Report on Disclosures to the Media is Classified

A report to Congress on authorized disclosures of classified intelligence to the media — not unauthorized disclosures — is classified and is exempt from disclosure under the Freedom of Information Act, the National Security Agency said.

The notion of an authorized disclosure of classified information is close to being a contradiction in terms. If something is classified, how can its disclosure be authorized (without declassification)? And if something is disclosed by an official who is authorized to do so, how can it still be classified? And yet, it seems that there is such a thing.

Confronted by a pressing question from a reporter on a classified matter, an official might opt to acknowledge or disclose classified information in response, without necessarily intending to broadcast that information to everyone. In such cases, the information might be disclosed without being declassified, especially if it is already known to the reporter through other channels.

In the Intelligence Authorization Act for FY 2013 (sec. 504), Congress directed that “In the event of an authorized disclosure of national intelligence” to the media, the government official responsible for authorizing the disclosure shall notify Congress in a timely fashion whenever the intelligence disclosed is classified (or declassified for the purpose of the disclosure).

The purpose of that requirement was to ensure that the congressional intelligence committees are made aware of authorized disclosures to the press “so that, among other things, these authorized disclosures may be distinguished from unauthorized ‘leaks’,” according to the Senate report on the FY2013 intelligence bill.

So what disclosures of classified intelligence to the media were approved by government officials and reported to Congress, we asked earlier this year? The National Security Agency refuses to disclose those disclosures.

“The document responsive to your request has been reviewed by this Agency as required by the FOIA and has been found to be currently and properly classified in accordance with Executive Order 13526,” according to an October 2 letter signed by retiring NSA FOIA chief Pamela N. Phillips. “The document is classified because its disclosure could reasonably be expected to cause exceptionally grave damage to the national security.”

We appealed the denial.

“It is well established that information, including classified information, that has been publicly disclosed on an authorized basis loses its exemption from disclosure under FOIA,” the FAS appeal letter said.

“Since the requested document addresses ‘authorized public disclosures,’ the substance of those authorized disclosures may no longer be withheld.”