ANNUAL REPORT TO THE PRESIDENT FY 1982

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP95B00890R000700190054-5
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• Document Page Count: 27
• Document Creation Date: December 27, 2016
• Document Release Date: July 11, 2011
• Sequence Number: 54
• Content Type: REPORT

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Annual Report
to the President
FY 1982
Information Security
Oversight Office
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(Tpa~L General Information Security
Services Oversight
Administration Office Washington, DC 20405
June 30, 1983
The President
The White House
Washington, DC 20500
Dear Mr. President:
I am pleased to submit the Information Security Oversight Office's (ISOO)
1982 Report to the President.
Established under Executive Order 12065 and continued under Executive Order
12356, effective August 1, 1982, the ISOO oversees the information security
program throughout the executive branch. The IS00 is an administrative
component of the General Services Administration, but receives its policy
direction from the National Security Council.
The 1982 Report contains two sections. The first section comprises a
statistical breakdown and analysis of the government-wide information
security program. The most recent data cover E.O. 12065's last year of
operation, and they generally compare favorably with those of prior years.
They demonstrate strong government-wide management of the information
security system.
The Appendix to the regular report is an ISOO authored paper entitled,
"The Background of Executive Order 12356." It represents an effort to
explain to the varied audience of this Report the reasons behind the
decision to replace E.O. 12065 with E.O. 12356. The paper is written
from ISOO's perspective and, in whole or in part, does not necessarily
reflect the views of any other agency.
Because FY 1983 represents the first full year of E.O. 12356's operation,
ISOO has been monitoring this critical time period very closely. I will
describe the Order's initial successes and problems in ISOO's next report
to you.
Respectfully,
STEVEN GARFINKEL
Di rector
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SUMMARY OF FY 1982 PROGRAM ACTIVITY
Classification Activity
a. At the end of FY 82, 1,465
officials were authorized to classify
originally at the "Top Secret" level,
4,073 others at the "Secret" level,
and 1,396 others at the "Confidential"
level. Since 1972, agencies have
reduced the number of original
classification authorities from
59,316 to 6,934, an 88 percent
reduction.
b. The 17 million original and deri-
vative classification decisions made
by agencies in FY 82 are within one
percent of the number generated in
FY 81. Three percent of the infor-
mation was "Top Secret," 31 percent
"Secret," and 66 percent "Confiden-
tial," figures which compare favorably
with FY 80 and FY 81.
c. As in previous years, original
classification constituted only
6 percent of all classification
decisions and derivative 94 percent.
d. Two agencies, the Department of
Defense and the Central Intelligence
Agency, generated nearly 98 percent
of all classified information.
Declassification Activity
a. Agencies experienced a 191 percent
increase in the number of mandatory
review requests over the number
received in FY 80, and a 78 percent
increase over FY 81. They processed
nearly 60 percent, and of these
declassified the information in whole
or in part in 86 percent of the cases.
Agencies processed 214 percent more
requests in FY 82 than in FY 80 and
93 percent more than in FY 81.
b. Agencies also experienced
a significant increase in the number
of appeals received and processed.
They increased the percentage rate
of appeals declassified in whole
from 15 percent in FY 81 to 40 per-
cent in FY 82.
c. Agencies systematically reviewed
nearly 20 million pages for declassi-
fication, 78 percent less than the
number reviewed in FY 80 and 38 percent
less than in FY 81. They declassified
85 percent of the information reviewed
as compared to 27 percent in FY 80 and
91 percent in FY 81.
Inspections
Agencies conducted over 28,000 self-
inspections, 9 percent less than in
each of the previous two years. During
the inspections agencies detected over
20,000 violations of the Order, imple-
menting directives and regulations.
"Top Secret" Inventories
Agencies reported a "Top Secret" inven-
tory of 1,434,668 documents at the end
of FY 82, a reduction of 18 percent
from FY 81.
FY 82 Program Strengths
a. Continuing reduction in the number
of original classifiers.
b. Continuing management control to
prevent the proliferation of classifi-
cation actions.
c. Improved processing of mandatory
review requests and appeals.
d. Agency emphasis on actions to
reduce the "Top Secret" inventory.
FY 82 Program Weaknesses
a. Decreased agency activity in the
program for systematically reviewing
information for declassification.
b. Decreased agency self-inspection
activity and the need for improvement
in both the quality and thoroughness
of agency inspections.
c. Increase in the number of "Top
Secret" actions reported by agencies.
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INFORMATION SECURITY OVERSIGHT OFFICE
THE INFORMATION SECURITY PROGRAM
FY 1982
The Information Security Oversight
Office (ISOO), established by Execu-
tive Order 12065 on December 1,
1978, functions now under Executive
Order 12356, signed by President
Reagan on April 2, 1982. ISOO is
responsible for overseeing the
information security programs of all
executive branch agencies that
create or handle national security
information and for reporting
annually to the President on the
state of the program. ISOO monitors
the information security programs of
approximately 65 departments,
agencies or independent offices in
the executive branch that create
and/or handle national security
information.
ISOO is located administratively in
the General Services Administration
but receives its policy direction
from the National Security Council.
The Administrator of General Services
appoints the ISOO Director upon
approval by the President. The ISOO
Director appoints its staff, which
numbers between 13-15 persons. ISOO
funding is included in the budget of
the National Archives and Records
Service. For FY 1982, ISOO's budget
was $518,000.
To meet its responsibilities, ISOO:
(a) conducts on-site inspections or
program reviews of monitored agencies;
(b) gathers and analyzes statistical
data on agency programs; (c) sponsors
or produces educational programs or
materials on information security;
(d) develops and issues implementing
directives or instructions regarding
the Order; (e) receives and takes
action on suggestions, complaints,
disputes and appeals from inside or
outside the Government on any aspect
of the administration of the Order; and
(f) conducts special studies of
the information security system. This
evaluation of the executive branch's
information security program for
FY 1982 is based upon program
reviews and inspections and the
compilation and analysis of statis-
tical data regarding program activity.
