Freedom of Information Act (United States)

From Wikipedia, the free encyclopedia

Freedom of Information Act

Long title	An Act to amend section 3 of the Administrative Procedure Act, chapter 324, of the Act of June 11, 1946 (60 Stat. 238), to clarify and protect the right of the public to information, and for other purposes.
Acronyms (colloquial)	FOIA
Nicknames	Public Information Act of 1966 Public Information Availability
Enacted by	the 89th United States Congress
Effective	July 5, 1967
Citations
Public law	89-487
Statutes at Large	80 Stat. 250
Codification
Acts amended	Administrative Procedure Act
Titles amended	5 U.S.C.: Government Organization and Employees
U.S.C. sections created	5 U.S.C. ch. 5, subch. II § 552
Legislative history
Introduced in the Senate as S. 1160 by Edward Long (D–MO) on October 4, 1965 Committee consideration by Committee on the Judiciary and Committee on Government Operations Passed the Senate on October 13, 1965 (passed) Passed the House on June 20, 1966 (306–0) Signed into law by President Lyndon B. Johnson on July 4, 1966
Major amendments
Privacy Act of 1974, PL 93–579, 88 Stat 1896 Government in the Sunshine Act, PL 94–409, 90 Stat 1241 Anti-Drug Abuse Act of 1986, PL 99–570, 100 Stat 3207 Electronic Freedom of Information Act of 1996 The Intelligence Authorization Act of 2002, PL 107-306, 116 Stat 2383 OPEN Government Act of 2007, PL 110-175, 121 Stat 2524 Wall Street Reform Act of 2010 FOIA Improvement Act of 2016
United States Supreme Court cases
Department of Justice v. Reporters Committee for Freedom of the Press Department of Justice v. Landano Scott Armstrong v. Executive Office of the President

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, is a federal freedom of information law that requires the full or partial disclosure of previously unreleased information and documents controlled by the United States government upon request. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures, and defines nine exemptions to the statute. President Lyndon B. Johnson, despite his misgivings, signed the Freedom of Information Act into law on July 4, 1966, and it went into effect the following year.

As indicated by its long title, FOIA was actually extracted from its original home in Section 3 of the Administrative Procedure Act (APA). Section 3 of the APA, as enacted in 1946, gave agencies broad discretion concerning the publication of governmental records. Following concerns that the provision had become more of a withholding than a disclosure mechanism, Congress amended the section in 1966 as a standalone act to implement "a general philosophy of full agency disclosure." The amendment required agencies to publish their rules of procedure in the Federal Register, 5 U.S.C. § 552(a)(1)(C), and to make available for public inspection and copying their opinions, statements of policy, interpretations, and staff manuals and instructions that are not already published in the Federal Register, § 552(a)(2). In addition, § 522(a)(3) requires every agency, "upon any request for records which ... reasonably describes such records" to make such records "promptly available to any person." If an agency improperly withholds any documents, the district court has jurisdiction to order their production. Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, FOIA expressly places the burden "on the agency to sustain its action," and directs the district courts to "determine the matter de novo."

The federal government's Freedom of Information Act should not be confused with the different and varying freedom of information law enacted by the individual states.

Background

With the ongoing stress on both constitutional and inherent rights of American citizens and the added assertion of government subservience to the individual, some, particularly representative John Moss, thought that it was necessary for government information to be available to the public. This push built on existing principles and protocols of government administration already in place.

Others, though—most notably President Lyndon B. Johnson—believed that certain types of unclassified government information should nonetheless remain secret. Notwithstanding the White House's opposition, Congress expanded Section 3 of the Administrative Procedure Act as a standalone measure in 1966 to further standardize the publication of government records, consistent with the belief that the people have the "right to know" about them. The Privacy Act of 1974 was passed as a countervailing measure to ensure the security of government documents increasingly kept on private citizens. 

The FOIA was put in place shortly after the illegal unconstitutional act of Project MKUltra performed by the CIA, which most of the evidence was burned and some of the surviving documents became declassified in 2001.

Scope

The act explicitly applies only to executive branch government agencies. These agencies are under several mandates to comply with public solicitation of information. Along with making public and accessible all bureaucratic and technical procedures for applying for documents from that agency, agencies are also subject to penalties for hindering the process of a petition for information. If "agency personnel acted arbitrarily or capriciously with respect to the withholding, [a] Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding." In this way, there is recourse for one seeking information to go to a federal court if suspicion of illegal tampering or delayed sending of records exists. However, there are nine exemptions, ranging from a withholding "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" and "trade secrets" to "clearly unwarranted invasion of personal privacy." The nine current exemptions to the FOIA address issues of sensitivity and personal rights. They are (as listed in Title 5 of the United States Code, section 552):

1. (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;
2. related solely to the internal personnel rules and practices of an agency;
3. specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
4. trade secrets and commercial or financial information obtained from a person and privileged or confidential;
5. inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency;
6. personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
7. records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;
   • Virginia's FOIA council refers to this as the criminal investigative files exemption
8. contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
9. geological and geophysical information and data, including maps, concerning wells.

The Postal Reorganization Act of 1970 (at 39 U.S.C. § 410(c)(2)) exempts the United States Postal Service (USPS) from disclosure of "information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed".

History

The law came about because of the determination of United States House of Representatives member John E. Moss of California. Moss was chairman of the House Government Information Subcommittee. It took Moss 12 years to get the Freedom of Information Act through Congress. Much of the desire for government transparency stemmed from the Department of Defense and Congressional committees evaluation of the nation's classification system in the late 1950s. They determined that the misuse of government classification of documents was causing insiders to leak documents that were marked "confidential." The committee also determined that the lowest rung of the confidentiality ladder "confidential" should be removed. They deemed that "secret" and "top secret" covered National security adequately. The Moss Committee took it upon itself to reform confidentiality policy and implement punishments for the overuse of classification by officials and departments. 

The FOIA has been changed repeatedly by both the legislative and executive branches.

Initial enactment

The Freedom of Information Act was initially introduced as the bill S. 1160 in the 89th Congress. When the two-page bill was signed into law it became Pub.L. 89–487, 80 Stat. 250, enacted July 4, 1966, but had an effective date of one year after the date of enactment, or July 4, 1967. The law set up the structure of FOIA as we know it today.

That law was initially repealed. During the period between the enactment of the act and its effective date, Title 5 of the United States Code was enacted into positive law. For reasons now unclear but which may have had to do with the way the enactment of Title 5 changed how the law being amended was supposed to be cited, the original Freedom of Information Act was replaced. A new act in Pub.L. 90–23, 81 Stat. 54, enacted June 5, 1967 (originally H.R. 5357 in the 90th Congress), repealed the original and put in its place a substantively identical law. This statute was signed on June 5, 1967, and had the same effective date as the original statute: July 4, 1967.

Privacy Act Amendments of 1974

Following the Watergate scandal, President Gerald R. Ford wanted to sign FOIA-strengthening amendments in the Privacy Act of 1974, but White House Chief of Staff Donald Rumsfeld and deputy Dick Cheney were concerned about leaks. Assistant Attorney General for the Office of Legal Counsel Antonin Scalia advised the bill was unconstitutional and even telephoned the CIA asking them to lobby a particular White House staffer. President Ford was persuaded to veto the bill on October 17, 1974, according to documents declassified in 2004. However, on November 21, the lame-duck Congress overrode President Ford's veto, giving the United States the core Freedom of Information Act still in effect today, with judicial review of executive secrecy claims.

Scalia remained highly critical of the 1974 amendments, writing years later that "It is the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored." Scalia particularly disliked the availability of judicial review, decrying that if "an agency denies a freedom of information request, shazam!—the full force of the Third Branch of the government is summoned to the wronged party's assistance."

