The Homeland Security Act authorized DHS to identify and safeguard “sensitive unclassified information” but
it didn’t define the term. The department issued a “For Official Use Only” directive in May defining SBU
as any information whose “unauthorized disclosure could adversely impact” someone’s privacy or “the
conduct of Federal programs” or other programs or operations “essential to the national interest.” The department
revised the memo on Jan. 6 to eliminate the use of non-disclosure agreements to enforce the protection of information. The
definition of SBU did not materially change.
To survive in our nation’s capital, you need a working knowledge of Acronym, the formal albeit unofficial (FAU) language
of bureaucracy. Acronym is what you need to know so you know what you can’t know. SSI, CII, SHSI, SBU and FOUO are all
current letter combinations that limit the public’s right to know and therefore your newsgathering. Each of these –
and all of them collectively – represent a fourth level of classified information, more or less sanctioned by Congress,
and enforced by expansive departmental regulations that have installed secrecy under the mantle of national security. Sensitive
Security Information (SSI) is potentially the most expansive because it covers any information deemed to relate to transportation
of any kind.
This has yet to be publicly defined, although a Department of Homeland Security directive is anticipated any time. It would
cover information shared with other departments, state and local governments and first responders, and be enforced through
non-disclosure agreements that carry stiff fines and prison terms. DHS recently ask all of its employees to sign such agreements.
Critical Infrastructure Information is the identifier used by the Department of Homeland Security for information voluntarily
submitted to it by owners of the nation’s infrastructure – utilities and chemical plants. Even the fact that some
information has been filed is confidential. DHS is debating whether to gather this confidential information through other
federal agencies, which collect information that is now public record from the same infrastructure owners.
- See the objections filed by CJOG and 14 member organizations.
- Text - CII Regulations on Information Sharing
The Freedom of Information Act was first adopted in 1966, amended in 1974, and amended again in 1996 to include electronic
records. More than three million requests are filed each year and for many, it's a long wait before the documents are produced.
For journalists, filing a FOIA request should be a last resort.
There’s no provision for information sharing in the Constitution. And for many years, the executive branch used “artful
interpretation” of a 1789 housekeeping statute to limit public and interagency access to records. Historian Harold Relyea,
in a Congressional Research Service review, notes that the reform Administrative Procedure Act of 1946 indicated that matters
of official record should be available to the public, but then said accesscould be denied for “for good cause found”
or “in the public interest.” His report offers a quick review of access laws.
On August 24, the Department of Health and Human Services finally responded to requests from journalism groups to clarify
the privacy provisions of the act. State law prevails.
John Ashcroft’s directive, issued a month after 9/11, reversed FOIA policy at federal departments and agencies. In
place of a "presumption of openness" standard, it offered support for any legal barrier to disclosure.
The White House Chief of Staff's directive to agencies and departments to review their "safeguarding" procedures and tighten
A briefing report for the House Subcommittee on National Security’s March 2 hearing concluded that overclassification
ultimately incurs avoidable fiscal costs and compromises national security. …And government officials confronted with
dizzyingly complex rules for numerosus categories of classified information often cannot or do not distinguish truly significant
security matters from routine material marked secret out of an excess of caution or zeal.”
Despite all the talk in Congress and several special commission reports citing over-classification, the federal government
continues to make new secrets at an ever-faster rate. The 2004 report of the Information Security Oversight Office said thre
was a 10 per cent overall increase in classification of documents last year and a 50 per cent increase in “original”
classifications, the base decisions from which all others flow sooner or later. ISOO also said it spot checked more than 2000
classification decisions and found that mistakes, small and large, had been made in more than half.
Congress passed the Intelligence Reform Bill (S2845) on Dec. 9 and President Bush signed it into law a week later. It is
the most sweeping reorganization of the nation’s intelligence community since 1947, giving a new Director of National
Intelligence vast new authority over intelligence collection and sharing by 15 federal agencies. Congressional leaders assured
that the bill is designed to provide as much transparency as possible when balanced against security needs, however the new
law contains fewer congressional checks on that balance than initially proposed.
- Intelligence Issues for Congress, CRS 12-9-04
- Intelligence Reorganization – Effects on DOD, CRS 12-6-04
- Proposals for Intelligence Reform, 1949 – 2004
A Congressional commission took a long look at federal government secrecy in the mid-90s and concluded, 50 years after
adoption of the National Security Act, that things had gotten out of hand. It said the best way to protect secrecy was to
reduce it. The study led by the last Sen. Daniel Moynihan provides a comprehensive look at the history of federal government
secrecy from colonial days through the fall of communism.
In September, 2004, a minority report of the House Committee on Government Reform concluded that the past four years have
seen “an unprecedented assault on the principle of open government.” The report for Rep. Henry Waxman takes a
hard look at the policies and practices of the current administration.
Congress is considering two bills to create a media shield law which would provide federal statutory recognition of a reporter’s
“privilege” to decline to provide testimony identifying a confidential source in legal, administrative, or other
governmental proceedings. Thirty-one states and the District of Columbia have recognized the privilege through enactment of
“shield laws,” which protect the relationship between reporters, their source, and sometimes, the information
that may be communicated in that relationship. A new report by the Congressional Research Service provides an brief overview
of trends among the states individual statutes, then sets out the full text of the state shield statutes.