White House Readies New Info Blackout: ‘Sensitive But Unclassified’ Data by Joseph A. Davis New restrictions on environmental data available to reporters and the public may come forth in the next month or two from the Office of Management and Budget. OMB is drafting "guidance" that tries to define "sensitive but unclassified" information which may now be on the record but which some fear could be used by terrorists to target vulnerable points in the nation’s infrastructure. Some libertarians and journalists, however, worry that the new category could be used to withhold information that is merely embarrassing to the government or various industry or interest groups. OMB’s take on the issue is expected to be published for public comment before it is finalized. It remains unclear how the new restrictions might affect EPA and other agencies that handle environmental, energy, and resource issues. But they would likely affect information about water supplies, hazardous materials and wastes, toxic substances, pipelines, and power plants, among other things. A key question in how the drama plays out will be which agency functions are transferred to the new Department of Homeland Security, when and if it is created. Activities and information under the new department’s control will be much easier to cloak in secrecy, under legislation still pending before Congress. The action comes in response to a March 19, 2002, memo from White House Chief of Staff Andrew H. Card, Jr., to heads of executive branch agencies. Card’s memo, and a Justice Department "guidance" memo based on it, ordered agencies to "safeguard Government records regarding weapons of mass destruction." "Government information, regardless of its age, that could reasonably be expected to assist in the development or use of weapons of mass destruction, including information about the current locations of stockpiles of nuclear materials that could be exploited for use in such weapons, should not be disclosed inappropriately," Card wrote. The Justice Department’s guidance that followed ordered agencies to classify WMD information, "as well as other information that could be misused to harm the security of our nation or threaten public safety." It was signed by Laura L.S. Kimberly, acting director of Justice’s Information Security Oversight Office, and Richard L. Huff and Daniel J. Metcalfe, co-directors of the Office of Information and Privacy. The Justice Department guidance specifies a new category of information that does not qualify for classification under Executive Order 12958 (the Clinton-era streamlining of the national security classification system): "sensitive but unclassified information." "The need to protect such sensitive information from inappropriate disclosure should be carefully considered, on a case-by-case basis, together with the benefits that result from the open and efficient exchange of scientific, technical, and like information." The guidance urges agencies to give "full and careful consideration to all applicable [Freedom of Information Act] FOIA exemptions," referring pointedly to an October 12, 2001, memo by Attorney General John Ashcroft. That memo was widely interpreted as encouraging agencies to deny more FOIA requests. The White House Office of Homeland Security in September 2002 asked OMB to define the "sensitive but unclassified" category and to clarify its relation to existing laws such as FOIA, according to OMB information policy specialist Daniel Chenok. OMB has reportedly consulted parties on both sides of the issue in forming its policy, but such details of such consultations need not be disclosed. Meanwhile, the presidents of the National Academies of Science, Engineering, and Medicine, in an unusual Oct. 18 statement, raised concerns that the new "sensitive but unclassified" stamp is so far too vague and would "stifle scientific creativity," and "weaken national security." (http://nationalacademies.org/ morenews) In the case of EPA, the secrecy cloak may not depend on the outcome of OMB’s guidance. President Bush signed an order on May 6 (less than two months after the Card memo) giving the EPA administrator authority to classify information as "secret." Agency officials have dismissed the action as routine, but EPA is one of only a handful of civilian agencies with that authority. Such authority only buttresses the restrictions EPA has imposed since 9/11, such as removal of chemical facility Risk Management Plans from the Web. Moreover, President Bush, if his secrecy initiatives are thwarted via civil procedures such as OMB guidance, regulatory action, or homeland security law, has signaled his readiness to accomplish them by invoking his authority as Commander-in-Chief. "The U.S. Supreme Court has stated that the President’s authority to classify and control access to information bearing on national security flows from the Constitution and does not depend upon a legislative grant of authority," Bush said in an October 23, 2002, statement as he signed the fiscal 2003 Defense Appropriations Bill. Further links March 19, 2002, memo from Andrew H. Card, Jr. and subsequent Justice Department guidance: (http://www.usdoj.gov/oip/foiapost/ 2002foiapost10.htm) October 12, 2001, memo from John Ashcroft on FOIA policy: (http://www. usdoj.gov/oip/foiapost/2001foiapost19. htm) National Academies of Sciences, Medicine, and Engineering-- "Statement on Science and Security in an Age of Terrorism," October 18, 2002, by Bruce Alberts, William A. Wulf, and Harvey Fineberg, presidents: (http://www4.nationalacademies.org/news.nsf) (ByDocID64FA661785EED1478525C56005 D6?OpenDocument) -- Background paper: (http:/www4.nationalacademies.org/news.nsf/(ByDocID0A1A170CAA649C2A 85256C56005F0E3E?OpenDocument) "Researchers Say Science Is Hurt by Secrecy Policy Set Up by the White House," The New York Times, Oct. 19, 2002, by William J. Broad: (http://www.nytimes.com/2002/10/19/politics/19SECR.html) "OMB Weighs Info Classification; Efforts to protect some public data from misuse are generating a mix of reactions," Federal Computer Week, Sept. 16, 2002, by William Matthews: (http://www.fcw.com/fcw/articles/2002/0916/news-omb-09-16-02.asp) Executive Order 12958 (April 17, 1995): (http://www.fas.org/sgp/clinton/eo12958.html) President George W. Bush, October 22, 2002, statement upon signing Defense Appropriations Bill: (http://www.fas.org/sgp/news/2002/10/wh102302.html) Reprinted with permission. Published in Environment Writer newsletter November 2002, by the National Safety Council's Environmental Health Center.