These amendments that these FOIA regulate government control of documents which concern a citizen. It gives one "(1) the right to see records about [one]self, subject to the Privacy Act's exemptions, (2) the right to amend that record if it is inaccurate, irrelevant, untimely, or incomplete, and (3) the right to sue the government for violations of the statute including permitting others to see [one's] records unless specifically permitted by the Act." In conjunction with the FOIA, the PA is used to further the rights of an individual gaining access to information held by the government. The Justice Department's Office of Information and Privacy and federal district courts are the two channels of appeal available to seekers of information.

1976 Government in the Sunshine Act amendments

In 1976, as part of the Government in the Sunshine Act, Exemption 3 of the FOIA was amended so that several exemptions were specified:

• Information relating to national defense,
• Related solely to internal personnel rules and practices,
• Related to accusing a person of a crime,
• Related to information where disclosure would constitute a breach of privacy,
• Related to investigatory records where the information would harm the proceedings,
• Related to information which would lead to financial speculation or endanger the stability of any financial institution, and
• Related to the agency's participation in legal proceedings.

1982 Executive Order limiting the FOIA

Between 1982 and 1995, President Reagan's Executive Order 12356 allowed federal agencies to withhold enormous amounts of information under Exemption 1 (relating to national security information), claiming it would better protect the country and strengthen national security.

The outcry from the effect that the Reagan Order had on FOIA requests was a factor in leading President Clinton to dramatically alter the criteria in 1995.

1986 Omnibus Anti-Drug Abuse Act amendments to the FOIA

The FOIA amendments were a small part of the bipartisan Anti-Drug Abuse Act of 1986. Congress amended FOIA to address the fees charged by different categories of requesters and the scope of access to law enforcement and national security records. The amendments are not referenced in the congressional reports on the Act, so the floor statements provide an indication of Congressional intent.

1995–99 expansion

Between 1995 and 1999, President Clinton issued executive directives (and amendments to the directives) that allowed the release of previously classified national security documents more than 25 years old and of historical interest, as part of the FOIA. This release of information allowed many previously publicly unknown details about the Cold War and other historical events to be discussed openly.

Electronic Freedom of Information Act Amendments of 1996

The Electronic Freedom of Information Act Amendments of 1996 (E-FOIA) stated that all agencies are required by statute to make certain types of records, created by the agency on or after November 1, 1996, available electronically. Agencies must also provide electronic reading rooms for citizens to use to have access to records. Given the large volume of records and limited resources, the amendment also extended the agencies' required response time to FOIA requests. Formerly, the response time was ten days and the amendment extended it to twenty business days.

2001 Executive Order limiting the FOIA

Executive Order 13233, drafted by Alberto R. Gonzales and issued by President George W. Bush on November 1, 2001, restricted access to the records of former presidents. 

This order was revoked on January 21, 2009, as part of President Barack Obama's Executive Order 13489. Public access to presidential records was restored to the original extent of five years (12 for some records) outlined in the Presidential Records Act.

Intelligence Authorization Act of 2002 amending the FOIA

In 2002, Congress passed the Intelligence Authorization Act for Fiscal Year 2003, Pub.L. 107–306. Within this omnibus legislation were amendments to the FOIA (pertaining mainly to intelligence agencies) entitled "Prohibition on Compliance with Requests for Information Submitted by Foreign Governments":

Section 552(a)(3) of title 5, United States Code, is amended—
(1) in subparagraph (A) by inserting "and except as provided in subparagraph (E)", after "of this subsection"; and
(2) by adding at the end the following:

(E) An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. § 401a(4))) shall not make any record available under this paragraph to—

(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or

(ii) a representative of a government entity described in clause (i).

In effect, this new language precluded any covered U.S. intelligence agency from disclosing records in response to FOIA requests made by foreign governments or international governmental organizations. By its terms, it prohibits disclosure in response to requests made by such non-U.S. governmental entities either directly or through a "representative". This means that for any FOIA request that by its nature appears as if it might have been made by or on behalf of a non-U.S. governmental entity, a covered agency may inquire into the particular circumstances of the requester in order to properly implement this new FOIA provision.

The agencies affected by this amendment are those that are part of, or contain "an element of", the "intelligence community". As defined in the National Security Act of 1947 (as amended), they consist of the CIA, the National Security Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Reconnaissance Office (and certain other reconnaissance offices within the Department of Defense), the intelligence elements of the Army, the Navy, the Air Force, and the Marine Corps, the FBI, the Department of the Treasury, the Department of Energy, and the Coast Guard, the Department of Homeland Security, the Bureau of Intelligence and Research in the Department of State, and "such other elements of any other department or agency as may be designated by the President, or designated jointly by the Director of Central Intelligence and the head of the department or agency concerned, as an element of the intelligence community".

OPEN Government Act of 2007

President Bush signed the Openness Promotes Effectiveness in our National Government Act of 2007, Pub.L. 110–175, on December 31, 2007. This law, also known as the "OPEN Government Act of 2007", amended the federal FOIA statute in several ways. According to a White House press release, it does so by:

• establishing a definition of "a representative of the news media;"
• directing that required attorney fees be paid from an agency's own appropriation rather than from the Judgment Fund;
• prohibiting an agency from assessing certain fees if it fails to comply with FOIA deadlines; and
• establishing an Office of Government Information Services (OGIS) in the National Archives and Records Administration to review agency compliance with FOIA.

Changes include the following:

• it recognizes electronic media specifically and defines "News Media" as "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience."
• it extends the 20-day deadline by allowing for up to 10 days between the FOIA office of the agency and the component of the agency holding the records and specifically allows for clarification of requests by the FOIA office (Effective 12/31/2007).
• it calls for each agency to designate a FOIA Public Liaison, "who shall assist in the resolution of any disputes" (Effective 12/31/2008).
• it requires agencies to assign tracking numbers to FOIA requests that take longer than 10 days, and to provide systems determining the status of a request.
• it codifies and defines annual reporting requirements for each agency's FOIA program.
• it specifically addresses data sources used to generate reports; "shall make the raw statistical data used in its reports available electronically ..."
• it redefines the definition of an agency "record" to include information held for an agency by a government contractor.
• it establishes an Office of Government Information Services (OGIS) which will offer mediation services to resolve disputes as non-exclusive alternative to litigation.
• it requires agencies to make recommendations personnel matters related to FOIA such as whether FOIA performance should be used as a merit factor.
• it requires agencies to specify the specific exemption for each deletion or redaction in disclosed documents.

2009 Executive Order permitting retroactive classification

On December 29, 2009, President Barack Obama issued Executive Order 13526, which allows the government to classify certain specific types of information relevant to national security after it has been requested. That is, a request for information that meets the criteria for availability under FOIA can still be denied if the government determines that the information should have been classified, and unavailable. It also sets a timeline for automatic declassification of old information that is not specifically identified as requiring continued secrecy.

2010 repeal of FOIA amendments in Wall Street reform act

The Dodd–Frank Wall Street Reform and Consumer Protection Act, signed into law in July 2010, included provisions in section 929I that shielded the Securities and Exchange Commission (SEC) from requests under the Freedom of Information Act. The provisions were initially motivated out of concern that the FOIA would hinder SEC investigations that involved trade secrets of financial companies, including "watch lists" they gathered about other companies, trading records of investment managers, and "trading algorithms" used by investment firms.

