PIDB Receives Public Comment on “Improving Declassification” Report

On March 17, 2008, the Public Interest Declassification Board (PIDB) heard public comments on its report Improving Declassification that was sent to the President in 2007. The PIDB is an official advisory group promoting the declassification of historical federal records related to national security. Late last year, the PIDB provided detailed recommendations to the President on fifteen issues it identified that would improve the federal government’s declassification procedures.

In January, President Bush ordered executive branch agency heads to respond to the PIDB’s recommendations by April 15, 2008.

Among some of the fifteen issues identified in the report are developing better procedures to identify and prioritize the declassification review of “historically significant” information. Among the recommendations was the creation of a board consisting of prominent historians, academicians and former Government officials who would be appointed by the Archivist of the United States to determine which events or activities of the U.S. Government merited expedited declassification for a particular year.

The report also recommends expanding the use of historians and historical advisory boards at departments and agencies with significant classification activity. It goes on to recommend that all departments and agencies with national security responsibilities hire an appropriate number of historians to speed declassification of classified records or to write historical accounts based upon the department or agency’s classified holdings.

The first commenter was Tom Blanton, Director of the National Security Archive at George Washington University.

Blanton felt that the PIDB recommendations should be transformed into a draft executive order for immediate consideration by the incoming president. He called upon Congress to develop new standards for reviewing historically significant materials older than 25 years old. Blanton cited JFK Assassination Records Review Board and the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group as good examples of how Congress dealt with the declassification of historically significant records.

Blanton also noted the perpetual problem of inadequate funding for the National Archives and Records Administration (NARA). Blanton stated that the Archives never got adequate funding to implement Executive Order 12958, as amended, which mandates the declassification of most records more than 25 years old. Blanton supported doubling NARA’s budget and pointed out that NARA has less archivists now than they did during Reagan administration.

Blanton recommended that Historical Advisory Boards should have mandatory not just an advisory role to set priorities and make bureaucracy responsive. He also agreed with the PIDB’s recommendation that classified records of Congress should be subject to review, but should extended to judicial records as well.

American Historical Association (AHA) Executive Director Dr. Arnita Jones gave a brief review of the organization’s long-standing commitment to advocating for greater access to public documents. She then introduced two witnesses representing AHA.

The first was Dr. Richard Breitman, a Professor of History at American University. Dr. Breitman also served as the Director of Historical Research for the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group.

Dr. Breitman began by saying it was an excellent report and that he would love to see it fully implemented. He agreed with Mr. Blanton that funding would ultimately be the biggest stumbling block to realizing the recommendations. Professor Breitman agreed with the Board’s recommendation to give declassification priority to historically significant documents. However, he felt that to place the emphasis on only those from a national security or foreign policy standpoint was too narrow from a historian’s point of view. He also expressed concerns that if an emphasis is placed on historically significant documents and there is inadequate funding, it could have a detrimental effect on regular declassification efforts.

Dr. Breitman expressed concern that a new National Declassification Center recommended by the Board to centralize declassification activities within NARA does not have enough authority as proposed since it would be created by executive order. He said reliance on executive orders for enforcement in the past has not worked because they have too many loopholes. He suggested a possible solution would be to transfer authority for declassification to NARA itself and allow it to enforce uniformity.

Dr. Breitman also criticized the report for failing to make the point that too many documents are classified in the first place and that has contributed to the overload of the declassification system.

Also representing AHA was Dr. Brian Martin, President and Chief Operating Officer, of History Associates, Inc.

Dr. Martin said he supported the creation of NDC and it should be structured so as to preserve the Archivist’s non-partisan status and independence. As with the previous witnesses, Martin echoed the need for funding support from the executive branch and congress and that full funding is needed to address huge backlogs.

Dr. Martin said that the NDC should not purchase obsolete hardware and software to help agencies cope with special records media problems. He cautioned that old technologies are not sustainable and should be migrated to modern formats. He also stated it was unwise to discount value of audio, video and digital media because their value may increase over time. Martin urged NARA to the avoid mindset of “if we have it on paper, we don’t need to preserve it in another format.”

Martin concurred with Dr. Breitman’s concerns that by utilizing a “historically significant” prioritization standard that others with equally valid needs for records would get pushed even further back in the processing queue.

Dr. Patrice McDermott, Director of Open-The-Government.Org was the next to testify.

Dr. McDermott focused her remarks on electronic records management. She stated that there is a government-wide failure with regard to electronic records management in general, and e-mail in particular. Many in the public interest community fear that records, including historically significant records, are being lost or destroyed. This problem is most visible currently with e-mail records. She cited examples of missing White House e-mails and alleged use of Republican National Committee accounts to conduct official government business as examples. She asserted that no one knows how the White House handles e-mails that deal with classified information.

Dr. McDermott said that the Board’s recommendation (to treat electronic records as special media if they involve software or hardware obsolescence) is of great concern because it focuses on the format in which the records are stored. The Board suggests that, as part of an overall strategic plan, NARA and the agencies need to determine which special media constitute “permanently valuable” records. She advised the Board to think like records managers and take into account that it is not the format that needs to be considered but, rather, the content.

With regard to “sensitive but unclassified” documents, she expressed a need for a clear review process of these unlimited control markings, rather than linking them to declassification review after 25 years and treating them as “super-classified. As previous witnesses said, she agreed that much of the problem is caused by massive over-classification at the front end of the process

Mark Zaid, Executive Director of the James Madison Project testified next. Mr. Zaid said the meeting was just a prelude for future meetings and that the PIDB was only hearing from supporters in the user community. The key will be the responses to the president from the federal agencies to the PIDB’s recommendations that are due April 15, 2008. He asserted that he PIDB’s legacy will not be the recommendations, but the extent to which they are implemented. To that end, he said the PIDB needs to conduct extensive outreach to the media, public, and individuals such as Freedom of Information Act professionals within the federal government and Congress because many do no know of the PIDB’s existence.

Mr. Zaid encouraged the PIDB to pursue declassification of records of Congress, but also suggested the PIDB explore pursuing classified judicial records. He noted that it appears that certain classified declarations involving the “State Secrets privilege” that were filed with federal courts are no longer in the possession of the originating agencies, having been routinely destroyed over the years. He feared that it may be that the only existing copies are in court files.

Scott Armstrong, Executive Director of Information Trust was the final witness.

Mr. Armstrong stated that 95% of what is classified could be declassified without harm to national security. He said initial classification must be done in a smarter way or you face gridlock in perpetuity. He advised that training, education and uniformity is key.

He recommended that congressional records should be subjected to same declassification rules as the executive branch. He recommended that there should be created some mechanism for immediate review and declassification of recent events before the 25 year threshold under the executive order.

Armstrong concluded by saying decisions concerning the release of “historically significant records” should not be solely based on advise of historians, academicians and former government officials. He suggested that journalists, media groups and public interest groups should also be involved in the vetting process. He said he often disagreed with what historians wanted released since they tend to impede the use of contemporary records. His opinion was that historians tend to be more concerned with declassification and access to older documents rather than contemporary ones.