It Can Be Told, Harper & Brothers, New York, 1962, pp. 348–352.
6. V. C. Jones, Manhattan: The Army and the Atomic Bomb, United States Army in World War II, Special Studies, Center of Military History, United States Army, Washington, D.C., 1985, pp. 556–562. Hereafter cited as "Jones."
7. Jones, pp. 558–559, quoting from a May 21, 1945, letter from General L. R. Groves to H. D. Smyth.
8. R. C. Tolman, R. F. Bacher, A. H. Compton, E. O. Lawrence, J. R. Oppenheimer, F. H. Spedding, and H. C. Urey, Report of Committee on Declassification, Memorandum to Maj. Gen. L. R. Groves, Nov. 17, 1945, pp. 2–3. Hereafter cited as "Tolman Report."
9. Tolman Report, p. 3.
10. Tolman Report, p. 4.
11. Tolman Report, pp. 4-5.
12. Hewlett and Anderson, p. 647.
13. Atomic Energy Act of 1946, §10(a); 60 Stat. 766.
14. Atomic Energy Act of 1946, §10(b)(1); 60 Stat. 766.
15. B. J. Bok, F. Friedman, and V. Weisskopf, "Security Regulations in the Field of Nuclear Research," Bull. At. Sci, 3, 321–324, 344 (November 1947), p. 321. This article included the contents of a letter dated Aug. 27, 1947, from C. L. Wilson, General Manager of the Atomic Energy Commission, to B. J. Bok, which described the Commission's policy on atomic energy information security.
16. U.S. Atomic Energy Commission, Second Semiannual Report, July 1947, p. 15.
17. U.S. Atomic Energy Commission, Seventh Semiannual Report, January 1950, pp. 169–170.
18. U.S. Atomic Energy Commission, Eighth Semiannual Report, July 1950, pp. 227–228. Hereafter cited as "Eighth Semiannual Report."
19. Eighth Semiannual Report, p. 228.
20. 42 U.S.C. §2162(a).
21. 42 U.S.C. §2162(d).
22. 42 U.S.C. §2162(c).
23. U.S. Atomic Energy Commission, Washington, D.C., internal document, 1974.
24. U.S. Atomic Energy Commission, Washington, D.C., internal document, 1974.
25. U.S. Department of Energy, Washington, D.C., internal document, 1987.
26. Memorandum from J. C. Tuck, DOE Under Secretary of Energy, to DOE Operations Office Managers, "Department of Energy Declassification Procedures," Tab 1, May 1, 1990.
27. Letter from A. B. Siebert, Director, DOE Office of Classification, to Distribution, Revised Evaluation Criteria for Proposed Declassification Actions, Attachment 2 to "Revised Department of Energy Declassification Procedures," March 12, 1992.
28. U.S. Department of Energy, DOE Order 5650.2B, "Identification of Classified Information," Chap. VI, Part A, §1.a, Dec. 31, 1991. Hereafter cited as "DOE Order 5650.2B."
29. 42 U.S.C. §2162(c).
30. See Quist, Chap. 3, for a more detailed discussion of EOs governing the classification of information.
31. Executive Order 10290, Fed. Reg. 16, 9795 (Sept. 27, 1951), §28.
32. Executive Order 10501, Fed. Reg., 18, 7049 (Nov. 10, 1953), §4.
33. Executive Order 10964, Fed. Reg., 26, 8932 (Sept. 22, 1961).
34. Executive Order 12356, Fed. Reg., 47, 14874 (Apr. 6, 1982), §1.4(a). Hereafter cited as EO 12356.
35. E. Hill, "Defence Procurement and Classification in the U.K.," J. Natl. Class. Mgmt. Soc., 16, 20–27 (1980), p. 25.
36. A. P. Stringer, "Classification Management in the United Kingdom," J. Natl. Class. Mgmt. Soc., 23, 38–43 (1987), p. 43.
37. A. F. Van Cook, "Information Security and Technology Transfer (An OUSD Overview of Executive Order 12356 and DoD's View Concerning Implementation)," J. Natl. Class. Mgmt. Soc., 18, 1–7 (1982), p. 3.
38. J. S. Foster, Jr., in Government Secrecy, Hearings Before the Subcommittee on Intergovernmental Relations of the Committee on Government Operations, U.S. Senate, 93rd Congress, 2nd Session, May 22, 23, 29, 30, 31 and June 10, 1974, U.S. Govt. Printing Office, 1974, p. 268.
39. Executive Order 12065, Fed. Reg., 43, 28949 (July 3, 1978), §3-301. Hereafter cited as "EO 12065."
40. EO 12065, §3-303.
41. EO 12356, §3.1(b).
42. DOE Order 5650.2B, Chap. VI, Part A, §1(b).
43. EO 12356, §1.3(d).
44. U.S. Department of Defense, Information Security Program Regulation, DoD 5200.1-R, Chap. II, §2-209, June 1986.
45. Abbotts v. NRD, 766 F.2d 604, 607-608 (D.C. Cir. 1985).
46. Simmons v. United States Department of Justice, 796 F.2d 709 (4th Cir., July 31, 1986).
47. J. F. Doherty, "Classification in the Federal Government," J. Natl. Class. Mgmt. Soc., 3(2), 97–105 (1967), p. 104.
48. 42 U.S.C. §2162(e).
49. 50 U.S.C. §403(d)(3); National Security Act of 1947, §102(d)(3).
50. 42 U.S.C. §2166.
51. EO 12356, §1.6(c).