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
See also Text of the FOIA

(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
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
A requester 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.

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.” Accordingly, a requester may argue the information withheld does not fall into any of the eight categories of classifiable information.

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, a requester can 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.

Harm to national security
A requester 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.

A requester facing a classification based on the compilation theory can 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 — a requester can 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 the duration of the classification
A requester 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 a requester is seeking a record you know is older than 10 or 25 years, they may argue that there is no longer a justification to keep the record secret.

However, 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, a requester can 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.

A requester 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.”

Public interest arguments
In attempting to persuade an agency to declassify a set of records, a requester can argue that the public interest in disclosure outweighs the potential harm to national security. While EO 13526 establishes a presumption that information continuing to meet the classification criteria requires continued protection, it states that information should be declassified where “[i]n some exceptional cases. . . the need to protect such information may be outweighed by the public interest in disclosure.”

This balancing test is to be conducted by the “agency head or the senior agency official,” who may exercise his/her discretion in determining “whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.” The CIA relied on this provision in disclosing Valerie Plame Wilson’s status as a covert CIA employee during a certain time period after information about her status was leaked to the press, citing the overriding public interest in the information in light of the prosecution of a White House official in relation to the leak investigation of the leak.

Although courts will review agencies’ explanations for classification in court, courts have held that this balancing test is reserved for the agency. A court interpreting this same provision under a previous executive order declined to conduct this balancing test on the basis that “balancing does not rest with the Court but belongs exclusively to the agency.” The court reasoned that this interpretation was consistent with the language of the executive order, which gives the “agency head or the senior agency official” the authority to conduct the balancing test.

The court’s role in an Exemption 1 case, it explained, is “to review the sufficiency and reasonableness of the agency's explanation for its classification decision, giving the agency's determination the heightened deference it is due under the law.” As a result, a requester at the administrative stage should be sure to explain to the agency how the public interest in release outweighs any potential national security harms. If the case proceeds to litigation, the requester can then argue that the agency’s explanation for the classification of the document is insufficient and/or unreasonable.

Further, a court will consider whether there is a public interest in disclosure in deciding whether to grant in camera review of the records. “In cases that involve a strong public interest in disclosure there is also a greater call for an in camera inspection.” As a result, you should explain how the information will allow the public “to ascertain whether a particular agency is properly serving its public function.”

For example, a requester successfully obtained in camera review where the court determined the request was in part “motivated by a desire to determine whether the CIA has frustrated the investigation into or had a role in the assassination of President Kennedy,” which was “an event in which the public has demonstrated almost unending interest.” Further, the requester sought “to demonstrate the impropriety of the Agency’s actions,” an additional factor that made in camera review “especially appropriate.” A requester should likewise provide evidence of public interest in the information contained in the records at issue and explain how their release would shed light on agency activities and operations.

Passage of Time Arguments
A requester may argue that the passage of time warrants declassification; however, courts reviewing such arguments have extended deference to agency decisions to maintain the classification. As one court ruled, "[a]s long as an agency declares through its affidavits that the responsive material has been reviewed to assure the continuing accuracy of its original classification, and that a determination has been made that the withheld information still poses a security risk if released, the mere passage of time is not a per se bar to reliance on exemption 1."

For example, a court upheld the FBI’s withholding under Exemption 1 where the agency provided a “plausibl[e] [explanation], in reasonable detail and a nonconclusory manner, how, even after accounting for the passage of time, the disclosure of” information could be harmful. Another court declined to even require the CIA to answer questions about whether the passage of time renders classification less necessary.

Prior disclosure
A requester may challenge 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 classification 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, 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.”

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, a requester can 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, 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, a requester may be better served to argue that a document is improperly classified on other substantive or procedural grounds.

An alternative: MDR
While not an issue arising within the context of FOIA, Mandatory Declassification Review (MDR) is another avenue to consider when seeking classified records. A requester 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.