More on Declassification
Documents declassified by the government’s highest classification authority will soon be posted online in a new government declassification portal, a Federal declassification expert said at a July 25, 2012 FOIA Requester Roundtable.
William C. Carpenter of the Information Security Oversight Office (ISOO) at the National Archives provided tips on a variety of declassification issues and pointed to recent changes including posting newly declassified records via the portal, which is expected to launch later this year. The changes are a result of June 2012 updates to the bylaws of the Interagency Security Classification Appeals Panel (ISCAP), which is the government’s final appellate authority on classification issues, made up of senior intelligence agency officials. The new portal is a joint effort of ISOO, ISCAP and the National Declassification Center (NDC), which all oversee government classification matters.
Carpenter joined co-hosts OGIS and the Department of Justice’s Office of Information Policy (OIP) to discuss issues related to Mandatory Declassification Review (MDR) and FOIA with approximately 20 requesters and government employees. OGIS and OIP co-host quarterly FOIA Requester Roundtables.
As OGIS covered in its November 2011 post “Demystifying Declassification,” requesters of classified records must choose either MDR or FOIA to try to obtain those records. Each works slightly differently and the most significant difference, Carpenter said, is that requests for MDR must be much more specific than a FOIA request might be. In either case, an agency must be able to locate the specific record a requester seeks to declassify.
Under MDR, the agency determines whether information can be declassified; requesters who disagree can appeal to the agency and then can appeal to ISCAP which is the final authority — requesters cannot litigate MDR denials. The FOIA process is no different from any other FOIA request: the agency determines whether information can be declassified; requesters who disagree can appeal to the agency; requesters who continue to disagree can litigate.
While OGIS exists as the FOIA Ombudsman to assist with FOIA-related issues, the office really does not have a role in the MDR process. Rather, ISOO, also part of the National Archives, is the best government resource for MDR-related issues.
Requests for review of MDR decisions to ISCAP have grown exponentially in recent years, Carpenter said. More than 100 appeals come to ISCAP annually, up from about 20 per year in 1996. The panel, which currently meets every two weeks, adjudicates about 50 to 70 appeals per year. The panelists are not bound by a “first-in, first-out” process as with FOIA, but can determine which appeals to take based on topic, date, requester or other criteria, Carpenter said. Requesters’ success rates are high with ISCAP: “Sixty percent of the time, additional information is declassified by ISCAP,” he said.
Carpenter and others addressed several questions from requesters throughout the discussion. One important procedural point involved requesters who prevail through the MDR process. When records are declassified via MDR but redacted citing FOIA exemptions, the requester may not want to complete the MDR process, appealing through the agency and then ISCAP, Carpenter said. Rather, he suggested, the likely more productive course would be to request those records using FOIA in order to obtain FOIA review of those exemptions.
Another distinction between FOIA and MDR occurs when records contain equities, or interests, involving more than one agency. With FOIA, a request can be referred to another agency which then becomes the agency of record for that portion of the request and is where a requester would return for status updates and a response. With MDR, however, the agency receiving the MDR request must see the review through from start to finish. If another agency must be consulted, the original agency must receive the records back to respond to the requester.
This can lead to great delays with the MDR process, Carpenter said. “In many cases it takes more than a year.” In such cases, he pointed to the automatic appeal option with MDR — requesters can directly appeal a request delayed for one year to ISCAP, though they must do so within 60 days of that one-year anniversary.
For requesters seeking MDR, they should address those requests to the appropriate person or office within an individual agency — those contacts are posted on the National Archives’ website.
As ISOO, ISCAP and the NDC work to implement the new declassification portal, they welcome suggestions which can be sent to email@example.com.