SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 12
February 13, 2012

Secrecy News Blog: http://www.fas.org/blog/secrecy/

AGENCIES TOLD TO REPORT ON DECLINE IN SECRECY

After all the speeches about greater openness have been delivered and the news releases about secrecy reform have been filed away, one may ask: What has actually been accomplished? How much improper secrecy has been eliminated? Specific answers to such questions may soon be forthcoming.

The Information Security Oversight Office (ISOO), which is responsible for oversight of the national security classification system, wants agencies to answer those questions when they submit their final reports on the Fundamental Classification Guidance Review in June 2012. The Fundamental Review was mandated by President Obama's 2009 executive order 13526 (section 1.9) in order to identify and cancel classification requirements that were obsolete or unnecessary. The Review process is the Obama Administration's primary response to the widely acknowledged problem of overclassification.

In a memorandum to senior agency officials last month, ISOO Director John P. Fitzpatrick instructed them how to report the results of each agency's Fundamental Review, and asked them to explain what practical difference the Review made.

"To the greatest extent possible, the reports should be informative as to how much information that was classified is no longer classified as a result of the review," Mr. Fitzpatrick wrote. "The report should also provide the best estimate of how much information that would normally have been classified in the future will now not become classified," he continued.

The message here is that the Fundamental Review was not supposed to be some merely perfunctory exercise, but was intended to advance a specific policy objective, namely a reduction in the scope of secrecy.

It may succeed, to one degree or another, or it may fail. In either case, Mr. Fitzpatrick's reporting requirements should generate useful clarity about the outcome. See "Reporting Results of Fundamental Classification Guidance Reviews to ISOO," memorandum to selected senior agency officials, January 23, 2012:

In a January 31 interim status report on the Fundamental Review, the Department of Homeland Security said it had eliminated 2 classification guides out of 22 guides that had been reviewed to date.

The Nuclear Regulatory Commission said it had also retired two guides.


DOD ENVISIONS "ROUTINE" UAS ACCESS TO US AIRSPACE

The Department of Defense currently seeks expanded access to U.S. airspace for its unmanned aerial systems (UASs), and it anticipates the routine use of military UAS in the National Airspace System (NAS) as a long-term goal, according to a 25 year roadmap for UAS development.

"The number of UAS in the DoD inventory is growing rapidly. The increase in numbers, as well as the expanding roles of UAS, has created a strong demand for access to national and international airspace and has quickly exceeded the current airspace available for military operations," according to DoD's Unmanned Systems Integrated Roadmap, FY2011-2036, dated October 2011.

"The [desired] end state is routine NAS access comparable to manned aircraft for all DoD UAS," the DoD Roadmap said. "DoD's immediate focus is gaining near-term mission-critical access while simultaneously working toward far-term routine NAS access."

"Current UAS are built to different specifications for different purposes; therefore, showing individually that each system is safe for flight in the NAS can be complicated, time consuming, and costly," the Roadmap stated. "Routine access cannot happen until DoD and FAA agree to an acceptable level of safety for UAS, and the appropriate standards are developed to meet that threshold."

Under current procedures, the Federal Aviation Administration permits a small number of DoD UAS flights outside of restricted military areas. But the present FAA certification process "does not provide the level of airspace access necessary to accomplish the wide range of DoD UAS missions at current and projected operational tempos. This constraint will only be exacerbated as combat operations in Southwest Asia wind down and systems are returned to U.S. locations."

In the newly enacted FAA authorization act and the 2012 National Defense Authorization Act, Congress mandated "accelerated" integration of UASs into U.S. airspace. ("Congress Calls for Accelerated Use of Drones in U.S.," Secrecy News, February 3; "Drones Over U.S. Get OK by Congress" by Shaun Waterman, Washington Times, February 7; "Among Liberties Advocates, Outrage Over Expanded Use of Drones" by Channing Joseph, New York Times The Lede, February 7.)

"Over the next 15 years more than 23,000 UAS jobs could be created in the U.S. as the result of UAS integration into the NAS," according to a 2010 report by the Association for Unmanned Vehicle Systems International, a UAS industry advocacy group. "These new jobs will include positions in industry, academia, federal government agencies and the civilian/commercial UAS end-user community."


CIA ADDS HURDLES TO MANDATORY REVIEW REQUESTS

In recent years the Mandatory Declassification Review (MDR) process has become an increasingly useful alternative to the Freedom of Information Act by which members of the public can challenge the classification of government records. Remarkably, agency classification positions have been overturned with some frequency in the MDR appeals process, which is something that almost never happens in FOIA litigation.

In a dubious act of recognition of the growing effectiveness of MDR, the Central Intelligence Agency has recently imposed substantial new fees that seem calculated to discourage its use by public requesters.

Last September the CIA issued new regulations specifying that declassification reviews would now cost up to $72 per hour even if no responsive records were found or released. There is also a minimum fee of $15 for reproduction of any document, no matter how few pages it might consist of.

"Search fees are assessable even if we find no records, or, if we find any, we determine that we cannot release them," the CIA wrote last month in response to an MDR request from the National Security Archive. "Consequently, we will charge you even if our search results are negative or if we cannot release any information. Accordingly, we will need your commitment to pay applicable fees before we can proceed."

For background and a critique of the new CIA policy, see "The CIA's Covert Operation Against Declassification Review" by Nate Jones in the Archive's Unredacted blog, February 10:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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