Exemption 1


 * This article is part of a series on Exemptions

Introduction
Exemption 1 to the federal Freedom of Information Act authorizes agencies to withhold classified information from disclosure.

Text of Exemption 1

 * (b) This section does not apply to matters that are—
 * (1)
 * (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and
 * (B) are in fact properly classified pursuant to such Executive order;

Applicability
See also Mandatory Declassification Review

Exemption 1 protects from mandatory disclosure matters that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.”

President Obama issued the current governing Executive Order on Classified National Security Information, EO 13526, on December 29, 2009. This order supersedes the previous order issued by President Bush on March 25, 2003, EO 12958.

EO 13526 directs that information should not be classified where “there is significant doubt about the need to classify information.” Information can only be originally classified if it meets all four of the following conditions: 1. an “original classifying authority is classifying the information”; 2. “the information is owned by, produced by or for, or is under the control of the United States Government”; 3. “the information falls within one or more of the categories of information” for which classification is allowed; and 4. “the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.”

As provided by EO 13526, only eight categories of information may be considered for classification: 1. “military plans, weapons systems, or operations”; 2. “foreign government information”; 3. “intelligence activities (including covert action), intelligence sources or methods, or cryptology”; 4. “foreign relations or foreign activities of the United States, including confidential sources”; 5. “scientific, technological, or economic matters relating to the national security”; 6. “United States Government programs for safeguarding nuclear materials or facilities”; 7. “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security”; or 8. “the development, production, or use of weapons of mass destruction.”

An agency may only withhold records under Exemption 1 where the document is “classified in accordance with the procedural criteria of the governing Executive Order as well as its substantive terms,”

Judicial review of Exemption 1 withholdings and in camera reivew
In general, a court reviewing a claimed exemption will determine whether the government has satisfied its burden under a de novo standard of review. This means the court reviews the matter fresh, giving no weight or deference to the agency’s decision.

However, in the context of Exemption 1 withholdings, courts frequently give great deference to assessments on the need to keep certain records classified contained in intelligence agency affidavits supporting the withholding of a record. Agencies withholding documents can meet their burden in court of proving the applicability of claimed exemptions by affidavit, and, in the national security context, courts have granted such affidavits “substantial weight.” So long as the affidavits are “[u]ncontradicted,” “plausible,” and “show[] reasonable specificity and a logical relation to the exemption,” they will be “likely to prevail.” A court will generally not second guess the agency’s withholding unless the declarations in its affidavit are contradicted by other evidence before it or there are indications that the agency classified the information in bad faith.

A reviewing court has discretion to inspect the records at issue privately--outside of public view--in what is commonly referred to as an in camerainspection, and may order release of non-exempt materials. For example, after reviewing in camera records withheld by the FBI, a court held that the agency improperly redacted unclassified information from a document describing a public seminar.

"[I]n camera inspection is particularly appropriate where . . . ‘the number of documents is relatively small.’” For example, a court agreed to review in camera a single classified report to Congress regarding intelligence collection under the PATRIOT Act based on “the Report’s brevity.” In seeking in camera review, you should highlight the low number of documents you are asking the court to review, or, where there are many classified documents at issue in the case, it may be beneficial to narrow the scope of the documents for which you seek review.

A court may also order such review “on the basis of an uneasiness, [or] on a doubt that [the judge] wants satisfied before he takes responsibility for a de novo determination.” This “does not depend on a finding of or even tentative finding of bad faith,” but rather whether the judge believes such review is necessary to “make a responsible de novodetermination on the claims of exemption.” A court ordered such review after an agency failed to adequately subdivide the videos withheld “into manageable parts cross-referenced to the relevant portion of the claimed exemption” as the court had ordered, and submitted “inconsistent and confusing” descriptions of the sub-parts.

The agency’s declarations and accompanying documents failed to provide “illumination as to the actual lengths of the video, when certain segments begin and end, or how long such subdivided segments run,” and its submission of corrections and supplements to prior submissions only “resulted in further obfuscation, making it difficult for the Court to consider the validity of” the claimed exemptions and the claimed non-segregability of the videos.

For example, the agency initially described one withheld portion of a video as containing content that would not be responsive to the FOIA request, but described that same portion as containing content that would be responsive to the request in a supplemental declaration. In light of the inadequate explanations submitted by the agency, as well as “the lack of clarity and consistency that. . . persist in those submissions” despite the fact that the court granted the agency multiple opportunities to fix its submissions, the court ordered in camera review.

A court will “likely” require in camera review “[w]here the record contains a showing of bad faith.”

Government Ownership of Information
You may challenge the fact that the information is not “owned by, produced by or for, or is under the control of the United States Government.” In a 2011 case, a court applied the meaning of “control” as provided in EO 12598, which defined it as “the authority of the agency that originates information, or its successor in function, to regulate access to the information.” Under that definition, the court found information originating from detainees interrogated while in the government’s custody was within the government’s control because it had “exclusive authority to regulate access” to the documents, regardless of whether the detainees themselves were within their custody or released. The court noted that the detainees could — upon their release — lie about their experiences under custody, which further supported the government’s interest in keeping secret information that could constitute intelligence or reveal the government’s intelligence sources and methods.

