In 2007, a Defense Department official charged with improving interagency information sharing estimated that there were 107 different labels in the category—from “Official Use Only” to “Sensitive Internal Use”—and none is monitored by the Oversight Office, which means that there are no official numbers to describe the trend. But openness advocates and some journalists have suggested that the Bush administration has significantly expanded both the number of such labels and the volume of documents being labeled. For example, in April 2002, officials at the Department of the Interior instructed their employees that “all unclassified DOI systems” should be “considered SBU.” The 2002 law authorizing the creation of the Department of Homeland Security specifically said that all scientific research produced by the department, wherever possible, should be unclassified, but President Bush used a signing statement, which spells out how the executive branch will interpret and implement a law, to make clear that he intended to mark much of that information as sensitive. In 2006, when the National Security Archive conducted a study, via FOIA, of the use of sensitive-but-unclassified labels at thirty-seven major government agencies, it found that roughly two-thirds of the SBU programs were operating without any statutory justification. Only one program had an automatic procedure for removing the designation, as is required by law with classified information. According to Barton Gellman, a reporter with The Washington Post, Vice President Cheney’s office routinely took to stamping papers with “Treated As: Top Secret/SCI,” a designation some classification experts believe Cheney invented. “At least with classification, you have ISOO overseeing what gets classified and what doesn’t get classified, keeping track of how much is classified,” says Rebecca Carr, who covered access and First Amendment issues for Cox Newspapers from January 2005 to May 2008. “The pseudo-classification category is like the Wild West. There’s nobody watching the store.”
The administration’s secrecy-related policy that most alarmed the journalism community was a memo issued by Attorney General John Ashcroft a month after the 9/11 attacks. The memo suggested that information officers at executive-branch agencies could deny FOIA requests as long as there was a “sound legal basis” for doing so. This represented a fairly regressive shift. Under the Clinton administration, requests were only to be denied if there was “foreseeable harm” in releasing the documents. Ashcroft’s memo sent a clear signal that information officers should feel free to expansively deploy FOIA’s nine exemptions to deny whatever requests they could. And the letter assured agencies that they would have the full backing of the Justice Department in fighting any lawsuits that resulted from such denials.
In 2002, the National Security Archive sought to clarify what effect the Ashcroft memo had on FOIA compliance and sent FOIA requests to thirty-five major agencies asking for documents that would illuminate how they’d handled Ashcroft’s new directive. The responses confirmed that most branches of the armed forces and the Nuclear Regulatory Commission had taken strong steps to expand the use of exemptions; that about a quarter of the agencies surveyed had taken some steps to implement the changes; and that just over half had disseminated the policy to their employees. A GAO study that interviewed 183 FOIA officers at twenty-five agencies found that 31 percent said their agencies were less likely to release documents sought by FOIA requests following the memo.
Whatever the practical effects of the Ashcroft memo in the early days of the administration, to the open-government community the memo had great symbolic importance, especially when it was combined with a separate memo issued in the spring of 2002 by Andrew Card, Bush’s chief of staff. The Card memo requested that agencies take, for obvious reasons, special care in disclosing any information related to weapons of mass destruction, and encouraged information officers to use the nooks and crannies of existing law and executive orders to limit the release of classified information that was scheduled to be declassified due to its age.
But Card’s memo did not stop at classified information. It also invoked sensitive-but-unclassified information, which has no specific legal recognition under FOIA’s exemptions. The memo suggested that information officers assess any requests for such information in light of the earlier Ashcroft memo. In other words, if information officers could shoehorn sensitive-but-unclassified information under one of the existing exemptions in the FOIA law, they could deny its release. Together, the two memos provided a legal framework for denying access to sensitive-but-unclassified information of any kind. “It really turned the concept of open government on its head,” says Andy Alexander, who was the Cox Newspapers Washington bureau chief for ten years and serves as co-chair of the American Society of Newspaper Editors’ Freedom of Information committee.