House Bill Embraces Controlled Unclassified Info

Rep. Jane Harman (D-CA) and several colleagues last week introduced a bill that endorses and builds upon the recent White House policy statement on “controlled unclassified information” (CUI), which is information that though not classified is subject to restricted access.

Although entitled “The Improving Public Access to Documents Act,” it is far from clear that the new bill would serve that purpose. Rather, it would “require the Secretary of Homeland Security to develop and administer policies, procedures, and programs to promote the implementation of the Controlled Unclassified Information Framework.”

While well-intentioned, the bill seems premature at best.

From Secrecy News’ perspective, it is tactically unwise to lock into statute an executive branch “framework” that still remains largely undefined and that may be subject to significant modification in the course of its projected five-year implementation period. The CUI Office at the National Archives that is supposed to develop the implementing regulations referenced in the bill does not even have its own funding this year, and has also missed the funding cycle for next year.

Among other questionable features (and some positive ones), the bill regrettably endorses the executive branch view of the Freedom of Information Act as the proper channel for public access to agency information on homeland security and related topics.

Thus, the bill says, “The Department [of Homeland Security] should start with the presumption that all homeland security information that is not properly classified, or marked as controlled unclassified information and otherwise exempt from disclosure, should be shared with the public pursuant to section 552 of title 5, United States Code (commonly referred to as the `Freedom of Information Act’).”

This is not a “presumption” — disclosure of non-exempt information pursuant to FOIA is already required by law — and it would not “improve public access.” To the contrary, by presenting disclosure under FOIA as the primary alternative to classification or control, the bill would place an impossible burden on the FOIA process, and would diminish agency responsibility to unilaterally disclose homeland security information that has not been formally requested.

A hearing on the new bill will be held before the House Homeland Security Subcommittee on Intelligence on June 11.