Two federal groups follow different paths to transparency

Two government groups conducting significant national security reviews followed different procedures for collecting outside input, illustrating that agencies, even those working in the same policy area, are inconsistent in their approaches to transparency initiatives.

An advisory board, on behalf of National Security Adviser James Jones, this summer sought public input on its review of classification policy via the Internet and by hosting an open meeting in Washington. By contrast, an interagency task force formed to look into controlled information, which was led by the attorney general and Homeland Security Department Secretary Janet Napolitano, spoke individually with relevant stakeholders.

President Obama requested the reviews on classification policy and controlled information in a May 27 executive memo to ensure national security regulations adhere to the transparency tenets he committed to on his first full day in office.

Part one of the memo ordered Jones to conduct a 90-day review of the executive order governing classified national security information. A second section directed the task force to submit within 90 days recommendations for sharing sensitive information that does not meet the standards for classification, or so-called controlled unclassified information.

Jones sought the assistance of the Public Interest Declassification Board, an advisory committee that works to ensure the public has access to national security records. The board came up with the idea to launch a virtual Declassification Policy Forum and held a public meeting on July 8 at the National Archives to collect public input.

The task force charged with writing proposals for handling controlled information took a different approach. Members spoke over the phone and met in-person with state and local officials and interest groups, including the National Security Archive, Openthegovernment.org, Federation of American Scientists and the Electronic Frontier Foundation, according to Justice Department and Homeland Security officials.

The task force's outreach will not involve seeking public input through the Web because the panel is not preparing a public report, but rather it is submitting its recommendations to the president, DHS officials said.

The divergent processes show how individuals' different interpretations of transparency can influence policymaking.

"They're treating [a review of controlled unclassified information] with much more secrecy in their process at least than the folks dealing with a new classification order," said Patrice McDermott, director of OpenTheGovernment.org, a transparency advocacy group.

But Meredith Fuchs, general counsel at the National Security Archive, a nongovernmental institute that publishes declassified documents, said broad public input might not help the task force in this case. "They could get so much comment and it wouldn't be that helpful because they still haven't identified and defined the larger aspects of the problem" such as the layers of control, the overuse of CUI labeling, and information sharing between state and local governments, she said. "It might not be time for the public forum yet."

The task force "almost has completed a robust outreach effort that has included meetings and consultations with a wide variety of government and nongovernmental entities," said Andrew Lluberes, a DHS spokesman, adding that those groups also included federal advisory panels and staff members on congressional committees.

He noted that if the decision is made to implement the recommendations through rule-making, the process could be open to public comment. "Given the range of groups within and outside of government that the task force consulted with and reached out to, I think that speaks for itself," he said. "I don't see how you can classify that as secretive."

To be sure, the more public process for developing a new classification order is not perfect either, say some information access specialists who participated. Bill Leonard, who retired in January 2008 as director of the Information Security Oversight Office at the National Archives and Records Administration, is concerned that the public will not have the opportunity to comment on Jones' final recommendations before they are submitted to Obama.

"Unless members of the public have the opportunity to see how all the input from the public and agencies is translated into policy, I'm not sure of whether we will see the degree of transparency the president committed himself to on Jan. 21," he said.

The May 27 memo noted that the administration's handling of classified and controlled information should take into account his memoranda of Jan. 21, which directed agencies to create a more transparent government and administer the Freedom of Information Act with a presumption in favor of disclosure.

Leonard is concerned about Jones' recommendations possibly not matching up with citizens' suggestions. For example, board staff misconstrued one suggestion in summarizing an online discussion. Steven Aftergood, who directs the Project on Government Secrecy at the Federation of American Scientists, a nonpartisan think tank, posted on June 29 a comment that read: "Every effort should be made to establish a 'drop dead' date for declassification, i.e. a period of time after which any classified document would automatically lose its classification status, without exception. . . . After all, there is no U.S. government document that is 100 years old that is still withheld from disclosure on national security grounds. . . . I would suggest a moderately aggressive drop dead date of 40 years. This would be both realistic and extremely productive."

But the July 1 summary that the staff posted read: "Here are a few of your many ideas to improve declassification policy: . . . The older information is, the less need there should be for a declassification review. There should be a drop-dead date of 50, 75 or 100 years for declassification."

Aftergood wrote back on July 3 to note the discrepancy. "I don't think that the PIDB summary . . . correctly captured the previous discussion of this recommendation. . . . A drop dead date of 100 years makes no sense since there are no security classified records that are 100 years old. . . . To be meaningful and effective in supporting the operation of a National Declassification Center, a shorter duration for a drop dead date -- such as 40 years -- is needed."

This transaction illustrates how suggestions can "literally get lost in translation," without subjecting the final product to formal public comment, Leonard said. "Quite frankly, I don't think it serves the president to present him with something that members of the public might not necessarily agree with."

William Bosanko, the director of the Information Security Oversight Office at the National Archives and Records Administration, who serves as the board's executive secretary, said that the public online dialogue has not been an easy task. "This took significant staff and resources and significant support from Beth Noveck [deputy chief technology officer for open government] and the Office of Science and Technology Policy," he said. "And the board could not have done this without their support."

The board is compiling a summary of all the input received from the forum and the meeting that could post as early as Thursday, he said.

"In 2009, [the board] wanted to take advantage of technology to reach a broader possible audience," Bosanko said. "It also allowed for communication among interested individuals -- not just the board -- and allowed for a much broader, and perhaps a much deeper, series of exchanges with the public."