Information Sharing: The Federal Government Needs to Establish Policies and Processes for Sharing Terrorism-Related and Sensitive but Unclassified Information
Released: 2006-04-17T00:00:00

Letter

Background

Information sharing is essential to enhance the security of our nation and is a key element in developing comprehensive and practical approaches to defending against potential terrorist attacks. Having information on threats, vulnerabilities, and incidents can help an agency better understand the risks and determine what preventative measures should be implemented. The ability to share such terrorism-related information can also unify the efforts of federal, state, and local government agencies, as well as the private sector in preventing or minimizing terrorist attacks.

The national commission appointed by members of Congress and the President after the September 11 terrorist attacks (the 9/11 Commission) recognized the critical role of information sharing to the reinvigorated mission to protect the homeland from future attacks. In its final report, the commission acknowledged the government has vast amounts of information but a weak system for processing and using it. The commission called on the President to provide incentives for sharing, restore a better balance between security and shared knowledge, and lead a governmentwide effort to address shortcomings in this area.

Since 2001, the President has called for a number of terrorism-related information-sharing initiatives in response to legislative mandates passed by Congress. Relatedly, over the past several years, we have identified potential information-sharing barriers, critical success factors, and other key management issues, including the processes, procedures, and systems to facilitate information sharing between and among government entities and the private sector. Efforts to promote more effective sharing of terrorism-related information must also balance the need to protect and secure it. The executive branch has established requirements for protecting information that is deemed to be critical to our national security.

Laws and Executive Orders Have Established Requirements to Improve Information Sharing since 2001

Since the information-sharing weaknesses of September 11, the President and the Administration have called for a number of terrorism-related information-sharing initiatives driven predominately by two statutory mandates—The Homeland Security Act of 2002 and the Intelligence Reform and Terrorism Prevention Act of 2004 (Intelligence Reform Act). Section 892 of the Homeland Security Act requires that the President, among other things, prescribe and implement procedures under which federal agencies can share relevant homeland security information, as defined in the Homeland Security Act, with other federal agencies, including DHS, and with appropriate state and local personnel, such as law enforcement. Congress subsequently mandated a more extensive information-sharing regimen through section 1016 of the Intelligence Reform Act, requiring that the President take action to facilitate the sharing of terrorism information, as defined in the act, by establishing an Information Sharing Environment (ISE) that will combine policies, procedures, and technologies that link people, systems, and information among all appropriate federal, state, local, and tribal entities, and the private sector. The act also requires the President to, among other things, appoint a program manager to oversee development of the ISE and establishes an Information Sharing Council to support the President and the program manager with advice on developing the policies, procedures, guidelines, roles, and environment. Together, the mandates call for initiatives designed to facilitate the sharing of terrorism-related information—which encompasses both homeland security and terrorism information—within and among all appropriate federal, state, local, and tribal entities, and the private sector. These and other actions are explained in more detail in table 1.

Our Prior Work Identified Challenges in Information Sharing

In January 2005, GAO designated information sharing for homeland security as a governmentwide high-risk area because, although it was receiving increased attention, this area still faced significant challenges. Since 1998, we have recommended the development of a comprehensive plan for information sharing to support critical infrastructure protection efforts. Key elements of our recommendation can be applied to broader terrorism-related information sharing, including clearly delineating the roles and responsibilities of federal and nonfederal entities, defining interim objectives and milestones, and establishing performance metrics. Over the past several years, we have also issued several reports on challenges related to information sharing.

In June 2005, we reported that as federal agencies work with state and local public health agencies to improve the public health infrastructure’s ability to respond to terrorist threats, including acts of bioterrorism, they faced several challenges. First, the national health information technology (IT) strategy and federal health architecture were still being developed. Second, although federal efforts continue to promote the adoption of data standards, developing such standards and then implementing them were challenges for the health care community. Third, these initiatives involved the need to coordinate among federal, state, and local public health agencies, but establishing effective coordination among the large number of disparate agencies would be a major undertaking.

In May 2005, we reported that DHS had undertaken numerous initiatives to foster partnerships and enhance information sharing with other federal agencies, state and local governments, and the private sector concerning cyber attacks, threats, and vulnerabilities, but it still needed to address underlying barriers to information sharing. At that time, critical infrastructure sector representatives identified as barriers to sharing information with the government fear of release of sensitive information, uncertainty about how the information would be used or protected, lack of trust in DHS, and inconsistency in the usefulness of the information shared by DHS. We made recommendations to the Secretary of Homeland Security to strengthen the department’s ability to implement key cybersecurity responsibilities by completing critical activities and resolving underlying challenges.

In September 2004, we reported that nine federal agencies had identified 34 major networks—32 operational and 2 in development—supporting homeland security functions, including information sharing. The total cost of the networks for which cost estimates were available was approximately $1 billion per year for fiscal years 2003 and 2004. Among the networks identified, DHS’s Homeland Secure Data Network appeared to be a significant initiative for future sharing of classified homeland security information among civilian agencies and DOD.

In July 2004, we reported on the status of the information sharing and analysis centers that were voluntarily created by the private sector owners of critical infrastructure assets to provide an information-sharing and analysis capability. The information-sharing center community had identified a number of challenges, including increasing participation, building a trusted relationship, and sharing information between the federal government and the private sector. We recommended that DHS proceed with the development of an information-sharing plan that, among other things, defines the roles and responsibilities of the various stakeholders and establishes criteria for providing the appropriate incentives to address the challenges.

In October 2001, we identified critical success factors and challenges in building successful information-sharing relationships. In addition, we identified practices that could be applied to other entities trying to develop the means of appropriately sharing information. One of the most difficult challenges to effective information sharing we identified was overcoming new entities’ initial reluctance to share. Among the best practices we identified were (1) establishing trusted relationships with a wide variety of federal and nonfederal entities that may be in a position to provide potentially useful information and advice, (2) developing standards and agreements on how shared information will be used and protected, and (3) taking steps to ensure that sensitive information is not inappropriately disseminated.