A. PROGRAM REVIEWS AND INSPECTIONS
To facilitate coordination and conti-
nuity of oversight operations, ISOO
analysts serve as liaison with specific
executive branch agencies. It is their
responsibility to stay abreast of rele-
vant activities within assigned agencies,
to coordinate with their agency security
counterparts on a continuing informal
basis, and to conduct formal inspections
of assigned agencies in accordance with
a planned annual inspection schedule.
These on-site formal inspections con-
centrate on all aspects of the infor-
mation security program, including
classification, declassification, safe-
guarding, education and training, admin-
istration, and marking. They always in-
clude in-depth discussions or interviews
with agency security officers,
classifiers and handlers of national
security information. To the maximum
extent possible, ISOO analysts also
review a sampling of classified docu-
ments to ascertain the proper appli-
cation of markings; the correct assign-
ment of classification and level of
classification in relation to
the information's sensitivity; and
the degree of compliance with
safeguarding requirements. ISOO
analysts recommend corrections,
either on-the-spot or as part of a
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formal inspection report. These
formal inspections are a necessary
tool for identifying and resolving
problem areas since they provide
indicators of program compliance or
non-compliance that are not apparent
or available from statistical data.
8. the number of "Top Secret"
documents held in inventory; and
9. in narrative format, agency
activities related to declassifi-
cation, training, safeguarding, the
use of the balancing test, and
program management.
B. STATISTICAL REPORTING
Agencies have been required to
report statistical data on their
programs since the inception of an
oversight organization. Over the
years changes have been made in the
reporting requirements in order to
provide more reliable and meaningful
data upon which to base program
evaluations. Moreover, consistent
with efforts to achieve paperwork
reductions, the frequency of re-
porting has been changed from
quarterly to annually. During FY
1982, ISOO continued this trend by
revising its Standard Form 311, on
which agencies report on their
activities. For FY 1982, agencies
were required to report on the
following:
1. The number of original classi-
fication authorities;
2. the number of original classi-
fication decisions, broken down by
classification level and duration of
classification;
3. the number of derivative classi-
fication decisions;
4. agency decisions on requests and
appeals for mandatory review of
information for declassification;
5. the number of pages reviewed for
declassification on a systematic
basis and the number declassified;
6. the number of formal agency
inspections;
7. instances of infractions detected
during agency inspections;
Because Executive Order 12356 became
effective on August 1, 1982, agency
reports for FY 1982 covered only a
10-month period. ISOO has increased
reported figures by 20 percent for
those data ordinarily reported on an
annual basis. This facilitates
comparison with the numbers for
prior reporting periods.
C. CLASSIFICATION ACTIVITY
1. Original Classification
Authorities (Exhibits 1-5). During
FY 1982, executive branch agencies
continued to reduce the number of
officials authorized to classify
national security information
originally. This statistic is
particularly noteworthy because, in
ISOO's experience, the number of
original classifiers is one of the
most important systemic controls on
the quality and quantity of classi-
fication decisions. Since FY 1980,
the number of "Top Secret" authori-
ties has been reduced by 36 (two
percent), "Secret" authorities by 61
(two percent), and "Confidential"
authorities by 118 (eight percent).
At the end of FY 1982, only 1,465
officials were authorized to classify
originally at the "Top Secret"
level, 4,073 others at the "Secret"
level, and 1,396 others at the
"Confidential" level. Since 1972,
agencies have reduced the total
number of original classification
authorities from 59,316 to 6,934, an
88 percent reduction.
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30000
Exhibit 1
Original 'Top Secret' Authorities
1487 1501 1451 1465
2000
1970 1972 1976 1980 1981 1982
Exhibit 3
Original 'Confidential' Authorities
60000
55000
50000
45000
40000
35000
30000
25000
20000
15000
10000
5000
Exhibit 2
Original 'Secret' Authorities
23236
1970 1972 1976 1980 1981 1982
Exhibit 4
Overall Original Authorities
1970 1972 1976 1980 1981 1982 1970 1972 1976 1980 1981 1982
4
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Exhibit 5
The Shrinking Circle of Original Classifiers
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Exhibit 6
Comparison of Original Classification Activity
Decisions
1,250,000
1,000,000
750,000
500,000
250,000
1,040,972
1,069,058
1,055,152
2. Original Classification Decisions
(Exhibits 6-7). For FY 1982, the
number of original classification
decisions was essentially the same as
reported for FY 1980 and FY 1981.
They totaled 1,055,152, of which two
(2) percent were classified at the "Top
Secret" level, forty-one (41) percent
at the "Secret" level, and fifty-
seven (57) percent at the "Confiden-
tial" level. With respect to duration
of classification, thirty-four (34)
percent were assigned declassification
or review dates from one to six years
from their creation and sixty-six (66)
percent from six to twenty years.
These distributions are also in line
with those reported for FY 1980 and
FY 1981. Comparison reveals one
statistic that requires increased
oversight; i.e., the significant
increase in the number of original
"Top Secret" classification deci-
sions. The number reported for
FY 1982 exceeds the number reported
for FY 1981 by forty-five (45)
percent. Consistent with previous
years, over ninety-nine (99) percent
of all original classification
activity was concentrated in four
agencies: CIA (39.19%), DOD (27.66%),
State (16.84%) and Justice (15.42%).
All other agencies of the executive
branch accounted for less than
10,000 (.89%) original classifi-
cation decisions.
Exhibit 7
FY 1982 Original Classification Activity By Agency
Agency
Original
Decisions
%0-6 yrs.
%6-20 yrs.