In September 2010, the 111th Congress passed an act repealing those provisions. The act was introduced in the Senate on August 5, 2010 as S.3717 and given the name "A bill to amend the Securities Exchange Act of 1934, the Investment Company Act of 1940, and the Investment Advisers Act of 1940 to provide for certain disclosures under section 552 of title 5, United States Code, (commonly referred to as the Freedom of Information Act), and for other purposes."

Notable cases

A major issue in released documentation is government "redaction" of certain passages deemed applicable to the Exemption section of the FOIA. Federal Bureau of Investigation (FBI) officers in charge of responding to FOIA requests "so heavily redacted the released records as to preclude needed research." This has also brought into question just how one can verify that they have been given complete records in response to a request.

J. Edgar Hoover

Freedom of Information Act requests have led to the release of information such as this letter by J. Edgar Hoover about surveillance of ex-Beatle John Lennon. A 25-year battle by historian Jon Wiener based on FOIA, with the assistance of lawyers from the ACLU, eventually resulted in the release of documents like this one.

 

This trend of unwillingness to release records was especially evident in the process of making public the FBI files on J. Edgar Hoover. Of the 164 files and about eighteen thousand pages collected by the FBI, two-thirds were withheld from Athan G. Theoharis and plaintiff, most notably one entire folder entitled the "White House Security Survey." Despite finding out that the Truman Library had an accessible file which documented all the reports of this folder, the FBI and Office of Information and Privacy put forth "stony resistance" to the FOIA appeal process. (I–pg. 27) Some argue that it was not even this sixteen year series of three appeals to the Justice Department which gained a further opening of the files, but rather the case of Department of Justice v. Landano which spurred on a break in stolid FBI opposition.

Murder trial

A murder trial decided in 1993, Department of Justice v. Landano, 508 U.S. 165 (1993), involved what was alleged to be a felony murder committed during a group burglary by defendant Landano. Justice Sandra Day O'Connor wrote the unanimous opinion. "In an effort to support his claim in subsequent state court proceedings that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding material exculpatory evidence, he filed Freedom of Information Act (FOIA) requests with the FBI for information it had compiled in connection with the murder investigation."

In defense, the FBI put forth a claim that the redacted sections of the documents requested were withheld in accordance with FOIA regulations protecting the identity of informants who gave information regarding case details. However, O'Connor ruled that those who supplied information had no need to remain anonymous in the court setting. "To the extent that the Government's proof may compromise legitimate interests, the Government still can attempt to meet its burden with in camera affidavits." The court thus remanded the case to the Circuit Courts and rejected the FBI's claim of confidentiality as being a valid reason to withhold information.

"While most individual sources may expect confidentiality, the Government offers no explanation, other than administrative ease, why that expectation always should be presumed." Thus, when Theoharis and company were in the middle of fighting in court to obtain J. Edgar Hoover files, they may well have benefited from Landano and also Janet Reno's assertions of the government's need for "greater openness" and "discretionary releases" in 1993.

E-mail

In the case of Scott Armstrong v. Executive Office of the President, et al., the White House used the PROFS computer communications software. With encryption designed for secure messaging, PROFS notes concerning the Iran–Contra affair (arms-for-hostages) under the Reagan Administration were insulated. However, they were also backed up and transferred to paper memos. The National Security Council, on the eve of President George H.W. Bush's inauguration, planned to destroy these records. The National Security Archive, Armstrong's association for the preservation of government historical documents, obtained an injunction in Federal District Court against the head, John Fawcett, of the National Archives and Records Administration and the National Security Council's purging of PROFS records. A Temporary Restraining Order was approved by Senior U.S. District Court Judge Barrington D. Parker. Suit was filed at District Court under Judge Richey, who upheld the injunction of PROFS records.

Richey gave a further injunction to prevent a purging of the George H.W. Bush's administration's records as well. On counts of leaving the White House clean for the new Clinton Administration, the Bush group appealed but was denied its request. Finally, the Clinton Administration appealed to the U.S. Court of Appeals, stating that the National Security Council was not truly an agency but a group of aides to the President and thus not subject to FOIA regulations. Under the Presidential Records Act, "FOIA requests for NSC [could] not be filed until five years after the president ha[d] left office ... or twelve years if the records [were] classified." The Clinton administration won, and the National Security Archive was not granted a writ of certiorari by the Supreme Court on these grounds. According to Scott Armstrong, taking into account labor and material costs, the three presidential administrations spent almost $9.3 million on contesting the National Security Archive FOIA requests for PROFS e-mail records.

Secret e-mail accounts and abusive fees

The AP uncovered several federal agencies where staff regularly use fictitious identities and secret or unlisted email accounts to conduct government business. Their use stymied FOIA requests. In some cases, the government demanded enormous (more than $1 million) fees for records that appeals show should be available for minimal cost.

Processing performance by different government agencies

The Center for Effective Government analyzed 15 federal agencies which receive the most FOIA requests in-depth. It concluded, that federal agencies are struggling to implement public disclosure rules. 

In the latest analysis published in 2015 (using 2012 and 2013 data, the most recent years available) ten of the 15 did not earn satisfactory overall grades, scoring less than 70 out of a possible 100 points. Eight of the ten earned Ds, including the Department of Homeland Security (69 percent), Department of Transportation (68 percent), United States Department of the Treasury (Treasury) (68 percent), the Environmental Protection Agency (EPA) (67 percent), the United States Department of Labor (63 percent), the United States Department of Veterans Affairs (64 percent), the United States Department of Defense (61 percent), the Securities and Exchange Commission (61 percent). The Department of Health and Human Services and the Department of State earned an F. The State Department's score (37 percent) was dismal due to its extremely low processing score of 23 percent, which was completely out of line with any other agency's performance. Scores of five agencies, the Equal Employment Opportunity Commission, the Department of Health and Human Services, the SEC, the DOJ, and the EPA, even decreased marginally.

Classified information in the United States

From Wikipedia, the free encyclopedia

The United States government classification system is established under Executive Order 13526, the latest in a long series of executive orders on the topic. Issued by President Barack Obama in 2009, Executive Order 13526 replaced earlier executive orders on the topic and modified the regulations codified to 32 C.F.R. 2001. It lays out the system of classification, declassification, and handling of national security information generated by the U.S. government and its employees and contractors, as well as information received from other governments.

The desired degree of secrecy about such information is known as its sensitivity. Sensitivity is based upon a calculation of the damage to national security that the release of the information would cause. The United States has three levels of classification: Confidential, Secret, and Top Secret. Each level of classification indicates an increasing degree of sensitivity. Thus, if one holds a Top Secret security clearance, one is allowed to handle information up to the level of Top Secret, including Secret and Confidential information. If one holds a Secret clearance, one may not then handle Top Secret information, but may handle Secret and Confidential classified information.

The United States does not have a British-style Official Secrets Act; instead, several laws protect classified information, including the Espionage Act of 1917, the Atomic Energy Act of 1954 and the Intelligence Identities Protection Act of 1982. A 2013 report to Congress noted that the relevant laws have been mostly used to prosecute foreign agents, or those passing classified information to them, and that leaks to the press have rarely been prosecuted. The legislative and executive branches of government, including US presidents, have frequently leaked classified information to journalists. Congress has repeatedly resisted or failed to pass a law that generally outlaws disclosing classified information. Most espionage law only criminalizes national defense information; only a jury can decide if a given document meets that criterion, and judges have repeatedly said that being "classified" does not necessarily make information become related to the "national defense". Furthermore, by law, information may not be classified merely because it would be embarrassing or to cover illegal activity; information may only be classified to protect national security objectives.
The United States over the past decades under the Obama and Clinton administrations has released classified information to foreign governments for diplomatic goodwill, known as declassification diplomacy. Examples include information on Augusto Pinochet to the government of Chile. In October 2015, US Secretary of State John Kerry provided Michelle Bachelet, Chile's president, a pen drive containing hundreds of newly declassified documents.

