A Review of the Department of Energy Classification: Policy and Practice (1995)

Under the current system, classifiers make decisions about what information should be held secret in a largely closed setting. The culture of national security has traditionally placed a strong emphasis on the costs of openness and little emphasis on the costs of secrecy in a democratic society. The current system provides incentives in favor of overclassification. The possibly irreversible consequences of a mistaken decision to declassify reinforce the tendency to overclassify.

If openness is to be a Department of Energy (DOE) goal, and if it is to have effects at all levels of the organization, the incentive structure must be changed to balance the incentives for overclassification by including rewards for increased openness and minimized use of information control and to have effective systems of accountability to discourage inappropriate controls. If the rewards do not change, the bias will be toward secrecy, no matter what the policy is at the top. Changing the course of an agency with great momentum requires continued application of force in the desired direction, once that direction has been chosen by leadership and communicated to the organization.

Individuals and organizations often respond better to the promise of rewards than to the threat of penalties, and they tend to produce the things for which they are being rewarded. DOE should include explicit measures of openness in performance measures for agency personnel and contractors. Provision of explicit performance measures of openness could be a useful step in establishing concrete positive incentives for openness.

The Office of Declassification should have the enhancement of public access to information as a primary responsibility, rather than as a secondary task that competes with other, more traditional goals. The office should ensure expeditious responses to information requests;

review, evaluate, and investigate complaints regarding access to classified information; provide a focus for public involvement and participation in classification issues; and ensure that recommendations from the public are given a fair hearing in internal deliberations. Complaints will probably relate to timeliness of responses to document requests under the Freedom of Information Act (FOIA), and the office would need to work closely with the offices within DOE responsible for FOIA responses. The office would complement the work of other offices by focusing on classification and declassification issues.

A potentially important means for introducing accountability into the classification system has apparently not been tried on any significant scale. DOE should require a substantive justification, in terms of explicit criteria, for keeping an area classified whenever it is subject to declassification review. This change would require classifiers to articulate a substantive justification for withholding a category of material from the public. If the reason for classification is made publicly available, there can be debate within interested communities as to whether the classification decision is in fact justified. (Of course, in some circumstances the acknowledgment that a fact is classified would serve to reveal the secret. No public disclosure of such information, which we understand is rare, would be required.) The justification can also serve as a starting point for judicial review, discussed below, by providing the agency's rationale for classification. The justification could be published for discrete categories of information (for example, the security justification for classifying the number of warheads in the nuclear stockpile), perhaps as part of publicly available classification guides.

DOE should seek advice on important classification decisions from the Information Policy Advisory Board. This Board should render nonbinding but public recommendations to DOE concerning the justification for classifying specific categories of information or for deciding not to declassify information in response to a request for declassification. The Department could choose to reject the Board's advice, preserving its ultimate authority to decide upon classification matters, but political accountability would flow from a decision by the Department to reject the public recommendation of the committee. A board comprising individuals from a range of backgrounds in matters related to nuclear security could presumably apply the expertise that the

judiciary lacks, thus overcoming the inhibition that deters aggressive review by the courts.

The Commission on Protecting and Reducing Government Secrecy or other appropriate independent group should consider legislation to ensure that meaningful judicial review is available for data classified under the Atomic Energy Act (AEA), as it is for national security information (NSI). It should be recognized, however, that judicial review has significant limitations in the area of classification and is no substitute for the other measures of accountability discussed in this section.

Under the FOIA, citizens can challenge an agency's determination that information has been properly classified as NSI in the courts. Such judicial review is a valuable deterrent to improper decision making. The fact that a classifier is answerable in court for classification decisions no doubt introduces an element of responsibility and balance into the classifier's decision-making process that might otherwise be lacking. And before a court even rules, the act of bringing suit often serves to persuade an agency to release information it had previously claimed to be classified by causing other officials within the agency to review the decision made by the original classifier.

Despite its real and important value, however, judicial review has significant limitations in the context of classification decisions. First, only some classification decisions may be subject to review. For information classified as NSI under an executive order, the law provides for substantive de novo judicial review of the classification decision.¹ For information

classified as restricted data (RD) or formerly restricted data (FRD) under the AEA, however, it is not clear that substantive judicial review of classification decisions is available.² Instead, the AEA specifically provides for wide agency discretion in determining what information may be kept from the public.³ Because judicial review is such an important accountability mechanism, we support amending either the AEA or the FOIA to ensure that meaningful judicial review is available for all categories of data classified under the AEA, just as it is available for information classified pursuant to the governing executive order. We see no reason why classification decisions concerning atomic energy related information should enjoy a privileged status in this regard.

Even if the AEA or FOIA were amended in this way, a second, more difficult problem with judicial review remains. Where Congress has specifically provided for review of classification decisions, courts have proven hesitant to exercise this right vigorously.⁴ In practice, courts are extremely reluctant to second-guess agency classification decisions and

hence they tend to defer to the agency's judgment concerning what information is properly classified. This judicial deference is rooted in the understandable skepticism of judges that they have the expertise necessary to review decisions made by agency classifiers.⁵

Because of these problems, judicial review alone is not enough to accomplish an accountable DOE classification system. The Department should proceed with the changes discussed earlier, which are within DOE's power now, independent of any need for legislative action.

Finally, DOE should clarify the obligations of members of academic and industrial communities who hold security clearances. American security derives strength from the involvement of individuals outside of government. Such individuals perform important services, providing independent analysis on government programs and technical expertise. Cleared members of the industrial and academic communities frequently make presentations, write papers, or carry out other professional activities on open topics that are contiguous to those currently classified. It is sometimes argued by agencies with authority over the related classified topics that those individuals are accountable to them for ensuring that their work does not include classified information. To make these individuals' obligations free from ambiguities, we suggest that expedient consultation on classification matters should be made available freely to them. If no classified briefings have been provided in direct support of the work in question, no prior review by any governmental agency should be required.