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ODNI clarifies more limited effect of its new preclearance policy

Steve Aftergood reported yesterday on a new Office of Director of National Intelligence Instruction 80.04, which appeared to establish new restrictions, and a more robust “prepublication” review, for virtually all writings and communications of ODNI employees and officials that discuss “operations, business practices, or information related to the ODNI, the [Intelligence Community], or national security.”  Instruction 80.04 caused a great deal of confusion and concern on several fronts, some of which were reflected in this Charlie Savage story from last night.  I was planning to blog about the serious issues that this new policy appeared to raise, over and above the already significant questions precipitated by the new Intelligence Community Directive 119, which I discussed a couple of weeks back.

Just this afternoon, however, the ODNI Public Affairs Office distributed the memorandum below to all ODNI personnel, clarifying the much more cabined intended effect of Instruction 80.04.  I don’t have time just now to blog on the most important of the clarifications, but I have noted in boldface what I think are the most significant parts of the memorandum.  [UPDATE:  It appears to me that this memorandum, if implemented, would ensure that the new policy looks a whole lot like a combination of Snepp and Touhy regulations--which, as I explained in my earlier post, ought to be constitutionally sound.  This doesn't mean it's perfect:  There are still some issues and ambiguities left unaddressed; and it would be ideal if these qualifications were incorporated into Instruction 80.04 itself, in order to guide decision-makers through the years.  A similar clarification should be issued with regard to IC Directive 119, as well.  But this is, I think, a substantial improvement/clarification.]:

From the PAO: Updates to ODNI Pre-Publication Review Policy

Recent media reports have misconstrued ODNI’s policy for pre-publication of information to be publicly released.  The purpose of pre-publication review is to ensure that classified and sensitive material is not improperly disclosed and that official ODNI policy is not misstated.

ODNI Instructions 80.14/2007-6, “ODNI Instruction for ODNI Pre-Publication Review of Material Prepared for Public Dissemination” and 80.04, “Pre-Publication Review of Unclassified Material for Official Dissemination” were recently combined into the updated ODNI Instruction 80.04, “ODNI Pre-Publication Review of Information to be Publicly Released.”  The revised policy is not significantly different from the previous two policies.

Below are key elements from the updated ODNI Instruction 80.04:

1.  Non-Disclosure Agreements (NDA):  All ODNI employees are required to sign an NDA, which is binding even after the employee leaves the IC.  Instruction 80.04 does not add any substantive requirements to the NDAs and simply establishes the procedures by which those requirements will be implemented.

2.  Sourcing:  ODNI employees, current and former, may not rely upon unauthorized disclosures as a source for factual statements or as proof that the information is no longer classified.   Nor may they cite “anonymous sources” from media reporting if the citation, combined with their perceived inside knowledge, would tend to confirm classified information.  They may cite more generally to media as long as by doing so they do not confirm classified information.

3.  Official publication:  Official publication by current ODNI employees (i.e., publications that are intended to reflect official ODNI views) will be reviewed for consistency with ODNI position. This does not apply to former employees or current employees publishing in their personal capacity using the required disclaimer.  All material will be reviewed for potentially classified or otherwise sensitive non-public information.

4.  FOUO material:  FOUO material that is routinely provided to State, Local, Tribal, Public Sector (SLTP) or NT-50s as part of an information sharing agreement is not subject to pre-publication review.  However, any dissemination outside of those channels must come through DNI Pre-Pub.

6.  Review:  DNI Pre-Pub makes every attempt to ease the process by working with requesters.  In most cases, information that may be of concern can either be rewritten or cited to other acceptable sources.  Timelines for review are determined by type of request, but generally the IMD requires 15 business days for official publications and no more than 30 calendar days for non-official publications.

If you have further questions about the policy, please contact the Information Management Division atDNI-Pre-Pub@dni.gov.

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is a Professor at the Georgetown University Law Center.