[Infowarrior] - Background on NARA Classified MOUs

[Richard Forno]

Background on NARA Classified MOUs
http://www.archives.gov/declassification/background.html?template=print

Monday, April 17, 2006

The National Archives and Records Administration (NARA) has always sought to
operate within the delicate balance of making as much information available
to the public as possible, while protecting classified national security
information as determined by other agencies. In 2001 and 2002, NARA entered
into two classified Memoranda of Understanding (MOU), with the CIA and the
Air Force, addressing their re-review of open records that may have been
inadvertently or improperly declassified because one or more agencies did
not have an opportunity to review the records for their classified
information.

NARA had three principal goals in agreeing to these MOUs: 1) protection and
proper handling of the records; 2) minimizing the impact on researchers by
trying to expedite the reviews of records subject to pending requests; and
3) minimizing the number of withdrawals. At the time, NARA believed that
establishing written procedures was essential to achieving these goals and
outweighed the agencies' determination that the MOUs be classified.

While NARA had entered into these MOUs with the best of intentions,
Archivist of the United States Allen Weinstein has given clear direction
that never again will the National Archives enter into such classified
agreements. Professor Weinstein has stated, "There can never be a classified
aspect to our mission. Classified agreements are the antithesis of our
reason for being. Our focus is on the preservation of records and ensuring
their availability to the American public while at the same time fulfilling
the people's expectation that we will properly safeguard the classified
records entrusted to our custody. Agencies have the prerogative to classify
their requests to NARA if disclosure of the reasons why they are asking us
to take action would cause identifiable damage to national security.
However, what we do in response to such requests, and how we do it, will
always be as transparent as possible. If records must be removed for reasons
of national security, the American people will always, at the very least,
know when it occurs and how many records are affected."

In addition to the above, these MOUs, even in their unclassified formats,
will soon be replaced by thoroughly transparent standards governing the
review of previously declassified records that have been available for
research at the National Archives. These standards are currently being
developed by the Information Security Oversight Office (ISOO) and will be
promulgated as a change to "Classified National Security Information
Directive No. 1" (32 CFR Part 2001) following formal interagency
coordination, to include an opportunity for public comment.

Recently, NARA mistakenly indicated that there was only one classified MOU
dealing with the issue of " reclassification," when, in fact, there were
two. This confusion was a result of a distinction in the minds of NARA staff
between the Air Force MOU, which dealt with a specific re-review activity,
and the CIA MOU, which was generic and procedural in nature. Upon learning
of the second MOU last week, the Archivist, in keeping with his stated
policy, requested its immediate declassification.

The following chronology attempts to provide the background and context of
this issue:

    * The declassification of hundreds of millions of pages of records under
Executive Order 12958 and predecessor orders inevitably resulted in
mistakes, largely due to one agency not being afforded the opportunity to
review its classified information found in the records of other agencies.
Even an error rate of only 0.01% would result in tens of thousands of pages
of improperly disclosed records. While NARA believes that such mistakes are
unavoidable and should be accepted as a necessary risk to the value of
declassification of permanent historical records, many agencies nonetheless
insisted that they needed to re-review open records and withdraw some of
them from public access.

    * Accordingly, the Kyl and Lott Amendments of 1999 and 2000 required
NARA and the Department of Energy (DOE) to create a plan to prevent the
inadvertent release of records containing Restricted Data (RD) and Formerly
Restricted Data (FRD). One of NARA's main concerns in implementing this plan
was to minimize the burden that a re-review of open records would have on
researchers, by getting DOE to expedite the review of any box that had been
requested by a researcher.

    * Similarly, in 1999, a NARA employee discovered that records in
approximately 56 boxes of State Department Intelligence and Research (INR)
files might have been improperly declassified because they appeared to
contain sensitive intelligence information. NARA reported this matter to
State, CIA, and the Information Security Oversight Office (ISOO). The
agencies determined that, in this case, a mistake in the declassification
processing had occurred, resulting in inadvertent disclosures. A review was
conducted by State and CIA, which took nearly two years to complete, and
resulted in the withdrawal of a large number of documents that had
previously been opened, despite NARA's urging that withdrawals be kept to a
minimum. The re-review by CIA also resulted in a significant mishandling of
the records, such that the order of the documents in many boxes was lost.
(Some of the boxes remained in NARA's closed stacks until 2005 because
researchers had not requested them until then.)