CIA
413,521
8%
92%
4%
55%
41%
DOD
291,831
71%
29%
1%
18%
81%
State
177,673
62%
38%
.1%
20%
79.9%
Justice
162,691
.2%
99.8%
1%
70%
29%
NSC
2,999
86%
14%
8%
49%
43%
FEMA
2,266
17%
83%
20%
47%
33%
DOE
918
74%
26%
2%
28%
70%
Treasury
796
96%
4%
.6%
6%
93.4%
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Exhibit 8
Comparison of Derivative Classification Activity
Decisions
20,000,000
15,017,792
16,305,044
16,449,459
15,000,000
10,000,000
5,000,000
FY 1980
FY 1981
FY 1982
3. Derivative Classification "Secret" level, and sixty-seven (67)
Decisions (Exhibits 8- . eri- percent at the "Confidential" level.
vative classification is the act of This is essentially the same distri-
incorporating, paraphrasing, restating bution pattern as reported for FY 1980,
or generating in new form informa- but reflects a two (2) percent
tion that is already classified, and reduction in the percentage of
marking the newly developed material documents classified derivatively at
consistent with the markings of the the "Top Secret" level in FY 1981.
source information. Agencies report-
ed 16,449,459 derivative classifi- Two agencies accounted for 99.64
cation decisions for FY 1982, which percent of all derivative classi-
represents less than a one (1) fication: DOD (83.52%) and CIA
percent increase over the total (16.12%). This is almost identical
reported for FY 1981. Of the total with the figures for FY 1980 and FY
derivative actions, three (3) percent 1981. All other agencies deriva-
were classified at the "Top Secret" tively classified less than 60,000
level, thirty (30) percent at the actions during FY 1982.
Exhibit 9
FY 1982 Derivative Classification Activity By Agency
Agency
Total Derivative Actions
% TS
% S
% C
DOD
13,738,420
3%
21%
76%
CIA
2,651,466
7%
76%
17%
Justice
25,380
3%
96%
1%
DOE
14,492
2%
12%
86%
FEMA
4,369
8%
63%
29%
Treasury
2,268
2%
40%
58%
NSC
1,898
5%
54%
41%
State
298
0%
74%
26%
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Exhibit 10
Comparison of Combined Classification Activity
FY Total Actions
%TS %S %C
1980
16,058,764
3%
29%
68%
1981
17,374,102
5%
29%
66%
1982
17,504,611
3%
31%
66%
FY 82-
81
+130,509
(+.75%)
-2%
+2%
0%
FY 82-
80
+1,445,847
( +9%)
0%
+2%
-2%
4. Combined Classification
Decisions (Exhibit 10). The total
number of original and derivative
classification decisions for FY 1982
was 17,504,611, less than a one (1)
percent increase over the total for
FY 1981. Combined classification
assignments placed three (3) percent
of all actions in the "Top Secret"
category, thirty-one (31) percent in
the "Secret" category, and sixty-six
(66) percent in the "Confidential"
category. The figures compare with
those reported during FY 1980 and
FY 1981.
The DOD (80.16%) and the CIA (17.5%)
accounted for 97.66 percent of all
classification activity in FY 1982.
All other executive branch activities
classified less than 410,000 actions.
5. Original vs. Derivative
Classification Exhibit 11 During
FY 1982, the ratio of original to
derivative classification decisions
remained consistent with the breakdown
of recent years; i.e., original
constituting six (6) percent of all
classification actions and derivative
ninety-four (94) percent. Another
way of observing this ratio is to
Exhibit 11
Original vs. Derivative
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predict that, on the average, each
original classification decision
will ultimately be reflected in 20
classified documents. This one
statistic illustrates the need to
concentrate oversight efforts on
controlling the quantity and quality
of original classification decisions.
requested. Consistent with the
program's popularity, executive
branch agencies reported a 191
percent increase in FY 1982 over the
new cases received during FY 1980,
and a seventy-eight (78) percent
increase over cases received in
FY 1981. In FY 1982, agencies had a
total of 11,871 cases for action.
They processed 6,919 (58%) of these
cases during FY 1982. Of those
processed, 4,500 (65%) were granted
in full, 1,446 (21%) were granted in
part, and 973 (14%) were denied in
full. Agencies processed 4,713
(214%) more cases in FY 1982 than in
FY 1980, and 3,334 (93%) more cases
than in FY 1981, while maintaining a
percentage rate of sixty-five (65)
for documents granted in full.
Moreover, they reviewed nearly
1,370,000 more pages for declassi-
fication in FY 1982 than in FY 1980,
and 1,290,000 more than in FY 1981.
This represents a twelve-fold
increase in agency workload. At the
end of FY 1982, forty-two (42)
percent of the cases received by the
agencies had not been processed and
were carried over to FY 1983.
D. DECLASSIFICATION ACTIVITY
1. Mandatory Review for
Declassification (Exhibits 12 and
13T.--Executive Order 12065 pro-
vided that agencies or members of the
public could request that information
in an executive branch agency be
reviewed for declassification. This
prerogative could be exercised at
any time during the life of the
document. This program has been
increasingly popular with members of
the public, particularly researchers,
since its inception in 1972. Execu-
tive branch agencies have acted
responsibly in meeting the require-
ments for mandatory review and have,
in whole or in part, provided re-
questers with approximately eighty-
five (85) percent of the information
8000
7000
6000
5000
4000
3000
2000
1000
Exhibit 12
Mandatory Review Requests Received
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Exhibit 13
FY 1982 Mandatory Review Actions By Agency
% Granted
% Granted % Denied
Agency
Total Cases Acted On
In Full
In Part
In Full
DOD
3886
77%
8%
15%
State
1077
52%
34%
14%
NSC
820
48%
48%
4%
Justice
576
52%
26%
22%
CIA
190
28%
49%
23%
NASA
113
34%
66%
0%
GSA/NARS
92
45%
35%
20%
2. Mandatory Review Appeals
(Exhibit 14 . Executive Order 12065
provided that agencies or members of
the public could appeal denials from
requests for declassification of
national security information. As
in the case of mandatory review
requests, executive branch agencies
experienced a significant increase
in the number of appeals received in
both FY 1981 and FY 1982, as compared
with the number in FY 1980. In FY 1982,
agencies had a total of 1,451 unpro-
cessed appeals, including carryovers
from 1981, and acted on 548 (38%) of
them during the year. Of these, 218
(40%) were granted in full, 140 (26%)
were granted in part, and 190 (34%)
were denied in full. Notwithstanding
the additional workload, agencies
increased the percentage rate of
appeals granted in full from fifteen
(15) to forty (40) percent. Seventy
(70) percent of all appeals were
directed to the Department of
Justice, which granted, in whole or
part, seventy (70) percent of the
appeals it processed.
