Transcript Mandatory Declassification Review Workshop

What is Mandatory Declassification Review
(MDR)?
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MDR is a means by which any individual, to
include members of the public, can request
any agency to review a classified record for
declassification, regardless of its age or
origin, subject to certain limitations set forth
in Executive Order 12958, as amended,
“Classified National Security Information”
(the Order)
What Information is Subject to MDR?
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Except for certain categories of information,
all information classified under the Order or
predecessor orders shall be subject to a
review for declassification by the originating
agency, if it meets the requirements of
section 3.5
What Classified Records are not Subject to MDR?
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Information originated by:
the incumbent President or Vice President or their
White House staff
Committees, commissions, or boards appointed by
the incumbent President
Other entities within the EOP that solely advise and
assist the incumbent President
and
Information classified under the Atomic Energy Act
of 1954, as amended
What are the Requirements?
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The request must describe the document with
sufficient specificity to enable the agency to locate
it with a reasonable amount of effort
The information is not exempted from search and
review under certain sections of the National
Security Act of 1947
The information is not the subject of pending
litigation
The information has not been reviewed for
declassification within the past 2 years
How and Where does one Submit an MDR
Request?
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With an Agency
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Each agency shall publish in the Federal Register the person
or office to which MDR requests should be addressed
• see also:
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http://www.archives.gov/isoo/contact/mdr-contact.html
In accordance with agency regulations
NARA
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Presidential Libraries
Other authorized repositories
What are the Classification Prohibitions and
Limitations?
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Information shall not be classified in order to:
Conceal violations of the law, inefficiency, or
administrative error
Prevent embarrassment to a person,
organization, or agency
Restrain competition
Prevent or delay the release of information
that does not require protection in the interest
of national security
What are the Classification Standards?
Information may be originally classified under the
following conditions:
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An original classification authority (OCA) classified the
information
The information is owned by, produced by or for, or is
under the control of the U.S. Government
The information falls within one or more of the categories
listed in section 1.4 of the Order
The OCA determines that the disclosure of the
information could result in damage to national security
What are the Classification Standards for
Information 25 years old or older?
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Subject to certain requirements, effective 12/31/2006, all
classified records that are more than 25 years old and have
been determined to be of permanent historical value shall
be automatically declassified whether or not the records
have been reviewed in accordance with §3.3
To exempt information from automatic declassification, it
must:
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meet the standards (previous slide); and
fall within one or more of the categories listed in §3.3(b) of
the Order; and
be described in an approved declassification guide (§3.3(d))
What is a Federal Agency’s MDR Responsibility?
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Agency heads are required to develop procedures to:
• promptly process MDR requests;
• notify requesters of results; and
• provide the means for administrative appeals of
denials, to include notifying requesters of the right
to appeal a final agency decision to the ISCAP
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Cooperate fully with ISCAP so that it can fulfill its functions in
a timely and fully informed manner
Special procedures – SecDef, DNI, the Archivist
Referrals
Fees
What is the ISCAP?
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Interagency Security Classification
Appeals Panel
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The ISCAP provides the public and
users of the classification system with
a forum for further review of
classification decisions
Membership
Senior-Level Representatives of:
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Assistant to the President for National Security Affairs
Department of Defense
Department of State
Department of Justice
Central Intelligence Agency
National Archives and Records Administration
The President appoints the ISCAP's Chair from among its members.
ISCAP Liaisons support Members
Director of ISOO serves as Executive Secretary
ISOO provides program and administrative staff support
ISCAP Functions:
Appeals Concerning MDR
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Decides on appeals by persons or entities
who have filed requests MDR under §3.5 of
the Order
Majority of efforts to date
Highest appellate authority
Authority
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Section 5.3 of E.O. 12958, as amended, “Classified
National Security Information,” (the Order)
ISCAP Bylaws - Appendix A to 32 C.F.R. Part 2001
Advises and assists the President in the discharge of his
constitutional and discretionary authority to protect the
national security of the United States
Decisions are committed to the discretion of ISCAP,
unless changed by the President
Agency heads can appeal to the President
Section 5.3(f) of the Order
When can someone Appeal a MDR Request to the
ISCAP?
