In an attempt to establish transparency and uniformity throughout a system that some may describe as inefficient, unnecessarily restrictive and unclear, President Obama issued Executive Order 13556, the Controlled Unclassified Information (CUI) program. The CUI program is intended to establish consistent government-wide policies for, but not limited to, safeguarding private, proprietary or law enforcement sensitive information. Additionally, the program is meant to replace hundreds of control markings used by federal agencies for protection from public disclosure, such as "For Official Use Only (FOUO)" and "Law Enforcement Sensitive (LES)." It also replaces procedures for handling sensitive but unclassified information.
While CUI is technically unclassified, it still requires protection from inappropriate or inadvertent disclosure, because its contents could be damaging to an individual or have adverse effects to an ongoing law enforcement investigation. Further, disclosure is only permitted “in accordance with existing agency policies on the release of information.” On the contrary, over-classification is rampant throughout the federal government, and anyone who has ever worked with classified information might agree.
Although the President also signed law legislation to reduce over-classification, there are numerous reasons employees thoughtlessly stray on the side of classification rather than face the pressure of inappropriate release or embarrassment—it is an easy exercise that can be accomplished with little effort, and those who classify information are rarely, if ever, held accountable. With no reliable mechanisms in place, users are more likely to be encouraged to over-classify an email than to challenge improper classification decisions.
While chairing the Senate Select Committee on POW/MIA Affairs, John Kerry commented, “I do not think more than a hundred, or couple of hundred, pages of the thousands of [classified] documents we looked at had any current classification importance.” Statistically, through a process called mandatory declassification review, 92% of the time an agency will determine that some of the requested information is unclassified.
The challenges of over-classification are also evident as many federal agencies move toward using the Capstone approach for managing email, which would make certain government officials’ email accounts permanent. This means those emails would warrant continued preservation throughout the life of the Republic and would be managed and protected by an agency for 15 or even 30 years. It is important to understand that if an entire email account is to be treated as permanent, it is likely that most of those emails are over-classified.
In order to succeed, agencies need to tailor an effective CUI policy. A core component of Executive Order 13556 is the requirement to establish a responsible office and develop guidance to ensure CUI is implemented effectively. Agencies need a strategy to properly measure implementation, integrate lessons learned and evaluate solutions. For any effort to reduce over-classification, agencies need to allow authorized users, such as, but not limited to, records and information management personnel, to challenge classification decisions periodically. This practice would encourage users to evaluate their decisions and improves information sharing across the federal government.
Jamaal Davis is a senior records manager with Savan Group, LLC and is a recognized industry consultant. He has extensive experience developing records processes and working with records systems. He is a US Navy veteran with over 10 years of records management experience in the federal government and private sector. For more information, visit http://savangroup.com or follow @savangroup.