The Office of the Director of National Intelligence (ODNI) has quietly released a new proposal that would severely limit the ability of the public to file requests to declassify information held by the intelligence community. In a tactic previously attempted by the CIA, the ODNI is attempting to create burdensome fees for requesters that would effectively cut off access to the Mandatory Declassification Review (MDR) process – a fundamentally important system that researchers, historians, public interest advocates, and others use to successfully challenge the intelligence community’s classification decisions.
The MDR process is a popular and successful tool for the public in part because of the independent accountability and oversight the program provides. Unlike with FOIA requests, if an agency fails to declassify and release the information under the MDR process, requesters can appeal the agency’s decision to the Interagency Security Classification Appeals Panel (ISCAP) for independent review. According to latest figures from the Information Security Oversight Office, ISCAP officials overruled agency classification decisions in whole or in part in 75 percent of the formal challenges in FY 2014.
The regulation, which is scheduled to go into effect on April 26, 2016, unless adverse comment is received, states that declassification reviews will now cost requesters up to $72 per hour, even if no information is found or released. This would break sharply from the rest of the government, and previously at ODNI, where MDR fees are commensurate to FOIA fees. Under FOIA, Congress stipulated that public interest, educational, journalism, and other fee waivers must be granted, when applicable under the statute. Furthermore, agencies must forfeit their right to collect some FOIA processing fees when they miss their processing deadline
In 2011, the CIA similarly attempted to change its regulations to raise costs for requesters up to $72 per hour for MDR requests. After widespread public objections to the proposal, spearheaded by OpenTheGovernment.org and the National Security Archive, and following a lawsuit filed by the National Security Counselors, the CIA suspended implementation of the new fee schedule pending the results of the case.
The effect of the ODNI’s new policy would be to price the public out of submitting MDR requests, a result not at all consonant with Obama Administration transparency policy in general or its declassification policy under Executive Order 13,526 (on Classified National Security Information), in particular. The actions also run counter to the Administration’s open government directives, and the ODNI’s own transparency principles.
On October 27, 2015, the ODNI released an implementation plan for the Principles of Intelligence Transparency for the Intelligence Community. According to the ODNI, the principles and plan were developed in response to the President’s 2009 memo on transparency and open government, and the open government directive issued by the White House “requiring federal agencies to take specific steps to achieve key milestones in transparency, participation and collaboration.” While several important documents have been declassified and posted to ODNI’s IC on the Record, MDR (and ISCAP) should privilege requestor determination of what qualifies as high-interest information, over the decisions of members of the intelligence community.
The proposed regulation, which was issued without prior notice to public stakeholders, allows for comments until March 28, 2016. OpenTheGovernment.org will be submitting comments in coordination with organizations and individuals within and outside of our coalition to request that ODNI demonstrate its commitment to transparency and withdraw this rule from the Federal Register.