The Federal Government Has Established Mechanisms to Protect Sensitive Information

The federal government utilizes a variety of policies and procedures, whether prescribed by statute, executive order, or other authority, to limit dissemination and protect against the inadvertent disclosure of sensitive information. For information the government considers critical to our national security, the government may take steps to protect such information by classifying it—for example, Top Secret, Secret, or Confidential—pursuant to criteria established by executive order. The executive order prescribes uniform standards for making all classification decisions across the federal government. Specifically, it prescribes the categories of information that warrant classification, establishes criteria for persons with classification authority, limits the duration of classification decisions, establishes procedures for declassifying or downgrading classified information, prescribes standards for identifying and safeguarding classified materials, requires that agencies prepare classification guides to facilitate proper and uniform classification decisions, and provides for oversight of agency classification decisions.

Information that does not meet the standards established by executive order for classified national security information but that an agency nonetheless considers sufficiently sensitive to warrant restricted dissemination is generally referred to as sensitive but unclassified. In designating information this way, agencies determine that the information they use must therefore be safeguarded from public release. Such information could include, for example, information at DOJ that is critical to a criminal prosecution. DOJ would protect this information from inappropriate dissemination by identifying it with a designation, such as Law Enforcement Sensitive, and prescribing restricted handling procedures for information with this designation. Some specific designations—such as Sensitive Security Information (SSI), used for certain transportation-related information, and Protected Critical Infrastructure Information (PCII), used for information that has been voluntarily submitted to DHS by the private sector and is related to the security of the nation’s critical infrastructure—have a specific basis in statute, but many other designations that agencies use do not. For example, some agencies use the provisions of the Freedom of Information Act (FOIA), which establishes the public’s legal right of access to government information but also enables the government to withhold certain information from public release, as their basis for designating information sensitive but unclassified. OMB has primary governmentwide oversight responsibility for information management and information security.

The Nation Still Lacks the Governmentwide Policies and Processes Needed to Build an Integrated Terrorism-Related Information-Sharing Road Map, but Smaller-Scale Sharing Initiatives Are Under Way

No governmentwide policies or processes have been established by the executive branch to date to define how to integrate and manage the sharing of terrorism-related information across all levels of government and the private sector despite legislation and executive orders dating back to September 11. This is due, in part, to the difficulty of the challenge, as well as the fact that responsibility for creating these policies has shifted among various executive agencies. Most recently in December 2005, the President once again tried to better clarify the roles and responsibilities of the ODNI program manager, Information Sharing Council, DHS, and other agencies in support of the Information Sharing Environment (ISE). The program manager is in the early stages of addressing the mandate and issued an interim implementation plan to Congress in January 2006 that lays out a number of steps and deadlines for deliverables. However, until governmentwide policies and processes on sharing are in place, the federal government will lack a comprehensive road map to improve the exchange of critical information needed to protect the homeland.

Chronology of Efforts to Develop Governmentwide Policies and Processes to Facilitate Terrorism- Related Information Sharing Demonstrates a Series of Unfulfilled Initiatives and the Complexity of the Challenge

Following September 11, the White House and OMB first began to work on information-sharing policies. Following passage of the Homeland Security Act in November 2002, the presidential responsibility for developing policies and processes for information sharing under section 892 of the act was not immediately assigned.

On July 29, 2003, the President issued Executive Order 13311 delegating to the Secretary of DHS the responsibility to create and implement policies for sharing sensitive homeland security information, and to report to Congress by November 2003 on implementation of section 892 of the Homeland Security Act.

DHS began its efforts, but did not provide the implementation report to Congress until February 2004. The report primarily discussed several small-scale efforts within DHS associated with sensitive but unclassified information. It did not provide recommendations for additional legislative measures to increase the effectiveness of the sharing of information between and among federal, state, and local entities. The report concluded that to avoid uncertainty and confusion, federal agencies must have a consistent set of policies and procedures for identifying the information to be shared as well as to be safeguarded, but it did not define those policies and procedures or DHS’s actions to develop them.

Subsequently, DHS developed a notice of proposed rule making laying out a proposed policy framework to govern sharing sensitive homeland security information in response to the mandate, but after internal Executive Branch review it was not formally transmitted to OMB and, according to DHS officials, it was never issued.

When the new Secretary assumed leadership of DHS in February 2005, a reassessment of the proposed rule making was requested in part to assure harmonization with the related requirements of the more recent Intelligence Reform Act, according to DHS’s Deputy Director for Information Sharing and Collaboration.

Then, in response to the December 2004 Intelligence Reform Act, the President issued a series of directives to better clarify responsibilities and time frames for achieving a governmentwide road map for information sharing.

On April 15, 2005, the President designated a program manager responsible for information sharing across the federal government, as required by the Intelligence Reform Act.

On June 2, 2005, the President issued a memorandum directing that during the initial 2-year term of the program manager, the DNI would exercise authority, direction, and control over the program manager. The memorandum also directed the DNI to provide the program manager all personnel, funds, and other resources as assigned. The Intelligence Reform Act had authorized an appropriation of $20 million for each of fiscal years 2005 and 2006.

On October 25, 2005, the President issued Executive Order 13388, which established, among other things, priorities for facilitating the sharing of terrorism information and an Information Sharing Council, chaired by the program manager. The order also revoked the President’s earlier direction, Executive Order 13356, which had addressed similar issues and imposed similar requirements with respect to—the Director of Central Intelligence, OMB, and other agencies. The present order, however, calls for the use of standards and plans developed pursuant to the revoked order.

In November 2005, the new Information Sharing Council, tasked with planning for and overseeing the establishment of an ISE for sharing terrorism information, had its first meeting and took over for the former Information Systems Council that OMB had chaired.

On December 16, 2005, the President issued a memorandum providing guidance and imposing requirements on the heads of all executive departments and agencies in support of the development of the ISE. The memo delineates roles and responsibilities as well as sets deadlines for an effort to leverage ongoing efforts consistent with establishing the ISE as required by the Intelligence Reform Act and in accordance with requirements of the Homeland Security Act and related executive orders. For example, the memorandum requires the program manager, in consultation with the council, to conduct and complete, within 90 days of the memorandum’s issuance, a comprehensive evaluation of existing resources pertaining to terrorism information sharing employed by individual or multiple executive departments and agencies. It also tasked the ODNI with developing the policies, procedures, and architectures needed to create the ISE by December 16, 2006.

