A December 16, 2005 memorandum originated by George W. Bush to the heads of executive departments and agencies entitled, Guidelines and Requirements in Support of the Information Sharing Environment contains a line which, if nothing else, should raise the curiosity of those interested in maintaining or improving the free release of government information.
While the memorandum itself appears to be a fairly mundane bit of government housekeeping surrounding the sharing of information between departments, paragraph 2c refers to a type of information for which there is no current definition. Guideline 3 of the Information Sharing Guidelines requires Standardize Procedures for Sensitive But Unclassified (SBU)Information.
I've dealt with sensitive information for most of my adult life. If it had anything to do with national security, it was classified. If it dealt with personal information it was classified. If it was simply related to bureaucratic or political operations, it remained unclassified.
To promote and enhance the effective and efficient acquisition, access, retention, production, use, management, and sharing of Sensitive But Unclassified (SBU) information, including homeland security information, law enforcement information, and terrorism information, procedures and standards for designating, marking, and handling SBU information (collectively "SBU procedures") must be standardized across the Federal Government. SBU procedures must promote appropriate and consistent safeguarding of the information...(emphasis mine)
But if the information is unclassified there is no requirement to safeguard it other than to retain it for record and historical purposes. Throughout the memorandum, indeed throughout the US government there is no clear definition of sensitive, with regard to information.
It is interesting that just two days prior to this memorandum Bush issued an Executive Order reiterating policy and procedure regarding the Freedom Of Information Act (FOIA). However, as far back as March 2002 the Federation of American Scientists had identified new restrictions which were not consistent with FOIA and had encountered the term Sensitive But Unclassified when making FOIA requests.
The new restrictions have alarmed scientists, public interest groups, and concerned citizens because they interfere with the conduct of research.
This article, from Georgetown Law Library bibliographer, Sara Kelley provides a sampling of the types of information that has been identified as SBU and raises several alarms.
Particularly troubling to many openness advocates are the critical infrastructure information protections of the Homeland Security Act of 2002, because they include not only a new and arguably unnecessary FOIA exemption, but also a ban on the direct use of such information in civil litigation.
With no clear definition of sensitive being produced by the White House nor by any government department, virtually anything could be exempted from FOIA access at the whim of a senior civil servant or political appointee.
Classified information, which is currently safeguarded, has a declassification date and a schedule for release under FOIA. SBU information is not classified, therefore has no declassification date, no schedule for release and need never be made public since it does not fall within the framework of the Freedom Of Information Act. SBU, which is not a security classification takes on the strength of making information permanently secret.
SBU has far reaching and dangerous implications. The first thing that comes to mind is that politically embarrassing or damaging information can easily be locked up forever or even destroyed without the public having ever been aware of it. It allows the administration to evade congressional oversight, to shield a controversial program from public awareness, or otherwise manipulate the political system through strategic withholding and disclosure of information. Environmental hazards, defective products, and risky corporate practices only tend to find their solution, if at all, following a thorough public airing. Withholding controversial information from the public means short-circuiting the political process and under the current administration policy there is no measure to prevent abuse. Indeed, the use of SBU is an attempt to work around the FOIA.
The Bush administration has used SBU to remove declassified information from public access. Information which was declassified in accordance with FOIA schedules has been declared sensitive, thus causing it to be locked away from public access forever, in complete violation of the FOIA.
The Freedom Of Information Act provides for exemptions for certain types of information. Given the topics under which such exempted information may be categorized, there is no legitimate reason to withhold unclassified information under any circumstances. If the information requires classification then it is applied and a declassification date is assigned. If the FOIA does not provide sufficient protection for certain information then it is contingent upon the administration to go to Congress and ask for amending legislation thus providing the American public a view as to what type of new information is now exempted from the FOIA.
Given the Bush administration proclivity for secrecy, an inclination to willfully ignore the law when it doesn't suit their purposes and a failure to ask Congress to modernize legislation, this appears as yet another power grab by an administration which has already abused the trust of its citizens.