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Classification Challenges

Definition:

Section 1.8 of Executive Order 13526, "Classified National Security Information" provides for classification challenges by an authorized holder who believes that the classification status of certain information is improper. These challenges must be presented in writing but do not need to be more specific than questioning why information is or is not classified at a certain level. The Order provides this provision to encourage authorized holders to challenge classification levels in order to promote proper and thoughtful classification actions. Section 2001.14(c)(2) of the Implementing Directive states that "the classification challenge provision is not intended to prevent an authorized holder from informally questioning the classification status of particular information. Such informal inquiries should be encouraged as a means of holding down the number of formal challenges." Agencies are required to ensure that no retribution is taken against a challenger.

Agency Level Process for Classification Challenges

The Order requires each agency to establish a process for tracking and handling challenges. These procedures are unique to each individual agency, however they must adhere to the provisions of the Order and the Implementing Directive. The following are specific procedures that each agency must follow with respect to classification challenges:

  • Agencies must consider classification challenges separately from FOIA requests (information on FOIA can be found at http://www.justice.gov/oip/04_1.html) and can not process challenges with pending access requests.
  • Agencies must provide an initial written response to a challenge within 60 days. Agencies unable to respond in 60 days must acknowledge the challenge in writing and provide a date by which the agency will respond. This statement must indicate that if the agency does not respond within 120 days or if the challenge is denied, the challenger has the right to present the challenge to the ISCAP. A challenge may also be presented to ISCAP if no response is received within 90 days.
  • An authorized holder must complete the process at the agency level before presenting a challenge to the ISCAP. However, failure by an agency to adhere to the above listed timeframes allows an authorized holder to come directly to the ISCAP.
  • Agencies are not required to process challenges for information subject to a challenge in the last two years or that is a subject of pending litigation.
  • The Implementing Directive encourages agencies and challengers to keep all challenges, appeals, and responses unclassified. The information being challenged remains classified until a final decision is made.

ISCAP Level Process for Classification Challenges

After fulfilling all steps within the agency level process, the appellant can then appeal the denial of their classification challenge to the ISCAP. The appellant may also come directly to the ISCAP if the above stated time frames lapsed without the required agency level actions taken. The ISCAP process for handling classification challenges is mandated in section 1.8 and 5.3 of E.O. 13526, section 2001.14 of the The Implementing Directive for E.O. 13526, and the ISCAP bylaws. The following information provides both an overview of the ISCAP process for handling classification challenges and an outline of the necessary measures to be taken by the appellant at this point.

Initial Handling

Appeals should be sent to the ISCAP at:
Executive Secretary, ISCAP
C/O Information Security Oversight Office
The National Archives Building
700 Pennsylvania Avenue, NW, Room 500
Washington, D.C. 20408
Telephone: (202) 219-5250
FAX: (202) 219-5385
E-Mail: iscap@nara.gov

Requests may be sent by postal mail or facsimile. Appeal letters should be specific enough for the ISCAP staff to identify the documents and their location and should contain information regarding the agency level process fulfilled by the appellant. Along with the appeal letter, the appellant should attempt to provide the ISCAP staff with all pertinent unclassified correspondence regarding the challenge that he or she has received. Appellants should also provide adequate personal contact information for the ISCAP to contact them by mail, telephone, facsimile, or email, in case questions regarding the appeal arise.

Assessment and Initial Review

The Executive Secretary, in consultation with the ISCAP staff, makes an initial assessment of the appeal based on the information the appellant has provided. For the ISCAP to consider a classification challenge, it must meet the following criteria:

  • The appellant has previously filed an administrative appeal with the agency.
  • The appellant has received the final agency decision denying his or her administrative appeal, or has not received a an initial written response to the classification challenge from the agency within 120 days of its filing, or a written response to an internal agency appeal within 90 days of the filing of the appeal.
  • The information in question has not been the subject of review by the federal courts or the ISCAP within the past 2 years.
  • The appeal to the ISCAP has been filed within 60 days of the appellant's receipt of notification of the agency's final decision regarding the administrative appeal or has been filed within 60 days of the agency's failure to provide a final decision inside the timeframes indicated above.
  • Information identified as Restricted Data (RD) and Formerly Restricted Data (FRD) are protected under the Atomic Energy Act of 1954 as amended and are not under the rubric of the ISCAP. If a document appealed to the ISCAP contains both RD/FRD and national security information, the ISCAP may only review the national security information under the MDR provision of the Order.

If the appeal fails to meet even one of the above criteria, it will be rejected at this point.

Acknowledgement

The ISCAP staff drafts a letter to be signed by the Executive Secretary and sends it to the appellant acknowledging receipt of the appeal. If the appeal does not meet the criteria outlined above, the appellant is informed in this letter of the rejection of the appeal and of the reason that the appeal is invalid. If the appeal has not been disqualified, the appellant is informed that the pertinent documents and correspondence are being requested from the custodian. He or she is also informed that, following the receipt of the materials and pending the determination that the appeal meets the requirements of EO 13526 and the ISCAP bylaws, the appeal will be placed on the ISCAP docket.

Final Verification

Upon receipt of the pertinent correspondence and documents, the Executive Secretary in consultation with the ISCAP staff makes a final verification that the appeal is valid for the Panel. This is a similar process to the initial assessment and based on the same criteria. Once the final verification is made, the Executive Secretary will either reject the appeal or place it on the ISCAP docket.

Deliberation

The ISCAP meets as a body to deliberate on the appeals. The ISCAP members meet as necessary. The ISCAP liaisons generally meet every month. Decisions on the appeals are made at these meetings. According to the ISCAP bylaws Article VI section F, "the ISCAP may vote to affirm the agency's decision, to reverse the agency's decision in whole or in part, or to remand the matter to the agency for further consideration. A decision to reverse an agency's decision requires the affirmative vote of at least a majority of the members present."

Notification

Article VIII section H of the ISCAP bylaws state that: "The Executive Secretary shall promptly notify in writing the appellant, the agency head, and the designated senior agency official of the ISCAP decision." Article VII section E of the ISCAP bylaws indicates that agencies have 60 days from receipt of this letter to petition the President through the President for National Security Affairs to overrule the decision of the ISCAP. If no agency appeal is lodged within the 60-day period or if the President affirms the ISCAP decision, in the event of an appeal, the decision is final.

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