New Executive Order Continues Automatic Declassification

John W. Carlin

On 25 March, President Bush signed Executive Or der (EO) 13292, which provides federal agencies with new guidance on the classification and declassification of federal records. This long-awaited revision to EO 12958 of 17 April 1995 is significant because it institutionalizes automatic declassification as an essential element of the classification process.

The principal purpose of the new executive order is to extend the time agencies have to address the remaining backlog of unreviewed, twenty-five-year-old classified records of permanent historical value prior to the onset of automatic declassification. The extension gives agencies another three and a half years to complete this work.

Other changes reflect seven years of experience in implementing EO 12958, as well as new priorities resulting from the events of September 11. All of the changes in the order had the support of a broad coalition of interagency professionals in classification and declassification.

What is most notable about the new executive order is what it does not change. The revision has left the existing infrastructure and principles for federal classification and declassification largely intact. For historians, there will likely be little or no negative impact from this order other than a three-year delay in the release of some materials. Following is a summary of the most significant changes from EO 12958 to EO 13292:

Deadline for Automatic Declassification Extended. The major innovation of EO 12958 was the introduction of automatic declassification of non-exempted information after twenty-five years, whether or not it had been reviewed for release. This provision was intended to force agencies to meet their obligation to conduct a systematic review for release of information. As such, the original order successfully led to the declassification of approximately one billion pages of older historical records. The new order commits agencies to finish reviewing the backlog of classified records by the end of 2006--estimated to be about 400 million pages.

Clarification of Documents Subject to Automatic Declassification. The language of EO 12958 was unclear when it came to which twenty-five-year-old documents were exempted from release. Moreover, even in blocks of retired records spanning a period of years, the language suggested that older documents would become automatically declassified before the file was subject to review.

A number of changes have been made that clarify the question of what documents are automatically declassified. First, records in a file block will not be automatically declassified until the most recent record is twenty-five years old. Second, an additional five years is allowed for difficult to review records such as audio and video tapes. Third, an additional three years is allowed for the release of records transferred or referred from another agency. Finally, an additional three years is allowed for newly discovered records.

Protecting Foreign Government Information. The new order contains the presumption that the unauthorized release of foreign government information exchanged in confidence will cause damage to the national security. The practical consequence of this addition is limited because EO 12958 contained such broad discretion in this area that an original classifier had the authority to classify such information all along. More importantly, the new order makes it clear that for foreign government information to be exempt from automatic declassification, the same standard as other information concerning foreign and diplomatic relations of the United States and a foreign government will be applied. Specifically, serious and demonstrable "impairment" or "undermining" of these relations or activities must be shown for the information to be exempted.

Categories of Classifiable Information Clarified. Additional categories of information--specifically defense against transnational terrorism, infrastructures, and protection services--were explicitly spelled out as included in those that were eligible for classification. "Weapons of mass destruction" was added as a separate category.

Simplifying the Scheme. EO 12958 was considered unduly complicated to administer because of separate criteria for original classification for up to ten years; for original classification from ten to twenty-five years; and for extending classification beyond twenty-five years. To correct this, the separate set of criteria for withholding information between ten and twenty-five years from date of origin has been eliminated. While the revised language maintains ten years as the norm for most original classification actions, there is now one set of criteria for classification up to twenty-five years and another for withholding beyond this time period.

Reclassification of Properly Released Material. As originally issued, EO 12958 prohibited the reclassification of information after it had been released to the public. This new order restores the ability of the preceeding EO to reclassify such information, but only under "the personal authority of the agency head or deputy agency head" and only if the material may be "reasonably recovered." This change should have little impact; it was virtually unused when previously available and the Information Security Oversight Office, which is part of NARA, will closely monitor its use.

Classifying Documents After Request Under FOIA. The original language of EO 12958 required special procedures for classifying or reclassifying documents after they had been requested under the FOIA, and prohibited it entirely for documents more than twenty-five years old. The language prohibiting the classification or reclassification of twenty- five-year-old information has been dropped, though the special procedures remain.

Authority of Director of Central Intelligence (DCI) Recognized. While intelligence sources and methods information will remain subject to the jurisdiction of Interagency Security Classification Appeals Panel (ISCAP), the amendment recognizes the special authority and responsibility of the DCI to protect such information. As such, this revision does authorize the DCI to veto ISCAP release conclusions, but only after full consideration by ISCAP. Furthermore, a decision by the DCI to bar release can still be appealed to the President by any member of ISCAP.

Sharing Classified Information in an Emergency. One of the issues that arose in the wake of September 11 was awareness of the limitations imposed by the lack of authority under the EO to pass classified information to persons not otherwise eligible (e.g., local and state authorities) in an emergency. As a result, a section has been added specifically authorizing an agency head or designated person to share classified information with individuals not otherwise eligible to receive it and specifying procedures to be followed. This section is especially important in the context of homeland security.

Overall, for historians and other records users, Executive Order 13292 is good news. Not only does it virtually institutionalize automatic declassification, it also commits agencies to finish cleaning up the backlog of older material of historical value within the next three and a half years. In addition, it preserves the principle that in cases where the need to protect information is outweighed by the public interest in disclosure of the information, the information should be declassified. Finally, this order preserves the appeals process should a records user be denied access to information and the user is not satisfied with the declassification review conducted by the originating agency.