Controlled Unclassified Info May Be Classified, US-Czech Doc Says

Government agencies may redesignate “controlled unclassified information” (CUI) as classified information in order to prevent its disclosure under the Freedom of Information Act, according to an agreement signed last week between the United States and the Czech Republic.

The July 8 agreemen (pdf) on establishment of a U.S. missile defense radar in the Czech Republic devotes an entire section (Article XII) to “controlled unclassified information,” which is defined as “unclassified information to which access or distribution limitations have been applied in accordance with applicable national laws.”

The new agreement surprisingly presents national security classification as an option when facing involuntary disclosure of CUI under the Freedom of Information Act:

“Each Party shall take all lawful steps, which may include national classification, to keep controlled unclassified information free from further disclosure (including requests under any applicable domestic legislation)…, unless the originating Party consents to such disclosure.”

While there is an exemption from the Freedom of Information Act for “properly classified” information, there is no such exemption for CUI. (According to a May 7 White House policy statement, “CUI markings may inform but do not control the decision of whether to disclose or release the information to the public, such as in response to a request made pursuant to the Freedom of Information Act.”)

Classification of CUI — which by definition is information that does not meet the standards for classification — in order to evade the requirements of the FOIA would be a violation of official classification policy, as set forth in the president’s executive order.

Coincidentally or by design, the text of the new Agreement between the U.S. and the Czech Republic has not been made available on any publicly accessible U.S. government web site, though the State Department issued a July 10 Fact Sheet about it. But it was published in the Czech Republic and a copy is available here.

No Responses to “Controlled Unclassified Info May Be Classified, US-Czech Doc Says”

  1. Theron July 14, 2008 at 7:08 PM #

    Say what?

    Read Orwell’s “Politics and the English Language.”

    Reflect also upon this comment:

    “A people that grows accustomed to sloppy writing is a people in process of losing grip on its empire and itself. And this looseness and blowsiness is not anything as simple and scandalous as abrupt and disordered syntax. It concerns the relation of expression to meaning. ” Ezra Pound

    No matter how one looks at the language and the logic expressed therein, the langauge of the power elite confuses and detaches expression from meaning. It hides and distorts any semblance of reality.

    No wonder the current administration attacks science, deletes evidence and fears modern art.

  2. Nemo July 16, 2008 at 7:01 PM #

    Trying to play devil’s advocate for a minute, it seems to me that the article can be read as only applying to information regarding the Czech-US missile deal. I don’t know anything about the Czech Republic’s FOIA laws, if any, but I’d suspect that that clause is in there as a way for the U.S. to exempt from release information the Czechs don’t (necessarily) want made public about the program. I do not believe that the U.S. has any sort of reciprocal classification arrangement with the Czech Republic itself – with NATO, yes, but that isn’t really applicable here – so this is, at a guess, a way to appease Prague that their secrets aren’t going to *automatically* become fair game for all their neighbors, just because the U.S. doesn’t formally, legally, recognize their classification markings…

  3. Steven Aftergood July 16, 2008 at 7:38 PM #

    Thanks Nemo, I think that’s a reasonable explanation of what was intended. I would note, however, that foreign government information is already exempt from disclosure under FOIA. (It is also eligible for classification under the terms of the executive order.) It therefore seems surprising to me — and an unfortunate precedent — that the agreement invokes classification of unclassified information (CUI) as a option for evading FOIA. On the other hand, I recently learned (from Alasdair Roberts) that nearly-identical language regarding classification of CUI previously appeared in the 2003 US-UK memorandum of agreement on missile defense. It may even be considered boilerplate.

  4. Nemo July 16, 2008 at 8:29 PM #

    It could very well be boilerplate – a lot of governments that have less institutional transparency than the U.S. have in the past been – and one presumes, still are – appalled at the apparent power (or danger, depending on ones view) of the FOIA. Perhaps it’s just a way of appeasing less enlightened countries’ concerns?

    It’s perhaps worth noting that the 2003 US-UK missile defense MOU predates the actual implementation – but not the passing – of the UK’s FOI law, which didn’t really go into effect until 2005, and was still a hotly-debated (and much-misunderstood and -maligned) bit of legislation in ’03. Only now are politicians there starting to realize it isn’t the appalling travesty everyone used to think it was (if only because so few people make use of it, alas.)

    Purely as an aside, I suspect the ability to classify previously-unclassified foreign material has interesting implications for the fun and exciting field of “derivative classification”…

  5. iklan baris gratis July 19, 2009 at 6:35 AM #

    Thanks Nemo, I think that’s a reasonable explanation of what was intended.