Welcome to ISOO’s Mandatory Declassification Review Training.
My name is Peggy Ushman and I am a Senior Program Analyst at the Information Security
Oversight Office located at the National Archives in Washington DC.
This discussion will take you through the MDR process.
The references used to understand the MDR process are
Executive Order 13526, Classified National Security Information, section 3.5;
32 CFR 2001.33, the implementing directive for the executive order;
32 CFR 2003.13, the Interagency Security Classification Appeals Panel, or ISCAP, bylaws;
and a number of ISOO Notices that provide clarification on MDR guidance
Mandatory Declassification Review is a means by which an individual or entity can request
any Federal agency to review classified information for declassification, regardless of its age
or origin, subject to certain limitations.
The specific limitation annotated in Section 3.5(h) of the order is that the MDR section
shall not apply to any request for a review made by a non-U.S. citizen, or by a foreign
government entity or any representative of a foreign government to an agency within the
Intelligence Community.
MDR is another route to the declassification and release of classified agency records under
the terms of executive order 13526.
How is this different from FOIA?
The Freedom of Information Act, or FOIA, can be used to seek unclassified information and
does not need to be as specific as MDRs.
On appeal, FOIA provides a means to address denials of information pursuant to statute.
What information is subject to a mandatory declassification review?
All information classified under the Order
or predecessor orders; Congressional records classified by the executive
branch; and information from past Presidential administrations
are subject to a mandatory declassification review.
What information is not subject to MDR?
Information originated by the incumbent President or Vice President
or their White House staff; committees, commissions, or boards appointed
by the incumbent President; and other entities within the Executive Office
of the President that solely advise and assist the incumbent President;
and Restricted Data or Formerly Restricted Data that has been classified under the Atomic
Energy Act of 1954
Let’s discuss how to submit an MDR.
An MDR request must be submitted in writing to the applicable agency.
Information on where to send MDR requests at each agency can be found on ISOO’s web
site.
The request must describe the document or
material containing the information with sufficient specificity to enable the agency to locate
it with a reasonable amount of effort.
The following limitations apply –
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; And the information has not been reviewed
for declassification within the past 2 years.
The same person may not file a FOIA request for the same information concurrently with
an MDR request.
To draft an MDR request, begin your letter
by stating, “This is a request for a mandatory declassification review under the terms of
section 3.5 of E.O. 13526 of the following...” and specifically describe the material being
requested.
When possible, include the document title and date.
Ask that the agency release “all reasonably segregable material” and limit the request
as much as possible to increase the chances of receiving a timely decision.
Include contact information in case agency staff have questions or difficulties locating
the document.
Executive order 13526, Section 3.5(e) requires agency heads to develop procedures to process
requests for MDRs.
Before an MDR can move forward to the ISCAP, all agency level processes must be completed.
Agencies may establish and publish fee schedules as part of their MDR procedures.
Agencies are expected to conduct a line by
line review of the requested records and declassify information that no longer meets the standards
for classification under the Order.
Agencies are also expected to release the requested records in full or in redacted form
unless otherwise prohibited.
Agencies are required to promptly process
MDR requests, notify requesters of results, and provide the means for appeals within the
agency and to the ISCAP.
Upon receipt of the MDR request, the agency will review it to ensure that the request
meets the requirements detailed in 32 CFR 2001.33 and verifies that the request is specific
enough to allow agency personnel to locate the records with a reasonable amount of effort.
In accordance with 32 CFR 2001.33(a)(2), requests for broad types of information, entire file
series of records, or similar non-specific requests may be denied by the agency for processing.
As soon as possible after receiving the MDR
request, the agency should send a letter to the requester acknowledging receipt of the
request.
The acknowledgement letter should contain a request tracking number and an agency point
of contact.
If the records cannot be located, the agency will generate a letter to the requester, outlining
the search criteria and informing the requester that no records were found.
If the agency has reviewed the information
for declassification within the last two years, the agency must inform the appellant of the
results of the previous decision and of the right to appeal.
An agency may refuse to confirm or deny the existence or nonexistence of requested records
whenever the fact of their existence is itself classified under this order or predecessor
orders.
This is known as a Glomar response.
All denials—including “no records found”
and “Glomar” responses—are subject to appeal, first at the agency appellate level
and ultimately to the ISCAP.
Agencies will identify classified national security information, and non-national security
information for withholding, as well as other agency equities for referral.
The agency that received the request is responsible for handling the coordination of review of
the classified equities of other agencies.
When necessary, the document will be redacted unless the overall meaning would be distorted
by the redaction.
All redacted portions are identified using -
Section 1.4 of E.O. 13526 for Classified National Security Information in records younger than
25 years, Section 3.3 of the order for records older
than 25 years, or the name of the specific statute that protects
the information from disclosure.
Agencies are required to establish a process for the appeal of initial decisions provided
to requestors, and inform the requestors of this process.
If a response is appealed, the agency appellate authority should review the original decision.
The final decision sent to the requester at the conclusion of the agency appellate review
must include notification of the right to appeal to the ISCAP within 60 days of the
date of the final agency decision.
Requestors can appeal an MDR decision directly
to the ISCAP if an agency fails to provide a decision to the initial request after one
year.
Requestors can also appeal an MDR decision directly to the ISCAP if an agency fails to
provide an appellate decision after 180 days.
Appellants must pay careful attention to their
calendars as they only have a 60-day window after the expiration of those deadlines to
appeal to the ISCAP.
Agencies must continue to process MDR requests
that have been appealed to the ISCAP due to the expiration of a deadline.
They must also provide releasable materials to the requester and to the ISCAP staff.
We’ve mentioned the interagency security
classification appeals panel.
ISCAP is a panel that provides users of the classification system, and the public, with
a forum for further review of classification decisions.
The Panel decides on – appeals for MDRs,
appeals for classification challenges, exemptions from automatic declassification,
agency declassification guides, and file series exemptions.
There is no set timeframe for the Panel to review or make a determination on appeals.
Appeal requests to ISCAP must be in writing and sent via U.S. mail, email, or fax and
include copies of all correspondence and relevant supporting materials, as well as personal
contact information.
Appellants are encouraged to be realistic in their appeals to ISCAP and to limit the
number of appeals they bring to the ISCAP.
ISCAP makes an initial assessment of the appeal based on the information the appellant has
provided.
For an appeal to be considered, it must meet the following criteria:
The appellant has appealed the MDR decision with the agency;
The appellant’s appeal has been denied at the agency level;
The appellant has not received a final decision regarding the administrative appeal within
180 days of its filing; The appellant 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; And the information is not exempted from search
and review as an operational file of the Central Intelligence Agency that is protected by statute.
This concludes the briefing on the mandatory declassification review process.
If you have any questions, you may contact ISOO staff members or send an e-mail to isootraining@nara.gov
Thank you.