While that definition of “control” does not appear in EO 13526, it appears in the regulations of the Information Security Oversight Office, which issues directives implementing the executive order. Additionally, the court’s rationale in that case may be instructive. Where possible, you should argue that the government does not control the information because it does not have the exclusive right to control its access.

Categories of Classification
As discussed previously, EO 13526 lists eight categories of information that may be considered for classification at one of three levels — Top Secret, Secret, or Confidential — if “its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security.” As an initial matter, you may argue the information withheld does not fall into any of the eight categories of classifiable information.

You should note that this may be a difficult argument to make, as these categories have often been interpreted broadly. For example, one court held that the category “foreign activities of the United States” applied to all video recordings and photographs depicting Osama bin Laden’s death and burial, as they were produced during an overseas CIA operation. However, you may still argue that the agency failed to adequately support its argument that one or more of the categories apply.

For example, a court held that the FBI described in an overly generalized way how withheld material fell within the scope of several categories, as it only described one subcategory of “intelligence methods or activit[ies]” under which it classified certain information. Even then, the court noted that it did so in a deficient manner by using vague terms, and found that it could have described the subcategories of the withheld information “in far more detail.” Deciding that it could not adequately review the case based on the agency’s explanations, the court remanded the case for further review by the lower court.

Similarly, where possible, you should argue that the agency’s assertions of why the information falls within a certain category of classifiable material is overly vague or conclusory and does not allow you to assess the validity of the claim.

Harm to National Security
Additionally, you may argue that even if the information falls into one of these eight categories, disclosure would not damage national security, which EO 13526 defines as “the national defense or foreign relations of the United States.”

However, as noted earlier, courts have accorded great deference to agency determinations concerning such national security concerns. As one court determined in the national security context, the government has “the responsibility for evaluating the harms associated with public disclosure, and neither the proponent of disclosure nor the district court is free to substitute its own policy judgments for those of the Executive.” Additionally, courts “‘must take into account. . . that any affidavit or other agency statement of threatened harm to national security will always be speculative to some extent, in the sense that it describes a potential future harm.’”

Consequently, an agency may meet its burden of demonstrating potential harm by putting forth “plausible” and “logical” arguments. For example, a court upheld the CIA’s withholding of 52 photographs and video recordings of Osama bin Laden’s death and burial, deferring to the agency’s claims that their release could harm national security by inflaming al-Qaeda sympathizers and encouraging anti-American propaganda. The court agreed that such potential harms were not speculative, as the records related to the capture and killing of the founder of a terrorist organization that had previously breached national security.

Courts have also upheld classification for compilations of otherwise unclassified information where the compilation “reveals an additional association or relationship” that either meets the classification standards under EO 13526 or “is not otherwise revealed in the individual items of information.” For example, a court upheld as classifiable a compilation of otherwise individually unclassified ratings of the resources held by each of the U.S. Army’s major combat units. It relied on agency affidavits claiming that a person could use the compilation of the ratings to discover “the combat potential of the entire Army forces available to defend” the country. Since the classification also complied with the procedural and substantive criteria under the executive order, the court upheld the agency’s Exemption 1 withholding.

As a result, if you are facing a classification based on the compilation theory, you should explain how release of the information as a compilation would not reveal such an “additional association or relationship,” and also dispute whether the agency has met its burden to demonstrate that the compilation was properly classified on both substantive and procedural grounds.

Prohibited Purposes for Classification
An appeal may also be based on an argument that the information has been classified for prohibited purposes. EO 13526 specifically states that the government cannot classify or fail to declassify a document 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.”

Additionally, the government cannot classify “[b]asic scientific research information not clearly related to the national security.”

In alleging that an agency classified a document for a prohibited purpose — rather than to prevent a recognized harm to national security — you should argue that none of the harms cited by the government supporting withholding of that particular record could reasonably be expected to occur.

A requester organization failed to do this in a case in which it alleged that the CIA improperly classified records related to detainees held at Guantanamo Bay in order to “conceal violations of law” or “prevent embarrassment to a person, organization, or agency.” The requester argued that the agency classified the information at issue for those reasons, rather than its claimed purpose in preventing the use of the information as propaganda by a terrorist group.

However, the court declined to address this claim because the requester challenged only one of the five potential harms asserted by the agency — the threat of propaganda — and the four additional harms asserted could reasonably be expected as a result of release of that information.

Challenging Continuing Classification
You may additionally be able to argue that the information at issue no longer requires classification, either because the statutory classification duration has expired or because classification no longer serves a national security purpose. EO 13526 states that “[i]nformation shall be declassified as soon as it no longer meets the standards for classification under this order.”

Additionally, the Director of the Information Security Oversight Office may require the agency that originally classified the information to declassify it if he/she determines it is classified in violation of the order. This order is subject to an “appeal[] to the President through the National Security Advisor.”

