Tuesday, November 15, 2011

CIA resisting Obama's Fundamental Classification Guidance Review

from the FAS Project on Government Secrecy
Volume 2011, Issue No. 105
November 14, 2011


There is "little likelihood" that the Central Intelligence Agency will be able to produce any records documenting the CIA's implementation of the Fundamental Classification Guidance Review that each classifying agency is required to conduct, the Agency said last week.

The Fundamental Classification Guidance Review (FCGR) was ordered by President Obama in his December 2009 executive order 13526 (section 1.9) as a systematic effort to eliminate obsolete or unnecessary classification requirements.  It is the Obama Administration's primary response to the problem of over-classification, and it has already achieved some limited results at the Department of Defense and elsewhere.

But it can't possibly work if agencies don't implement it.  And so far there is no sign of any such implementation at CIA, despite the fact that compliance is not optional.

In response to FOIA requests over the past year for records on the CIA's progress in conducting its fundamental review, the CIA said it still had no records on the FCGR that are subject to the FOIA requests.

In an earlier response, "we informed you that a search was conducted and no records responsive to your request were located," wrote Susan Viscuso, CIA Information and Privacy Coordinator, on October 26.  "Although there is little likelihood that an updated search would produce different results, we will be glad to do so."

Ms. Viscuso's letter appeared to hint that responsive files might be contained in CIA "operational files" that are exempt from search and review under the CIA Information Act.  But such a claim would be substantively and legally spurious, especially since responsive records on the FCGR would have been "disseminated" outside of their source files (e.g. to the Information Security Oversight Office), which would nullify their exemption from search and review.

Meanwhile, another intelligence agency, the National Reconnaissance Office (NRO), proved more responsive.  The NRO said in a report on the FCGR (pdf) that was released last week under the FOIA that it had scheduled all of its classification guides for a fundamental review, as required.  The NRO, which is responsible for U.S. intelligence satellites, also said it was preparing an integrated classification guide that would be "more agile, timely, consistent, uniform, and flexible in providing classification guidance and principles at the lowest appropriate classification level."

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