On June 11, the House Homeland Security Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment held a hearing on a bill (H.R. 6193) introduced by Rep. Jane Harman (D-CA), chair of the subcommittee, to improve information sharing at the Department of Homeland Security (DHS).

As previously reported in the Watcher, President Bush recently released a memo on improving information sharing through a new regime for controlled unclassified information (CUI). Since 9/11, restricted but unclassified categories for information, often broadly referred to as Sensitive But Unclassified, have proliferated throughout federal agencies. More than one hundred different categories with varying restrictions and definitions have severely impaired the flow of information within government and to the public. The presidential memo eliminated the numerous confusing categories and replaced them with one basic category for all agencies, CUI, with the hope that a consistent, well understood category would make it easier for agencies to share such information with other government officials. The memo placed authority for developing and implementing the new regime with the National Archive and Records Administration.

Harman's bill, the Improving Access to Documents Act of 2008, focuses on the implementation of the CUI framework at one particular agency — DHS. Considering the government-wide nature of the presidential memo, the single-agency focus of the bill is somewhat unconventional. Some critics of the legislation actually support the policy changes proposed by Harman's bill but would prefer the provisions apply to all agencies, not just DHS.

The bill seeks to limit the use of the new CUI category by restricting the number of employees who can designate something as CUI. Other provisions of H.R. 6193 establish transparency with regular auditing and reporting to Congress of the number of documents marked as CUI and requirements that DHS publicly disclose the list of CUI documents withheld under the Freedom of Information Act (FOIA). The bill also explicitly distinguishes between CUI and FOIA exemptions, clarifying that CUI-marked documents are not automatically exempt from disclosure under FOIA.

Patrice McDermott of OpenTheGovernment.org, a broad coalition that includes OMB Watch, supported the legislation and advocated for greater public involvement in the process of developing and implementing CUI policy. Stating that the "public and the press have been almost entirely excluded," McDermott argued in her testimony before the subcommittee that public involvement is the only way to move from a need-to-know to a need-to-share environment.

Meredith Fuchs of the National Security Archive stressed the need to preserve the distinction between CUI and FOIA exemptions and to ensure that CUI does not become another mechanism for increased government secrecy. Failure to adequately define CUI and the creation of a highly malleable concept can easily lead to increased government secrecy. "The CUI framework sketched out in the Presidential Memorandum does not confront this problem directly," said Fuchs in her testimony.

The Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment forwarded H.R. 6193 to the full Homeland Security Committee with unanimous consent.