Anyone who has worked in or around the federal government is undoubtedly familiar with the alphabet soup of acronyms used to describe information that isn’t classified but is otherwise restricted from public release. Some of the more common designators include “SBU” (Sensitive but Unclassified), “LES” (Law Enforcement Sensitive”), and “FOUO” (For Official Use Only).

There are plenty of legitimate reasons why certain categories of information shouldn’t be wantonly released to the public. But the multitude of designators – and the often-unfettered discretion with which they are applied to documents and information, sometimes retroactively – also contributes to a culture of secrecy and impunity.

A Clearance Revocation for Mishandling Sensitive Information?

A recent security clearance revocation case demonstrated just how far at least one federal agency is willing to push the envelope. The case involved a client accused of purportedly mishandling “sensitive information” and sharing said “sensitive information” with a third party who lacked a “need to know.”

The problem with the government’s argument was simply that “sensitive information” is not a recognized category of controlled or classified information. What is or is not “sensitive” is an inherently subjective determination with no basis in law or policy. Moreover, how is one to identify “sensitive information” if it isn’t marked as such? If the information truly were that sensitive, it would be classified or marked – per policy – with one of the multitudes of recognized categories of controlled but unclassified information.

Because there is no objective way to determine whether a document is “sensitive”, and because there is no category of controlled information called “sensitive”, a handler cannot be punished for failing to anticipate the contrary and subsequent opinion of a supervisor or security official. Equally important is the fact that the “need-to-know” principle would not apply in such a situation. A valid justification for receiving the information is moot if the sender had unrestricted authority to send it.

If, as Supreme Court Justice Louis Brandeis once famously opined, “sunlight is the best disinfectant”, our elected leaders must take action to address the problem of “classification-creep” and the abuses of authority that it inevitably spawns.

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.