Legislation in the 110th Congress to…

                                 Legislation in the 110th Congress to Prevent Over-Classification

During the 110th Congress, the House of Representatives took action on two bills addressing over-classification: H.R. 4806, the
Reducing Over-Classification Act of 2008, which applies only to the Department of Homeland Security, and H.R. 6575, the Over-
Classification Reduction Act, which applies across the federal government. H.R. 4806 was passed by the House of Representatives on
July 30, 2008; H.R. 6576 was reported out by the House Committee on Oversight and Government Reform on July 30, 2008, and may
be brought to the House floor in September 2008. Given the short time left in the 110th Congress, it is not likely that either bill will
become law this year.

A side-by-side breakdown of the two bills follows:

Provision     H.R. 4806, Reducing Over-Classification Act of 2008         H.R. 6575, Over-Classification Reduction Act
Authority     Secretary of Homeland Security                              Archivist of the United States
Required      All finished intelligence products must be simultaneously   Requires Archivist to identify specific thresholds, standards,
Formats       prepared in an unclassified format, if the unclassified     and requirements to prevent over-classification, including
              product would reasonably be expected to be of any           when classified products should be produced in an
              benefit                                                     unclassified form
Auditing      Establishes a random audit of classified information by     Establishes a random audit of classified information by the
Mechanism     the Inspector General (IG) or other appropriate senior      Inspector General (IG) and requires a report Congress, the
              Department official and requires a report at least          Archivist on any problems with the administration of the
              annually to the House and Senate Homeland Security          policy and to suggest improvements; the report must also be
              Committees on any problems with the administration of       available to the public in an appropriate format
              the policy and to suggest improvements; the report must
              also be available to the public
Employee      Establishes a process whereby employees and contractors     Establishes a process whereby employees and contractors
Challenges    can challenge original classification decisions and are     can challenge original classification decisions and are
              rewarded for successfully having markings removed or        rewarded for successfully having markings removed or
              downgraded                                                  downgraded AND includes a reference to whistleblower
                                                                          protections
Penalties     Institutes a series of penalties for employees and          Institutes a series of penalties for employees and contactors
              contactors who fail to comply with the policy, after they   who fail to comply with the policy, after they have been
              have been warned and re-trained.                            warned and re-trained.
Tracking      Secretary must assess available technology for tracking        Requires that at the time of classification, the identify of the
              classified information, including the identity of the          original classifier appears on the information
              original classifier
Training      Requires annual training for employees and contractors         Requires annual training for employees and contractors with
              with classification authority; successful completion of        classification authority
              training will be counted as a positive factor for
              employment, evaluation, and promotion decisions
Detailee      Implements a program to detail Departmental employees to       Implements a program to detail Departmental employees to
Program       NARA for one year; ends December 31, 2012                      NARA for one year; ends December 31, 2012

Analysis:
In its Final Report of the National Commission on Terrorist Attacks Upon the United States, the 9/11 Commission cited the necessity
of preventing over-classification by the federal government. Over-classification hinders information sharing and causes the
government to needlessly spend billions of taxpayer dollars protecting information that should never have been classified. Over-
classification also leads to disrespect of the system and leaks to the press, public suspicion, and incidents such as the reclassification of
public documents taken from the shelves of the National Archives in April 2006.

Both H.R. 4806 and H.R. 6575 create a system of sticks and carrots to encourage employees and contractors to avoid over-
classification: in particular, they require establishing a process that rewards employees and contractors for successfully challenging
improper original classification decisions and institute a series of penalties for employees and contactors that fail to follow the policy,
after the employee or contractor has been warned and gone through re-training. Crucially, H.R. 6576 also contains a provision that the
system for employee challenges should also ensure no retribution for such challenges. Both bills also call for a tracking system that
will allow auditors to identify the person with original classification authority responsible for the decision to classify information;
however, H.R. 4806 grants the Secretary a year to assess available technologies and report to Congress before instituting a tracking
system. Additionally, both bills require annual employee and contractor training for individuals with original classification authority;
under H.R. 4806 successful completion of this training will be counted as a positive for employment decisions. Finally, both bills
require an analysis of the benefits of the provision of an unclassified format of properly classified information.

The bills lay the groundwork and create momentum on which we hope Congress will capitalize and build in the 111th Congress.