Dear Friend of Press Freedom,

I’m Lauren Harper, the first Daniel Ellsberg Chair on Government Secrecy at Freedom of the Press Foundation (FPF), and welcome to “The Classifieds.” This is FPF’s weekly newsletter highlighting important secrecy news that shows how the public is harmed when the government keeps too many secrets.

DOGE should be subject to transparency rules

Elon Musk will reportedly launch the Department of Government Efficiency from the White House complex, even though DOGE is not a federal department. Rather, it is a proposed nongovernmental presidential advisory board.

This raises important transparency considerations.

First, if DOGE is a presidential advisory board, and second, Musk does not seek “special government employee” status for board members, which is an idea that has been floated, then DOGE’s work could be subject to the Federal Advisory Committee Act. And the act requires “that all meetings of such committees are to be conducted in public, and all the documents submitted to such a panel or produced by it are also supposed to be available to the public.” (I was a member of the Freedom of Information Act Federal Advisory Committee, and can attest that the transparency rules are taken very seriously.)

Musk and DOGE’s possible presence in the White House complex also raises FOIA considerations. The president, his immediate staff, and certain offices within the White House, like the National Security Council, are not subject to FOIA. However, many White House complex offices, like the Office of Management and Budget, the Office of National Drug Control Policy, and the Office of Science and Technology Policy, are subject to FOIA. Will DOGE be? Time will tell.

When classified doesn’t mean secret

When classified documents turn up in public, they are often allowed to stay there. This news comes directly from the governmental office in charge of the classification system, and undercuts the government’s usual stance that the sky is falling anytime classified documents enter the public domain.

Nate Jones, The Washington Post’s FOIAdirector (and my old friend and colleague from the National Security Archive), obtained a remarkable document through a FOIA request to the National Archives’ Information Security Oversight Office. It details hundreds of times members of the public alerted the government when they found classified records outside of the government’s control. Two out of five times, ISOO “determined that information had never been classified or could be fully declassified.” In dozens of other instances, the material was so routine it begs the question of why it was classified at all.

This speaks to the subjective nature of many classification decisions and the lack of clear definitions for the terms used to designate classification categories. This results in the massive overclassification of government records. Overclassification is so bad that our best guess is that information is improperly classified between 75% and 90% of the time.

ISOO proves this point year after year in its reports to the president. Its 2023 report, which is the most recent available, shows an expert interagency classification appeals panel overruled agency classification decisions a whopping 89% of the time

The key takeaway? Fewer things deserve to be called secrets, and we should respond with skepticism whenever the government says classified documents in the wild are inherently dangerous.

Exposing secrets can improve agency decision making

The Environmental Protection Agency has finally issued a draft assessment on the dangers of “forever chemicals” in a fertilizer method it has promoted for decades.

The long-delayed acknowledgement comes on the heels of Hiroko Tabuchi’s scathing New York Times article that showed the agency was warned over 20 years ago that toxic chemicals known to cause birth defects and cancer were surviving wastewater treatments and ending up in fertilizer for crops. This poses health risks to the soil, livestock, farmers, and consumers.

I wrote earlier this month that the EPA’s silence over toxins in fertilizer was a mounting public health crisis. Tabuchi and other environmental reporters deserve credit for putting pressure on the agency to change course.

And while the EPA’s acknowledgment is a good first step towards regulating forever chemicals in fertilizer, it remains to be seen if the Trump administration, which has repeatedly vowed to slash regulations at the EPA and other agencies, will work to regulate them.

What I’m reading

How many cars have Connecticut towing companies sold? The DMV can’t tell us (ProPublica). Connecticut drivers, beware. A Connecticut law allows towing companies to sell some towed cars after just 15 days. That understandably worries drivers, so ProPublica submitted records requests to try and learn how many cars the DMV has already allowed tow companies to sell. The DMV said it would cost $47,000 to answer. Put another way, a response to ProPublica’s records request would cost as much as a new car — hopefully one that’s not about to get towed.

Tulsa Massacre was a ‘coordinated, military-style attack,’ federal report says (The New York Times). The Justice Department recently released a report on the Tulsa Race Massacre of 1921, which saw white supremacists terrorize and destroy a prosperous Black community. The perpetrators torched homes and businesses and killed up to 300 people. The DOJ’s report, issued under the Emmett Till Unsolved Civil Rights Crime Act, has been criticized for coming too late for any of the perpetrators to face accountability. Part of the blame for the delay belongs with the city of Tulsa, whose officials “buried the story.” The DOJ also deserves blame; its 1921 Bureau of Investigation report perpetuated the false narrative “that Black men were responsible for the massacre.”

Kash Patel’s emails offer insight into how he might run the FBI (Bloomberg). Investigative reporter Jason Leopold obtained over 800 pages of Kash Patel’s emails from his stint at the Office of Director of National Intelligence during Trump’s first term. The records, obtained through FOIA, show Patel’s willingness to politicize the declassification process and efforts to gut the ODNI workforce. This could provide clues for how Patel might lead the FBI.

If you haven’t yet, subscribe to The Classifieds and FPF’s other newsletters for regular updates on all the news you need to know about secrecy, press freedom, digital security, and more.

Transparently yours,

Lauren Harper