Government Agencies Apparently Not Interested In Following Congressional Directives On Overclassification

from the you-literally-couldn't-pay-us-enough-to-do-our-jobs dept

I'm not sure what this says about government transparency. Maybe it doesn't say anything useful. Maybe it's just the mixed signals we can expect from agencies only willing to make the most minimal transparency efforts. Or maybe it says something about the momentum of even slowly-moving large objects. A bureaucracy has a large turning radius and asking it to suddenly change its ways means you have to lower your expectations as to how "suddenly" should be defined. Whatever it says, it's nothing good.

Overclassification is a government-wide problem. Legislation has been passed to fix it. While the government expects the private sector to get right on it when laws are passed, it obviously cuts itself a lot more slack when faced with internal legislative redirection.

Recognizing the threat posed by over-classification, Congress passed legislation in 2010 to counter the pervasive problem of bureaucrats making benign government records secret. One of the most highlighted provisions of the Reducing Over-Classification Act (ROCA) was a new tool for agencies: cash incentives for employees who accurately classify (and declassify) documents.

Congress hoped that by offering a proverbial carrot to the line-level employees making initial classification decisions within federal agencies, it could increase transparency and allow greater information sharing between federal agencies and local law enforcement.

Not even the dangling of cash money can push agencies towards more transparency, as the EFF's Dave Maass and Aaron Mackey report.

Based on the FOIA responses EFF has received, it does not appear that a single federal agency with the power to classify documents has ever taken advantage of ROCA’s cash incentives program. EFF’s FOIA request sought a variety of records related to the ROCA incentive program, including guidelines for issuing bonuses and the amount of bonuses given out.

Of the agencies we queried, 16 agencies responded that they either had no responsive records or that they do not operate a ROCA incentive program. Three other agencies denied our request, while the remaining eight have yet to provide a determination.

Congress has declared overclassification should be corrected by government agencies. The agencies have shrugged... for a half-decade straight. But hey, transparency! More than half the agencies responded and only three outright denied the EFF's request. That's… something.

Tellingly, two agencies that oversee a ton of classified info responded negatively. James Clapper's office (ODNI) couldn't find anything that suggested it had scaled back its black marker use, and the National Archives and Records Administration first said the law didn't apply to it, before changing its mind and stating it had never implemented the program.

Other agencies that cherish their secrecy and fully-redacted FOIA responses also had made no moves towards scaling back overclassification. The FBI, DEA, and ATF all responded that no one in their agencies had ever claimed ROCA's cash prizes. The same thing goes for the DHS, Defense Department, and the Federal Bureau of Prisons. The State Department offered two "no files found" responses, with the first implying it had trouble understanding the question.

"You have not reasonably described the records you seek in a way that someone familiar with Department records and programs could locate them."

and

"Some or all of the records you have requested do not appear to be State Department records.

The good news is the FOIA process works, at least in this small sampling. The bad news is there's apparently no effort being made to live up to the demands of ROCA, six years after its passage into law. The end result may look more promising, what with agencies (for the most part) amping up their FOIA response capabilities. But if they're not handing over documents because they've gone wild with the "CLASSIFIED" stamp, then they may as well just go back to ignoring FOIA requests.

The worst news, though, is that government agencies feel directives issued via legislation are entirely optional. Their employers, however, are not given the luxury of ignoring laws they don't like. Taxpayers are expected to follow every stupid law forced on them by their representatives while subsidizing entire agencies that shrug off their responsibilities to the public.


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  • icon
    That One Guy (profile), 30 Sep 2016 @ 2:34pm

    Wrong incentive

    The carrot is clearly not going to work because over-classification is more valuable to the agencies than a minor monetary reward. If the carrot isn't an option, time to break out the stick, namely penalties to their budgets for over-classification.

    If they actually stand to lose something then they'll actually care enough to at least consider which is more valuable, the current budget or obscuring their actions just because.

    reply to this | link to this | view in chronology ]

  • identicon
    Former Fed, 30 Sep 2016 @ 4:11pm

    CYA

    First, let me say that I was never involved in determining whether documents should be classified. My agency only dealt with SBU, FOUO, PII type of information.

