On May 9, 2008, the Bush White House issued a memorandum to regularize within 5 years the treatment of information related to the country’s “national interests” which is not classified but which is not for public release. The new designation is to be called Controlled Unclassified Information (CUI) and would replace the current hodgepodge of rules covered under the rubrique of Sensitive but Unclassified (SBU). In theory, this looks like an effort to streamline and harmonize procedures across government. And while it states CUI is not meant
to (i) conceal violations of law, inefficiency, or administrative error; (ii) prevent embarrassment to the Federal Government or any Federal official, any organization, or agency; (iii) improperly or unlawfully interfere with competition in the private sector; or (iv) prevent or delay the release of information that does not require such protection
the determination of what CUI covers is very vague
Such determination should be based on mission requirements, business prudence, legal privilege, the protection of personal or commercial rights, safety, or security
For instance, since the mission of the Department of Homeland Security is homeland security and the Defense Department, the nation’s defense, virtually anything related to what these departments do could fall under the CUI designation. In addition, CUI could make disclosures under FOIA easier to deny.
CUI markings may inform but do not control the decision of whether to disclose or release the information to the public, such as in response to a request made pursuant to the Freedom of Information Act (FOIA)
This is a good news bad news story. The bad news is that this has been the most secretive and least transparent Administration in the country’s history and this looks like another effort to hide from the public whatever it wants whenever it wants. The good news is that most of this will not be implemented until a new Administration takes office. This seems rather to be another last minute attempt, like that of naming political commissars to government departments (see item 283), to influence the conduct of the next Administration or at least lay down booby traps for it.