The ODNI Is in the Early Stages of Addressing the Intelligence Reform Act Mandate, but Establishing the Required Information- Sharing Requirements Will Be a Challenge

ODNI is in the early stages of addressing the mandate under the Intelligence Reform Act to create an ISE. Soon after the appointment of the program manager in April 2005, he issued a preliminary report on its plans to establish the ISE as required by the act. The program manager later outlined the priorities for his office’s work in establishing the ISE: clarifying the differing standards among agencies for the designation and dissemination of terrorism information, ensuring two-way flow of information from the federal level to the state and local level as well as from state and local agencies to the federal level, providing fast-paced, value-added dissemination of information and informational expertise from the intelligence community, overcoming the hesitancy of the intelligence community to share ensuring the protection of information privacy and other legal rights of identifying and removing impediments to information sharing.

On January 9, 2006, ODNI issued an Information Sharing Environment Interim Implementation Plan to Congress that lays out a number of steps and deadlines for deliverables. ODNI noted in the interim plan the need for more time to develop the final implementation plan because the Intelligence Reform Act requirements call for detailed answers that can be provided only after significant coordination between the program manager and all departments and agencies that are ultimately responsible for implementing the ISE. In the plan, ODNI acknowledged that it recognizes the value and challenge in building ownership for the ISE among all of the federal agencies that have a role in homeland security. The plan also stated that adding to the complexity of the task is the fact that the needs of state, local, and tribal governments and private sector entities must also be taken into account as well. ODNI plans to issue a more comprehensive implementation plan to Congress in July 2006.

The interim plan noted that while a large amount of terrorism information is already stored electronically in systems, many users are not connected to those systems. In addition, there remains an unknown quantity of relevant information not captured and stored electronically. Thus, the information about terrorists, their plans, and their activities is fragmentary. The interim plan states that the ISE will connect disparate electronic storehouses to take advantage of what already exists. Additionally, it will provide mechanisms for capturing and providing access to terrorism information not currently available electronically. According to the interim plan, ISE implementation will be based on a three-pronged strategy: Implementation of the presidential guidelines and requirements.

Support and augmentation for existing information-sharing environments, such as the National Counterterrorism Center (NCTC). NCTC was selected to serve as one of the initial information-sharing environments because it is the primary organization in the U.S. government for analyzing and integrating all information pertaining to terrorism and counterterrorism. Moreover, DHS and DOJ will identify one or more environments run by states and major urban areas for evaluation of the effectiveness of the flow of terrorism information between federal, state and local governments and the private sector.

A process for integrating the President’s guidelines and requirements with the needs of the broader ISE, which includes addressing the overall ISE’s functions, capabilities, resources, conceptual design, architecture, budget, and performance management process.

While recognizing that creating a fully functioning ISE will take time, the interim plan includes a schedule for completing a number of key milestones. For example, by June 14, 2006, the program manager and the Director of NCTC are to have conducted a comprehensive review of all agency missions, roles, and responsibilities related to any aspects of information sharing, especially sharing with state, local, and private entities; developed and disseminated information-sharing standards across the federal, state, local, and private sectors; developed recommendations for sharing with foreign partners and allies; developed privacy guidelines to govern sharing; developed guidelines, training, and incentives to hold personnel accountable for improved information sharing; and developed the ISE investment strategy, among other things.

As part of its efforts to provide end-user input to the technical development of the ISE, ODNI plans to continue to expand the use of information access pilot programs at the state and local levels. Currently, ODNI has two ongoing information-sharing technology pilot programs involving the Federal Bureau of Investigation (FBI) and the Department of Energy (DOE). The FBI’s New York Field Office’s Special Operations Division is using handheld wireless devices for field operations to facilitate enhanced communications among counterterrorism personnel by providing rapid wireless access to sensitive but unclassified data sources. DOE is sponsoring a pilot project that will apply technical analytic expertise to intelligence pertaining to nuclear terrorism. The project has established a core group of nuclear expert analysts, across five national laboratories, whose focus is on providing both long-term, strategic analysis of potential sources of nuclear terrorism and better short-term tactical intelligence on this issue. Central to the success of this effort is the sharing of all relevant sensitive information with these laboratories.

Despite this progress, when the program manager testified before the Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment, Committee on Homeland Security, in November 2005, he expressed concern about whether he had enough resources to meet the mandates in the Intelligence Reform Act. For example, he said that for 2006, he did not have a budget line item and was continuing to work with the DNI on his budget. The Intelligence Reform Act authorized $20 million for fiscal year 2006, but the program manager said he needed $30 million a year at a minimum. At the time, the program manager also said that although he planned to have a staff of 25, he had only 11 federal employees and 6 contractors on board. On January 26, 2006, the program manager announced his resignation from his position. At the time of our review, a new program manager had not yet been appointed. Once a new program manager is named, it will be important for the DNI to monitor milestones set in the interim implementation plan; identify any barriers to achieving the milestones, such as insufficient resources; and recommend to the oversight committees with jurisdiction any necessary changes to the organizational structure or approach to the ISE.

Many Agencies Are Taking Small-Scale Actions to Improve the Sharing of Terrorism-Related Information

Despite the lack of governmentwide policies and procedures for information sharing, many agencies have their own information-sharing initiatives under way. The following are examples of agency-based terrorism-related information-sharing efforts.

The FBI leads Joint Terrorism Task Forces, which are one of the means by which the FBI shares information with federal, state, and local law enforcement agencies and officers. At the time of our review, the FBI had 103 Joint Terrorism Task Forces around the country, staffed by bureau officers as well as state and local law enforcement officers. The mission of the task forces is to respond to terrorism by combining the national and international investigative resources of federal agencies with the street- level expertise of state and local law enforcement agencies.

The FBI and DHS also collaborate to circulate sensitive intelligence information, through bulletins, to state and local officials. These bulletins are intended to alert state and local governments to information that is being noted at the federal level. As part of this effort, they have provided state and local officials guidance about appropriate control and sharing of this information.

Multiple other mechanisms exist to share terrorism-related information. For example, through our prior work in 2004 we have identified at least 34 major networks that support homeland security functions. Some of the major technology systems we identified in this review and in our other work are described below: DHS’s Homeland Secure Data Network grew out of a former U.S. Customs Service system that was consolidated with the DHS IT network when the department was created. The system is composed of secure network connections on a data communications framework that connects users to data centers to allow them to share intelligence and other information securely. The network is eventually intended to connect 600 geographically dispersed DHS intelligence-gathering units; operational components; and other federal, state, and local agencies involved in homeland security activities.