    It's simply a matter of CYA (cover your ass). There are no serious punishments for classifying a document that shouldn't be. There can be very serious punishments for not classifying a document that should have been. Add to that, a natural human tendency to cover up things that are embarrassing, and there you have it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Sep 2016 @ 5:43pm

    So over-classification is not going to stop. The process is too ambiguous, and the incentives are highly asymmetrical.


    I'm trying to imagine the level of cluelessness of someone who thinks this is going to make any difference whatsoever. Maybe in the day when it took months to write a memo, with four drafts, each typed by a secretary on an Underwood, one could have carefully considered the proper level of classification. Even then, the lines were vague, ambiguous, and subject to interpretation.

    Today, everything produced in a classified environment has to be classified. Everything. Send an email, "Hiya, Bob. Lunch at Denny's?" requires a classification decision. OK, that one is easy, but what if it's "Hiya, Bob. Lunch at Denny's after the Arcturus schedule meeting?" Well, now it's a little harder to figure out. Is "Arcturus" itself classified? Well, no, it's just the name of a star. And, in fact, there's a classification guide that says so. But since you said "Arcturus schedule meeting" did you just indicate that it's really a program? By the "mosaic effect"* does that email now require classification? Either way, you have to hit the button to mark it, and it's just as easy to hit the "S" button as the "U" button. (Or the "TS" button, for that matter.)

    If you want to add your dentist appointment to your Outlook calendar on the classified network it has to be classified. You can't even save it as a draft first. Again, that's not hard, but "Arcturus software design review"? Hard to say.

    As "Former Fed" above noted, no one has ever seen negative repercussions for hitting "S" when it could have been "U", but it's a big problem if you hit "U" when, after the fact, someone decides it should have been "S". And given the level of ambiguity, pretty much anything COULD be called "S" if the powers that be decide ex post facto that it should have been. So, risk your ass by marking something unclassified? Not many people are stupid enough to do that.

    There do seem to be some among the powers that be who think that the low level grunts are capable of making these decisions perfectly on every email generated, but are just too lazy or stupid to do it right. These types occasionally send around spectacularly dull powerpoint decks or force the peasants to watch an inane "training" video, but it has no effect. My project team was once harangued by a government official complaining of over-classifying stuff. (I missed that meeting, just heard about it afterwards.) But that tempest very quickly spun itself out with no real consequences or change in subsequent behavior. The official supposedly re-marked our incorrectly classified document, but the team at large wasn't shown the result so they could learn the error of their ways.

    When it comes to monetary incentives, if they are going to pay me for every unclassified document that I properly mark "unclassified," I'm all in. I'm going to go email myself a new boat.

    * The mosaic effect is adding two unclassified facts together in such a way that the result becomes classified. Example, **Arcturus is just a star, and the Control is just another government agency. Neither is classified secret in itself, but it becomes that way if you use the two in the same sentence, in so doing letting on that Project Arcturus is associated with Control. Or maybe it's enough to say them both in the same paragraph. Or maybe on the same page. Or maybe in the same document. Or maybe if you send two attachments in the same email, one mentioning Arcturus and one mentioning Control. Or, the first message in an email thread mentioned Control, and three messages later one mentioned Arcturus and a little later someone says software?

    ** No classified information was revealed in this posting. The name Arcturus was only used as an example. It was a project of the Globex Corporation of Cypress Creek, but it ended when Hank Scorpio seized the eastern seaboard.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Oct 2016 @ 6:47am

    Classified response

    There's a very good reason why we over-classify, but it's classified.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Oct 2016 @ 5:46pm

    Why bother

    Why don't we just do away with classifications entirely? After all, when a Secretary of State can have classified information on a personal, unclassified, email server (whether she or someone else sent it), and be indifferent, why bother with any classification? If those at the highest levels can't be bothered to safeguard information why bother classifying it?

    Just put it all in one big pile and let everyone root thru it to find the information they are looking for.

    Or better yet, just one classification - STUFF WE DON"T WANT THE UNWASHED MASSES TO SEE.

    reply to this | link to this | view in chronology ]


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