NRO: We Are “Forward Leaning” on Declassification

The National Reconnaissance Office, the U.S. intelligence agency that builds and operates the nation’s spy satellites, says it is all for increased openness, within certain boundaries.

“The NRO takes very seriously its commitment to greater openness and transparency, and makes every effort, in all of its information review and release programs, to release as much information as we can while still protecting our sensitive sources and methods from harm,” the NRO wrote in a newly disclosed report.

But there are practical limits on what can be accomplished, NRO said:

“While the goal of increasing discretionary declassification decisions is a noble one, we believe that such an effort requires a program separate and distinct from the existing systematic, automatic, mandatory, and other release programs; that establishing a new program is counterproductive given our current resource constraints; and that such an endeavor is unnecessary given our current declassification efforts.”

See NRO Responses on Feasibility of Certain Classification Policy Reforms, February 28, 2017, released last week under the Freedom of Information Act. The NRO document was prepared in response to questions posed last year by then-Director of National Intelligence James R. Clapper, Jr.

While currently operational reconnaissance programs are excluded from declassification review, NRO says it “already examines all [other] classified material that comes up for review for declassification regardless of its age, or under what circumstances it has been requested. If we determine that we cannot articulate harm in release, we consider it for declassification and release.”

In sum, “while we do not look proactively for new items to declassify, we do take a forward-leaning approach to performing declassification reviews by going beyond the ‘can we protect this?’ question to asking ‘do we really need to protect this?'”

NRO said that it could do still more to increase disclosure by reviewing classification guidance, anticipating recurring requests, and improving classification management practices. “We believe these measures, over time, will help eliminate over-classification and make much more material available for public release,” NRO said.

Considering that even the name of the National Reconnaissance Office was considered classified information 25 years ago, until it was declassified by former NRO director Martin Faga in September 1992, the NRO has come quite some distance into the daylight.

It has a substantial presence online, with an electronic reading room featuring numerous declassified records of historical interest. NRO is also the first U.S. intelligence agency to successfully undergo a financial audit.

DNI Clapper had specifically asked last year whether intelligence agencies could do more, consistent with 32 CFR 2001.35, to “declassify information when the public interest in disclosure outweighs the need for continued classification.”

This is harder than it sounds, NRO replied. It presumes that the public interest in disclosure and the need for classification can each be measured, or “weighed,” and then meaningfully compared to determine which is the weightier factor. Neither of those presumptions may be correct. For agency officials, the decision whether or not to declassify is likely to be more of a judgment call than a calculation.

“The CFR does not provide a threshold to assist organizations in determining at what point ‘public interest in disclosure outweighs the need for continuing classification’,” NRO wrote. “The NRO would require clarification and further guidance to assist us in gauging when the public interest outweighs the need to protect our currently classified programs.”

In fact, it is probably not realistic to expect agencies such as NRO to second-guess their own classification decisions on behalf of the public interest. Rather, the authority to exercise a public interest override of classification decisions should be vested in a higher-level body such as the Interagency Security Classification Appeals Panel that would be empowered to consider and to act on broad national and public interests. If that were done, then new procedures would also be needed for interested members of the public to present a public interest argument to that higher-level body for its consideration.