EXHIBIT 14
Appeals Received
800
750
700
650
600
550
500
450
400
350
300
250
200
150
100
50
72
ri
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90 Mil
80 Mil
70 Mil
60 Mil
50 Mil
40 Mil
30 Mil
20 Mil
10 Mil
Exhibit 15
Pages Reviewed For Declassification
100
90
80
70
60
50
40
30
20
10
Exhibit 16
% of Reviewed Pages Declassified
9
1%
85%
27%
3. Systematic Review for
Declassification (Exhibits 15-17).
Executive Order 12065 required
agencies to review permanently
valuable national security informa-
tion for purposes of declassification
as the information became twenty
(20) years old. Agencies reported
that during FY 1982, they systema-
tically reviewed 19,503,813 pages of
national security information. Of
these, 16,582,972 pages were declassi-
fied. This eighty-five (85) percent
declassification rate far exceeded
the twenty- seven (27) percent rate
achieved in FY 1980, and was just
shy of the ninety-one (91) percent
rate of FY 1981. The nineteen
million pages reviewed for
declassification in FY 1982 were,
however, seventy-eight (78) percent
less than the number of pages
reviewed in FY 1980, and thirty-
eight (38) percent less than the
number reviewed in FY 1981. Most of
this reduction can be attributed to
the reduction in resources available
in the National Archives and Records
Service (NARS) for the conduct of
systematic review, and a shift of
those remaining resources to projects
which are especially sensitive and
may not be declassified by bulk
methods. During FY 1982, there were
slightly more than three million
pages reviewed in NARS as compared
with over eighty-two (82) million
pages in FY 1980.
Exhibit 17
FY 1982 Systematic Review Actions By Agency
Agency
Total Pages Reviewed
Pages Declassified
Percent
Declassified
DOD
13,815,145
13,268,386
96%
GSA/NARS
3,115,620
2,960,362
95%
CIA
2,153,464
270,610
13%
USIA
216,000
72,000
33%
STATE
102,600
99,522
97%
JUSTICE
50,316
4,260
8%
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60,000
40,000
20,000
Exhibit 18
Agency Self-Inspections
30,670
30,993
0
28,041
E. AGENCY INSPECTIONS
1. Number of Inspections
(Exhibit 18 . During FY 1982,
executive branch agencies conducted
28,041 self-inspections. This
represents a nine (9) percent
reduction from the number conducted
in FY 1980 and FY 1981. Because
Executive Order 12065 had been in
place for several years and it was
common knowledge that efforts were
under way to replace the Order, it
is not surprising that the number of
agency self-inspections declined in
FY 1982. With a new Order in place,
the number of agency self-inspections
should increase significantly in
FY 1983.
2. Infractions (Exhibit 19).
Infractions are minor violations
of the Order, its implementing
directives or regulations. They do
not include those more serious
violations that are to be reported
to the ISOO Director when they are
discovered. For FY 1982, agencies
detected 20,279 infractions in
their information security program
during self-inspections. This
number represents an increase over
the number of infractions reported
for FY 1980 and FY 1981 (some
categories of infractions were not
included in prior reports). The
detection rate of less than one
infraction per agency self-inspection
for FY 1982 is far less than that
experienced by IS00 during its
inspections. This statistic calls
for greater attention to the quality
of agency self-inspections by both
ISOO and the agencies.
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Exhibit 19
Infractions Detected by Agencies During Self-Inspections
#Detected #Detected
#Detected
% Change From
Infraction
FY 1980 FY 1981
FY 1982
FY 80
FY 81
Unauthorized
Access
950
476
475
-50%
0%
Mismarking
11,297
8,797
11,499
+2%
+31%
Unauthorized
Transmission
1,282
924
1,197
Improper Storage
3,975
3,341
4,222
+6%
+26%
Unauthorized
Reproduction
300
135
207
-31%
+50%
Overclassification
NOT REPORTED
290
Underclassification
NOT REPORTED
365
Misapplication of
Time Limits
Classification w/o
Authority
NOT REPORTED
NOT REPORTED
Extension of Classification
w/o Authority
Improper Method of
Destruction
NOT REPORTED
NOT REPORTED
F. "TOP SECRET" INVENTORIES
(Exhibit 20). Executive
branch agencies reported that
there were 1,434,668 "Top
Secret" documents being held
in inventory at the end of
2,000,000
1,500,000
1,000,000
500,000
FY 1982. This figure indicates that
the agencies made significant
progress in reducing the more sensi-
tive and costly "Top Secret" inventory
by eighteen (18) percent from the
total reported in FY 1981.
EXHIBIT 20
'Top Secret' Inventory
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INTRODUCTION
On December 1, 1978, Executive Order 12065, "National Security Information,"
took effect. Less than four years later, Executive Order 12356 replaced it.
What hastened the change? The Information Security Oversight Office (ISOO),
charged with overseeing the government-wide information security program under
both Executive orders, concludes that the authors of E.O. 12065, in an effort to
emphasize the principle of open access to information, included language that
sometimes undermined its effectiveness as an information security system.
This is not to say that E.O. 12065 was a failure. As this Report and ISOO's
prior Reports to the President illuminate, the Government's information security
program was reasonably successful under E.O. 12065. Many of its provisions,
most notably those that limited the number of original classifiers and those
that required effective training and oversight, have had a very positive impact
on the information security program, and are retained or even strengthened in
E.O. 12356. As a matter of fact, E.O. 12356 more closely resembles E.O. 12065
than it does any prior information security system.
