[Federal Register Volume 74, Number 103 (Monday, June 1, 2009)]
[Presidential Documents]
[Pages 26277-26280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12882]



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Part II





The President





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Memorandum of May 27, 2009--Classified Information and Controlled 
Unclassified Information
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  Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / 
Presidential Documents  

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 Title 3--
 The President

[[Page 26277]]

                Memorandum of May 27, 2009

                
 Classified Information and Controlled 
                Unclassified Information

                Memorandum for the Heads of Executive Departments and 
                Agencies

                As outlined in my January 21, 2009, memoranda to the 
                heads of executive departments and agencies on 
                Transparency and Open Government and on the Freedom of 
                Information Act, my Administration is committed to 
                operating with an unprecedented level of openness. 
                While the Government must be able to prevent the public 
                disclosure of information where such disclosure would 
                compromise the privacy of American citizens, national 
                security, or other legitimate interests, a democratic 
                government accountable to the people must be as 
                transparent as possible and must not withhold 
                information for self-serving reasons or simply to avoid 
                embarrassment.

                To these ends, I hereby direct the following:

                Section 1. Review of Executive Order 12958. (a) Within 
                90 days of the date of this memorandum, and after 
                consulting with the relevant executive departments and 
                agencies (agencies), the Assistant to the President for 
                National Security Affairs shall review Executive Order 
                12958, as amended (Classified National Security 
                Information), and submit to me recommendations and 
                proposed revisions to the order.

                    (b) The recommendations and proposed revisions 
                shall address:

  (i) Establishment of a National Declassification Center to bring 
appropriate agency officials together to perform collaborative 
declassification review under the administration of the Archivist of the 
United States;

  (ii) Effective measures to address the problem of over classification, 
including the possible restoration of the presumption against 
classification, which would preclude classification of information where 
there is significant doubt about the need for such classification, and the 
implementation of increased accountability for classification decisions;

   (iii) Changes needed to facilitate greater sharing of classified 
information among appropriate parties;

  (iv) Appropriate prohibition of reclassification of material that has 
been declassified and released to the public under proper authority;

  (v) Appropriate classification, safeguarding, accessibility, and 
declassification of information in the electronic environment, as 
recommended by the Commission on the Intelligence Capabilities of the 
United States Regarding Weapons of Mass Destruction and others; and

  (vi) Any other measures appropriate to provide for greater openness and 
transparency in the Government's security classification and 
declassification program while also affording necessary protection to the 
Government's legitimate interests.

                Sec. 2. Review of Procedures for Controlled 
                Unclassified Information. (a) Background. There has 
                been a recognized need in recent years to enhance 
                national security by establishing an information 
                sharing environment that facilitates the sharing of 
                terrorism-related information among government 
                personnel addressing common problems across agencies 
                and levels of government. The global nature of the 
                threats facing the United States requires that our 
                Nation's entire network of defenders be able rapidly to 
                share sensitive

[[Page 26278]]

                but unclassified information so that those who must act 
                have the information they need.

                To this end, efforts have been made to standardize 
                procedures for designating, marking, and handling 
                information that had been known collectively as 
                ``Sensitive But Unclassified'' (SBU) information. 
                Sensitive But Unclassified refers collectively to the 
                various designations used within the Federal Government 
                for documents and information that are sufficiently 
                sensitive to warrant some level of protection, but that 
                do not meet the standards for national security 
                classification. Because each agency has implemented its 
                own protections for categorizing and handling SBU, 
                there are more than 107 unique markings and over 130 
                different labeling or handling processes and procedures 
                for SBU information.

                A Presidential Memorandum of December 16, 2005, created 
                a process for establishing a single, standardized, 
                comprehensive designation within the executive branch 
                for most SBU information. A related Presidential 
                Memorandum of May 9, 2008 (hereafter the ``May 2008 
                Presidential Memorandum''), adopted the phrase 
                ``Controlled Unclassified Information'' (CUI) to refer 
                to such information. That memorandum adopted, 
                instituted, and defined CUI as the single designation 
                for information within the scope of the CUI definition, 
                including terrorism-related information previously 
                designated SBU. The memorandum also established a CUI 
                Framework for designating, marking, safeguarding, and 
                disseminating CUI terrorism-related information; 
                designated the National Archives and Records 
                Administration as the Executive Agent responsible for 
                overseeing and managing implementation of the CUI 
                Framework, and created a CUI Council to perform an 
                advisory and coordinating role.

