Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Friday, October 19, 2007

Sensitive But Unclassified (SBU)

A recent report from the AAAS raises concern that government agencies are applying the SBU label to more and more information, and in an "inconsistent and arbitrary manner" from agency to agency. In particular the academy reports that the label is being increasingly applied to fundamental research in science.

As its mildly Orwellian name suggests, SBU is a classification outside the formal system of classification. Unlike documents marked "SECRET", documents marked "SBU" (or "FOUO") are still accessible via FOIA requests, but they remain restricted indefinitely--they have no declassification date--and there are no standard or sensible guidelines for when to apply the SBU label.

A GAO report from 2006 found 56 different definitions of SBU, each from a different department or office, each vague. For example, the Department of Homeland Security dictates the SBU label should be used for any information, "the unauthorized disclosure of which could adversely impact a person's privacy or welfare, the conduct of Federal programs, or other programs or operations essential to the national interest." In other words, for pretty much anything you please.

As a result, a lethal combination of national security paranoia and CYA has caused officials stamp "SBU" on almost everything. When it comes to releasing information, as one former Pentagon official put it, "The only safe thing for a junior person in the bureaucracy to do... is to say no and err on the side of caution."

It was not meant to be like this. In 1989, the Reagan administration issued National Security Decision Directive NSDD-189 which stated in relevant part,

It is the policy of this administration that, to the maximum extent possible, the products of fundamental research remain unrestricted. It is also the policy of this Administration that, where the national security requires control, the mechanism for control of information generated during federally-funded fundamental research in science, technology and engineering at colleges, universities and laboratories is classification. [my italics]
We have a fairly well-regulated scheme of document classification in this country. It has many defects, but at least it balances freedom and secrecy in a process with well-established precedent. Apparently innocuous levels of classification are more dangerous than the big ones and are especially virulent in the agar of a conservative bureaucracy. With the explosive growth of SBU, a well-intended kludge to safeguard American interests has become yet another front in the Bush administration's war on science. As the AAAS report warns,
The political leadership of the United States must understand, and in turn must help all Americans understand, that as a nation the United States has no exclusive ownership of ideas or knowledge and that scientific discoveries and technological advances made in the United States often rely on knowledge created outside our borders.
Let's hope the next administration has the courage return to the basic principles of NSDD-189 and eliminate the SBU category altogether. To quote a 2002 statement from the Presidents of the National Academies of Science:
A successful balance between these two needs--security and openness--demands clarity in the distinctions between classified and uclassified research. We believe it to be essential that these distinctions not include poorly defined categories of "sensitive but unclassified" information... The inevitable effect is to stifle scientific creativity and weaken national security.


Raised By Republicans said...

Of course when you have an administration that depends on ignorance for both what remains of its legitimacy and for its own self image, it is important for knowledge to be suprressed.

I can think of few policies that this administration has pursued that are based on sound research rather than what Colbert calls "truthiness."

The Law Talking Guy said...

Color me confused. How can a document be both restricted and available via FOIA?

Dr. Strangelove said...

FOIA is not an easy process. The way I understand it, SBU means "hard to get," and SECRET means "illegal to get." The big trick, of course, is you can't ask for a document you don't know exists. That's why the rules governing SBU were themselves SBU and only came out later via FOIA.

The Law Talking Guy said...

Errr... FOIA is easy. Just write a letter. Takes a 41 cent stamp. Seriously. And yes, you an ask for documents by category or type, not just by name. FOIA is awesome. Compliance is also pretty good for most things.

The problem is that if a FOIA request is denied, you can spend a lot of time in court.

So what are the SBU rules w/r/t FOIA requests, then? I need clarification because I don't get it.

Dr. Strangelove said...

Taking a quick look around the web to try to understand this better myself, apparently, the confusion you describe is widespread--and is part of the problem.

A study by George Washington University found that, "There is no consistency among agencies as to how they treat protected sensitive unclassified information in the
context of FOIA. In a number of the agency policies, FOIA is specifically incorporated—-either as a definition of information that may be protected or as a means to establish mandatory withholding of particular information subject to a sensitive unclassified information policy. Some agencies mandate ordinary review of documents before
release, without regard to any protective marking. Others place supplemental hurdles that must be surmounted before sensitive information may be released to the public, for example the requirement of specific, case-by-case review by high-level officials for each document requested."

The report says that any possible application of an exemption to FOIA was being used to restrict SBU data, and there is no process by which the public can challenge the SBU classification. In many cases, FOIA exemptions are conflated with SBU. Here is the State Department language (State Department manual, 12 FAM 540) as quoted by the GWU report, defining SBU:

"[SBU is] information which warrants a degree of protection and administrative control that meets the criteria for exemption
from public disclosure set forth under.. the Freedom of Information Act and the Privacy Act. SBU information includes, but is not limited to... [m]edical, personnel, financial, investigatory, visa, law enforcement, or other information which, if released could result in harm or unfair treatment to any individual or group, or could have a negative impact upon foreign policy or relations."

Incidentally, the report also notes that the authors requested information on the FOIA/SBU from 42 government agencies that use SBU. They said that only 75% responded to the request and only 50% provided "responsive" documents. They allowed 258 business days for a response (i.e., a calendar year). So apparently FOIA is not, in practice, as effective or reliable as one might hope.

The Law Talking Guy said...

I confess I am more familiar with the California Public Records Act (the CA version of FOIA) that is draconian from the agency point of view - guaranteeing extraordinary writ relief in appellate courts to anyone denied access, pus attorney's fees.

But I know that FOIA works quite well, except where "exemptions" come in. So if SBU docs are considered exempt from FOIA, that is a problem. This is reviewable, btw, but in a court of law.

Rick Blum said...

There is a lot of confusion. That is the fundamental problem. Confusion amongst agencies about the different labels for SBU makes agencies less willing to share information amongst themselves, which is a problem the 9/11 Commission identified.

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