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Before submitting a MDR to the ISCAP, the
requester must fulfill the agency level
processes
The requester may also come directly to the
ISCAP if the time frames outlined in
Appendix A to 32 C.F.R. Part 2001 (ISCAP
Bylaws) have lapsed without the agency
taking the required actions
Agency Processing Timeframes
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Initial
Appeal
[32 C.F.R. Part 2001.33(2)(i)]
[32 C.F.R. Part 2001.33(2)(iii)]
“Agencies shall ordinarily
make a final
determination within one
year from the date of
receipt.”
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“The agency appellate
authority shall normally
make a determination
within 60 working days
following the receipt of an
appeal.”
Ability to Appeal Directly to ISCAP
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Refer to Article VIII, section A(3) of the ISCAP
bylaws, Appendix A to 32 C.F.R. Part 2001
Initial request for MDR – final agency decision
within 1 year
Agency-level MDR appeals – final agency decision
within 180 days
Appeal to ISCAP must be made within 60 days of
the failure of the agency to meet the timeframes
What is the Process for Appealing a MDR Denial
to the ISCAP?
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Requests may be sent by postal mail, e-mail,
or facsimile
Appeal letters should be specific enough to
identify the documents and their location and
should contain information regarding the
agency level process fulfilled by the requester
Provide all correspondence that the requester
has received
Provide personal contact information
Disposition of Initial MDR Requests
FY 1996 – 2006 (Total: 2,086,028 Pages)
Affirmed
(9%)
191,143 pages
Declassified
in Part
(34%)
701,350 pages
Declassified
in Full
(57%)
1,193,535
pages
Disposition of MDR Appeals
FY 1996 – 2006 (Total: 45,626 Pages)
Declassified
in Full
(16%)
7,395 pages
Affirmed
(40%)
18,314 pages
Declassified
in Part
(44%)
19,917 pages
ISCAP MDR Decisions
05/1996 – 09/2006 (Total: 675 Documents)
Declassified
in Full
(20.6%)
139
documents
Affirmed
(35.8%)
242
documents
Declassified
in Part
(43.6%)
294
documents
What are the Advantages to filing a MDR
over a FOIA?
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Results
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In 91% of all initial MDR requests, additional information
has been declassified
In 60% of all agency-level MDR appeals, additional
information has been declassified
In 64% of ISCAP MDR appeals, additional information has
been declassified
MDR is the only way to request a review of records
located in a non-PRA Presidential Library (preReagan)
Expedited appeals mechanism
MDR offers an appeal alternative to litigation
What are the Advantages to filing a FOIA
over a MDR?
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FOIA can be used to seek unclassified records
On appeal, FOIA provides means to address denials
of information pursuant to statute
Resources – Policy
The Order (E.O. 12958, as amended):
http://www.archives.gov/isoo/policydocuments/eo-12958-amendment.pdf
The Directive (32 C.F.R. Part 2001):
http://www.archives.gov/isoo/policydocuments/eo-12958-implementing-directive.pdf
ISCAP Bylaws (Appendix A to 32 C.F.R. Part
2001): http://www.archives.gov/isoo/policydocuments/eo-12958-implementing-dir-appendixa.pdf
Resources - General
ISCAP:
http://www.archives.gov/isoo/oversightgroups/iscap/index.html
MDR:
http://www.archives.gov/isoo/oversightgroups/iscap/mdr-appeals.html
ISOO: http://www.archives.gov/isoo/
Contact Information
General
Executive Secretary, ISCAP
C/O ISOO, Room 503
The National Archives Building
700 Pennsylvania Avenue, NW
Washington, D.C. 20408
Telephone: (202) 357-5250
ISCAP Staff
Jay Bosanko
Associate Director, ISOO
Telephone: 202-357-5205
Email: [email protected]
Kris Johnson
Lead Analyst for ISCAP
Telephone: 202-357-5017
Email: [email protected]
FAX: (202) 357-5907
E-Mail: [email protected]
Lee Morrison
Lead Analyst for PIDB
Telephone: 202-357-5039
Email: [email protected]