A “Drop Dead” Date for Classified Info

By January 25, 2021

The declassification process has been overwhelmed by the flood of classified records awaiting review, said Sen. Ron Wyden last week. “I intend to push the Director of National Intelligence to fix a broken declassification system,” he said.

One highly effective way to begin fixing the declassification system would be to set a maximum period of time that information can remain classified. This maximum lifetime for classification is sometimes referred to as a “drop dead” date.

Records that reach the drop dead date would not require review and they would not even need to be declassified in any formal way. Their prior classification status would simply lapse without any further processing.

This approach was favored by the Information Security Oversight Office (ISOO) during the Clinton Administration.

“We’re looking at the idea of a ‘drop dead’ date — [meaning that] anything that is x number of years old is declassified,” the late Steven Garfinkel said in a 1992 interview, when he was ISOO director. But “x” is “going to be a lot longer than twenty years,” he said then.

How long should it be? Mr. Garfinkel thought that a forty year duration for classification would be the optimal period for maximizing declassification while minimizing risk.

“When we looked at material that was 40 years old or older, we were ending up declassifying just about every bit of it, far more than 99 percent of it,” Mr. Garfinkel told a Defense Department advisory panel in 1996. In fact, he recalled, the first draft of the Clinton executive order actually “had a 40-year drop dead date.”

But under pressure from openness advocates (including myself), who argued that 40 years was too long to wait, the final Clinton executive order instead adopted a 25 year period for “automatic declassification.” Unfortunately, however, in doing so it also provided nine exemptions from declassification. This negated the concept of a drop dead date. It entailed painstaking review by agencies to locate and redact exempted information. The resulting declassification process was anything but “automatic” — as Steve Garfinkel had anticipated.

But the idea of a drop dead date is still a good one that has many positive features.

It would put a temporal boundary on the classification system. It would complement current efforts to prioritize the declassification of documents that are in high public demand by ensuring that all other documents will also ultimately be declassified. It would terminate the spiral of repeated reviews of the same partially redacted documents. And it would relieve agencies of a massive bureaucratic burden — at literally no cost — that will be difficult or impossible to overcome in any other practical way.

Arguably, a drop dead date is already implicit in current policy. Executive Order 13526 (sect. 1.5d) states that “No information may remain classified indefinitely.” All that is needed is to act on that established principle and to set a definite limit on the duration of classification.

A drop dead date for classification would not solve all declassification problems, even for the oldest classified documents. Information concerning nuclear weapons that is still classified under the Atomic Energy Act cannot be declassified by fiat, no matter how old it is. Certain classified information that is controlled by international agreement or treaty would also have to be protected regardless of its age. But these represent a small fraction of the massive accumulation of old records awaiting declassification.

It is possible to imagine a document that is 40 or more years old that nevertheless poses some kind of articulable national security threat. If this proved to be a real concern, then some allowance for the rare exception to the drop dead date could be made. But considering that current US government information systems have been widely penetrated by foreign actors, any residual threat from applying a drop dead date to half-century old documents could reasonably be deemed tolerable — especially if it helped agencies to finally overcome their declassification backlogs.

“I agree that current policies, practices, and technologies cannot keep pace with the amount of classified information generated each year,” said Avril D. Haines, the new Director of National Intelligence, last week in response to pre-confirmation questions from the Senate Intelligence Committee.

“I look forward to examining these challenges and identifying what changes may be warranted,” she said.

Categories: Declassification