The DOJ Regional Information Sharing System (RISS) links thousands of local, state, and federal law enforcement agencies throughout the nation, providing secure communications, information-sharing resources, and investigative support to combat multijurisdictional crime and terrorist threats. RISS was integrated with the DOJ Law Enforcement Online system in 2002 and with the Automated Trusted Information Exchange in 2003, to provide users with access to homeland security, disaster, and terrorist threat information.

One of the first steps ODNI plans to undertake in developing the ISE is to perform a review of the existing systems such as these so that it can leverage what has already been done and find ways to connect existing systems.

The Large Number of Sensitive but Unclassified Designations and the Lack of Consistent Policies and Procedures for Their Use Make Sharing Information More Difficult

Federal agencies report that they are using a total of 56 different designations for information they determined is sensitive but unclassified, and agencies that account for a large percentage of the homeland security budget reported using most of these designations. There are no governmentwide policies or procedures that describe the basis on which agencies should designate, mark, and handle this information. In this absence, the agency determines what designations to apply to its sensitive but unclassified information. Such inconsistency can lead to challenges in information sharing. In fact, more than half of the agencies reported encountering challenges in sharing sensitive but unclassified information. Furthermore, most agencies do not determine who and how many employees can make such designations, provide them training on how to do so, or perform periodic reviews of how well their practices are working, nor are there governmentwide policies that require such internal control practices. By not providing guidance and monitoring, there is a probability that the designation will be misapplied, potentially restricting material unnecessarily or resulting in dissemination of information that should be restricted.

Agencies Report Using 56 Different Designations for Sensitive but Unclassified Information

As table 2 shows, agencies reported using 56 different designations to identify categories of sensitive but unclassified information—including, for example, For Official Use Only (FOUO) and Protected Critical Infrastructure Information (PCII). Most of these designations are in use by agencies that account for a large percentage of the homeland security budget (those shown in bold in the table). However, other agencies in the list, such as the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA) also have homeland security-related sensitive but unclassified information. The numerous designations can be confusing for recipients of this information, such as state and local law enforcement agencies, which must understand and protect the information according to each agency’s own rules.

For most of these designations, there are no governmentwide policies or procedures to guide agency decision making on using the designations, explaining what they mean across agencies, and assuring that the information is protected and shared consistently from one agency to another. Different agencies and departments currently define sensitive but unclassified information in many different ways in accordance with their unique missions and authorities.

As a result of the lack of standard criteria for sensitive but unclassified information, multiple agencies often use the same or similar terms to designate information, but they define these terms differently. For example, there are at least 13 agencies that use the designation For Official Use Only, but there are at least five different definitions of FOUO. At least seven agencies or agency components use the term Law Enforcement Sensitive (LES), including the U.S. Marshals Service, the Department of Homeland Security (DHS); the Department of Commerce, and the Office of Personnel Management (OPM). These agencies gave differing definitions for the term. While DHS does not formally define the designation, the Department of Commerce defines it to include information pertaining to the protection of senior government officials, and OPM defines it as unclassified information used by law enforcement personnel that requires protection against unauthorized disclosure to protect the sources and methods of investigative activity, evidence, and the integrity of pretrial investigative reports.

Agencies also use different terminology or restrictive phrases for what is essentially the same type of information. According to a senior official in the Delaware Department of Homeland Security, the multiple designations are a problem. He said that often multiple terms or phrases are used by different agencies for the same material. For example, information about a narcotics-smuggling ring that was financing terrorism might be considered sensitive by the DHS Customs and Border Protection component, which would mark it as FOUO or LES and require it to be kept in a locked file, cabinet, or desk when not in use. The same information might be marked DEA-Sensitive by DOJ’s Drug Enforcement Administration (DEA), which under its policy, requires a higher level of protection than normally afforded sensitive but unclassified information. Additionally, the Department of Defense, the Department of State, the Environmental Protection Agency, and the U.S. Agency for International Development all use the categories under FOIA that exempt information from public disclosure as basic criteria for designating some of its sensitive information. However, for FOIA-exempt material, DOD uses the term For Official Use Only, State uses Sensitive But Unclassified, EPA uses FOIA, and the U.S. Agency for International Development (USAID) uses Sensitive But Unclassified. Use of multiple designations such as this can hamper sharing efforts and confuse end users about the information.

Some Agencies and End Users Reported Challenges in Sharing Sensitive but Unclassified Information

More than half of the agencies reported challenges in sharing sensitive but unclassified information. For example, 11 of the 26 agencies that we surveyed said that they had concerns about the ability of other parties to protect sensitive but unclassified information. These concerns could lead them to share less information than they could. DHS said that sensitive but unclassified information disseminated to its state and local partners had, on occasion, been posted to public Internet sites or otherwise compromised, potentially revealing possible vulnerabilities to business competitors. The Department of Transportation (DOT) said that the time it takes to determine whether other departments’ handling and protection requirements meet or exceed DOT’s requirements for Sensitive Security Information represents a challenge. Six agencies said that the lack of standardized criteria for defining what constitutes sensitive but unclassified information was a challenge in their efforts to share information, and DOD said that standardizing the designations and definitions used by federal agencies for sensitive but unclassified information might facilitate the handling and safeguarding of the information, thereby strengthening information-sharing efforts. Four agencies reported that they struggle with balancing the trade-off between limited dissemination of sensitive but unclassified information in order to protect it and broader dissemination to more stakeholders, who could use it for their efforts. Finally, 3 agencies reported challenges in using their designations that were not related to identifying, sharing, and safeguarding sensitive information, and 9 agencies reported no challenges.

First responders reported that the multiplicity of designations and definitions not only causes confusion but leads to an alternating feast or famine of information. Lack of clarity on the dissemination rules and lack of common standards for controlling sensitive but unclassified information have led to periods of oversharing of information, often overwhelming end users with the same or similar information from multiple sources, according to an Illinois State Police Officer.

