ABA Urges Review of “Sensitive But Unclassified” Policy

The American Bar Association (ABA) adopted a resolution (pdf) this week calling on the Attorney General to clarify that designating a record as “sensitive but unclassified” does not provide a legal basis for withholding that record.

The ABA also called for establishment of a standardized policy for employing the “sensitive but unclassified” (SBU) marking.

The increasingly common SBU designation has become problematic because SBU records are neither fish nor fowl — neither formally classified nor publicly available — and there are no commonly agreed upon standards for invoking the term.

“Agencies allow the marking of many types of records as SBU. This patchwork of definitions for safeguarding such records contributes to confusion regarding whether information should be withheld under FOIA. Such confusion is exacerbated by the fact that the term SBU is not derived from an existing FOIA exemption,” according to the ABA.

“Our Recommendation seeks the issuance of public guidance from the U.S. Attorney General, clarifying that the SBU classification does not constitute grounds for withholding information that would otherwise be disclosed under FOIA… Such a policy directive would help to reduce instances of excessive withholding caused by the confusion and lack of oversight concerning this designation.”

See the ABA Resolution (adopted on February 13), with an attached informational report (which was not formally adopted).

As it happens, a government-wide effort to standardize SBU policy is already underway, as previously reported (Secrecy News, 12/20/05).