June 11, 2008
Archive Testifies that Implementation of Controlled Unclassified Information Framework Must Include Measures to Reduce Secrecy and Protect Public Disclosure
For more information contact:
Meredith Fuchs - 202/994-7000
Washington D.C., June 11, 2008 - The National Security Archive’s General Counsel today warned that while “the establishment of trusted pathways for information is obviously essential to coordination amongst federal, state, local and tribal authorities, and private parties, those pathways are just as susceptible to manipulation and failure as individual agencies that jealously guard their secrets and turf.”
The Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment of the House Committee on Homeland Security, chaired by Representative Jane Harman, asked for the Archive’s expert testimony at a hearing on “The Improving Public Access to Documents Act of 2008” (H.R. 6193). The bill seeks to establish requirements for implementation of President Bush’s May 9, 2008 Memorandum for the Heads of Executive Departments and Agencies on the Sharing of Controlled Unclassified Information (the “CUI Framework”) at the Department of Homeland Security.
Ms. Fuchs recommended that implementation of the CUI Framework include measures to reduce secrecy because “[t]rue information sharing is best accomplished by the elimination of unnecessary secrecy and the minimization of information controls.” She remarked on the interest of members of the public in protecting their own communities, noting in her oral testimony that “sometimes information should be made available to the public not because of a Freedom of Information Act requests, but simply because the public needs it.” Ms. Fuchs further noted that the CUI Framework potentially puts the operation of the Freedom of Information Act (“FOIA”) at risk because it permits consideration of a CUI label in the FOIA process.
Ms. Fuchs explained that such consideration is improper because a CUI label does not consider changes in facts, circumstances, policy, or reasons for seeking records, even though such each may be relevant to release determinations under FOIA. For example, a record classified under Executive Order 12958 may be declassified a year later. Similarly, records about a law enforcement investigation may become releasable following the conclusion of the investigation. In addition, FOIA policy changes over time, as illustrated by the different policy memoranda issued by Attorney General Reno and Attorney General Ashcroft. Thus, government agencies may change their policy with respect to discretionary releases under the FOIA and the CUI label will not incorporate these changes.
Other witnesses testifying in support of H.R. 6193 included Patrice McDermott, Director of OpenTheGovernment.org, and Caroline Frederickson, Director of the American Civil Liberties Union Washington Legislative Office.