Most of the Agencies We Surveyed Do Not Determine Which Employees Can Make Sensitive but Unclassified Designations, nor Do They Provide These Employees with Training

Of the 20 agencies that reported on who is authorized to make sensitive but unclassified designations at their agency, 13 did not limit which employees could apply at least one of their sensitive but unclassified designations. For example, DHS does not limit which employees may decide whether to designate a document For Official Use Only. At the Department of State, there are no limits on which personnel can designate information as sensitive but unclassified. At the National Aeronautics and Space Administration (NASA), approximately 20,000 civil servants and 80,000 contract employees are authorized to designate information as sensitive but unclassified using the Administratively Controlled Information designation of the agency. In addition, 12 of 23 agencies (or 52 percent) reported that they did not have policies or procedures for specialized training for personnel making sensitive but unclassified designations.

Several agencies, however, have taken steps to limit the number of designators or have provided at least some limited training to their employees. The U.S. Secret Service limits its designation authority solely to those individuals in the organization with the authority to classify information at the Confidential level under the National Security Information program. DOE restricts the application and removal authority for the Unclassified Controlled Nuclear Information (UCNI) designation to specially trained UCNI reviewing officials. Also, the Department of State provides training for its designators, and the Department of the Treasury provides training for designators and users of one of its designations.

Very Few Agencies Perform Periodic Reviews of How Well Their Sensitive but Unclassified Practices Are Working or Set Time Limits on the Designations

Eighteen of the 23 agencies that provided us with information do not have policies or procedures for periodically reviewing how well the agency’s designation practices are working and how accurately employees are making these decisions. Without oversight, agencies have no way to know the level of compliance or the effectiveness of the policies and procedures they have set.

In addition, only 2 of the agencies that provided information on the issue of time limits for sensitive but unclassified information set such limits. In contrast, classified national security information is declassified as specified by the governing executive order. The U.S. Postal Service (USPS) set a limit of 5 years, and USDA set a limit of 10 years, after which the designation would no longer be valid, and the information could become publicly available. Two agencies, the General Services Administration and the Department of Commerce, indicated that if it was possible to foresee a specific event that could remove the need for continued protection of the information—for example, a document concerning trade negotiations would be considered sensitive until the negotiations were ended—the agency marked the document in such a way so that the designation was removed upon the completion of the event. Documents designated sensitive but unclassified at the other agencies that did not set time limits will remain so designated until a review of the document’s status is triggered by an action such as a FOIA request by a private citizen. Continued restriction limits access to this information over the long term.

To address the obstacles to information sharing, the Homeland Security Act required the President to, among other things, develop policies for sharing homeland security information, including sensitive but unclassified information, with appropriate state and local personnel. He delegated this responsibility to the Secretary of the newly created DHS in July 2003. Later, in his December 2005 memo, the President gave agencies 90 days to inventory their sensitive but unclassified procedures and report them to ODNI, which in turn is to provide them to the Secretary of DHS and the Attorney General. Working in coordination with the Secretaries of State, Defense, and Energy and with the DNI, they have 90 days from when they receive the inventories to develop recommended procedures that will provide a more standardized approach for designating homeland security information, law enforcement information, and terrorism information as sensitive but unclassified. The memorandum also requires that ODNI, in coordination and consultation with other agencies, develop recommendations for standardizing sensitive but unclassified procedures for all information not addressed by the first set of recommendations.

Conclusions

In part because of the complexity of the task, shifting responsibilities, and missed deadlines, more than 4 years after September 11 the federal government still lacks comprehensive policies and processes to improve the sharing of information that is critical to protecting our homeland. After the 9/11 Commission’s recommendation that the sharing and uses of information be guided by a set of practical policy guidelines, Congress passed the Intelligence Reform Act and mandated the creation of an Information Sharing Environment (ISE), to be planned for and overseen by a program manager. While recognizing that creating a fully functioning ISE will take time, the program manager’s interim implementation plan includes a schedule for meeting a number of key deadlines. For example, by June 14, 2006, the program manager and the Director of NCTC are to have conducted a comprehensive review of all agency missions, roles, and responsibilities both as producers and users of terrorism information. Given that the program manager resigned and, at the time of our review, a new one had not been appointed, meeting this deadline will be difficult. When a new program manager is appointed, ensuring the success of this project will require support and vigilance from ODNI as well as the other agencies mentioned in the President’s memorandum. It will be essential that the DNI assess progress toward meeting the milestones in the interim plan, identify and address any barriers to progress, and recommend to the congressional oversight committees with jurisdiction any changes necessary to achieve the goals of the mandates.

The President’s December 2005 memorandum recognizes the need to standardize procedures for sensitive but unclassified information. Currently, no governmentwide policies or procedures exist for most sensitive but unclassified designations. Our work on the policies and procedures agencies currently use can help validate ODNI’s efforts in this area. It will be important that the new policies and procedures provide for consistent application of the designations and consistent handling requirements. Establishing governmentwide policies and procedures is a critical first step, but unless agencies, when implementing designations, ensure employees have the tools they need to use the designations accurately, and establish a monitoring system for their use, designations could be misapplied and information might be unnecessarily restricted or released when it should be protected. In the end, agencies need the flexibility to use designations that meet their mission needs, but where feasible using the same designation and handling procedures across agencies for similar information will provide for more consistent sharing and protection of sensitive information. Without continued vigilance, there is danger that there will be further delays in developing a governmentwide information-sharing policy and in establishing sensitive but unclassified policies that better enable the sharing of the information critical to the protection of the homeland.

Recommendations for Executive Action

To ensure effective implementation of the Intelligence Reform Act, we recommend that the following six actions be taken: We recommend that the Director of National Intelligence (1) assess progress toward the milestones set in its Interim Implementation Plan; (2) identify any barriers to achieving these milestones, such as insufficient resources and determine ways to resolve them; and (3) recommend to the oversight committees with jurisdiction any necessary changes to the organizational structure or approach to creating the ISE.

In carrying out the President’s December 2005 mandates for standardizing sensitive but unclassified information, we recommend that the Director of National Intelligence and the Director of OMB (1) use the results of our work to validate the inventory of designations that agencies are required to conduct in accordance with the memo and (2) issue a policy that consolidates sensitive but unclassified designations where possible and addresses their consistent application across agencies.

We recommend that the Director of OMB, in his oversight role with respect to federal information management, work with other agencies to develop and issue a directive requiring that agencies have in place internal controls that meet the standards set forth in GAO’s Standards for Internal Controls in the Federal Government. This directive should include guidance for employees to use in deciding what information to protect with sensitive but unclassified designations; provisions for training on making designations, controlling, and sharing such information with other entities; and a review process to determine how well the program is working.

