Homeland Security softens secrecy directive, slightly

In a directive issued in May 2004, DHS created a new “For Official Use Only” (FOUO) classification process covering a wide range of information that the government bureaucracy deems “sensitive but unclassified.”  

The directive required DHS employees and private contractors to sign non-disclosure agreements prior to being given access to FOUO information.

However, Secrecy News, an e-mail bulletin put out by the Federation of American Scientists' Project on Government Secrecy, reports that DHS has now eliminated the non-disclosure agreement mandate for DHS employees. From Secrecy News:

In an abrupt reversal, the Department of Homeland Security last week rescinded its controversial policy of requiring employees to sign non-disclosure agreements in order to gain access to unclassified information that is marked "for official use only" ....

The non-disclosure agreements ... drew opposition from employees' unions and others because, for example, they granted the government extraordinary permission to "conduct inspections at any time or place for the purpose of ensuring compliance."

... "Those NDA's previously signed by DHS employees... will no longer be valid," according to a January 11 transmittal memo from DHS Under Secretary Janet Hale.  "DHS will take reasonable steps to retrieve these documents and destroy them."

The DHS back peddling on nondisclosure pacts, however, does not extend to non-DHS personnel. Contractors and consultants will still be required to execute a non-disclosure agreement as a condition of gaining access to FOUO material, the revised directive states. The draconian nature of the FOUO classification scheme also will remain intact under the revised rules.

Narco News reported the following in June concerning the FOUO overreach:

The May directive calls for information to be classified as FOUO if it falls within 11 general categories, and that information is to remain classified “until determined otherwise” by DHS.

In addition, DHS supervisors and managers are empowered to go beyond the 11 categories and designate “other information” as FOUO.

The directive also spells out exacting FOUO information-handling procedures, which include secured storage and encrypted transmission.

“FOUO information will not be disseminated in any manner -- orally, visually, or electronically -- to unauthorized personnel,” the DHS directive states. “Access to FOUO information is based on ‘need-to-know’ as determined by the holder of the information.”

The directive states further that “designation of information as FOUO is not a vehicle for concealing government negligence, ineptitude, illegalities, or other disreputable circumstances embarrassing to a government agency.”

However, one attorney who represents DHS whistleblowers is not at all assured by that language.

“I think that they plan on making virtually everything confidential and punishing employees who reveal anything,” the lawyer states. “This will of course frustrate the legal process and the public's right to know.”

As an indication of how broad this new policy is, the directive itself concedes that information designated as FOUO “is not automatically exempt from disclosure under the provisions of the Freedom of Information Act.” In other words, DHS is taking upon itself the power to classify information that may very well be considered public information under existing law.

The revised directive reflecting DHS' change of heart on non-disclosure agreements, was issued on Jan. 6.