New Public Registry Aims to End Controlled Unclassified Information Chaos; DoD Drags Heels

The era of federal agencies improvising rules on how to control unclassified information may be coming to an end--this week the U.S. government launched its first public registry of unclassified information that requires safeguards.

"The registry is a way of bringing order, stability and predictability to the system of controlling information," said Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy. “Whether it actually increases openness and transparency remains to be seen.”

The government has a long history of using pseudo-classification to control information that is unclassified, but still sensitive, and therefore concealed from public release. Before the George W. Bush Administration, this information was categorized as “Sensitive But Unclassified” (SBU). As a result of a 2008 Bush memorandum, it was redubbed “Controlled Unclassified Information” (CUI).

No matter the name of the rose, safeguarding this information is important—for example, in cases where the government is protecting the privacy of American citizens, or national security. But in the past, this policy has also been used to withhold information for less noble reasons, such as covering up mistakes made by federal agencies.

Last year, President Obama signed an executive order that created an interagency task force to review the current procedures for categorizing SBU information and recommend improvements in the spirit of the President’s Memorandum on Transparency and Open Government . The task force found that there are more than 100 different policies for disseminating information across the executive branch. This, unsurprisingly, has, as the National Archives and Records Administration (NARA) acknowledges, resulted in “inefficiency and confusion.”

As Aftergood pointed out, if one agency marks a document “For Official Use Only” and another marks it “Official Use Only,” neither knows if the other would protect the information in the same manner, or to the same degree.

The new registry, which has been implemented by NARA, aims to prevent these problems by breaking CUI into 15 subject categories and standardizing procedures. At present, each online category has the phrase, “To Be Determined” posted where the CUI markings should go. The agencies have until December 6 to develop a compliance plan, but the deadline for implementation has not yet been set, according to Miriam Kleiman, a spokesman for NARA.

There has been some concern that the Department of Defense (DoD) is not on board with the new plan. Not only did the Department propose a rule that could have undermined the CUI registry before it was even in place—by hiding unclassified information shared between contractors and the Pentagon—but DoD recently cancelled their public meeting on the new policy.

Kleiman said that her office did not have access to information on DoD’s scheduling and cancellation of meetings. At present, she added, the registry is publicly available for easy and clear reference.

“It absolutely contributes to President Obama’s open government goals,” she said.

For now, open government advocates are still expressing some skepticism.

“I'm hoping that the CUI rules don't stifle the amount of information that is accessible to the public, but I can't help to think that, registry or not, the government is legitimizing concealing information,” said POGO’s General Counsel, Scott Amey. “Safeguards are needed and the public must take notice that FOIA remains a viable option to access CUI designated records.”