Friday, October 5, 2012


From Secrecy News:


The National Archives has set up a new online portal that provides an overview of declassification activity in and around the Arvhices, with input from the National Declassification Center, the Public Interest Declassification Board, the Presidential Libraries, and the Interagency Security Classification Appeals Panel (ISCAP).

The new section on ISCAP declassification decisions is of particular interest, since it provides links to the documents that have been newly declassified at the direction of the ISCAP, which receives appeals from the public for release of documents that agencies have declined to declassify.  Documents declassified through the ISCAP process in the past year include excerpts of several Presidential Daily Briefs from the 1960s, intelligence reports on various topics, and several documents on strategic nuclear forces.

The documents were posted in response to Section 5.3(b)(4) of President Obama's Executive Order 13526, which required that the ISCAP "appropriately inform senior agency officials and the public of final Panel decisions on appeals under sections 1.8 and 3.5 of this order."

The release of the latest collection of documents through ISCAP is commendable, and its publication online is more than welcome.

And yet it is not entirely satisfactory, nor does it seem to comply with the spirit or the letter of the executive order.  That's because while the newly posted documents are the products of ISCAP decisions, they are not the decisions themselves.  And those decisions have not been released.

By definition, every document released through ISCAP represents an error or a misjudgment by classifiers in the originating agency, who previously refused to release it to a requester.  Obviously, if the originating agency had released it, there would have been no appeal to ISCAP, and thus no occasion for an ISCAP decision to declassify.

But what was the error in each particular case?  Why exactly did ISCAP overrule the classifiers in the originating agency and order that the document be released?  And most important:  what are the lessons of each ISCAP decision for future agency classification and declassification activity?

These questions have no immediate answer.

The Executive Order stated clearly (section 3.1i) that "agencies shall consider the final decisions of the [ISCAP] Panel" in conducting their own declassification programs.  But without any articulation of the bases for the ISCAP decisions, there is nothing for agencies to consider.  All that can be said with confidence is that the individual document that has been released can no longer be withheld.  And we knew that already.

It seems that ISCAP does not prepare formal opinions to justify its actions.  It holds discussions among its interagency membership, and then it votes.

But if the ISCAP process is to be more than a retail declassification operation, producing a meager couple of dozen declassified documents per year, then it needs to do something more.  One way to proceed would be for ISCAP to issue a concise Record of Decision for each case.  It could describe the original agency position against disclosure, the ISCAP's assessment of that position, and the logic of its decision to overrule the agency and declassify the document, in whole or in part.

In this way, the Panel's impressive efforts to correct agency classification errors and misjudgements would have a better chance of propagating throughout the system.

"The ISCAP decisions site is a work in progress, and will be further refined to better serve the needs of our users," according to an NDC blog entry on the site.

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