NARA Proposes New Rule on Declassification

A proposed new rule published for comment by the National Archives and Records Administration (NARA) last week would establish updated new procedures for the declassification of historical records containing national security information.

The proposed rule tracks fairly closely with President Obama’s December 2009 executive order 13526, and thus highlights some of the limitations of that order, especially with respect to the practice of “automatic declassification.”

In 1995, President Clinton issued executive order 12958 which stated that permanently valuable historical records that are 25 years old or older “shall be automatically declassified whether or not the records have been reviewed” unless they are specifically exempted.  This was a dramatic break with past practice, in which declassification and disclosure without prior review were practically unthinkable.

Unfortunately, that Clinton requirement was implemented imperfectly or not at all, and some of the sharper edges of automatic declassification have been blunted by the Bush and Obama Administrations (and by Congress).  Under the proposed new NARA rule, for example, non-exempt historical records can remain classified for as long as 35 years if they are part of an “integral file block” that also contains records that are merely 25 years old.  And if a collection of records more than 25 years old is discovered that was “inadvertently not reviewed,” that does not mean the records are automatically declassified as the executive order originally promised (“whether or not the records have been reviewed”).  Rather, those old records may remain classified for up to three more years to enable review.

Since these concessions to continued secrecy in the proposed NARA rule are specifically authorized by the President’s executive order, there is probably little possibility of altering them at this point.

But in other respects, the proposed NARA rule seems to deviate from and to fall short of the executive order.  For example, it does not even mention the President’s fundamental declaration that “No information may remain classified indefinitely” (EO 13526, sec. 1.5d).  So it does not even attempt to draw any consequences for declassification policy from this basic statement of principle — thereby diminishing the significance of the statement itself.

And except for an oblique reference to an “upcoming exemption expiration,” the proposed NARA rule is silent on the “fifty year rule” in the executive order, which requires that any records that are exempted from automatic declassification at 25 years old must be declassified by the time they reach 50 years (except where they would identify a confidential human source or reveal key design concepts for weapons of mass destruction).

Although the fifty year rule does not formally take effect until June 2013, it already has practical implications for declassification policy today.  For example, it means that NARA should not expend much effort on declassification review of records that are nearly 50 years old (or older), since these records are supposed to be automatically declassified without review in the near future.  And it means that efforts to identify any remaining exempted material (regarding confidential human sources or WMD design) in such 50 year old records need to get underway soon.

Public comments on the proposed NARA rule are due by September 6, 2011.