Agency Comments

We requested comments on a draft of this report from the Director of OMB and the Director of National Intelligence or their designees. We received comments from OMB that neither agreed nor disagreed with our findings and recommendations. OMB commented that once the program manager and others completed their work to establish governmentwide policies, procedures, or protocols to guide the sharing of information as it relates to terrorism and homeland security, they would work with the program manager and all agencies to determine what additional steps are necessary, if any. ODNI, however, declined to comment on our draft report, stating that the review of intelligence activities is beyond GAO’s purview. We are disappointed by the lack of an ODNI response to our report on the critical issue of information-sharing efforts in the federal government. We have placed information sharing for homeland security on GAO’s high-risk list, in part because federal agencies have not done an adequate job of sharing critical information in the past and because success in this area will involve the combined efforts of multiple agencies and key stakeholders. The President has tasked ODNI with key coordinating roles in furtherance of this effort.

In declining to comment, ODNI stated that our draft report was “very broad” and that it “addresses a number of intelligence-related issues, including a discussion of the management of and specific recommendations to the Director of National Intelligence (DNI).” ODNI then made a general reference to the DOJ having “previously advised” GAO that “the review of intelligence activities is beyond the GAO’s purview.” In DOJ’s comments on a 2003 GAO report on information sharing, DOJ similarly said “the review of intelligence activities is an arena beyond GAO’s purview.” However, there was no legal analysis attached to either of these statements.

There is a 1988 DOJ Office of Legal Counsel (OLC) opinion that offers DOJ’s views on our authority to review intelligence activities in the context of foreign policy. In the 1988 opinion, OLC asserted that by enacting the current intelligence oversight framework, codified at 50 U.S.C. § 413, Congress intended the intelligence committees to maintain exclusive oversight with respect to intelligence activities, foreclosing reviews by GAO. Although we recognize that section 413 codified practices to simplify the congressional intelligence oversight process, we do not agree with DOJ’s view that the intelligence oversight framework precludes GAO reviews in the intelligence arena. Neither section 413 nor its legislative history states that the procedures established therein constitute the exclusive mechanism for congressional oversight of intelligence activities, to the exclusion of other relevant committees or GAO. GAO has broad statutory authority to evaluate agency programs and investigate matters related to the receipt, disbursement, and use of public money. GAO also has broad authority to inspect and obtain agency information and records, subject to a few limited exceptions.

In any event, we do not agree with ODNI’s characterization that our review involved “intelligence activities.” Our review did not involve evaluation of the conduct of actual intelligence activities. Rather, our review addresses the procedures in place to facilitate the sharing of a broad range of information across all levels of government. In our view ODNI’s concept of “intelligence activities” is overly broad and would extend to governmentwide information-sharing efforts clearly outside the traditional intelligence arena—including, for example, procedures for sharing sensitive but unclassified information unrelated to homeland security. The use of such a sweeping definition to limit GAO’s work would seriously impair Congress’s oversight of executive branch information-sharing activities.

Given the above, we strongly disagree with ODNI’s reasons for declining to comment on our report. ODNI’s letter is reprinted in appendix III.

As agreed with your offices, unless you publicly release the contents of this report earlier, we plan no further distribution until 30 days from the report date. We will then send copies of this report to the Director, Office of Management and Budget; the Director of National Intelligence; the Secretaries and heads of the 26 departments and agencies in our review; and interested congressional committees. In addition, this report will be available at no charge on the GAO Web site at http://www.gao.gov.

If you or your staff have any questions concerning this report, please contact either David Powner at 202-512-9286 or pownerd@gao.gov, or Eileen Larence at 202-512-6510 or larencee@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix IV.

Appendix I: Objectives, Scope, and Methodology

The objectives of our review were to (1) determine the status of efforts to establish governmentwide policies and processes for sharing terrorism- related information between the federal government and its state, local, and private sector partners and (2) identify the universe of different sensitive but unclassified designations agencies apply to homeland security and to other sensitive information and determine the extent to which these agencies have policies and procedures in place to ensure their consistent use.

To determine the status of efforts to establish governmentwide policies and processes for sharing terrorism information,, we reviewed applicable federal laws, executive orders, presidential directives, memorandums, reports, and testimony. Because they have roles in cross-government information sharing, we also interviewed the Deputy Director and Chief of Staff of the Information Sharing and Collaboration Office at the Department of Homeland Security and the Chief of the Information Policy and Technology Branch, Office of Management and Budget, to determine efforts to date and the current status of required actions. We also interviewed Congressional Research Service staff who work on information-sharing issues and a member of the 9/11 Public Discourse Project, a privately funded continuation of the 9/11 Commission. We gathered publicly available documents on the establishment of the Office of the Director of National Intelligence’s (ODNI) on the establishment of the Information Sharing Council and the Information Sharing Environment, met informally with a senior ODNI official who provided us with the interim implementation plan. During the course of our review, we were negotiating protocols for working with ODNI.

We also surveyed 26 major federal agencies, those that are subject to the requirements in the Chief Financial Officers Act as well as the Federal Energy Regulatory Commission and the U.S. Postal Service because our experience with these two agencies indicated that they used sensitive but unclassified designations. We obtained information on their sharing processes for terrorism-related information and for descriptions of any actions they had taken to encourage or improve the sharing of this information. We also asked the agencies about challenges pertaining to identifying, safeguarding, and sharing sensitive but unclassified information. We queried the agencies on the types of sensitive but unclassified designations they use; the policies, procedures, and protocols they have in place for each designation; and the extent to which they provide controls for protecting and policies for sharing these types of information. We aggregated the data by agency and sent them back to the agencies’ responding officials who reviewed the information for completeness and accuracy.

We collected and reviewed applicable federal laws and regulations, policies, procedures, and documents related to the sensitive but unclassified and national security classification processes for federal agencies. We met with officials at the National Archives and Records Administration’s Information Security Oversight Office, and discussed policies and processes for handling, overseeing, and sharing national security related information as compared with policies and processes for handling, sharing, and overseeing sensitive but unclassified information. We also contacted the International Association of Police Chiefs, the International Association of Fire Chiefs, and the National Governor’s Association to obtain information from end users such as state and local law enforcement, first responders, and state-level homeland security and disaster response agencies, since such organizations are likely to require access to sensitive but unclassified information.