Retaining its predecessor's successful features, E.O. 12356 abandons or adjusts
those aspects of E.O. 12065 that proved to be inefficient, inflexible or coun-
terproductive. Without describing each and every change, ISOO groups the
shortcomings of E.O. 12065 into the following categories: (a) its inefficient
program for the systematic declassification review of information; (b) its
inflexible administrative requirements; (c) its negative tone; (d) its adverse
impact on litigation; and (e) its unrealistic program for automatic declassi-
fication. In the discussion that follows, ISOO examines each of these problem
areas in greater detail, and notes the changes in E.O. 12356 designed to remedy
them. They are discussed in the order that each problem arose as a matter to be
addressed in the process of constructing E.O. 12356.
THE SYSTEMATIC REVIEW PROGRAM
In 1972, Executive Order 11652 introduced the program of systematic review for
declassification. It was designed to promote the expeditious, inexpensive and
wholesale declassification of the massive volume of permanently valuable classi-
fied records in the National Archives of the United States that dated from World
War II and its aftermath. The Order provided that the Archivist of the United
States would conduct a systematic review of the Archives' classified holdings as
they became 30 years old.
The systematic review program under E.O. 11652 was a tremendous success.
Between 1972 and 1978, the National Archives declassified over 100 million
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pages of previously classified records. In retrospect, much of the success of
the systematic review program at that time was due to the nature of the records
being reviewed, most of which related to military operations or emergency
planning, and the high priority given the program in the National Archives.
Looking at the success of the systematic review program, the drafters of
E.O. 12065 decided to take it a few steps farther. E.O. 12065 directed all
agencies, not just the National Archives, to conduct a systematic review program,
and lowered the applicable age of records to be reviewed from 30 to 20 years.
Agencies were further directed to reduce their backlog of permanently valuable
classified records in order to complete the transition to 20-year review no
later than December 1, 1988.
From its earliest stages of implementation, the revised system faced obstacles,
especially in those large classifying agencies that had never conducted their
own systematic review programs. They had to divert money from mission related
programs to fund new systematic review units. Frequently, the personnel in
these units were performing a function that was both new to them and largely
unrelated to their previous experience.
The shift to 20-year review created even greater problems. Several factors came
into play that sharply reduced the percentage of records that could be declassi-
fied as a result of systematic review. First, the general subject areas of the
post-War records related more to "Cold War" issues than to military operations
and emergency planning. Much more information, frequently involving intelligence
activities, remained sensitive. This required item-by-item review, rather than
the bulk declassification that spurred the program under E.O. 11652. Second,
experience revealed that the national security sensitivity of a significant
percentage of information lingers after 20 years, but often dissipates around
30 years. Speculation ties this phenomenon to the fact that the 30-year period
more accurately reflects the span of political or public careers. It is worth
noting that the Federal Records Act contains a 30-year rule for specific agency
restrictions on access to records in the National Archives and a number of
foreign democracies restrict access to their records for the same time period.
Finally, the 10-year reduction vastly increased the volume of information subject
to review, exaggerated by the tremendous growth of the Federal Government during
and immediately after the War. Rather than absorbing the backlog, most agencies
had made little, if any, progress from the 30-year mark by the August 1982
effective date of E.O. 12356.
In June 1980, the General Accounting Office (GAO), working at the behest of the
House Subcommittee on Government Information and Individual Rights, asked ISOO
and several other executive branch agencies to review and comment on a draft
report entitled, "Systematic Review for Declassification -- Do Benefits Equal
Cost?" The draft report answered its title, "No," and went so far as to recom-
mend an amendment to E.O. 12065 to abolish the systematic review program. The
draft report stated that agencies could meet researcher demands by relying
exclusively upon individual access requests under the Freedom of Information Act
or the mandatory review provisions of E.O. 12065.
To coordinate a reply to the draft report, the ISOO Director convened a meeting
of the Interagency Information Security Committee, composed of representatives
of the major classifying agencies. At the meeting there was almost total
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agreement that the GAO draft correctly pointed out a number of deficiencies in
E.O. 12065's systematic review program. (The meeting also featured the first
formal expression of other problems with E.O. 12065 by several agency represen-
tatives.) The representatives took sharp issue, however, with the draft report's
recommendation to abolish the program entirely. There was a consensus that
Freedom of Information and mandatory review requests could never adequately
substitute for the broader scale benefits of systematic review. ISOO, on behalf
of the executive branch, strongly objected to GAO's draft recommendation, and
stated that it would examine less drastic means of equating the tangible and
intangible benefits of the systematic review program with its rising costs. The
final GAO report took cognizance of the effort to preserve the systematic review
program while lowering the costs; and ISOO's examination of the systematic
review program played a major role in the changes that appeared in E.O. 12356.
The systematic review program of E.O. 12356, as implemented by ISOO Directive
No. 1, resembles the successful program of E.O. 11652. Once again, only the
Archivist of the United States is required to conduct a systematic review
program for the declassification of records accessioned into the National
Archives, and of presidential papers or records under the Archivist's control.
The Directive schedules systematic review at the 30-year mark again, except that
it establishes 50-year review for sensitive intelligence and cryptographic
information. In addition, it requires the Archivist to establish priorities
based upon the expected degree of researcher interest and the likelihood that
review will result in significant declassification. While other agencies are
not required to conduct systematic review for declassification of records in
their custody, they are encouraged to do so if resources are available.
There is at least one area of the revised systematic review program that requires
special scrutiny. By reducing and slowing down the program, E.O. 12356 poten-
tially worsens a problem that has existed for some time, i.e., the buildup of
permanently valuable classified records. This is especially true at a time when
the National Archives has had to cut back on the resources it devotes to syste-
matic review. A very positive program to counter this problem is the transfer
of funds from a classifying agency to the National Archives so that it may
systematically review specified records of that agency at a cost far less than
would otherwise be the case. The State Department and the National Archives
currently participate quite successfully in such a project. The agencies and
ISOO must also pay particular attention to other variables that may counteract
the buildup of classified holdings. These include educating original classifiers
with respect to determining the duration of classification based upon specific
dates or events, and discouraging the use of the waiver authority vested in
agency heads with respect to both portion marking and the issuance of classifi-
cation guides. Both portion marking and classification guides tend to control
the volume of classified information, especially that classified on a derivative
basis.
