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Policy Letter

POGO and others urge White House to allow public input on secrecy rules for Controlled Unclassified Information

Joshua Bolten

Chief of Staff, Office of the President

The White House

Washington, DC 20500

Dear Mr. Bolten:

The undersigned organizations write regarding the need for public input before the final issuance of new rules regarding Controlled Unclassified Information (“CUI”). The prevalent use of control markings on non-classified federal records is widely recognized to interfere with information sharing and public disclosure, and thus to have an impact on public health, safety, and security, as well as government accountability. Accordingly, members of the public, including the groups listed below, have urged the executive branch to take steps to reduce the use of such markings. To that end, many of the undersigned sent a letter to Homeland Security Secretary Ridge in August 2003 (copy attached), urging “the Department of Homeland Security to give the public an opportunity to comment on procedures that are being developed that may restrict the public dissemination of ‘homeland security information,’ including information that is ‘sensitive but unclassified.’” When the process for developing rules for CUI was moved to the Office of the Program Manager for the Information Sharing Environment, many of the undersigned again requested an opportunity to comment on any resulting rules (copy attached). At meetings throughout the process, we were repeatedly assured that there would be opportunities for public comment.

Moreover, in October 2002, in testimony before the House Committee on Science, John H. Marburger, Director of the Office of Science and Technology Policy, recognized the interest of “stakeholders, including scientific societies, university organizations, private industry, public interest groups, state and local government representatives, and other interested parties,” concerning the definition of sensitive non-classified information across different sections and committed to “publication of the guidance in the Federal Register for comment.”

And, yet, nearly six years later, we understand that, despite our repeated efforts to raise issues of public concern and accountability and to engage with the public officials involved in crafting this guidance, the final guidance will soon be released by the White House without allowing for public review and comment.

The proliferation of disparate and open ended control designations, such as “Sensitive But Unclassified,” “For Official Use Only,” and “Sensitive Security Information,” restricts public access to disclosable information and makes more difficult sharing of information among governmental entities and others that the federal government recognizes as having a “legitimate need to know.” Moreover, many of these labels exist without congressional sanction, leading to confusion as to whether the records are releasable under the Freedom of Information Act (FOIA), including undermining the FOIA’s presumption of openness and its requirement that Congress, and only Congress, should create new categories of withheld records. Although such designations do not describe any category of records that may be properly withheld under the law, they are often treated as a basis for withholding records requested under FOIA.

Depending on how it is crafted, the guidance to be released likely will affect the media’s ability to keep the public informed and the public’s ability to press government action to improve safety and security. In addition, of course, this information sharing guidance will affect countless first responders and government officials across the country.

While we do not know the content of the proposal, we are concerned additionally that the agencies involved in leading this effort do not have disclosure as a component of their core mission, and, thus, may not be as sensitive to the need for and benefits of open government. We believe this makes it essential that all stakeholders have an opportunity to convey their concerns before the policy is finalized.

We once again urge you to publish the guidance for public comment before it is issued.

Thank you. If you have any questions, please contact Patrice McDermott at 202-332-6736.

Sincerely,

American Association of Law Libraries

American Association of University Professors

American Civil Liberties Union

American Library Association

Association of Research Libraries

Center for National Security Studies

Citizens for Responsibility and Ethics in Washington

Citizens for Sunshine

Council on Political Assassinations

Defending Dissent Foundation

Electronic Frontier Foundation

Essential Information

Feminists for Free Expression

Freedom of Information, Oklahoma, Inc.

Government Accountability Project

Indiana Coalition for Open Government

iSolon.org

The James Madison Project

Liberty Coalition

National Coalition Against Censorship

National Coalition for History

National Security Archive

OMB Watch

OpenTheGovernment.org

9/11 Research Project

Project On Government Oversight

Protect All Children’s Environment

Public Citizen

Radio-Television News Directors Association

Society of American Archivists

Special Libraries Association

U.S. Bill of Rights Foundation

Washington Coalition for Open Government

The Woodhull Freedom Foundation

Cc: Assistant to the President for National Security Affairs Stephen J. Hadley, Assistant to the President for Homeland Security and Counterterrorism Kenneth Wainstein

Ambassador Thomas McNamara, Program Manager, Information Sharing Environment, Office of the Director of National Intelligence

Chairman Joe Lieberman and Ranking Member Susan Collins, Senate Homeland Security and Governmental Affairs Committee

Chairman Henry Waxman and Ranking Member Tom Davis, House Committee on Oversight and Government Reform