Mandatory Declassification Review

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Introduction

While not an issue arising within the context of FOIA appeals, Mandatory Declassification Review (MDR) is another avenue to consider when seeking classified records. You may instead seek declassification of the information through the separate MDR process outlined in Executive Order 13526 as an alternative to filing a FOIA request and/or challenging an Exemption 1 withholding through the FOIA appeal process.

Choosing between MDR and FOIA

As an initial matter, you should note that the MDR process is more limited in some ways than the FOIA process. An MDR request must involve classified national security records;[1] if the document is not classified, you must submit a FOIA request for it instead. Also, EO 13526 exempts some categories of records from MDR, including certain materials originated by the current President or related persons and entities,[2] making MDR of significantly diminished value for obtaining relatively recent records. Documents required to be submitted to an agency that are protected by an approved nondisclosure agreement are also exempted from MDR.[3]

MDR requests must identify the particular documents you seek with “sufficient specificity” to allow the agency to locate it for review,[4] so you cannot phrase your request as a more general one for records pertaining to general subjects and issues, as you may seek under FOIA. If the agency has already reviewed the information for possible declassification in the past two years, you would have to submit a FOIA request for it instead; agencies are not required to review it again under MDR until the two year window expires.[5]

Unlike FOIA requests, requests under MDR cannot be appealed to a federal court, although you may otherwise appeal MDR decisions, as discussed below.[6] Also, the response timeline for MDR requests may mean such requests take longer than FOIA requests; agencies have one year to respond to an MDR request[7] and up to 180 days to respond to an appeal.[8]

You should also note that some obstacles to declassification exist under both MDR and the FOIA. An agency may issue a Glomar response to an MDR request, as it may with a FOIA request.[9] Additionally, material contained in an exempt operational file is likewise not subject to MDR.[10]

If you decide to submit a request for MDR, it should be clearly identified as such. If you submit a request to an agency under both the FOIA and MDR process, an agency will require you to choose one of the two.[11] If you do not do so, then the agency will handle it as a FOIA request unless the records requested are only subject to MDR.[12]

Agency Review under MDR

Under the MDR procedures outlined in EO 13526, the originating agencies for a classified document “are expected to conduct a line-by-line review of the record(s)” for potential declassification upon receiving an MDR request that meets the following criteria:

  • The request “describes the document or material containing the information with sufficient specificity to enable the agency to locate it with a reasonable amount of effort”;
  • “the document or material containing the information responsive to the request is not contained within an operational file exempted from search and review, publication, and disclosure under” the FOIA; and
  • “the information is not the subject of pending litigation.”[13]

Upon conducting such review, the originating agency “shall declassify information that no longer meets” the classification standard, and release it unless other applicable laws authorize withholding.[14] However, if you request a classified record in the custody of an agency that is not the originator, the custodial agency must refer the request to the originating agency unless the agencies previously agreed that the custodial agency could perform the review.[15]

When drafting an MDR, a requester may wish to cite section 1.5(d) of the provision in EO 13526 which states, "No information may remain classified indefinitely[.]"[16]

Likewise, a requester may wish to cite the EO's public interest balancing test from section 3.1(d). That balancing test states, "In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure." [17]

Fees for MDR

Pursuant to 50 U.S.C. § 3350, duplication fees for MDR requests cannot be higher than those chargeable under FOIA, although a request for a fee waiver is within the agency's discretion:

In reviewing and processing a request by a person for the mandatory declassification of information pursuant to Executive Order No. 13526, a successor executive order, or any provision of law, the head of an element of the intelligence community—

(1) may not charge the person reproduction fees in excess of the amount of fees that the head would charge the person for reproduction required in the course of processing a request for information under section 552 of title 5 (commonly referred to as the “Freedom of Information Act”); and

(2) may waive or reduce any processing fees in the same manner as the head waives or reduces fees under such section 552.[18]


Appealing an MDR Decision

You may appeal an agency’s unfavorable decision under MDR by arguing that the information does not meet the classification criteria in EO 13526.[19]

You may first appeal to the agency within 60 days of receiving a denial.[20] If the agency fails to respond to an appeal within 90 days of its receipt, or if you wish to appeal the decision reached on administrative appeal, you may then appeal to the Interagency Security Classification Appeals Panel.[21]

The panel only may hear actions where requesters have exhausted their administrative remedies within the agency, “there is no current action pending on the issue within the Federal courts”; and “the information has not been the subject of review by the Federal courts or the Panel within the past 2 years.”[22] Agency heads may appeal a Panel decision to the President — through the National Security Advisor — and maintain the classification of the information pending a decision.[23]

See Also

Exemption 1

External Links

References

  1. ↑ See Exec. Order No. 13526 §3.5(a).
  2. ↑ Id. at § 3.5(b).
  3. ↑ Id. at § 3.5(g).
  4. ↑ Id. at § 3.5(a)(1).
  5. ↑ Id. at § 3.5(d).
  6. ↑ Id. at § 3.5(e).
  7. ↑ Information Security Oversight Office, Mandatory Review for Declassification, 32 C.F.R. § 2001.33(a)(2)(i) (2012).
  8. ↑ Id. at § 2001.14(b)(3).
  9. ↑ Exec. Order No. 13526 § 3.6(a).
  10. ↑ Id. at § 3.5(a)(2).
  11. ↑ 32 C.F.R. § 2001.33(f).
  12. ↑ Id.
  13. ↑ Exec. Order No. 13526 § 3.5(a).
  14. ↑ Id. at § 3.5(c).
  15. ↑ 32 C.F.R. § 2001.33(a)(2)(ii).
  16. ↑ Exec. Order No. 13526 § 1.5(d).
  17. ↑ Exec. Order No. 13526 § 3.1(d).
  18. ↑ 50 U.S.C. § 3350, https://www.law.cornell.edu/uscode/text/50/3350
  19. ↑ Exec. Order No. 13526 § 3.5(c).
  20. ↑ 32 C.F.R. § 2001.33(a)(2)(iii).
  21. ↑ Id. at § 2001.14(b)(3).
  22. ↑ Exec. Order No. 13526 § 5.3(c).
  23. ↑ Id. at § 5.3(f).
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