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FOIA Facts: Governmental Secrecy

By Scott A. Hodes, Published on July 15, 2005

Much has been written lately about governmental secrecy, especially in conjunction with the FOIA. One of the things I consistently find is the misuse of terms in this discussion.

Exemption 1 of the FOIA allows agencies to protect information that is “(A) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” Anything the government is protecting as secret must meet this requirement to be withheld under the FOIA.

The current Executive order (EO) that establishes the criteria for keeping information secret is EO 12958 as amended. Under this EO, information may be classified as confidential, secret or top secret. If, and only if, the information I properly classified; will the information be properly withholdable under Exemption 1 of the FOIA as secret.

To properly classify a document it must meet the various criteria of the EO. The government as whole has a working group, the Interagency Security Classification Appeals Panel (ISCAP), which sets standard for what is classifiable under the EO. ISCAP decides mandatory reviews of appeals from individuals seeking declassification reviews of information. FOIA requester have a separate procedure to have classification decisions reviewed; however ISCAP decisions on the mandatory reviews do set precedence for FOIA classification decisions. Additionally, each agency has a mechanism to decide what is classifiable under the EO.

Not just any government employee may classify a document. Only individuals with classifying authority specifically given to them may classify documents, and then the documents must then be classified correctly. The document must be stamped with the level of classification and have the classification markings that the EO requires.

Many agencies often try to invent their own classification system meant to thwart disclosure and pump up these agencies own self-importance. Some of these terms, which mean absolutely nothing in either FOIA or classification law, are “FOR OFFICIAL USE ONLY” and “FOIA EXEMPT.” While other FOIA exemptions may apply to these documents, they are not withholdable pursuant to Exemption 1 of the FOIA.

Further, it is always advisable to anyone who receives an Exemption 1 claim in response to a FOIA request to use their administrative appeal rights. While many of the classification determinations will be affirmed, and the process may take much longer than anyone in their right mind thinks it should, some vital and interesting information will ultimately be declassified and then released. Additionally, the more the public appeals, and even forces classification decisions in court, the more likely it is that government officials and legislator will watch over and take seriously the issue of over classification of government documents.