Bill to Limit Use of Pseudo-Classifiers Gets House Committee Approval

From Secrecy News

BIPARTISAN EXECUTIVE BRANCH REFORM BILL ADVANCES IN HOUSE

An ambitious bill to promote an entire menu of "good government" reforms in the executive branch was endorsed on a bipartisan basis in the House Government Reform Committee today and reported to the full House.

The bill would notably limit the use of "pseudo-classification" markings such as "sensitive but unclassified" and "for official use only" unless they are authorized by statute or regulation. Such markings have been increasingly used by government agencies to restrict public access to unclassified information.

The "Executive Branch Reform Act of 2006," HR 5112, was introduced by Committee Chairman Tom Davis (R-VA) and Ranking Member Henry Waxman (D-CA), and unanimously supported by the Committee's members.

Among its various provisions the bill would: end secret meetings between lobbyists and most executive branch officials; enhance protections for national security whistleblowers; and ban covertly sponsored government propaganda.

Excerpts on Pseudo-Classifcation , HR 5112

SEC. 7. ELIMINATION OF ‘‘PSEUDO’’ CLASSIFICATION.

(a) REPORTS ON THE PROLIFERATING USE OF ‘‘PSEUDO’’ CLASSIFICATION DESIGNATIONS.—

(1) REPORT BY FEDERAL AGENCIES.—Not later than six months after the date of the enactment of this Act, each federal agency shall submit to the Archivist of the United States and the congressional committees described in subsection (d) a report describing the use of ‘‘pseudo’’ classification designations.

(2) MATTERS COVERED.—Each such agency shall report on, at a minimum, the following:

(A) The number of ‘‘pseudo’’classification designation policies used by the agency.

(B) Any existing guidance, instruction, directive, or regulations regarding the agency’s use of ‘‘pseudo’’ classification designations.

(C) The number and level of experience and training of Federal agency, office, and contractor personnel authorized to make ‘‘pseudo’’ classification designations.

(D) The cost of placing and maintaining information under each ‘‘pseudo’’ classification designation.

(E) The extent to which information placed under ‘‘pseudo’’ classification designations has subsequently been released under section 552 of title 5, United States Code (popularly known as the Freedom of Information Act).

(F) The extent to which ‘‘pseudo’’ classification designations have been used to withhold from the public information that is not authorized to be withheld by Federal statute, or by an Executive order relating to the classification of national security information. .

(G) The statutory provisions described in subsection (c).

(3) REPORT BY THE ARCHIVIST OF THE UNITED STATES.—Not later than 9 months after the date of the enactment of this Act, the Archivist of the United States shall issue to the congressional committees described in subsection (d) a report on the use of ‘‘pseudo’’ classification designations across the executive branch that is based on the information provided by agencies, as well as input from the Director of National Intelligence, Federal agencies, offices, and contractors. All federal agencies, offices, and contractors shall cooperate fully and promptly with all requests by the Archivist in the fulfillment of this paragraph.

(4) NOTICE AND COMMENT.—The Archivist shall provide notice and an opportunity for public comment on the report.

(b) ELIMINATION OF ‘‘PSEUDO’’ CLASSIFICATION DESIGNATIONS.

(1) REGULATIONS.—Not later than 15 months after the date of the enactment of this Act, the Archivist of the United States shall promulgate regulations banning the use of ‘‘pseudo’’ classification designations.

(2) STANDARDS FOR INFORMATION CONTROL DESIGNATIONS.—If the Archivist determines that there is a need for some agencies to use information control designations to safeguard information prior to review for disclosure, beyond those designations established by statute or by an Executive Order relating to the classification of national security information, the regulations under paragraph (1) shall establish standards for the use of those designations by agencies. Such standards shall address, at a minimum, the following issues:

(A) Standards for utilizing the information control designations in a manner that is narrowly tailored to maximize public access to information. (B) Procedures for providing specified Federal officials with authority to utilize the information control designations, including training and certification requirements.

(D) The duration of the information control designations and the process by which they will be removed.

(E) Procedures for identifying, marking, dating, and tracking information assigned the information control designations, including the

identity of officials making the designations.

(F) Specific limitations and prohibitions against using the information control designations.

(G) Procedures for members of the public to challenge the use of the information control designations.

(H) The manner in which the use of the information control designations relates to the procedures of each agency or office under section 552 of title 5, United States Code.

(3) REGULATION TO CONSTITUTE SOLE AUTHORITY.—A regulation promulgated pursuant to this subsection shall constitute the sole authority by which Federal agencies, offices, or contractors are permitted to control information for the purposes of safeguarding information prior to review for disclosure, other than authority granted by Federal statute or by an Executive order relating to the classification of national security information.

(1) REVIEW OF STATUTES.—As part of the report required under subsection (a)(3), the Archivist shall examine existing Federal statutes that allow Federal agencies, offices, or contractors to control, protect, or otherwise withhold information based on

security concerns.

(2) RECOMMENDATIONS.—The report shall make recommendations on potential changes to theFederal statutes examined under paragraph (1) that would improve public access to information governed by such statutes.

(d) DEFINITIONS.—In this section:

(1) The term ‘‘congressional committees’’ means the Committees on Government Reform, Judiciary, Homeland Security, and Appropriations of the House of Representatives and the Committees on Homeland Security and Governmental Affairs, Judiciary, and Appropriations of the Senate.

(2) The term ‘‘ ‘pseudo’ classification designations’’ means information control designations, including ‘‘sensitive but unclassified’’ and ‘‘for official use only’’, that are not defined by Federal statute, or by an Executive order relating to the classification of national security information, but that are used to manage, direct, or route Government information, or control the accessibility of Government information, regardless of its form or format.