EO 13526 states that “[n]o information may remain classified indefinitely.” When information is originally classified, the original classification authority must set a specific date or event that triggers the automatic declassification of the information. If the original classification authority cannot determine an earlier date or event, the information must be marked for declassification ten years from the date of the original classification decision, unless it is determined “that the sensitivity of the information requires” an extension of the classification for up to 25 years.

Sections 3.3 and 3.4 of the Executive Order detail the standards for automatic and systematic declassification of records. If you are seeking a record you know is older than 10 or 25 years, you may argue that there is no longer a justification to keep the record secret.

However, you should note that the automatic declassification of the record following the expiration of the original marked date or triggering event will not necessarily result in release of the record. Where an agency follows the appropriate procedures, it may classify a record upon receiving a FOIA request, or may reclassify information that was declassified in accordance with its expiration date or event.

In such cases, you should argue that the classification was deficient because it 1) did not meet the substantive and procedural requirements of EO 13526; 2) did not occur “on a document-by-document basis”; or 3) was not conducted “with the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official designated” to direct and administer the agency’s classification program, as is required by EO 13526.

You may also appeal an Exemption 1 withholding when that information is already in the public domain. The burden is on the requester to “identify[] specific information in the public domain duplicative of the withheld information,” and the U.S. Court of Appeals for the District of Columbia Circuit has specified that even the disclosure of such information “to a small number of individuals might not be enough to render classification inappropriate.”

Challenging Rejections Based on Procedural Deficiencies
In addition to meeting the substantive classification criteria in EO 13526, an agency must demonstrate conformity with its classification procedures. Identifying potential procedural defects in the agency’s classification process may raise red flags indicating that the information should not have been classified on substantive grounds. These procedures include restrictions on who may originally classify information and the types of markings that must appear on a classified document, such as its level of classification and the identity of the classifying authority.

However, you should note that even demonstrating a procedural defect may not result in a court ordering release. While a defect in an agency’s adherence to the classification procedures “would not mandate the outright release of the documents,” it may “implicate the agency’s overall classification decision,” and thereby necessitate in camera review.

Some procedural violations “may be of such importance to reflect adversely on the agency’s overall classification decision, requiring a remand to the district court for in camera inspection; while others may be insignificant, undermining not at all the agency’s classification decision.’” One example of a procedural defect that a court noted could undermine an agency’s classification decision is one where the violation “suggests that, contrary to the EO, classification was undertaken in order to conceal a violation of law.”

You should note that it is difficult to prevail against an Exemption 1 withholding solely based on procedural defects. For example, a requester unsuccessfully argued that because an agency deviated from the procedural criteria by, for example, failing to identify the person who originally classified the records, photos and videos of Osama bin Laden’s death and burial should be released. While the court acknowledged that the CIA’s declarations were “not a model of transparency,” it refused to order release based on procedural grounds because the agency had since reviewed the classification, the records were correctly marked at the time they were before the court, and “any hypothetical defect” would not undermine the CIA’s classification decision.

In raising procedural defects in an agency’s classification of information, you should argue that its failure to follow procedures resulted in improper classification of material that should not be classified under the substantive guidelines of EO 13526.

Classification Authority
EO 13526 authorizes only certain people to make original classifications, including agency officials designated by the President and federal government officials to whom this authority has been delegated. While this authority can be delegated, such delegation authority is limited by the level of classification of the information involved: “Top Secret,” “Secret,” or “Confidential.”

For example, a court held that an agency satisfied the procedural requirements for classification under EO 13526 where a Top Secret classifying authority delegated such authority to action officers, but personally reviewed each classified document afterward to personally decide whether it was properly classified. However, in another case, a court denied an agency’s motion for summary judgment on its Exemption 1 withholding based on the fact that the agency’s Chief of FOIA Staff’s declaration failed to name an official with authority to classify documents as “Secret.”

Likewise, only certain agency officials may declassify information. For example, in one case, a court held that the Chief of Retirement and Insurance Services was not a declassification authority to whom the CIA had delegated such authority.

Identification and Markings
Section 1.6 of EO 13526 details the markings that must appear on the document from the time of original classification. Absent a waiver from the Director of the Information Security Oversight Office, the agency must indicate the portions of the document that are classified — with their classification level — and that are not.

However, you should note that even when markings are omitted, “[i]nformation assigned a level of classification. . . shall be considered as classified at that level of classification.” On that basis, a court held that information was not declassified even though the document sought “was sent without the appropriate classification stamp,” explaining that “[c]lassification does not occur as a result of marking a document; rather, a document is marked once it is classified.” Consequently, you may be better served to argue that a document is improperly classified on other substantive or procedural grounds.

An alternative: MDR
''See Mandatory Declassification Review for more information. ''

While not an issue arising within the context of FOIA, Mandatory Declassification Review (MDR) is another avenue to consider when seeking classified records. You may instead seek declassification of the information through the separate MDR process outlined in EO 13526 as an alternative to filing a FOIA request and challenging an Exemption 1 withholding through the FOIA appeal process.