The Pentagon Papers; the Guantanamo Bay documents leak; the Snowden files. [1] Once again, the classification and declassification of Government documents has been a hot topic in the news. However, despite the extensive coverage and polarized opinions on the matter, there has been a lack of clarity on the actual rules governing the procedures for classifying and declassifying confidential Government information. This article provides an introductory guide to the basic rules surrounding that process.
What Does “Classified” Even Mean?
Issued by President Obama in 2009, Executive Order 13526 is the most recent of all rules regarding the classification of documents and other information related to national security. [2] One more action in a string of similar statutes and regulations dating as far back as the Espionage Act of 1917, the Order created a three-tier taxonomy for the classification, and thus appropriate treatment, of various types of sensitive information. [3] Importantly, there are three different levels of classification:
(1) “Top Secret” applies to information which, if disclosed without authorization, could reasonably be expected to cause exceptionally grave damage to the national security.
(2) “Secret” refers to information which, if disclosed without authorization, could reasonably be expected to cause serious damage to the national security.
(3) “Confidential” applies to information which, if disclosed without authorization, could reasonably be expected to cause damage to the national security. [4]
How Does Information Become Classified?
Executive Order 13526 also lays out the standards by which the Government may classify information that it believes requires that proection. Information may be classified when: “(1) an original classification authority [which is defined in section 1.3 of Executive Order 13526 [5] is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one or more categories of information listed in section 1.4 [of Executive Order 13526]; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security . . . and the original classification authority is able to identify or describe the damage.” [6]
To be clear, the classification, or lack thereof, of most Government information is entirely up to the discretion of the “original classification authority” This is typically the agency or office that created the document and believes there is a “reasonable expectation” that public disclosure of the information could cause some harm to national security interests. Moreover, classification is optional: section 1.1 establishes only that information may be classified if the listed conditions are met. At the same time, some topics must be classified by law; for example, the name and address of a confidential informant must be kept confidential pursuant to 19 CFR § 161.15, and nuclear information determined to be Restricted Data is to be classified pursuant to 10 CFR § 1045.70.
How Does Classified Information Become Declassified?
Having established how and when a document becomes classified, the next question is how and when a document can become unclassified. While Order 13526 discusses the process, some questions are left unanswered. First, classified information generally provides for its own declassification. [7] For example, documents will often establish either a specific date or a specific event that will trigger automatic declassification. [8] Additionally, some records may be automatically declassified without review. [9] This will occur when a record reaches 25 years of age and is determined to have historical value pursuant to Title 44 of the U.S. Code (though agency heads may exempt specific information from the automatic declassification scheme if certain conditions apply).[10]
Additionally, confidential information regarding certain topics [11] is exempt from the
automatic declassification scheme. [12]
However, information also must be declassified “as soon as it no longer meets the standards for classification.” [13] So while most confidential information has its own internal clock ticking toward declassification, it is also both a possibility, and in fact a requirement, that information be declassified ahead of that schedule if the appropriate person deems it to no longer warrant secrecy. In those cases, documents are generally declassified by the official who originally classified them, if that official still holds the same office. [14] In the event that the original classification authority has been succeeded in function, that successor holds the authority to declassify. [15] Further, those in supervisory roles over the original classifier, as well as certain officials with proper agency authorizations, may also declassify documents classified by an original classifier. [16]
But establishing authority to declassify information differs from the process by which such declassification must occur. Courts have stated that the exact declassification process requires specified procedures. [17] However, the exact mechanism by which declassification occurs remains variable and to some degree, shrouded in mystery. While Order 13526 provides that any classification should include declassification instructions, [18] the Order does not impose a specific process; rather, that choice is left up to the original classification authority. Further, while declassification may be done by Executive Order, this tool is only available to Presidents (since they are the only officials empowered to issued Executive Orders). And even then, Presidents may not follow that procedure to declassify. For example, when President George W. Bush declassified a portion of his daily brief titled “Bin Laden Determined To Strike in US,” no such Executive Order accompanied that decision. For non-presidents, various other sources provide guidance: e.g., the Department of Energy declassifies nuclear information in accordance with 10 CFR § 1045, and other agencies must routinely submit their own personal declassification guides to the Director of the Information Security Oversight Office, a sub-agency under the National Archives and Records Administration, in accordance with 32 CFR § 2001.32. In short, there is no one formal process for declassification of information; rather, different agencies within the Executive Branch can create their own policies, though not all have done so.
