One of the longstanding criticisms of the government’s classification regime is that it provides too much cover for corrupt officials to hide evidence of misconduct. If gross mismanagement, gross waste of public funds, violations of law, and abuses of authority – not to mention information that might merely prove personally embarrassing – can be hidden away from public view as “classified”, that is a recipe for tyranny.

Executive Order 13526 is supposed to combat such scenarios. The Order states, in pertinent part, that:

“In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:

  • (1) conceal violations of law, inefficiency, or administrative error;
  • (2) prevent embarrassment to a person, organization, or agency;
  • (3) restrain competition; or
  • (4) prevent or delay the release of information that does not require protection in the interest of the national security.”

That’s a good start – but who is enforcing the rules and what kind of teeth do they have? And what should you do if you think a document is improperly classified?

Who Provides Classification Oversight?

In fact, Executive Order 13526 builds on a much older Order 12958, which was designed to provide oversight of individual agency classification determinations with an eye toward preventing abuses. That Order established the The Interagency Security Classification Appeals Panel, which consists of senior-level representatives of the Secretaries of State and Defense, the Attorney General, the Director of Central Intelligence, the Archivist of the United States, and the Assistant to the President for National Security Affairs. Among other duties, the Panel is responsible for adjudicating classification challenges filed in good faith by clearance holders who, as it turns out, “are encouraged and expected to challenge the classification status of the information in accordance with agency procedures” if they believe it to be improper (See Exec. Order 13526, Sec. 1.8).

Additional oversight of agency classification activity is provided by the National Archives’ Information Security Oversight Office (ISOO), which is “responsible to the President for policy and oversight of the Government-wide security classification system and the National Industrial Security Program” with guidance from the President’s National Security Council.

Both the Interagency Appeals Panel and the ISOO are high-level entities with significant responsibility for protecting U.S. national security interests while also ensuring transparency in government. Yet neither possesses the “teeth” necessary to truly root out and sanction bad actors who abuse the classification system for personal gain. That is the role of agency Office of Inspectors General, who are set up to receive confidential reports of purposeful over-classification under their mandate to root out violations of government policy and abuses of authority.

Nothing precludes a clearance holder from taking his or her concerns directly to the Interagency Panel or ISOO, but it may prove more efficient and impactful to contact your agency’s Office of Inspector General and lodge a formal complaint. Whether you opt to take one or both routes, be very careful to ensure that in your well-meaning efforts you cannot be accused of mishandling classified information. Wait for instructions from appropriate officials on how to facilitate access to the document(s) or information in question and assume they are lawfully classified until and unless determined otherwise by the Inspector General’s Office or authorized government security officials.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com