On balance, E.O. 12356's systematic review program represents a reasonable
compromise between the calls to abolish the program and the costly, inefficient
system under E.O. 12065. When properly administered and funded, systematic
review remains the most effective means of declassifying large quantities of
those classified records in the National Archives that are in greatest demand
by researchers.
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ADMINISTRATIVE REQUIREMENTS
When the Interagency Information Security Committee met on June 19, 1980, to
consider the draft GAO report on systematic review, the discussion turned to
other provisions of E.O. 12065 that the representatives of the member agencies
felt were unworkable or inadvisable. Most of their other complaints expressed
that day could be grouped under the heading, "Administrative Headaches."
In drafting E.O. 12065, its authors designed stringent administrative controls
as a means to restrain unwarranted classification. These controls sought to
limit classification authority initially; to inhibit the delegation of classi-
fication authority; to minimize the extension of automatic declassification
dates; to mandate portion marking; to require the promulgation of classification
guides; to restrict the classification of information following the receipt of a
Freedom of Information or mandatory review request; and to ban the reclassifi-
cation of any information that had previously been declassified and disclosed.
By and large most of these measures had the desired effect and E.O. 12356
retains their positive features. In some situations, however, the degree of
inflexibility drafted into these provisions created unnecessary and unreasonable
impediments to an effective information security system. Notable among these
were the provision limiting agency classification action to the agency head or
deputy agency head following the receipt of a Freedom of Information or mandatory
review request; the universal requirement for classification guides; the require-
ment that only an agency head or "Top Secret" classification authority could
issue a classification guide; and the total ban on reclassification.
Section 1-606 of E.O. 12065 provided in pertinent part: "No document . .
may be classified after an agency has received a request for the document under
the Freedom of Information Act or the Mandatory Review provisions of this Order
. unless such classification . . . is authorized by the agency head or
deputy agency head." The rationale for this limitation is laudable, and carries
over into E.O. 12356. It seeks to prevent agencies from unjustifiably using the
classification system to thwart the general policy expressed by the Freedom of
Information Act and mandatory review. Inherent in the provision is the assump-
tion that limiting classification action under these circumstances to the agency
head or deputy agency head helps assure its legitimacy.
Unfortunately, there are several government agencies that receive numerous
Freedom of Information and mandatory review requests for large quantities of
older records, which, although safeguarded from disclosure, have never been
previously marked as national security information. Faced with requests for
access to thousands upon thousands of these documents, many of them clearly
'and routinely classifiable, the requirement that only the agency head or deputy
agency head could classify them became an enormous burden on their valuable and
limited time. E.O. 12356 rectifies this situation by adding the "senior agency
official," designated by the agency head, and agency "Top Secret" original
classifiers, of whom there are less than 1,500 government-wide, as persons who
may also classify information following the receipt of a Freedom of Information
or mandatory review request. Because these individuals are by and large the
same officials and policymakers who would be recommending classification to the
agency heads, it is reasonable to expect that they will classify information
with the discretion and judgment that these special circumstances demand.
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The provision of E.O. 12065 mandating the development and issuance of classifi-
cation guides also created administrative problems in certain agencies. A classi-
fication guide is a document issued by an original classification authority that
instructs derivative classifiers about the particular elements of information
that must be classified, the level of classification and its duration. In most
instances guides help assure uniform classification and otherwise facilitate the
derivative classification process. In some areas, however, it is difficult and
sometimes impossible to predetermine and describe particular elements of infor-
mation that must be classified. This has proven to be especially true in the
area of foreign relations. As a result, in some cases the cost of producing
usable guides far exceeds their benefits in facilitating derivative classifi-
cation. Therefore, E.O. 12356 permits an agency head to waive the requirement
to produce classification guides when an evaluation of relevant factors spelled
out in ISOO Directive No. 1 reveals that the cost of production would exceed the
benefit to the derivative classification process. The agency head must report
waivers to the Director of ISOO, who will review them as part of the oversight
function.
Ironically, another provision of E.O. 12065 hindered the promulgation of classifi-
cation guides by limiting the authority to issue them to agency heads or original
"Top Secret" classification authorities (only the agency head in those agencies
that may not classify originally at the "Top Secret" level). In many instances
the program official most familiar with the subject matter of a particular guide
is an authorized original classifier, but not at the "Top Secret" level.
Therefore, E.O. 12356 facilitates the promulgation of classification guides by
permitting their issuance by an official who has program or supervisory respon-
sibility over the information and is authorized to classify information originally
at the highest level of classification prescribed in the guide.
Another area of inflexible administration was E.O. 12065's blanket prohibition
against the reclassification of information previously declassified and dis-
closed. Almost anyone would agree that in most instances it is useless and
sometimes counterproductive to reclassify information once it has been declassi-
fied and disclosed. However, there are exceptions. During the time E.O. 12065
was in effect, situations arose in which information had been declassified
erroneously and disclosed, but the information was reasonably recoverable from
the recipient. Despite the fact that the damage to the national security could
be minimized, the blanket prohibition prevented reclassification. Rather than
closing the door to reclassification completely, E.O. 12356 provides that
information previously declassified and disclosed, but which continues to meet
the tests for classification, may be reclassified by an agency head if it is
"reasonably recoverable." ISOO Directive No. 1 specifies those factors that an
agency head must take into consideration before reclassifying information under
this provision. In addition, each reclassification action must be reported to
the Director of ISOO, who closely monitors its reasonableness. These special
safeguards should help assure that this authority is not abused.
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A MATTER OF TONE
The Intelligence Community played a significant role in the development of
E.O. 12356. In fact, it was an interagency Intelligence Community committee
that composed the first draft of a revised Order. The committee acted in
response to a White House request that it examine ways of improving the nation's
intelligence capabilities. The committee focused its efforts on the negative
tone of E.O. 12065 and those provisions of the Order that adversely impacted
upon the Government's litigating posture in defending Freedom of Information and
other lawsuits.
