NCC News

NCC Advocacy Update, November 1993

Page Putnam Miller, November 1993

Update on Revision of the Executive Order on Declassification

In response to President Clinton's April 26 directive calling for the revision of Executive Order 12356, which establishes current classification and declassification policy, the Information Security Oversight Office (ISOO), working with a task force of federal employees, developed a draft order. Although historians and others who had testified at public hearings with recommendations for the revisions had sought access to the proposed draft, ISOO has for the past month limited circulation to federal agency staff. By late September, however, several individuals outside the federal government acquired copies of the draft. It quickly circulated among the press, scholars, and concerned public interest groups, and the general response has been one of disappointment that the proposed order retains so many restrictions for keeping older records closed.

Much of the administration rhetoric about the new order stressed openness, yet the draft order leaves in place some of the key restrictive aspects of the existing system. Clinton's April 26 Presidential Review Directive asked the task force to consider steps for declassifying information as quickly as possible. At the heart of the proposed draft is a system that would continue the tedious and prohibitively expensive page-by-page review of most older records. Although material more than twenty-five years old could no longer be withheld because of possible damage to national security—a provision used currently to withhold many older records—there are provisions in the proposed order that would require that material more than forty years old be reviewed for the continued withholding of information that could reasonably be expected to identify a confidential human intelligence source; reveal information not publicly available that would clearly assist in the development or use of weapons of mass destruction; reveal information that would impair United States cryptologic systems; or violate a statute, treaty, or international agreement.

The ambiguity of the proposed draft is evident in its treatment of the public's right to know. The draft emphasizes "balancing the need to protect critically sensitive information with the public's need to know." But, in the implementation language, the draft order states that senior officials are permitted, but not obligated, to weigh the public interest in disclosure. Also, the proposed order prohibits the reclassification of declassified information that has been released to the public, but in the implementing language there is a provision for the reclassification of a document requested under the Freedom of Information Act that had been declassified but not released. The order eliminates the "confidential" classification level and calls for a government-wide database of declassified documents; however, the continued commitment to page-by-page review means that relatively few older records will be opened by the new order.

Many historians and archivists have voiced concern that under the proposed national security guidelines protected information of permanent historical value shall not be accessioned into the National Archives until that information has been declassified. While it is a positive step to require agencies to bear the major burden for declassifying the material that they classified, there is a real fear that if large amounts of older classified material are left in the agencies, they may never reach the National Archives.

The most discouraging part of the proposed draft, however, is the setting of the maximum life span for classified information at forty years with provisions for continued withholding of information. Nixon, in his 1972 executive order on declassification, set the maximum at thirty years. With the end of the Cold War, scholars had hoped for more openness.

Preservation of Electronic Records of the National Security Council and the Office of the President

Since the deadline for the administration to appeal has passed, it now appears that the ruling of the United States Circuit Court of Appeals for the District Court of Columbia will stand in the case—frequently referred to as PROFS, for IBM's Professional Office System, the internal computer communication system used by the National Security Council. The appeals court ruled that the record-keeping practices of the Executive Office of the President and the National Security Council are unlawful because they permit the destruction of historically valuable electronic mail information. This decision affirms a January 1993 decision by U.S. District Judge Charles Richey, who ordered preservation of nearly six thousand magnetic tapes and hard disks made at the White House during the Reagan and Bush administrations. However, only a portion of this case was appealed, and there are a number of key issues still remaining in district court to be resolved. One of the major sticking points is the development, by the National Archives, of guidance to federal agencies on the preservation of electronic mail. The National Archives has agreed to share the draft of guidance to federal agencies on preservation of electronic mail with the plaintiffs for their comments. While this case has moved significantly in the last two months, it is far from being resolved.

Continuing Resolution Funds Federal Agencies until FY'94 Appropriations Bills Are Passed

Congress did not meet its October 1 deadline for passage of the FY'94 appropriations bills. As we go to press, only the House has passed the conference report on the National Archives budget, which was set at $195.482 million, with $5.25 million earmarked for the National Historical Publications and Records Commission (NHPRC). Since the House had originally passed an FY'94 bill with only $4 million for NHPRC, this represents a real victory.

National Archives Begins Move to Archives II and Announces Temporary Closing of Materials

In preparation for the move to Archives II in College Park, Maryland, NARA has scheduled the temporary closing of four sets of materials. Beginning with the Nixon Presidential Materials Project on November 1, the closings are staggered and last approximately two months each. The Cartographic and Architectural Branch will shut down on November 29, the Still Picture Branch on January 28, and the Motion Picture, Sound, and Video Branch on February 12. Note that each branch will cease processing phone and mail requests, depending on the type, anywhere from one to five weeks before its closing date.