Pentagon Tightens Grip on Unclassified Information

In 2005, the U.S. Army issued a new field manual on the military use of dogs, which it said were being “employed in dynamic ways never before imagined.”  The field manual was approved for public release and marked for unlimited distribution.  See FM 3-19.17, “Military Working Dogs” (pdf), 6 July 2005.

But in May 2011, the same Army manual on military working dogs (redesignated as ATTP 3-39.34) was updated, and this time its distribution has been limited to DoD and DoD contractors only.  Public access to the document is barred.  At the same time, copies of the unrestricted 2005 edition have been removed from Army websites.  (A copy is still available through the Federation of American Scientists web site.)

The net loss of public access to information in this case illustrates a new trend that is at odds with the Obama Administration’s declared policy.  Although the President promised to create “an unprecedented level of openness in Government,” in practice new barriers to access to unclassified information continue to arise.

Last November, the Obama Administration issued an executive order on “Controlled Unclassified Information” that was intended to reverse “unnecessarily restrictive dissemination policies” involving unclassified information and to “emphasize… openness.” Among other things, the order was intended to eliminate the thicket of improvised access controls on unclassified information (such as “for official use only” and so forth) and to authorize restrictions on access only where required by law, regulation or government-wide policy.

But last month the Department of Defense issued a proposed new rule that appears to subvert the intent of the Obama policy by imposing new safeguard requirements on “prior designations indicating controlled access and dissemination (e.g., For Official Use Only, Sensitive But Unclassified, Limited Distribution, Proprietary, Originator Controlled, Law Enforcement Sensitive).”

By “grandfathering” those old, obsolete markings in a new regulation for defense contractors, the DoD rule would effectively reactivate them and qualify them for continued protection under the new Controlled Unclassified Information (CUI) regime, thereby defeating the new policy.

Even more broadly, the proposed rule says that any unclassified information that has not been specifically approved for public release must be safeguarded.  It establishes secrecy, not openness, as the presumptive status and default mode for most unclassified information.

“Unclassified Government information shall not be posted on websites that are publicly available or have access limited only by domain/Internet Protocol restriction,” the proposed rule baldly states at one point.

The breathtaking implications of the DoD proposal have come as a shock not only to those who still believe in the possibility of open government, but to the DoD contractors who are expected to implement the sweeping new policy.  See “Contractors resist DoD’s tougher info rules” by Sean Reilly, Federal Times, July 10.

Meanwhile, many executive branch agencies have not met their obligations to post basic agency information on their web sites, such as staff directories, reports to Congress, and congressional testimony, according to a new survey from Openthegovernment.org.