To determine whether appropriate policies and procedures were in place, we relied on GAO’s Standards for Internal Control in the Federal Government for benchmarks and standards against which to assess each agency’s sensitive but unclassified designation policies and procedures. We conducted our work from May 2005 through February 2006 in accordance with generally accepted government auditing standards.

Appendix II: Summary Information on Sensitive But Unclassified Designations by Agency

The following information was provided by the 26 federal agencies that we surveyed. The agencies were queried on the types of sensitive but unclassified designations they use; the basis of the designations; and policies, procedures, and protocols for designating, handling, and sharing these types of information. We provided the agencies with the opportunity to review their summarized information for accuracy and completeness.

Designation: Sensitive Security Information Basis for designation: Departmental Regulation 3440-2, Control and Protection of Sensitive Security Information (January 2003) Definition: The designation is used for unclassified information of a sensitive nature, that if publicly disclosed could be expected to have a harmful impact on the security of Federal operations or assets, the public health or safety of the citizens of the United States or its residents, or the nation’s long-term economic prosperity and which describes, discusses, or reflects the ability of any element of the critical infrastructure of the United States to resist intrusion, interference, compromises, theft, or incapacitation by either physical or computer-based attack or other similar conduct that violates federal, state, or local law; harms interstate or international commerce of the United States; or threatens public health or safety; any currently viable assessment, projection, or estimate of the security vulnerability of any element of the critical infrastructure of the United States, specifically including—but not limited to—vulnerability assessment, security testing, risk evaluation, risk management planning, or risk audit; or any currently applicable operational problem or solution regarding the security of any element of the critical infrastructure of the United States, specifically including—but not limited to—the repair, recovery, redesign, reconstruction, relocation, insurance, and continuity of operations of any element.

Department of Commerce (continued)

Department of Defense (continued)

Department of Defense (continued)

Systematic review process: No Designation: For Official Use Only Basis for designation: FOIA, as amended; Privacy Act of 1974, as amended; Section 208 of the E-Government Act of 2002 (44 U.S.C. § 3501, note); Handbook for Information Technology Security Risk Assessment Procedures OCIO-07 (January 2004); and Handbook for Information Assurance Security OCIO-01 (December 2005) Definition: The designation is used for information that (1) falls within one or more of the nine exemptions or three exclusions of the Freedom of Information Act (FOIA), (2) is protected by the Privacy Act of 1974, or (3) is marked by the Office of the Inspector General to prohibit distribution to unauthorized persons. Designating authority: The owner of the information. Policies and procedures for specialized training for designators: No Systematic review process: No Designation: Official Use Only Basis for designation: DOE Order 471.3 (April 2003) Definition: Certain unclassified information that may be exempt from public release under the Freedom of Information Act and has the potential to do damage to governmental, commercial or private interests if disseminated to people who do not need the information to perform their jobs or other DOE authorized functions. Designating authority: Any DOE or DOE contractor employee. Polices or procedures for specialized training for Systematic review process: No designators: No Designation: Unclassified Controlled Nuclear Information Basis for designation: Section 148 of the Atomic Energy Act of 1954, as amended (42 U.S.C. § 2168), 10 C.F.R. pt.1017, DOE Order 471.1A (June 2000) Definition: The designation is used for certain unclassified government information prohibited from unauthorized dissemination under section 148 of the Atomic Energy Act which concerns atomic energy defense programs which pertains to (i) the design of production or utilization facilities (ii) security measures for the physical protection of production or utilization facilities or nuclear material contained in these facilities or in transit (iii) the design, manufacture or utilization of nuclear weapons or components that were once classified as Restricted Data whose unauthorized dissemination could reasonably be expected to have a significant adverse effect on the health and safety of the public or the common defense and security by significantly increasing the likelihood of (i) illegal production of nuclear weapons or (ii) theft, diversion, or sabotage of nuclear materials, equipment or facilities.

Department of Health and Human Services

Designation: Sensitive But Unclassified Basis for designation: Section 201(a) of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, (42 U.S.C. § 262a (h)), and 42 C.F.R. pt. 73 (Select Agents and Toxins) (new policy in draft)

Centers for Disease Control and Prevention (continued)

Designation: Contractor Access Restricted Information Basis for designation: 41 U.S.C. § 401; Federal Acquisition Regulations 1.102; Executive Order 11222 (May 8, 1965) (new policy in draft) Definition: Unclassified information that involves functions reserved to the federal government as vested by the Constitution as inherent power or as implied power as necessary for the proper performance of its duties. Designating authority: Not specified Policies or procedures for specialized training for designators: No Systematic review process: No Designation: For Official Use Only Basis for designation: FOIA, as amended (new policy in draft) Definition: This designation is applied to unclassified information that is exempt from mandatory release to the public under FOIA. Designating authority: Not specified Policies or procedures for specialized training for Systematic review process: No designators: No Designation: Law Enforcement Sensitive Basis for designation: Not specified (new policy in draft) Definition: The designation is used for law enforcement purposes. Information that could reasonably be expected to interfere with law enforcement proceedings, would deprive a person of a right to a fair trial or impartial adjudication, could reasonably be expected to constitute an unwarranted invasion of personal privacy of others, disclose the identity of a confidential source, disclose investigative techniques and procedures or could reasonably be expected to endanger the life or physical safety of any individual is to be marked law enforcement sensitive.

Systematic review process: No Designation: Operations Security Protected Information Basis for designation: National Security Decision Directive 298, (January 1988). (new policy in draft) Definition: The designation is applied to unclassified information concerning CDC mission, functions, operations, or programs that require protection in the national interest, or security of homeland defense.

Centers for Disease Control and Prevention (continued)

Designation: Sensitive Security Information Basis for designation: Homeland Security Act of 2002 (Pub. L. No.107-296); Maritime Transportation Security Act of 2002 (Pub. L. No. 107-295), 49 U.S.C. § 114(s); 49 C.F.R. pt.1520 (May 2004); Management Directive (MD) 11056 (December 2005).