                The May 2008 Presidential Memorandum had the salutary 
                effect of establishing a framework for standardizing 
                agency-specific approaches to designating terrorism-
                related information that is sensitive but not 
                classified. As anticipated, the process of implementing 
                the new CUI Framework is still ongoing and is not 
                expected to be completed until 2013. Moreover, the 
                scope of the May 2008 Presidential Memorandum is 
                limited to terrorism-related information within the 
                information sharing environment. In the absence of a 
                single, comprehensive framework that is fully 
                implemented, the persistence of multiple categories of 
                SBU, together with institutional and perceived 
                technological obstacles to moving toward an information 
                sharing culture, continue to impede collaboration and 
                the otherwise authorized sharing of SBU information 
                among agencies, as well as between the Federal 
                Government and its partners in State, local, and tribal 
                governments and the private sector.

                Agencies and other relevant actors should continue 
                their efforts toward implementing the CUI framework. At 
                the same time, new measures should be considered to 
                further and expedite agencies' implementation of 
                appropriate frameworks for standardized treatment of 
                SBU information and information sharing.

                    (b) Interagency Task Force on CUI. (i) The Attorney 
                General and the Secretary of Homeland Security, in 
                consultation with the Secretary of State, the Archivist 
                of the United States, the Director of the Office of 
                Management and Budget, the Director of National 
                Intelligence, the Program Manager, Information Sharing 
                Environment (established in section 1016 of the 
                Intelligence Reform and Terrorism Prevention Act of 
                2004, as amended (6 U.S.C. 485)), and the CUI Council 
                (established in the May 2008 Presidential Memorandum), 
                shall lead an Interagency Task Force on CUI (Task 
                Force). The Task Force shall be composed of senior 
                representatives from a broad range of agencies from 
                both inside and outside the information sharing 
                environment.

  (ii) The objective of the Task Force shall be to review current 
procedures for categorizing and sharing SBU information in order to 
determine whether such procedures strike the proper balance among the 
relevant imperatives. These imperatives include protecting legitimate 
security, law enforcement,

[[Page 26279]]

and privacy interests as well as civil liberties, providing clear rules to 
those who handle SBU information, and ensuring that the handling and 
dissemination of information is not restricted unless there is a compelling 
need. The Task Force shall also consider measures to track agencies' 
progress with implementing the CUI Framework, other measures to enhance 
implementation of an effective information sharing environment across 
agencies and levels of government, and whether the scope of the CUI 
Framework should remain limited to terrorism-related information within the 
information sharing environment or be expanded to apply to all SBU 
information.

  (iii) Within 90 days of the date of this memorandum, the Task Force shall 
submit to me recommendations regarding how the executive branch should 
proceed with respect to the CUI Framework and the information sharing 
environment. The recommendations shall recognize and reflect a balancing of 
the following principles:

                      (A) A presumption in favor of openness in 
                    accordance with my memoranda of January 21, 2009, 
                    on Transparency and Open Government and on the 
                    Freedom of Information Act;
                       (B) The value of standardizing the procedures 
                    for designating, marking, and handling all SBU 
                    information; and
                      (C) The need to prevent the public disclosure of 
                    information where disclosure would compromise 
                    privacy or other legitimate interests.

                Sec. 3. General Provisions. (a) The heads of agencies 
                shall assist and provide information to the Task Force, 
                consistent with applicable law, as may be necessary to 
                carry out the functions of their activities under this 
                memorandum. Each agency shall bear its own expense for 
                participating in the Task Force.

                    (b) Nothing in this memorandum shall be construed 
                to impair or otherwise affect:

  (i) Authority granted by law or Executive Order to an agency, or the head 
thereof; or

  (ii) Functions of the Director of the Office of Management and Budget 
relating to budgetary, administrative, or legislative proposals.

                    (c) This memorandum shall be implemented consistent 
                with applicable law and subject to the availability of 
                appropriations.
                    (d) This memorandum is not intended to, and does 
                not, create any right or benefit, substantive or 
                procedural, enforceable at law or in equity by any 
                party against the United States, its departments, 
                agencies, or entities, its officers, employees, or 
                agents, or any other person.

[[Page 26280]]

                Sec. 4. Publication. The Attorney General is hereby 
                authorized and directed to publish this memorandum in 
                the Federal Register.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    Washington, May 27, 2009

[FR Doc. E9-12882
Filed 5-29-09; 11:15 am]
Billing code 4410-19-P