Terminology

Derivative classification activity 1996–2011

 

In the U.S., information is called "classified" if it has been assigned one of the three levels: Confidential, Secret, or Top Secret. Information that is not so labeled is called "Unclassified information". The term declassified is used for information that has had its classification removed, and downgraded refers to information that has been assigned a lower classification level but is still classified. Many documents are automatically downgraded and then declassified after some number of years. The U.S. government uses the terms Sensitive But Unclassified (SBU), Sensitive Security Information (SSI), Critical Program Information (CPI), For Official Use Only (FOUO), or Law Enforcement Sensitive (LES) to refer to information that is not Confidential, Secret, or Top Secret, but whose dissemination is still restricted. Reasons for such restrictions can include export controls, privacy regulations, court orders, and ongoing criminal investigations, as well as national security. Information that was never classified is sometimes referred to as "open source" by those who work in classified activities. Public Safety Sensitive (PSS) refers to information that is similar to Law Enforcement Sensitive but could be shared between the various public safety disciplines (Law Enforcement, Fire, and Emergency Medical Services). Peter Louis Galison, a historian and Director in the History of Science Dept. at Harvard University, claims that the U.S. Government produces more classified information than unclassified information.

Levels of classification used by the U.S. government

The United States government classifies information according to the degree which the unauthorized disclosure would damage national security. Having Top Secret clearance does not allow one to view all Top Secret documents. The user of the information must possess the clearance necessary for the sensitivity of the information, as well as a legitimate need to obtain the information. For example, all US military pilots are required to obtain at least a Secret clearance, but they may only access documents directly related to their orders. Secret information might have additional access controls that could prevent someone with a Top Secret clearance from seeing it.

Since all federal departments are part of the Executive Branch, the classification system is governed by Executive Order rather than by law. Typically each president will issue a new executive order, either tightening classification or loosening it. The Clinton administration made a major change in the classification system by issuing an executive order that for the first time required all classified documents to be declassified after 25 years unless they were reviewed by the agency that created the information and determined to require continuing classification.

Restricted Data/Formerly Restricted Data

Restricted Data and Formerly Restricted Data are classification markings that concern nuclear information. These are the only two classifications that are established by federal law, being defined by the Atomic Energy Act of 1954. Nuclear information is not automatically declassified after 25 years. Documents with nuclear information covered under the Atomic Energy Act will be marked with a classification level (confidential, secret or top secret) and a restricted data or formerly restricted data marking. Nuclear information as specified in the act may inadvertently appear in unclassified documents and must be reclassified when discovered. Even documents created by private individuals have been seized for containing nuclear information and classified. Only the Department of Energy may declassify nuclear information.

Code Word classifications

Top Secret is the highest level of classification. However some information is compartmentalized by adding a code word so that only those who have been cleared for each code word can see it. This information is also known as "Sensitive Compartmented Information" (SCI). A document marked SECRET (CODE WORD) could only be viewed by a person with a secret or top secret clearance and that specific code word clearance. Each code word deals with a different kind of information. The CIA administers code word clearances.

Top Secret

An example of a U.S. classified document; page 13 of a United States National Security Agency report^[17] on the USS Liberty incident, partially declassified and released to the public in July 2003. The original overall classification of the page, "Top Secret" code word UMBRA, is shown at top and bottom. The classification of individual paragraphs and reference titles is shown in parentheses—there are six different levels on this page alone. Notations with leader lines at top and bottom cite statutory authority for not declassifying certain sections.

 

The highest security classification. "Top Secret shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe." It is believed that 1.4 million Americans have top secret clearances.

Secret

This is the second-highest classification. Information is classified Secret when its unauthorized disclosure would cause "serious damage" to national security. Most information that is classified is held at the secret sensitivity.

Confidential

This is the lowest classification level of information obtained by the government. It is defined as information that would "damage" national security if publicly disclosed, again, without the proper authorization.

Public Trust

Despite common misconception, a public trust position is not a security clearance, and is not the same as the confidential clearance. Certain positions which require access to sensitive information, but not information which is classified, must obtain this designation through a background check. Public Trust Positions can either be moderate-risk or high-risk.

Unclassified

Unclassified is not technically a classification; this is the default and refers to information that can be released to individuals without a clearance. Information that is unclassified is sometimes restricted in its dissemination as Sensitive But Unclassified (SBU) or For Official Use Only (FOUO). For example, the law enforcement bulletins reported by the U.S. media when the United States Department of Homeland Security raised the U.S. terror threat level were usually classified as "U//LES", or "Unclassified – Law Enforcement Sensitive". This information is supposed to be released only to law enforcement agencies (sheriff, police, etc.), but, because the information is unclassified, it is sometimes released to the public as well. Information that is unclassified but which the government does not believe should be subject to Freedom of Information Act requests is often classified as U//FOUO—"Unclassified—For Official Use Only". In addition to FOUO information, information can be categorized according to its availability to be distributed (e.g., Distribution D may only be released to approved Department of Defense and U.S. Department of Defense contractor personnel). Also, the statement of NOFORN (meaning "no foreign nationals") is applied to any information that may not be released to any non-U.S. citizen. NOFORN and distribution statements are often used in conjunction with classified information or alone on SBU information. Documents subject to export controls have a specific warning to that effect. Information which is "personally identifiable" is governed by the Privacy Act of 1974 and is also subject to strict controls regardless of its level of classification.

Finally, information at one level of classification may be "upgraded by aggregation" to a higher level. For example, a specific technical capability of a weapons system might be classified Secret, but the aggregation of all technical capabilities of the system into a single document could be deemed Top Secret. 

Use of information restrictions outside the classification system is growing in the U.S. government. In September 2005 J. William Leonard, director of the U.S. National Archives Information Security Oversight Office, was quoted in the press as saying, "No one individual in government can identify all the controlled, unclassified [categories], let alone describe their rules."

Controlled Unclassified Information (CUI)

One of the 9/11 Commission findings was that "the government keeps too many secrets". To address this problem, the Commission recommended that '[t]he culture of agencies feeling they own the information they gathered at taxpayer expense must be replaced by a culture in which the agencies instead feel they have a duty ... to repay the taxpayers' investment by making that information available.'"

Due to over 100 designations in use by the U.S. government for unclassified information at the time, President George W. Bush issued a Presidential memorandum on May 9, 2008, in an attempt to consolidate the various designations in use into a new category known as Controlled Unclassified Information (CUI). The CUI categories and subcategories were hoped to serve as the exclusive designations for identifying unclassified information throughout the executive branch not covered by Executive Order 12958 or the Atomic Energy Act of 1954 (as amended) but still required safeguarding or dissemination controls, pursuant to and consistent with any applicable laws, regulations, and government-wide policies in place at the time. CUI would replace categories such as For Official Use Only (FOUO), Sensitive But Unclassified (SBU) and Law Enforcement Sensitive (LES).

The Presidential memorandum also designated the National Archives as responsible for overseeing and managing the implementation of the new CUI framework.

This memorandum has since been rescinded by Executive Order 13556 of November 4, 2010 and the guidelines previously outlined within the memo were expanded upon in a further attempt to improve the management of information across all federal agencies as well as establish a more standard, government-wide program regarding the controlled unclassification designation process itself.

The U.S. Congress has attempted to take steps to resolve this, but did not succeed. The U.S. House of Representatives passed the Reducing Information Control Designations Act H.R. 1323 on March 17, 2009. The bill was referred to the Senate Committee on Homeland Security and Governmental Affairs. Because no action was taken in committee and bills expire at the end of every Congress, there is currently no bill to solve unclassified designations.

