NARA Needs to Embrace Role as Declassification Transformer in its Open Gov Plan

Lots of classified documents in there…

The US National Archives has previewed an impressive overview of its 2014-2016 Open Government Plan.  Even better, it has vigorously welcomed public comment.  Its three flagship initiatives look to be especially transformative.  Kudos to the Archive for embracing the power of technology, open source, and crowd-sourcing to share its jewels with the widest possible audience.  

From the perspective of the National Security Archive, however, the Action Plan does have one glaring omission: a lack of attention to promoting expedient and efficient declassification and access to declassified documents.  

A recent survey by the Society for Historians of American Foreign Relations shows further widespread desire for more of a NARA-led focus on promoting efficient and credible declassification.  Seventy percent of 784 researchers surveyed described the importance of declassified documents to historical research as “very important and indispensable,” another fourteen percent described declassified documents as “important and necessary.” Twenty eight percent of the respondents described the availability of declassified documents at NARA as “very worrisome” or “disappointing.”

One inclusion into the Action Plan that would have an immediate impact on the declassification process would be a formal adoption of the Director of National Intelligence James Clapper’s and DNI General Counsel Bob Litt’s instruction to declassify historic documents even when they may be technically “properly classified.”   

Director of National Intelligence General Counsel Robert S. Litt. “Not can we classify –but should we?”

During a March 2014 Sunshine Week speech, Litt stated that those with classification and declassification authority must ask themselves “not can we classify, but should we?”  Litt pointed to Section 3.1 (d) of the Executive Order on Classification 13526, and claimed that declassifiers of historic documents should already be using this authority.  In practice, however, they are not. 

Section 3.1 (d) states: “In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified.  When such questions arise, they shall be referred to the agency head or the senior agency official.  That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”

This section has not been used nearly enough for the declassification of historic documents.  This lack of a “rational declassification process” has led to many embarrassing classification decisions (such as the continued classification of the History-101 fact that there were Jupiter missiles in Turkey during the Cuban Missile Crisis).  

The National Declassification Center’s disappointingly low 61% declassification rate of historic (25 years or older) documents is an embarrassing indicator of over-classification and under-reliance of the “public interest declassification clause” at NARA itself.

This extreme over-classification of historic records undermines the public’s trust in the system as a whole, and inhibits the public release of historically important information that does not require further protection to researchers.  

NARA’s Open Government Plan can remedy this problem by establishing a procedure so that declassifiers at NARA, including the National Declassification Center, can easily request that EO 13526 section 3.1 (d) be used to declassify technically “properly” classified information that is in the public interest and no longer needs protection.  

This will instill a spirit of openness, further establish NARA as a declassification leader, and guarantee that the Director of National Intelligence General Counsel’s instruction to ask “not can we classify but should we” is followed.  

Below are several more minor suggestions and one criticism of the NARA Open Government Plan from an Open Government advocate focused on improving the declassification of historic documents:

• Going a step further than my previous suggestion.  The Information and Security Oversight Office should formalize the DNI and his general counsel’s instructions on “public interest declassification” in all of its classification and declassification trainings and assessments of agencies government-wide.

• The Plan’s Crowdsourcing Tool Initiative should specifically mention and include documents declassified by the National Declassification Center.

• The Plan’s Online Catalog Initiative should specifically mention publishing as much information online as possible (box level?) about the documents and collections declassified (and denied) by the National Declassification Center, even if those documents have not fully completed the NARA indexing process.

• Again, the Plan’s digitization, citizen archivist, and wikipedia efforts should specifically mention the documents declassified by the National Declassification Center.

• If implemented, the modernization of records initiative, especially the systematized capture of emails, will be a terrific success.

• In its outreach and online content initiative NARA should again specifically mention records declassified by the National Declassification Center.

President says: “further referrals not required” but the agencies still do referrals…

• And the criticism:  NARA should consider modifying or scrapping its Referral Notification Tracking System. Referrals are the largest problem contributing to the years and decades-old age of many FOIA requests, so NARA should be lauded in its attempts to tackle the problem. However, NARA should be working to minimize or end the extremely inefficient referral (and consultation) process, rather than use resources to build another system that will further memorialize it.  Better solutions to fixing the referral black hole include working with agencies to complete non-referral agreements (some currently exist) so that a document can be reviewed by one set of eyes, rather than fourteen.  Another, even better, solution would be to embrace the President’s memorandum establishing the National Declassification Center that stated referral review of historic documents that do not contain WMD or sources and methods was no longer required.  Any referral reform that does not end or minimize the process of multiple re-reviews of the same document is not likely to lead to true referral improvement.

If not for NARA, 918 more overclassifications would still stand…

The National Archives is America’s largest repository of classified documents, and is also the institution best situated to force the enactment of President Obama’s Open Government classification reforms –described in both Open Government Partnership National Action Plans, his Executive order on Classification, and his Memo establishing procedures at the National Declassification Center.