Press Releases Could Become “Controlled Unclassified Info”

Government press releases could be temporarily marked as “controlled unclassified information” to protect them from premature disclosure, according to an official Background paper (pdf) on the new White House information security policy.

Controlled unclassified information, or CUI, refers to information that does not meet the standards for classification but that is considered too sensitive for unrestricted public disclosure. The new CUI policy was issued by President Bush on May 7.

While the precise definitions of CUI and the implementing policy directives remain to be written, there are indications that CUI could end up as a catch-all category for information that agencies wish to withhold.

Thus, “embargoed press releases” could be designated as CUI for at least a few hours, according to the newly released Background paper (at page 5, paragraph 8).

What if a member of the public wants to obtain information that some agency has marked as CUI? Well, he should file a Freedom of Information Act request, the Background paper says.

“The FOIA process will provide a straightforward way for anyone to seek public release of CUI and ensure that all CUI for which there is a demand will be carefully reviewed for release.” (at page 6).

But anyone who has filed a FOIA request knows that the FOIA process is not quite straightforward, nor does it produce a timely result.

The Background paper thus affirms a view that information deemed “sensitive” shall be presumptively withheld, and any exceptions shall be handled through the FOIA process.

In truth, this policy of presumptive withholding is pretty much how the Bush Administration currently operates. And it makes no tangible difference if agencies use 100 different terms for “sensitive” or replace them all with one term, “controlled unclassified information.”

But informal, discretionary disclosure was far more common in previous Administrations, and it could be once again in some future Administration. Institutionalizing presumptive withholding in a government-wide CUI policy could make it harder to overcome current secrecy practices when the opportunity to do so presents itself.

On the other hand, Allen Weinstein, the head of the National Archives (NARA), told agencies in a May 21 memorandum (pdf) that CUI would be narrowly construed.

“NARA, as the Executive Agent and consistent with the President’s direction, will ensure that only that information which truly requires the protections afforded by the President’s memorandum be introduced into the CUI Framework,” he wrote.

This implies that at least some information that is currently withheld as sensitive might not qualify for the new CUI marking. But if so, the criteria for excluding any existing sensitive information from the CUI category have not been identified.

William J. Bosanko, the Director of the CUI Office, told public interest groups at a May 27 meeting that he was committed to an open and accountable CUI policy process.

Various resources on CUI and sensitive information policy are available here.

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