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Mandatory Declassification Review Appeals

Definition:

Section 3.5 of Executive Order 13526, "Classified National Security Information" (Federal Register - Executive Order 13526) provides for mandatory declassification review requests (MDR) for all information that was classified under its guidelines or prior to its implementation. Section 5.3 permits the appeal of agency decisions that were made in response to these mandatory declassification review requests. After an agency's denial of an MDR request, the requestor can file an administrative appeal with the agency, which, if denied can be followed by an appeal to the ISCAP. The ISCAP is the highest appellate body for MDR decisions.

Agency Level Process for MDR Appeals

Section 3.5(e) requires agency heads to develop procedures to process requests for MDRs. These procedures will differ from agency to agency but the core requirements listed below must be fulfilled by all agencies. Before submitting an MDR to the ISCAP, the requestor must fulfill the agency level processes.

  • Requests for MDR at the agency level should be addressed to the person(s) or office(s) that each agency has published in the Federal Register.
  • The requests must be specific enough to permit agency personnel to locate the records.
  • The agency should respond with a prompt declassification determination or inform the requestor of the agency's need for additional time to process the request. Article VIII section A(3) of the ISCAP bylaws indicates that if the appellant has not received an initial decision for a MDR within one year of its filing, the requestor may appeal directly to the ISCAP.
  • If the agency denies the initial request, it must notify the requestor of his or her right to file an administrative appeal. This request must be filed within 60 days of the receipt of the denial.
  • Section 2001.33(a)(2)(i) of the implementing directive states that the agency should normally make a determination within 60 days of the receipt of the administrative appeal or notify the requestor of a need for additional time. Article VIII section A(3) of the bylaws indicates that failure by the agency to make a final decision within 180 days will permit the requestor to appeal directly to the ISCAP.
  • If the agency denies the administrative appeal, it must notify the requestor in writing of the final determination and the reasons for the denial. It must notify the requestor that he or she may, within 60 days of the receipt of the notification, file an appeal with the ISCAP.
  • Section 3.6 allows an agency responding to a MDR to refuse to confirm or deny the existence of requested information if the fact of the existence or non-existence of the information is classified per the provisions of the Order. This section also requires an agency that received a MDR request that is deemed to have information originally classified by another agency, to refer copies of the request to such agency and inform the requestor of such referral.

MDR Appeals and the Freedom of Information Act

Requests for declassification can be filed either under the MDR process of EO 13526, or under the Freedom of Information Act (FOIA). Section 2001.33(f) of the implementing directive requires that if the requestor submits a request under both the MDR and the FOIA, the requestor will be required by the agency to elect one process or the other. If the requestor does not make this election, the request is treated as a FOIA unless the requested materials can be considered only under the MDR process. Denials of information under the FOIA may not be considered by the ISCAP. Information about filing a FOIA request can be found at the Department of Justices' web site for FOIA request: http://www.justice.gov/oip/04_1.html.

ISCAP Level Process for Mandatory Declassification Review Appeals

After fulfilling all steps within the agency level process, the requestor can then file an MDR appeal with the ISCAP. The requestor 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 MDRs is mandated in section 3.5, 3.6, and 5.3 of EO 13526, section 2001.33 of The Implementing Directive for E.O. 13526, (PDF Format) and the ISCAP bylaws. The following information provides both an overview of the ISCAP process for handling MDRs and an outline of the necessary measures to be taken by the requestor at this point.

Initial Handling

MDR 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 100
Washington, D.C. 20408
Telephone: (202) 357-5250
FAX: (202) 357-5907
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 requestor. Along with the request letter, the requestor should attempt to provide the ISCAP staff with all pertinent unclassified correspondence regarding the appeal that he or she has received. Requestors 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 an appeal, 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 final decision regarding the administrative appeal within 180 days of its filing, or has not received an initial decision regarding the MDR request within 365 days of its filing.
  • There is no action pending in the federal courts regarding the information in question.
  • The information in question has not been the subject of review by the federal courts or the ISCAP within the past two years.
  • The information is not exempted from search and review under sections 105C, 105D, or 701 of the National Security Act of 1947 (50 U.S.C. 403-5c,403-5e, and 431).
  • The information requested does not fall under any of the categories listed in section 3.5. This section exempts information originated by: the incumbent President or his or her White House Staff; committees, commissions, or boards appointed by the incumbent President; or other entities within the Executive Office of the President that solely advise and assist the incumbent President.
  • 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 time frames 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. The ISCAP bylaws authorize the Executive Secretary to consult with appellants with the objective of narrowing or prioritizing the information subject to the appeal.

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 VIII section G, "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 VIII section I 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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