    * Because of this unfortunate experience, NARA sought to establish more
effective procedures in the event that any future re-reviews of open records
might occur. In early 2001, NARA provided the CIA with an unclassified draft
memorandum of understanding proposing such procedures. As noted above,
NARA's principal interest was in ensuring that the records were properly
handled and that the review of open records was done expeditiously in order
to minimize the burden on researchers - i.e., avoid researcher complaints -
as well as to minimize the number of records withdrawn. The CIA revised the
draft, and classified it (and required that the document remain classified
thereafter). A final MOU was signed on October 24, 2001. At the Archivist's
request, the CIA agreed to declassify it on April 14, 2006.

    * The CIA MOU also addressed CIA's concern that its association with the
re-review effort, and the identification of its classified equities in other
agencies' records, could itself, under certain circumstances, be classified
information. Accordingly, it is not unheard of that the acknowledgement of
one agency's classified equity in the records of another agency could be
classified in itself and thus require protection from disclosure, including
by referring any appeals to the denial of records to a different agency.
This issue is addressed in section 3.6(b) of Executive Order 12958, as
amended, which states:

          " When an agency receives any request for documents in its custody
that contain information that was originally classified by another agency,
or comes across such documents in the process of the automatic
declassification or systematic review provisions of this order, it shall
refer copies of any request and the pertinent documents to the originating
agency for processing, and may, after consultation with the originating
agency, inform any requester of the referral unless such association is
itself classified under this order or its predecessors." (Emphasis added.)


    * Since the 2001 MOU, CIA has re-reviewed and withdrawn open records on
at least three occasions.

    * Subsequently, in 2002, the Air Force requested that NARA sign a
similar classified MOU, to address a particular problem of improper
declassification that they had identified. The Air Force MOU is modeled on
the CIA MOU. NARA's interest in signing this MOU was the same as with the
CIA MOU, i.e., to ensure that the records were properly handled, that the
review of open records was done expeditiously in order to minimize the
burden on researchers, and to minimize the number of records withdrawn. At
the Archivist's request, the Air Force agreed to declassify a redacted
version of the MOU on April 10, 2006. The MOU remains classified in part
because compromise of that information will cause identifiable damage to
national security.

    * NARA's intent and practice has never been to hide the fact that
agencies were engaged in efforts to re-review, and withdraw, open records
because they had been inadvertently or improperly declassified. For example,
NARA personnel discussed this review at the State Department's Historical
Advisory Committee June 2003 meeting, the proceedings of which are published
on the State Department's website (see
http://www.state.gov/r/pa/ho/adcom/mtgnts/21201.htm). NARA also readily
responded in January 2006 to Matthew Aid's inquiry that such a program
existed.

    * NARA has no original classification authority, and is obligated to
abide by the classification requirements of any document. This could
include, for example, not acknowledging the presence of certain agency
personnel or not identifying the fact that classified information in the
records of one agency may belong to another agency, but only when those
specific facts were classified. Nonetheless, the National Archives will
never again enter into a classified agreement.

    * Other re-reviews and withdrawals for classification of open records
have occurred at NARA - at the behest both of NARA staff and other agencies
- including at Presidential Libraries. NARA continues to identify instances
where classified records were opened to the public without agencies having
the opportunity to review them. However, until the ISOO audit, NARA had not
systematically kept track of all these instances, and thus did not know the
full extent of what had been withdrawn.

    * In addition, following September 11, 2001, in response to the
memorandum from Secretary Andrew Card to all agencies dealing with the
safeguarding of information regarding weapons of mass destruction and other
sensitive documents related to homeland security, NARA re-reviewed selected
unclassified records under its " records of concern" program and has
withdrawn unclassified documents that had previously been open to public
access.

    * The ISOO audit will provide more information on the classification
re-reviews that have taken place and recommendations for policy guidance.

    * NARA does not change or modify records in its custody, except to the
extent that redactions are made when portions of records need to remain
classified or are exempt for other reasons.

This background paper on NARA's involvement with the classified MOUs was
prepared at the request of Professor Allen Weinstein, Archivist of the
United States since February 2005.

Page URL: http://www.archives.gov/declassification/background.html

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