CIA Changes the Rules Allowing the Public to Challenge Secrecy

Recently our friends over at the National Security Archive alerted us to a few pages in the Federal Register that describe the Central Intelligence Agency's (CIA) latest efforts to to stymie public access to information they want to keep secret. Under new regulations governing the CIA's Mandatory Declassification Review (MDR) program, requesters must agree to pay a minimum of $15 – even if no documents are released – and requesters can be charged up to $72 per hour for the review – even if no information is found or released. This despite the existing requirement that an MDR request be in writing and describe the record containing the information with sufficient specificity to permit the agency receiving the request to locate it with a reasonable amount of effort.

The MDR process permits individuals or agencies to require the review of specific classified national security information for declassification. If an agency fails to declassify and release the information, requesters can appeal the agency's decision to the Interagency Security Classification Appeals Panel (ISCAP), a body composed of senior-level representatives appointed by the Departments of State, Defense, and Justice, the National Archives, the Office of the Director of National Intelligence, and the National Security Advisor.

MDR can be — and with increasing frequency is — used in lieu of litigation of denials of requests under the FOIA, and to seek declassification of Presidential papers or records not subject to FOIA. Our 2011 Secrecy Report charts continued growth in the use of MDR to pull documents out of the government. Our report also shows that the government is not keeping up with demand, though: more than 6,500 initial requests were carried over into 2010.

According to the CIA, the decision to charge fees is based on its interpretation of Executive Order 13526. However, data from the Information Security Oversight Office (ISOO) annual reports to the President makes it conceivable that CIA is also making the change with the hopes of reducing the volume of requests on the front end. Between fiscal year (FY) 2009 and FY 2010, the number of MDR requests to the CIA grew by about 24 % (from 7843 to 9686); at the same time, the CIA also processed almost 7% fewer requests in FY 2010 (1063) than in FY 2009 (1139).  The 2010 Information Security Oversight Office Report to the President suggests this is a regular pattern: the CIA is cited as one of the three main contributors to the backlog of MDR requests (the other main contributors are the Department of Defense and the National Archives and Records Administration) in 2008, 2009 and 2010. 

Regardless of the CIA's motives for the change, though, it is especially troubling that the CIA would make such a change– effective immediately– with no notice or comment. All is not lost though. The Federal Register does say:

The Agency welcomes suggestions, comments, or complaints with regard to its administration of the mandatory declassification review program established under Executive Order 13526. Members of the public shall address such communications to the CIA Information and Privacy Coordinator. The Agency will respond as determined feasible and appropriate under the circumstances. (emphasis added)

We encourage you to let the CIA know your suggestions, comments, or complaints about their effort to put additional barriers in the way of one of the most effective ways for the public to get obtain legal access to now-classified information. A quick search of the CIA website didn't turn up an email address (or name) for the Information and Privacy Coordinator, but we did find a phone number — (703) 613-1287.

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