Non-Disclosure Agreement for Unclassified Government Documents

In a momentous expansion of the apparatus of government secrecy, theDepartment of Homeland Security (DHS) is requiring employees andothers to sign legally binding non-disclosure agreements as acondition of access to certain categories of unclassifiedinformation.Up to now, non-disclosure agreements have only been used bygovernment agencies to regulate access to classified information.In fact, they are one of the defining features of the nationalsecurity classification system, along with security clearances andthe "need to know" principle. As far as Secrecy News coulddetermine, such classification-like controls have never beforebeen systematically imposed on access to unclassified information.But now at DHS a non-disclosure agreement must be executed in orderto gain access to any one of a panoply of new and existingcategories of unclassified information, including:"For Official Use Only (FOUO); Official Use Only (OUO); SensitiveHomeland Security Information (SHSI); Limited Official Use (LOU);Law Enforcement Sensitive (LES); Safeguarding Information (SGI);Unclassified Controlled Nuclear Information (UCNI); and any otheridentifier used by other government agencies to categorizeinformation as sensitive but unclassified."The proliferation of controls on unclassified information signifiesa massive increase in government secrecy, particularly since thenumber of officials who are authorized to designate information inone of these categories dwarfs the number of officials who cancreate classified information.And while the classification system operates according to certainwell-defined rules and limitations, including procedures for reviewand challenge of classification decisions, the same is not true ofthe "sensitive but unclassified" domain. Furthermore, there isnothing like the Information Security Oversight Office to monitorand oversee the restriction of unclassified information.(Some types of sensitive but unclassified information are notspecifically protected by statute and can still be successfullyrequested under the Freedom of Information Act. But with JusticeDepartment encouragement, agencies take an expansive view of thescope of the Act's exemptions and access is increasinglyuncertain.)The DHS non-disclosure agreement is apparently the first suchdocument crafted in the Bush Administration. It represents a newhigh water mark in the rising tide of official secrecy.A copy of DHS Form 11000-6, Non-Disclosure Agreement for SensitiveBut Unclassified Information, dated August 2004, was obtained bySecrecy News and is posted here: http://www.fas.org/sgp/othergov/dhs-nda.pdf