Reclassification of Documents?

Let’s say that President A declassifies documents of national security importance but doesn’t tell anyone that he had declassified them.

Later, the general public discovers the existence of these documents and begins using FOIA requests. Given that these are sensitive documents and that they are still important for national security, can the new president - President B - reclassify those documents to protect them or are they eternally and unrevokably the property of the general public and subject to release?

Can President B selectively choose to reclassify some things and not others?

Something being declassified or unclassified doesn’t automatically mean it has to be disclosed under FOIA. There are 9 categories of exemptions and additional guidance on information that is “sensitive but unclassified” and not subject to FOIA release, including things like:

Information illustrating or disclosing infrastructure protection vulnerabilities, or threats against persons, systems, operations, or facilities (such as, usernames, passwords, physical, technical or network specifics, and in certain instances, travel itineraries, meeting schedules or attendees), but not meeting the criteria for classification

There’s a chance that the stuff in Mar-a-lago is protected from FOIA release for reasons unrelated to it being classified.

Yes, absolutely.

The government can classify information that’s already in the public domain, and information that has been published (say, by the NYT) can remain classified with all the legal protections that go with that, as silly as that might seem. But this isn’t really the thrust of your question as I don’t believe you’re talking about information that’s already been released.


That’s for the whole document or do those categories just itemize redaction criteria?

Both, e.g. if revealing the documents’ mere existence could compromise someone’s privacy then the whole thing can be blocked; obviously we see redacted documents released upon FOIA requests all the time so partial redaction is also on the table. But I don’t have any experience with making those judgement calls so I can’t really contribute more than that.

They can classify anything they want. Doesn’t matter if it was unclassified at one point.

(One of my favorite examples was an ex-CIA guy wrote a book long ago about his experiences during the Reagan era. The CIA went nuts and forced it to be heavily redacted. This despite that it had already been legally published uncensored in the the UK. They didn’t care if the Russians read it. They didn’t want Americans reading it.)

Despite what Trump seems to think, that’s not how declassifying something works. The President can’t just say “I declare this declassified!” and expect anything to happen. There’s a process involved. He can order something declassified, and kick off the process, but he can’t just say something’s declassified without telling anyone else.

Just yesterday on NPR they discussed how declassifying something works.

For purposes of things being orderly and functional, yes. But, minus a pertinent statute, I do not believe that the current Supreme Court would go against the idea that the President can do whatever he wants, in this respect. What crime would you charge him with, after all, if there are no pertinent laws?

There are some secrecy statutes around nuclear technology and foreign information assets but, assuming that those are not violated, there are no other classification statutes on the books that I have yet seen referenced.

As it is - and as your source says -Trump is being investigated with government property laws not any “state secrets” laws.

Right. National Security is not a game of Calvinball.

If I understand the current discussions in the news, there is a specific law related to nuclear documents - the DoD must specifically consider and declassify them, according to a law passed by congress, following a specific process. The president has no authority to arbitrarily declassify them.

Department of Energy, not Department of Defense.

Yes, I mentioned that in the next paragraph. My link also includes a reference to intelligence agents and assets law.

When the mere existence of a document would reveal protected information the Government would give a Glomar response ("we can neither confirm nor deny). If the existence can be confirmed but none of the contents it would be Withheld in Full and the requester would just get a bunch of fully redacted pages.