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Demystifying Declassification

When a requester wants access to records that are classified, he or she can choose to ask an agency to undergo Mandatory Declassification Review (MDR) of those documents rather than filing a Freedom of Information Act (FOIA) request. MDR requests allow the agency to give records a fresh look to see whether they might be properly declassified. Any individual or entity can request MDR of classified information, regardless of its age or origin.

Executive Order 13526 is the current legal authority for MDR requests but each agency administers MDR according to its own procedures. Requesters can ask for declassification through MDR or by filing a FOIA request: they have to choose one path or the other. So how do the processes differ?

Under FOIA:

  • the request is processed like all FOIA requests; agency FOIA staff makes the final release determination based on its usual practice and likely ensures that agency declassification experts weigh in
  • requesters who disagree can file an appeal to the agency’s FOIA appellate authority; if they still disagree, they can request OGIS assistance or file a lawsuit in Federal court

Under MDR:

  • the request goes to a specific point of contact named in the Federal Register and the agency will have one year to respond
  • the request is typically processed by that point of contact which may be a FOIA office, a declassification office or a separate MDR office
  • requesters who disagree with the agency’s assessment can appeal to the agency within 60 working days or can appeal after one year as a constructive denial if the agency has not acted on the request; if they still disagree they can appeal to the Interagency Security Classification Appeals Panel, or ISCAP, which is the final appellate authority made up of senior officials from intelligence agencies
  • if agencies disagree with ISCAP’s decision, they have 60 days to appeal to the President or must release the records; if requesters disagree with ISCAP, they have no further recourse — there is no litigation in the MDR context

Whether you choose to go the FOIA route or the MDR route, classified records undergoing agency review should receive the same evaluation. When choosing between the two, the main considerations are time and options for recourse if you disagree. MDR will typically take a year — at least — as the agency has to review the requested records and maybe consult with other agencies. FOIA has a 20-working-day statutory response period, but in some agencies delays are inevitable and MDR may actually be faster. Also, if you disagree with an agency’s decision, you can challenge it in court only if you’ve requested the records under FOIA.

Apart from requests for declassification review, agencies regularly review their own records for declassification. And under EO 13526, agencies must now release classified records after 25 years unless they seek permission from ISCAP to extend classification. However, it is important to note that agencies do not have to review for declassification any records reviewed within the past two years, either under FOIA, MDR or the agency’s regular declassification review process.

Have more declassification questions? Contact the Information Security Oversight Office (ISOO) here at the Archives.

Comments

Comment from Eric Holzer
Time November 10, 2011 at 3:04 pm

“Demystifying Declassifiation” provided some good information but didn’t mention MDR for the other categories of classified information – Restricted Data & Formerly Restricted Data. Please tell us more.

Comment from Steven Aftergood
Time November 10, 2011 at 5:00 pm

I recently realized that this statement from the first paragraph above is not correct:

“Any individual or entity can request MDR of classified information, regardless of its age or origin.”

In fact, MDR cannot be used by foreign government entities or individuals to request declassification of intelligence agency records, as noted in section 3.5(h) of the executive order.

(Why should classified intelligence agency records be treated differently for purposes of MDR than classified military or diplomatic records? I have no idea.)

And records that were originated by the incumbent President or Vice President are also beyond the reach of MDR.

I suppose it’s true that anyone can “request” such records, but the request will not be fulfilled….

Comment from Corinna Zarek
Time November 14, 2011 at 2:10 pm

Thanks for that important clarification, Steven. MDR requests indeed will not be honored if filed by foreign government entities or foreign nationals.

Comment from Corinna Zarek
Time November 14, 2011 at 2:15 pm

Thanks for reading, Eric. That may be something for us to look into in the future.