Department of Homeland Security (continued)

Agencywide (Justice Management Division)

Department of Justice (continued)

Systematic review process: No Designation: For Official Use Only Basis for designation: Intelligence Policy Manual (August 2005) Definition: The designation is used for information that may be exempt from mandatory release to the public under the Freedom of Information Act (FOIA), 5 U.S.C. 552. Designating authority: Any FBI employee or contractor in the course of performing assigned duties may designate information as FOUO. Policies or procedures for specialized training for Systematic review process: No designators: No Designation: Law Enforcement Sensitive Basis for designation: Intelligence Policy Manual (August 2005) Definition: The designation is used to protect information compiled for law enforcement purposes. LES is a subset of FOUO. Designating authority: Any FBI employee or contractor in the course of performing assigned duties may designate information as LES. Policies or procedures for specialized training for Systematic review process: No designators: No Designation: Limited Official Use Basis for designation: DOJ Order 2620.7, Control and Protection of Limited Official Use Information (September 1982)

Federal Bureau of Investigation (continued)

Department of Transportation

Environmental Protection Agency

Environmental Protection Agency (continued)

National Homeland Security Research Center

Designation: For Official Use Only Basis For designation: NHSRC-70-01, Rev.0 (November 2004) Definition: For Official Use Only (FOUO) is applied by the NHSRC as the sole designator for sensitive but unclassified (SBU) information. The NHRSC uses the following definition of sensitive but unclassified, taken from the Computer Security Act of 1987, Public Law 100-235, which defines “sensitive information” as “any information, the loss, misuse, or unauthorized access to or modification of which could adversely affect the national interest or the conduct of federal programs, or the privacy to which individuals are entitled under section 552a of Title 5 (Privacy Act) but which has not been specifically authorized under criteria established by an Executive order or an Act of Congress to be kept secret in the interest of national defense or foreign policy”. Designating authority: Any National Homeland Security Research Center employee, contractor, subcontractor, or grantee may designate information FOUO. However, such designations must be certified by a NHSRC Review Authority (DRA). Policies or procedures for specialized training for Systematic review process: Yes designators: Yes Designation: Critical Energy Infrastructure Information Basis for designation: FOIA, as amended; 18 C.F.R. §§ 388.112-.113; and Commissioner Order Nos. 630, 630-A, 649, and 662. Definition: Information about proposed or existing critical infrastructure that relates to the production, generation, transportation, transmission, or distribution of energy; could be useful to a person in planning an attack on critical infrastructure; is exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. § 552; and does not simply give the location of the critical infrastructure.

Systematic review process: No Designation: Non-Public Information Basis for designation: FOIA, as amended; 18 C.F.R. §§ 1b.9, 1b.20-.21(c), 385.410, 606, 388.112; 15 U.S.C. § 717g(b), 16 U.S.C. 825(b) Definition: Any information that is not routinely provided to the public absent a Freedom of Information Act (FOIA) request, including information that would not be released under the FOIA. Non-Public Information includes, for example, information that is submitted to the Commission with a request for non-public treatment under 18 C.F.R. § 388.112(a), which applies to information the submitter claims is exempt from mandatory disclosure under the FOIA. information concerning dispute resolution communications. See 18 C.F.R. § 385.606. information covered by a protective order. See 18 C.F.R. § 385.410. information obtained during the course of an investigation. See18 C.F.R. §§ 1b.9, 1b.20.

Information and documents obtained through the Hotline Staff. See 18 C.F.R. § 1b.21(c). information obtained during the course of examination of books or other accounts. See 15 U.S.C. § 717g(b); 16 U.S.C. § 825(b). information exempt from disclosure under the FOIA, such as drafts; staff deliberative documents; attorney work product and attorney-client communications exempt from disclosure under 5 U.S.C. § 552(b)(5).

General Services Administration

Designation: Sensitive But Unclassified Basis for designation: Computer Security Act of 1987; Privacy Act, as amended; and NPR 1600.1 (November 2005) Definition: Unclassified information or material determined to have special protection requirements to preclude unauthorized disclosure to avoid compromises, risks to facilities, projects, or programs, threat to the security and/or safety of the source of information, or to meet access restrictions established by laws, directives, or regulations: ITAR—International Traffic in Arms Regulations

MCTL—Militarily Critical Technologies List

FOIA—Freedom of Information Act

UCNI—Unclassified Controlled Nuclear Information Scientific and Technical Information (STI)

National Science Foundation

Designation: Sensitive But Unclassified Basis for designation: NSF Privacy Regulations (45 C.F.R. § 613), NSF Freedom of Information Act Regulations (45 C.F.R. § 612), NSF Bulletin 05-14 (September 2005) Definition: The designation is given to information that is defined as sensitive under the Privacy Act. Designating authority: Not specified in response. Policies or procedures for specialized training for Systematic review process: No designators: No Designation: Safeguards Information Basis for designation: Section 147 of Atomic Energy Act of 1954, as amended (42 U.S.C. § 2167); 10 C.F.R. § 73- 21; Directive 12.6 (December 1999) (policy revision in draft) Definition: Safeguards Information means information, not otherwise classified as National Security Information or Restricted Data that specifically identifies a licensee’s or applicant’s detailed control and accounting procedures or security measures (including security plans, procedures, and equipment) for the physical protection of special nuclear material, by whomever possessed, whether in transit or at fixed sites, in quantities determined by the Commission to be significant to the public health and safety or the common defense and security; security measures (including security plans, procedures, and equipment) for the physical protection of source material or byproduct material, by whomever possessed, whether in transit or at fixed sites, in quantities determined by the Commission to be significant to the public health and safety or the common defense and security; or security measures (including security plans, procedures, and equipment) for the physical protection of and the location of certain plant equipment vital to the safety of production or utilization facilities involving nuclear materials covered by paragraphs (1) and (2) if the unauthorized disclosure of such information could reasonably be expected to have a significant adverse effect on the health and safety of the public or the common defense and security by significantly increasing the likelihood of theft, diversion, or sabotage of such material or such facility.

Social Security Administration

United States Agency for International Development

Appendix III: Comments from the Office of the Director of National Intelligence

Appendix IV: GAO Contact and Staff Acknowledgments

Staff Acknowledgments

In addition to the individual named above, Susan Quinlan, Assistant Director, Rochelle Burns, Joanne Fiorino, Thomas Lombardi, Lori Martinez, Vickie Miller, David Plocher, John Stradling, Morgan Walts, and Marcia Washington made key contributions to this report.