Restricted

During and before World War II, the U.S. had a category of classified information called Restricted, which was below confidential. The U.S. no longer has a Restricted classification, but many other nations and NATO do. The U.S. treats Restricted information it receives from other governments as Confidential. The U.S. does use the term restricted data in a completely different way to refer to nuclear secrets, as described above.

Classified classifications

Executive Order 13526, which forms the legal basis for the U.S. classification system, states that "information may be classified at one of the following three levels", with Top Secret as the highest level (Sec. 1.2). However, this executive order provides for special access programs that further restricted access to a small number of individuals and permit additional security measures (Sec. 4.3). These practices can be compared with (and may have inspired) the concepts multilevel security and role-based access control. U.S. law also has special provisions protecting information related to cryptography (18 USC 798), nuclear weapons and atomic energy (see Controls on atomic-energy information) and the identity of covert intelligence agents (see Intelligence Identities Protection Act).

Proper procedure for classifying U.S. government documents

To be properly classified, a classification authority (an individual charged by the U.S. government with the right and responsibility to properly determine the level of classification and the reason for classification) must determine the appropriate classification level, as well as the reason information is to be classified. A determination must be made as to how and when the document will be declassified, and the document marked accordingly. Executive Order 13526 describes the reasons and requirements for information to be classified and declassified (Part 1). Individual agencies within the government develop guidelines for what information is classified and at what level. 

The former decision is original classification. A great majority of classified documents are created by derivative classification. For example, if one piece of information, taken from a secret document, is put into a document along with 100 pages of unclassified information, the document, as a whole, will be secret. Proper rules stipulate that every paragraph will bear a classification marking of (U) for Unclassified, (C) for Confidential, (S) for Secret, and (TS) for Top Secret. Therefore, in this example, only one paragraph will have the (S) marking. If the page containing that paragraph is double-sided, the page should be marked SECRET on top and bottom of both sides.

A review of classification policies by the Office of the Director of National Intelligence aimed at developing a uniform classification policy and a single classification guide that could be used by the entire U.S. intelligence community found significant interagency differences that impaired cooperation and performance. The initial ODNI review, completed in January 2008, said in part, "The definitions of 'national security' and what constitutes 'intelligence'—and thus what must be classified—are unclear. ... Many interpretations exist concerning what constitutes harm or the degree of harm that might result from improper disclosure of the information, often leading to inconsistent or contradictory guidelines from different agencies. ... There appears to be no common understanding of classification levels among the classification guides reviewed by the team, nor any consistent guidance as to what constitutes 'damage,' 'serious damage,' or 'exceptionally grave damage' to national security. ... There is wide variance in application of classification levels."

The review recommended that original classification authorities should specify clearly the basis for classifying information, for example, whether the sensitivity derives from the actual content of the information, the source, the method by which it was analyzed, or the date or location of its acquisition. Current policy requires that the classifier be "able" to describe the basis for classification but not that he or she in fact do so.

Classification categories

Step 3 in the classification process is to assign a reason for the classification. Classification categories are marked by the number "1.4" followed by one or more letters (a) to (h):

• 1.4(a) military plans, weapons systems, or operations;
• 1.4(b) foreign government information;
• 1.4(c) intelligence activities, sources, or methods, or cryptology;
• 1.4(d) foreign relations or foreign activities of the United States, including confidential sources;
• 1.4(e) scientific, technological or economic matters relating to national security; which includes defense against transnational terrorism;
• 1.4(f) United States Government programs for safeguarding nuclear materials or facilities;
• 1.4(g) vulnerabilities or capabilities of systems, installations, infrastructures, projects or plans, or protection services relating to the national security, which includes defense against transnational terrorism; and/or
• 1.4(h) the development, production, or use of weapons of mass destruction.

Classifying non-government-generated information

The Invention Secrecy Act of 1951 allows the suppression of patents (for a limited time) for inventions that threaten national security. 

Whether information related to nuclear weapons can constitutionally be "born secret" as provided for by the Atomic Energy Act of 1954 has not been tested in the courts. 

Guantanamo Bay detention camp has used a "presumptive classification" system to describe the statements of Guantanamo Bay detainees as classified. When challenged by Ammar al-Baluchi in the Guantanamo military commission hearing the 9/11 case, the prosecution abandoned the practice. Presumptive classification continues in the cases involving the habeas corpus petitions of Guantanamo Bay detainees.

Protecting classified information

GSA-approved security container

Facilities and handling

One of the reasons for classifying state secrets into sensitivity levels is to tailor the risk to the level of protection. The U.S. government specifies in some detail the procedures for protecting classified information. The rooms or buildings for holding and handling classified material must have a facility clearance at the same level as the most sensitive material to be handled. Good quality commercial physical security standards generally suffice for lower levels of classification; at the highest levels, people sometimes must work in rooms designed like bank vaults (see Sensitive Compartmented Information Facility – SCIF). The U.S. Congress has such facilities inside the Capitol Building, among other Congressional handling procedures for protecting confidentiality. The U.S. General Services Administration sets standards for locks and containers used to store classified material. The most commonly-approved security containers resemble heavy-duty file cabinets with a combination lock in the middle of one drawer. In response to advances in methods to defeat mechanical combination locks, the U.S. government switched to electromechanical locks that limit the rate of attempts to unlock them. After a specific number of failed attempts, they will permanently lock, requiring a locksmith to reset them. 

Classified U.S. government documents typically must be stamped with their classification on the cover and at the top and bottom of each page. Authors must mark each paragraph, title and caption in a document with the highest level of information it contains, usually by placing appropriate initials in parentheses at the beginning of the paragraph, title, or caption. Commonly, one must affix a brightly colored cover sheet to the cover of each classified document to prevent unauthorized observation of classified material (shoulder surfing) and to remind users to lock up unattended documents. The most sensitive material requires two-person integrity, where two cleared individuals are responsible for the material at all times. Approved containers for such material have two separate combination locks, both of which must be opened to access the contents.

Restrictions dictate shipment methods for classified documents. Top Secret material must go by special courier; Secret material within the U.S. via registered mail; and, Confidential material by certified mail. Electronic transmission of classified information largely requires the use of National Security Agency approved/certified "Type 1" cryptosystems using NSA's unpublished and classified Suite A algorithms. The classification of the Suite A algorithms categorizes the hardware that store them as a Controlled Cryptographic Item (CCI) under the International Traffic in Arms Regulations, or ITAR. CCI equipment and keying material must be controlled and stored with heightened physical security, even when the device is not processing classified information or contains no cryptographic key. NSA is currently implementing what it's calling Suite B which is a group of commercial algorithms such as Advanced Encryption Standard (AES), Secure Hash Algorithm (SHA), Elliptic Curve Digital Signature Algorithm (ECDSA) and Elliptic curve Diffie–Hellman (ECDH). Suite B provides protection for data up to Top Secret on non-CCI devices, which is especially useful in high risk environments or operations needed to prevent Suite A compromise. These less stringent hardware requirements stem from the device not having to "protect" classified Suite A algorithms.

Specialized computer operating systems known as trusted operating systems are available for processing classified information. These systems enforce the classification and labeling rules described above in software. Since 2005, however, they are not considered secure enough to allow uncleared users to share computers with classified activities. Thus, if one creates an unclassified document on a secret device, the resultant data is classified secret until it can be manually reviewed. Computer networks for sharing classified information are segregated by the highest sensitivity level they are allowed to transmit, for example, SIPRNet (Secret) and JWICS (Top Secret-SCI).