Note that classified information does not automatically become declassified when an unauthorized disclosure of identical or similar information occurs. [19] In the case Phillippi v. Central Intelligence Agency, 665 F.2d 1325 (D.C. Cir. 1981), the Los Angeles Times somehow came across “garbled” information involving a CIA project to raise a sunken Soviet submarine from the floor of the Pacific Ocean [20] The CIA then managed to convince not only the LA Times, but also several other news outlets, to hold off on releasing the story. [21] In response, the named plaintiff, a Rolling Stone correspondent, filed a request under the Freedom of Information Act (“FOIA”), seeking information about both the submarine project and the coverup attempt. [22] Opining that the unfolding of information might be an attempt by the CIA to obscure an undisclosed “true purpose” for the project, the court held for the CIA, finding that one function of intelligence agencies is the engineering of controlled leaks. As a result, if the court were to hold that one of these controlled leaks served to declassify information—even information that had become known to the public to some extent—would disarm the Government of an important weapon in its arsenal. [23]
In other words, just because information that relates to a classified source happens to be released to the public, even when done through official channels, does not mean that the information is automatically declassified. Rather, declassification of every Government document can occur only when the declassifying authority goes through the proper process.
How Can these Issues End Up in Court?
Typically, courts will analyze questions of whether information was properly classified when a private party submits a FOIA request to the Government, which then responds that some or all of the responsive documents are confidential and thus cannot be disclosed to the requesting party. Such review will often take the form of a sealed, in camera review of the allegedly classified information so that the reviewing court may determine if the documents were properly determined to be confidential. [24]
In some cases, a plaintiff will argue that the actions of the Government, though not an official declassification, had the legal effect of a declassification. However, courts are generally hesitant to second-guess the intent of an executive regarding declassification. For example, in New York Times Company v. Central Intelligence Agency, the plaintiff argued that President Trump’s tweets regarding the war in Syria served to declassify a secret CIA program to arm Syrian rebels against the government of Bashar al-Assad. [25] Despite a tweet facially related to the program, the court held that “absent an unequivocal declaration that she is declassifying information,” courts are not in the position to question whether a President’s statements have the effect of declassifying confidential information. Thus, the Court found, “permitting courts to infer whether a President declassified information would improperly transfer the President’s Constitutional authority to declassify to the Judiciary, undermining the basic tenets of the separation of powers.” [26]
For help and guidance in navigating the murky waters surrounding the proper classification and declassification of Government information, contact the experienced attorneys at Eckland & Blando LLP.
Research and Drafting assistance provided by Tommy Harshaw, law clerk at Eckland & Blando LLP.
[2] Executive Order 13526 – Classified National Security Information, https://obamawhitehouse.archives.gov/
the-press-office/executive-order-classified-national-security-information (Dec. 29, 2009).
[3] Id. at § 1.2.
[4] Id.
[5] An “original classification authority” is, generally, the President or Vice President; agency heads; and other Government officials specifically granted classification authority.
[6] See Id. at §§ 1.1, 1.4.
[7] Id. at § 1.6(4).
[8] See id. at § 1.5.
[9] Id. at § 3.3(a).
[10] See id. at § 3.3.
[11] A few examples of information exempted from automatic declassification: information that would assist in the development of weapons of mass destruction; information that would harm U.S. diplomatic relationships; information that would impair U.S. emergency preparedness plans. More exemptions are listed under 32 CFR § 2001.26(a)(2).
[12] See, e.g., 10 CFR § 1045.155(a).
[13] Id. at § 3.1 (a).
[14] Id. at § 3.1(b)(1).
[15] Id. at § 3.1(b)(2).
[16] Id. at §§ 3.1(b)(3), 3.1(b)(4).
[17] See New York Times v. Central Intelligence Agency, 965 F.3d 109, 122 (2d Cir. 2020).
[18] E.O. 13526 at § 1.6(a)(4).
[19] Id. at § 1.1(c).
[20] Phillippi at 1327.
[21] Id.
[22] Id. at 1328.
[23] Id. at 1330.
[24] See, e.g., Darui v. United States Dept. of State, 798 F.Supp.2d 32, 37 (D.D.C. 2011); Hetzler v. Rec./Info. Dissemination, 896 F.Supp.2d 207, 209 (W.D.N.Y.2012).
[25] New York Times Company v. Central Intelligence Agency, 314 F.Supp.3d 519 (S.D.N.Y. 2018), aff’d sub nom. New York Times v. Central Intelligence Agency, supra.
[26] Id. at 527.