In September, 2020, PPSA filed a Freedom of Information Act (FOIA) request with the CIA, FBI, NSA, ODNI, Department of Justice, State Department, and National Archives and Records Administration. We asked them to simply reveal any references to Executive Order 13526 in their records since its adoption in 2009.
This order prohibits classification of material in order to “conceal violations of law, inefficiency, or administrative error” or to “prevent embarrassment to a person, organization, or agency.” It also obligates each agency to create internal procedures to challenge improper classification decisions.
While the CIA and ODNI stated that they had begun their searches pursuant to our FOIA request, the FBI and State Department have rejected identical requests, claiming they were “too vague.” This is despite the fact that our requests are bolstered by federal precedent compelling agency responses to FOIA requests for all documents mentioning specific search terms. As reviewing courts have explained, such requests for simple keyword searches leave "virtually no guesswork" about what documents will be responsive to the request.
Every American knows the simple “CTRL F” function on our computer keyboards to search for keywords. The FBI and State Department nevertheless maintain our request to be too “vague” to manage such a simple search. The inconsistency is striking when compared with the other agencies that did not plead “vagueness.”
As of now, both the FBI and the State Department have rejected our appeals, exhausting possible administrative remedies and freeing PPSA to enforce those agencies’ statutory disclosure duties in federal court.
Concerns continue to mount over the quantity of classified materials and the possible circumvention of federal law. So troubling was this trend that even as far back as 1989, former Solicitor General for Richard Nixon, Erwin Griswold, who argued the Pentagon Papers case on behalf of the government, wrote: “[I]t quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.”
More recently, a 2011 report to the President by the Information Security Oversight Office, as required by EO 13526, showed that even after the order’s passage, derivative classification activity continued to skyrocket, quadrupling in four recent years.
Like a bad housekeeper sweeping dirt under the rug, the bureaucracy seems to be latching on to derivative classification as the place to evade accountability. PPSA will continue to fight for transparency and accountability in government surveillance.