The problem of E.O. 12065's negative tone refers to its unbalanced portrayal of
the twin goals of openness and security. The exhortation to openness that
permeated its language distorted the fundamental purpose of an information
security system, i.e., the protection of national security information from
unauthorized disclosure. By repeatedly expressing the classification process in
terms of "don'ts" rather than "dos," E.O. 12065 downplayed the critical importance
of protecting our own sensitive information and the information given to the
United States in confidence by foreign governments.
Given the tone of E.O. 12065's language, it is not surprising that foreign
officials often expressed concern over the ability of this Government to protect
shared information. They viewed the Order as an extension of the Freedom of
Information Act. While these fears were largely unwarranted, this perception
threatened to dry up actual and potential intelligence sources. The threat to
the United States intelligence effort highlighted the need to state fundamental
classification policy and procedures in language that recognized legitimate
security requirements.
For example, Section 1-301 of E.O. 12065, which listed appropriate classifi-
cation categories, began, "Information may not be considered for classification
unless it concerns . .." Contrast Section 1.3(a) of E.O. 12356: "Informa-
tion shall be considered for classification if it concerns .." Similarly,
Section 1-302 of E.O. 12065, which establishes the threshold damage test for
classification, stated:
Even though information is determined to concern one or more
of the criteria in Section 1-301, it may not be classified
unless an original classification authority also determines
that its unauthorized disclosure reasonably could be expected
to cause at least identifiable damage to the national security.
Contrast the positive statement of its revised counterpart, Section 1.3(b) of
E.O. 12356:
Information that is determined to concern one or more of
the categories in Section 1.3(a) shall be classified when
an original classification authority also determines that
its unauthorized disclosure, either by itself or in the
context of other information, reasonably could be expected
to cause damage to the national security.
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Perhaps the clearest example of E.O. 12065's negative tone was found in the
so-called "reasonable doubt" standard. This is the provision that instructs
original classifiers if they are uncertain about the need to classify infor-
mation, or about the appropriate classification level. Ironically, these
respective provisions, which the news media and others have repeatedly and
inaccurately cited to distinguish the two Orders in an extraordinarily abbre-
viated fashion, are far more important in theory than in practice. For even
though the original classification process sometimes involves difficult
judgments, the senior status of original classifiers encompasses officials who
routinely make difficult decisions in areas related to national security.
Accordingly, actual cases of "reasonable doubt" are unusual.
E.O. 12065 required that all these cases be resolved in favor of no classifi-
cation, when whether to classify or not was the issue, and in favor of the lower
classification level, when the appropriate level was the issue. This is a
simplistic and dangerous solution. Why mandate an answer for all cases when the
merits of each situation will differ and there exist reasonable means of reso-
lution? E.O. 12356 takes a more responsible stance, providing, in effect, "When
in doubt, find out." It requires that the information be safeguarded as if it
were classified, or at the higher level, pending a determination by an authorized
classifier, which must be reached within thirty days. This is certainly a
reasonable delay when matters of national security are concerned.
With these and other changes in tone, E.O. 12356 sounds like what it is, the
framework for the executive branch's information security system. While
recognizing the critical importance of openness in government generally, it does
not apologize for those situations in which the national security requires
secrecy.
THE IMPACT OF LITIGATION
Several agencies frequently must defend in court their efforts to protect
national security information from disclosure under the Freedom of Information
Act. Executive Order 12065 unintentionally but significantly increased the
burden upon the Government in defending these actions.
Section 3-303 of E.O. 12065 provided: "It is presumed that information which
continues to meet the classification requirements [of the Order] requires con-
tinued protection. In some cases, however, the need to protect such informa-
tion may be outweighed by the public interest in disclosure of the information,
and in these cases the information should be declassified. . . ." This was the
so-called "balancing test" of E.O. 12065.
For many months the drafters of E.O. 12065 debated the inclusion of a "balancing
test." Proponents insisted that it was necessary to state explicitly that even
properly classified records might be declassified for some greater public pur-
pose than that served by their protection. Opponents, while recognizing the
inherent need to balance the competing interests of protection and disclosure,
warned against an explicit "balancing test" on the basis that it would create
significant problems for the Government in defending Freedom of Information
litigation. Ultimately, the proponents of a "balancing test" prevailed, on the
assurance that the discretionary language quoted above would prevent its
exploitation by plaintiffs in these lawsuits.
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This forecast proved to be unequivocally wrong. The "balancing test" became,
and in some holdover cases continues to be, the major litigating problem for
the Government in actions involving E.O. 12065. Plaintiffs argued that the
consideration of the "balancing test" by agency heads was mandatory, not
discretionary, and challenged administrative determinations to keep information
classified even when agency heads had applied the test. To defend these actions
required the Government to prove not only the proper classification of infor-
mation, but also the proper application of a "balancing" procedure. More
ominous was the prospect that some judges would second-guess the agency heads,
who were responsible under law for protecting the information, and who were
knowledgeable about the consequences of disclosure. Finally, litigating the
"balancing test" had the practical effect of requiring the defending agency
to produce successive generations of supporting affidavits, increasing the
details in each. This was not only burdensome, but it required the disclosure
of more and more information about classified subjects, much of which was
itself quite sensitive.
As in the case of the "balancing test," E.O. 12065's "identifiable" damage
standard for "Confidential" classification is an example of good intentions
leading to unexpected and undesirable consequences in the context of
Freedom of Information litigation. The drafters of E.O. 12065 inserted
the word "identifiable" to emphasize to classifiers the importance of
conscious decision-making before classifying information. Instead, plaintiffs
seized upon "identifiable" to argue that it mandated a qualitative or
quantitative standard or degree of damage to national security before
information could be classified. For example, in one lawsuit the plaintiff
sought the release of certain information, which, if disclosed, would have
revealed intelligence sources or methods. Plaintiff argued that it could
not be classified, because the prospective damage to these sources or
methods was merely speculative, and not presently "identifiable." Fortunately,
the judge in this case recognized the absurdity of this logic. Nevertheless,
the "identifiable" experience attests to the legal adage of avoiding
unnecessary adjectives in drafting instruments subject to interpretation.