The destruction of certain types of classified documents requires burning, shredding, pulping or pulverizing using approved procedures and must be witnessed and logged. Classified computer data presents special problems.

Lifetime commitment

When a cleared individual leaves the job or employer for which they were granted access to classified information, they are formally debriefed from the program. Debriefing is an administrative process that accomplishes two main goals: it creates a formal record that the individual no longer has access to the classified information for that program; and it reminds the individual of their lifetime commitment to protect that information. Typically, the individual is asked to sign another non-disclosure agreement (NDA), similar to that which they signed when initially briefed, and this document serves as the formal record. The debriefed individual does not lose their security clearance; they have only surrendered the need to know for information related to that particular job.

Classifications and clearances between U.S. government agencies

Senator Barry Goldwater reprimanding CIA director William J. Casey for Secret info showing up in The New York Times, but then saying it was over-classified to begin with. 1983

 

In the past, clearances did not necessarily transfer between various U.S. government agencies. For example, an individual cleared for Department of Defense Top Secret had to undergo another investigation before being granted a Department of Energy Q clearance. Agencies are now supposed to honor background investigations by other agencies if they are still current. Because most security clearances only apply inside the agency where the holder works, if one needs to meet with another agency to discuss classified matters, it is possible and necessary to pass one's clearance to the other agency. For example, officials visiting at the White House from other government agencies would pass their clearances to the Executive Office of the President (EOP). 

The Department of Energy security clearance required to access Top Secret Restricted Data, Formerly Restricted Data, and National Security Information, as well as Secret Restricted Data, is a Q clearance. The lower-level L clearance is sufficient for access to Secret Formerly Restricted Data and National Security Information, as well as Confidential Restricted Data and Formerly Restricted Data. In practice, access to Restricted Data is granted, on a need-to-know basis, to personnel with appropriate clearances. At one time, a person might hold both a TS and a Q clearance, but that duplication and cost is no longer required. For all practical purposes, Q is equivalent to Top Secret, and L is equivalent to Secret.

Contrary to popular lore, the Yankee White clearance given to personnel who work directly with the President is not a classification. Individuals having Yankee White clearances undergo extensive background investigations. The criteria include U.S. citizenship, unquestionable loyalty, and an absolute absence of any foreign influence over the individual, his family, or "persons to whom the individual is closely linked". Also, they must not have traveled (save while in government employ and at the instructions of the United States) to countries that are considered to be unfriendly to the United States. Yankee White cleared personnel are granted access to any information for which they have a need to know, regardless of which organization classified it or at what level.

See also the Single Scope Background Investigation below, along with explicit compartmented access indoctrination. Some compartments, especially intelligence-related, may require a polygraph examination, although the reliability of the polygraph is controversial. The NSA uses the polygraph early in the clearance process while the CIA uses it at the end, which may suggest divergent opinions on the proper use of the polygraph.

Categories that are not classifications

Compartments also exist, that employ code words pertaining to specific projects and are used to more easily manage individual access requirements. Code words are not levels of classification themselves, but a person working on a project may have the code word for that project added to his file, and then will be given access to the relevant documents. Code words may also label the sources of various documents; for example, code words are used to indicate that a document may break the cover of intelligence operatives if its content becomes known. The WWII code word Ultra identified information found by decrypting German ciphers, such as the Enigma machine, and which—regardless of its own significance—might inform the Germans that Enigma was broken if they became aware that it was known.

Sensitive Compartmented Information (SCI) and Special Access Programs (SAP)

The terms "Sensitive Compartmented Information" (SCI) and "Special Access Program" (SAP) are widely misunderstood as classification levels or specific clearances. 

In fact, the terms refer to methods of handling certain types of classified information that relate to specific national-security topics or programs (whose existence may not be publicly acknowledged) or the sensitive nature of which requires special handling, and thereby those accessing it require special approval to access it. 

The paradigms for these two categories, SCI originating in the intelligence community and SAP in the Department of Defense, formalize 'Need to Know' and addresses two key logistical issues encountered in the day-to-day control of classified information:

• Individuals with a legitimate need to know may not be able to function effectively without knowing certain facts about their work. However, granting all such individuals a blanket DoD clearance (often known as a "collateral" clearance) at the Top Secret level would be undesirable, not to mention prohibitively expensive.

• The government may wish to limit certain types of sensitive information only to those who work directly on related programs, regardless of the collateral clearance they hold. Thus, even someone with a Top Secret clearance cannot gain access to its Confidential information unless it is specifically granted.

To be clear, "collateral" simply means one lacks special access (e.g. SCI, SAP, COMSEC, NATO, etc.). Confidential, Secret, and Top Secret are all, by themselves, collateral clearances.

SAP and SCI are usually found at the Top Secret classification, but there is no prohibition of applying such segregation to Confidential and Secret information.

SAP and SCI implementation are roughly equivalent, and it is reasonable to discuss their implementation as one topic. For example, SAP material needs to be stored and used in a facility much like the SCIF described below.

Department of Energy information, especially the more sensitive SIGMA categories, may be treated as SAP or SCI.

Access to compartmented information

Personnel who require knowledge of SCI or SAP information fall into two general categories:

• Persons with a need to know
• Persons with actual access

Access to classified information is not authorized based on clearance status. Access is only permitted to individuals after determining they have a need to know. Need-to-know is a determination that an individual requires access to specific classified information in the performance of (or assist in the performance of) lawful and authorized government functions and duties.

To achieve selective separation of program information while still allowing full access to those working on the program, a separate compartment, identified by a unique codeword, is created for the information. This entails establishing communication channels, data storage, and work locations (SCIF—Sensitive Compartmented Information Facility), which are physically and logically separated not only from the unclassified world, but from general Department of Defense classified channels as well. 

Thus established, all information generated within the compartment is classified according to the general rules above. However, to emphasize that the information is compartmented, all documents are marked with both the classification level and the codeword (and the caveat "Handle via Channels Only", or "Handle via Jointly" if the document contains material from multiple programs). 

Cover sheet for information protected by the BYEMAN control system

 

Examples of such SCI control systems are:

• COMINT or Special Intelligence (SI)
• ENDSEAL (EL)
• TALENT KEYHOLE (TK)
• HUMINT Control System (HCS)
• KLONDIKE (KDK)
• RESERVE (RSV)
• BYEMAN (BYE or B)

The COMINT control system is for sensitive signals intelligence information and contains several compartments, like:

• Very Restricted Knowledge (VRK)
• Exceptionally Controlled Information (ECI), which is used by NSA and restricted to very few people.
• GAMMA

A person is granted access to a specific compartment after the individual has: (a) had a Single Scope Background Investigation similar to that required for a collateral Top Secret clearance; (b) been "read into" or briefed on the nature and sensitivity of the compartment; and (c) signed a non-disclosure agreement (NDA). 

The individual then has access to all information in the compartment, regardless of its classification (and assuming a need to know). However, access does not extend to any other compartment; i.e., there is no single "SCI clearance" analogous to DoD collateral Top Secret. The requirements for DCID 6/4 eligibility (a determination that an individual is eligible for access to SCI), subsumes the requirements for a TS collateral clearance. Being granted DCID 6/4 eligibility includes the simultaneous granting of a TS collateral clearance, as adjudicators are required to adjudicate to the highest level that the investigation (SSBI) supports.

Groups of compartmented information

SAPs in the Department of Defense are subdivided into three further groups, as defined in 10 U.S.C. § 119.

There is no public reference to whether SCI is divided in the same manner, but news reports reflecting that only the Gang of Eight members of Congress are briefed on certain intelligence activities, it may be assumed that similar rules apply for SCI or for programs with overlapping SAP and SCI content.