The drafters of E.O. 12356 agreed that the only realistic way to cope with
these provisions adequately was to eliminate them. Less incisive action,
e.g., alternative language, failed to exclude the possibility of persons
continuing to litigate areas of administrative discretion.
The deletion of the "balancing test" should prove to be one of E.O. 12356's
most important changes. Its absence should relieve much of the Government's
unforeseen burden in defending Freedom of Information actions seeking access
to classified records. ISOO and the classifying agencies must be vigilant,
however, to see that the absence of the "balancing test" and "identifiable"
damage does not result in less thoughtful classification and declassification
decisions. Classifiers and declassifiers must consider both sides of the
issue. As with prior Executive orders, E.O. 12356 does not require the
classifier to record contemporaneously the reasons behind the decision to
classify or to keep information classified. Every classifier must be aware,
however, that there are avenues to challenge the validity of classification,
at which time the classifier is likely to be called upon to justify and
explain the classification decision in writing, and frequently under oath.
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AUTOMATIC DECLASSIFICATION
Executive Orders 10501, 11652, and 12065 all included some provision for the
automatic declassification of national security information based solely upon
the passage of a fixed number of years. E.O. 12065 carried the concept of
automatic declassification farthest:
Section 1-401. Except as permitted in Section 1-402, at
the time of the original classification each classification
authority shall set a date or event for automatic declassi-
fication no more than six years later.
Section 1-402. Only officials with Top Secret classification
authority and agency heads . . . may classify information for
more than six years from the date of original classification.
This authority shall be used sparingly. . . .
What sounds good in theory doesn't always work. As happened with prior Orders,
classifiers honored the automatic declassification requirements of E.O. 12065
far more frequently in the breach than in the practice. They could not ignore a
reality that confronts classifiers much of the time: It is difficult, if not
impossible, to discern at the time of classification the duration of the infor-
mation's sensitivity.
In theory, uncertain classifiers under E.O. 12065 had two alternatives: (a) they
could disregard their concern about the duration of the information's sensiti-
vity, and mark the information for automatic declassification in six years or
less; or (b) they could bring the information before the head of the agency or a
"Top Secret" classification authority, and seek to have that person classify it
for a period of time not to exceed twenty years (for foreign government infor-
mation, not to exceed thirty years). In practice, classifiers chose alternative
(a) less than 10 percent of the time. They chose alternative (b), requiring
special procedures and mandated for "sparing" use, approximately 65 percent of
the time.
In practice, to handle the remaining 25-30 percent of original classification
actions, the classifiers relied upon an invention that wasn't even contemplated
in E.O. 12065, i.e., "Review in six years." In other words, the classifiers,
unwilling to risk the automatic declassification of information that might
continue to require protection after six years, but also unwilling or unable to
go through the procedure to extend its classification up to twenty years,
created a makeshift substitute for automatic declassification.
Even though "six year review" may have eased the consciences of classifiers, it
was not a viable solution. First, agencies were already having a difficult time
trying to comply with the requirement to review 20-year old permanently valuable
classified information. It was ludicrous to expect that they would be able to
devote the resources necessary to review a large portion of all their classified
information within six years. Second, because E.O. 12065 did not contemplate a
"six-year review," it was quite possible that the courts would find that infor-
mation marked in this manner was automatically declassified after six years, and
order its release despite its national security sensitivity.
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Information properly marked for six-year automatic declassification presented a
different problem. ISOO and agency reviewers uncovered a disturbing number of
situations in which the automatic declassification provisions of E.O. 12065
led to the rote application of the six-year rule to information that would
clearly require protection for a longer period. This phenomenon was not new
with E.O. 12065, merely exaggerated. Any classification system that mandates
an arbitrary period of time for the duration of protection must presuppose some
degree of premature disclosure and consequential damage to the national security.
E.O. 12065's system for automatic declassification was clearly one of its
greatest failings. Over 90 percent of reported classification decisions fell
outside its prescribed timeframe, and too many of the remaining decisions
threatened the disclosure of information that continued to require national
security protection. It was a situation serious enough to demand a fresh look
at the concept of automatic declassification. Taking the bold step of bucking
the trend of prior Orders, the drafters of E.O. 12356 concluded that the only
rational approach was to abandon the myth of automatic declassification tied to
a fixed period of years that may or may not have any relationship to the infor-
mation's national security sensitivity. Instead, E.O. 12356 takes the only
realistic approach, establishing the duration of classification for "as long as
required by national security considerations." When they are able to do so,
original classifiers are to establish specific dates or events for declassi-
fication at the time of classification. Otherwise, declassification follows an
agency review, a process that may be initiated at any time by officials inside
the agency, or citizens outside of it.
CONCLUSION
Executive Order 12356 is the product of a considerable effort to improve upon
its moderately successful, if somewhat flawed, predecessor. Because it conso-
lidates and expands upon the most successful features of prior information
security systems, executive branch agencies have greeted its issuance
enthusiastically.
At the same time, however, the traditional critics of the information security
program have reacted, as could be predicted, negatively. At the heart of their
criticism is the charge that the underlying purpose behind E.O. 12356 is to
permit the classification of more information than could be classified under
E.O. 12065. As this paper illustrates, the perceived flaws of E.O. 12065 did
not include the breadth or scope of permissible classification. The authors of
E.O. 12356 sought to provide better protection for that very small percentage of
information that requires. it, not to increase the amount or type of information
to be classified.
Nevertheless, E.O. 12356 presents an important challenge to those who must
implement it. Some of its critics will constantly scrutinize its implementation,
hoping to uncover abuses that might be publicized to undermine its retention.
Minimizing abuses represents the most effective countermeasure to this criticism.
To do so, E.O. 12356's proponents must scrutinize its implementation even more
thoroughly than its critics.
Sanitized Copy Approved for Release 2011/07/11: CIA-RDP95B00890R000700190054-5