The groups for Department of Defense SAPs are:

• Acknowledged: appears as a line item as "classified project" or the equivalent in the federal budget, although details of its content are not revealed. The budget element will associate the SAP with a Department of Defense component organization, such as a Military Department (e.g. Department of the Navy), a Combatant Command (e.g. U.S. Special Operations Command) or a Defense Agency (e.g. Defense Information Systems Agency.)
• Unacknowledged: no reference to such SAPs is found in the publicly published federal budget; its funding is hidden in a classified annex, often called the "black budget". The Congressional defense committees, however, are briefed on the specifics of such SAPs.
• Waived: At the sole discretion of the Secretary of Defense, on a case-by-case basis in the interest of national security, there is no mention in the budget at all, and only the "Big 6" members of Congress; the Chairman and Ranking Minority Members of the armed services committees, the appropriations committees and the defense appropriations subcommittees; receive notification of such SAPs.

Examples of SCI topics are human intelligence, communications intelligence, and intelligence collected by satellites. One or more compartments may be created for each area, and each of these compartments may contain multiple subcompartments (e.g., a specific HUMINT operation), themselves with their own code names. 

Specific compartmented programs will have their own specific rules. For example, it is standard that no person is allowed unaccompanied access to a nuclear weapon or to command-and-control systems for nuclear weapons. Personnel with nuclear-weapons access are under the Personnel Reliability Program. 

Some highly sensitive SAP or SCI programs may also use the "no lone zone" method (that is, a physical location into which no one is allowed to enter unaccompanied) described for nuclear weapons.

Handling caveats

The United States also has a system of restrictive caveats that can be added to a document: these are constantly changing, but can include (in abbreviated form) a requirement that the document not be shared with a civilian contractor or not leave a specific room. These restrictions are not classifications in and of themselves; rather, they restrict the dissemination of information within those who have the appropriate clearance level and possibly the need to know the information. Remarks such as "Eyes Only" also limit the restriction. One violating these directives might be guilty of violating a lawful order or mishandling classified information. 

For ease of use, caveats and abbreviations have been adopted that can be included in the summary classification marking (header/footer) to enable the restrictions to be identified at a glance. They are sometimes known as Dissemination Control Abbreviations. Some of these caveats are (or were):

• FOUO: For Official Use Only. Used for documents or products which contain material which is exempt from release under the Freedom of Information Act.
• NFIBONLY: National Foreign Intelligence Board Departments Only
• NOFORN: Distribution to non-US citizens is prohibited, regardless of their clearance or access permissions (NO FOReign National access allowed).
• NOCONTRACTOR: Distribution to contractor personnel (non-US-government employees) is prohibited, regardless of their clearance or access permissions.
• ORCON: Originator controls dissemination and/or release of the document.
• PROPIN: Caution—Proprietary Information Involved
• REL: Distribution to citizens of the countries listed is permitted, providing they have appropriate accesses and need to know. Example: "REL TO USA, AUS, GBR, CAN, NZL" indicates that the information may be shared with appropriate personnel from Australia, the United Kingdom, Canada, and New Zealand.

• FVEY is the country code used as shorthand for the Five Eyes.

• X: Information is exempt from automatic declassification (after the statutory default of 25 years) for exemption reason , and declassification review shall not be permitted for years (as determined by law or the Interagency Security Classification Appeals Panel). For the most part, the exemption reasoning and caveats are outlined in paragraphs (b)–(d) and (g)–(i) of Sec. 3.3 of Executive Order 13526, but paragraph (b) is typically the one being referenced as the exemption reason value .

Example: "50X1" indicates the information must remain classified for 50 years, since it pertains to intelligence activities, sources, or methods (reason (1) of Section 3.3, paragraph (b)).

• RESTRICTED: Distribution to non-US citizens or those holding an interim clearance is prohibited; certain other special handling procedures apply.

Classification level and caveats are typically separated by "//" in the summary classification marking. For example, the final summary marking of a document might be:

SECRET////ORCON/NOFORN

Controls on atomic-energy information

The Atomic Energy Act of 1954 sets requirements for protection of information about nuclear weapons and special nuclear materials. Such information is "classified from birth", unlike all other sensitive information, which must be classified by some authorized individual. However, authorized classifiers still must determine whether documents or material are classified or restricted. 

The U.S. Department of Energy recognizes two types of Restricted Data:

• Restricted Data. Data concerning the design, manufacture, or utilization of atomic weapons; production of special nuclear material; or use of special nuclear material in the production of energy.
• Formerly Restricted Data. Classified information jointly determined by the DOE and the Department of Defense to be related primarily to the military utilization of atomic weapons and removed from the Restricted Data category.

Documents containing such information must be marked "RESTRICTED DATA" (RD) or "FORMERLY RESTRICTED DATA" (FRD) in addition to any other classification marking. Restricted Data and Formerly Restricted Data are further categorized as Top Secret, Secret, or Confidential.

SIGMA categories and Critical Nuclear Weapon Design Information

RESTRICTED DATA contains further compartments. The Department of Energy establishes a list of SIGMA Categories for more fine-grained control than RESTRICTED DATA. Critical Nuclear Weapon Design Information (CNWDI, colloquially pronounced "Sin-Widdy") reveals the theory of operation or design of the components of a nuclear weapon. As such, it would be SIGMA 1 or SIGMA 2 (sigmas) material, assuming laser fusion is not involved in the information.

Access to CNWDI is supposed to be kept to the minimum number of individuals needed. In written documents, paragraphs containing the material, assuming it is Top Secret, would be marked (TS//RD-CNWDI). SIGMA information of special sensitivity may be handled much like SAP or SCI material (q.v.)

Naval Nuclear Propulsion Information

While most Naval Nuclear Propulsion Information is sensitive, it may or may not be classified. The desired power densities of naval reactors make their design peculiar to military use, specifically high-displacement, high-speed vessels. The proliferation of quieter- or higher-performance marine propulsion systems presents a national-security threat to the United States. Due to this fact, all but the most basic information concerning NNPI is classified. The United States Navy recognizes that the public has an interest in environmental, safety, and health information, and that the basic research the Navy carries out can be useful to industry.

Sharing of classified information with other countries

In cases where the United States wishes to share classified information bilaterally (or multilaterally) with a country that has a sharing agreement, the information is marked with "REL TO USA", (release) and the three-letter country code. For example, if the U.S. wanted to release classified information to the government of Canada, it would mark the document "REL TO USA, CAN". There are also group releases, such as NATO, FVEY or UKUSA. Those countries would have to maintain the classification of the document at the level originally classified (Top Secret, Secret, etc.).

Claims of U.S. government misuse of the classification system

It is desired that no document be released which refers to experiments with humans and might have adverse effect on public opinion or result in legal suits. Documents covering such work field should be classified 'secret'. —April 17, 1947 Atomic Energy Commission memo from Colonel O. G. Haywood, Jr. to Dr. Fidler at the Oak Ridge Laboratory in Tennessee

Max Weber:

Every bureaucracy strives to increase the superiority of its position by keeping its knowledge and intentions secret. Bureaucratic administration always seeks to evade the light of the public as best it can, because in so doing it shields its knowledge and conduct from criticism ...

While the classification of information by the government is not supposed to be used to prevent information from being made public that would be simply embarrassing or reveal criminal acts, it has been alleged that the government routinely misuses the classification system to cover up criminal activity and the potentially embarrassing. 

Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists notes that

... inquiring into classified government information and disclosing it is something that many national security reporters and policy analysts do, or try to do, every day. And with a few narrow exceptions—for particularly sensitive types of information—courts have determined that this is not a crime." Aftergood notes, "The universe of classified information includes not only genuine national security secrets, such as confidential intelligence sources or advanced military technologies, but an endless supply of mundane bureaucratic trivia, such as 50-year-old intelligence budget figures, as well as the occasional crime or cover-up.

In The Pentagon Papers case, a classified study was published revealing that four administrations had misled the American public about their intentions in the Vietnam War, increasing the credibility gap. Russo and Ellsberg were prosecuted under Espionage Law. The case prompted Harold Edgar & Benno C. Schmidt, Jr. to write a review of Espionage law in the 1973 Columbia Law Review. Their article was entitled "The Espionage Statutes and Publication of Defense Information". In it, they point out that Espionage law does not criminalize classified information, only national defense information. They point out that Congress has repeatedly resisted or failed to make the disclosing of classified information illegal, in and of itself. Instead, Congress has strictly limited which sort of classified information is illegal, and under which specific circumstances it is illegal. i.e. in 18 U.S.C. § 798 Congress specifically criminalized leaking cryptographic information that is classified, but when it passed the law it specifically stated the law didn't criminalize disclosing other types of classified information. Another article that discusses the issue is by Jennifer Elsea of the Congressional Research Service.

Various UFO conspiracies mention a level "Above Top Secret" used for UFO design information and related data. They suggest such a classification is intended to apply to information relating to things whose possible existence is to be denied, such as aliens, as opposed to things whose potential existence may be recognized, but for which access to information regarding specific programs would be denied as classified. The British government, for example, denied for several decades that they were either involved or interested in UFO sightings. However, in 2008, the government revealed they have monitored UFO activity for at least the past 30 years. The existence of an "Above Top Secret" classification is considered by some as unnecessary to keep the existence of aliens a secret, as they say information at the Top Secret level, or any level for that matter, can be restricted on the basis of need to know. Thus, the U.S. government could conceal an alien project without having to resort to another level of clearance, as need to know would limit the ability to have access to the information. Some suggest that claims of the existence of such a classification level may be based on the unsubstantiated belief that the levels of classification are themselves classified. As such, they feel that books claiming to contain "Above Top Secret" information on UFOs or remote viewing should arguably be taken with a grain of salt.

Without making a judgment on if such classifications have been used for space aliens, it is a reality that even the names of some compartments were classified, and certainly the meaning of the code names. In the cited document, an (S) means the material it precedes is Secret and (TS) means Top Secret. According to the Department of Defense directive, "the fact of" the existence of NRO was at the secret level for many years, as well as the fact of and the actual phrase "National Reconnaissance Program" (see Paragraph II). Paragraph V(a) is largely redacted, but the introduction to the documents clarifies (see Document 19) that it refers to the now-cancelled BYEMAN code word and control channel for NRO activities. BYEMAN, the main NRO compartment, was classified as a full word, although the special security offices could refer, in an unclassified way, to "B policy".

Responsible agencies

Any agency designated by the President can originate classified information if it meets the content criteria; each agency is responsible for safeguarding and declassifying its own documents. The National Archives and Records Administration (NARA) has custody of classified documents from defunct agencies, and also houses the National Declassification Center (since 2010) and Information Security Oversight Office. The Interagency Security Classification Appeals Panel has representatives from the Departments of State, Defense, and Justice; the National Archives, the Office of the Director of National Intelligence; the National Security Advisor; the Central Intelligence Agency; and Information Security Oversight Office.

Declassification

Declassification is the process of removing the classification of a document and opening it for public inspection.

Automatic declassification

In accordance with Executive Order 13526, published January 5, 2010 (which superseded Executive Order 12958, as amended), an executive agency must declassify its documents after 25 years unless they fall under one of the nine narrow exemptions outlined by section 3.3 of the order. Classified documents 25 years or older must be reviewed by any and all agencies that possess an interest in the sensitive information found in the document. Documents classified for longer than 50 years must concern human intelligence sources or weapons of mass destruction, or get special permission. All documents older than 75 years must have special permission.

Systematic declassification

The Order also requires that agencies establish and conduct a program for systematic declassification review, based on the new and narrower criteria. This only applies to records that are of permanent historical value and less than 25 years old. Section 3.4 of Order 13526, directs agencies to prioritize the systematic review of records based upon the degree of researcher interest and the likelihood of declassification upon review.

Mandatory Declassification Review

A Mandatory Declassification Review, or MDR, is requested by an individual in an attempt to declassify a document for release to the public. These challenges are presented to the agency whose equity, or "ownership", is invested in the document. Once an MDR request has been submitted to an agency for the review of a particular document, the agency must respond either with an approval, a denial, or the inability to confirm or deny the existence or nonexistence of the requested document. After the initial request, an appeal can be filed with the agency by the requester. If the agency refuses to declassify that document, then a decision from a higher authority can be provided by the appellate panel, the Interagency Security Classification Appeals Panel (ISCAP).

Freedom of Information Act

The U.S. Freedom of Information Act (FOIA) was signed into law by President Lyndon B. Johnson on July 4, 1966, took effect the following year, and was amended in 1974, 1976, 1986, 1996 and 2002 (in 1974 over President Ford's veto). This act allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. government. Any member of the public may ask for a classified document to be declassified and made available for any reason. The requestor is required to specify with reasonable certainty the documents of interest. If the agency refuses to declassify, the decision can be taken to the courts for a review. The FOIA does not guarantee that requested documents will be released; refusals usually fall under one of the nine of the declassification exemptions that protect highly sensitive information.

History of National Archives and Records Administration role

After declassification, the documents from many agencies are accessioned at the National Archives and Records Administration and put on the open shelves for the public. NARA also reviews documents for declassification. 

NARA first established a formal declassification program for records in 1972, and between 1973 and 1996 reviewed nearly 650 million pages of historically valuable federal records related to World War II, the Korean War, and American foreign policy in the 1950s as part of its systematic declassification review program. From 1996 to 2006, NARA had processed and released close to 460 million pages of federal records, working in partnership with the agencies that originated the records. Over the years, NARA has processed more than 1.1 billion pages of national security classified federal records, resulting in the declassification and release of ninety-one percent of the records.

NARA has also provided significant support to several special projects to review and release federal records on topics of extraordinary public interest such as POW/MIAs or Nazi war crimes. Additionally, NARA works closely with reference archivists to ensure that the federal records most in demand by researchers receive priority for declassification review and performs review on demand for individuals who need records that do not fall into a priority category. NARA has improved or developed electronic systems to support declassification, automating some processes and thus ensuring a more complete record of declassification actions. With assistance from the Air Force, NARA established the Interagency Referral Center (IRC) in order to support agencies as they seek access to their equities in federal records at the National Archives at College Park and to ensure that high-demand records are processed first. 

In 2009, Executive Order 13526 created the National Declassification Center at NARA, which also houses the Information Security Oversight Office.

Presidential libraries

Presidential libraries hold in excess of 30 million classified pages, including approximately 8 million pages from the administrations of Presidents Hoover through Carter, that were subject to automatic declassification on December 31, 2006. The foreign policy materials in Presidential collections are among the highest-level foreign policy documents in the Federal government and are of significant historical value. 

From 1995 to 2006, the national Presidential Library system reviewed, declassified, and released 1,603,429 pages of presidential materials using systematic guidelines delegated to the Archivist of the United States. NARA has also hosted on-site agency review teams at the Eisenhower, Kennedy, and Ford Presidential Libraries to manage classified equities and all presidential libraries have robust mandatory declassification review programs to support requests of individual researchers.