What is Mandatory Declassification Review (MDR)?

MDR is a means by which any individual, to include members of the public, can request any agency to review a classified record for declassification, regardless of its age or origin, subject to certain limitations set forth in Executive Order 12958, as amended, “Classified National Security Information” (the Order)

What Information is Subject to MDR?

Except for certain categories of information, all information classified under the Order or predecessor orders shall be subject to a review for declassification by the originating agency, if it meets the requirements of section 3.5

What Classified Records are 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 Other entities within the EOP that solely advise and

assist the incumbent Presidentand

Information classified under the Atomic Energy Act of 1954, as amended

What are the Requirements?

The request must describe the document with sufficient specificity to enable the agency to locate it with a reasonable amount of effort

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

The information has not been reviewed for declassification within the past 2 years

How and Where does one Submit an MDR Request?

With an Agency• Each agency shall publish in the Federal Register the person

or office to which MDR requests should be addressed

• see also:

http://www.archives.gov/isoo/contact/mdr-contact.html

• In accordance with agency regulations

NARA• Presidential Libraries

Other authorized repositories

What are the Classification Prohibitions and Limitations?

Information shall not be classified in order to: Conceal violations of the law, inefficiency, or

administrative error Prevent embarrassment to a person,

organization, or agency Restrain competition Prevent or delay the release of information

that does not require protection in the interest of national security

What are the Classification Standards?

Information may be originally classified under the following conditions:

An original classification authority (OCA) classified the information

The information is owned by, produced by or for, or is under the control of the U.S. Government

The information falls within one or more of the categories listed in section 1.4 of the Order

The OCA determines that the disclosure of the information could result in damage to national security

What are the Classification Standards for Information 25 years old or older?

Subject to certain requirements, effective 12/31/2006, all classified records that are more than 25 years old and have been determined to be of permanent historical value shall be automatically declassified whether or not the records have been reviewed in accordance with §3.3

To exempt information from automatic declassification, it must: • meet the standards (previous slide); and

• fall within one or more of the categories listed in §3.3(b) of the Order; and

• be described in an approved declassification guide (§3.3(d))

What is a Federal Agency’s MDR Responsibility?

Agency heads are required to develop procedures to:

• promptly process MDR requests;• notify requesters of results; and• provide the means for administrative appeals of

denials, to include notifying requesters of the right to appeal a final agency decision to the ISCAP

Cooperate fully with ISCAP so that it can fulfill its functions in a timely and fully informed manner

Special procedures – SecDef, DNI, the Archivist Referrals Fees

What is the ISCAP?

Interagency Security Classification Appeals Panel

The ISCAP provides the public and users of the classification system with a forum for further review of classification decisions

Membership

Senior-Level Representatives of:

Assistant to the President for National Security Affairs Department of Defense Department of State Department of Justice Central Intelligence Agency National Archives and Records Administration

The President appoints the ISCAP's Chair from among its members. ISCAP Liaisons support Members Director of ISOO serves as Executive Secretary ISOO provides program and administrative staff support

ISCAP Functions:Appeals Concerning MDR

Decides on appeals by persons or entities who have filed requests MDR under §3.5 of the Order

Majority of efforts to date Highest appellate authority

Authority

Section 5.3 of E.O. 12958, as amended, “Classified National Security Information,” (the Order)

ISCAP Bylaws - Appendix A to 32 C.F.R. Part 2001 Advises and assists the President in the discharge of his

constitutional and discretionary authority to protect the national security of the United States

Decisions are committed to the discretion of ISCAP, unless changed by the President

Agency heads can appeal to the President Section 5.3(f) of the Order

When can someone Appeal a MDR Request to the ISCAP?

Before submitting a MDR to the ISCAP, the requester must fulfill the agency level processes

The requester may also come directly to the ISCAP if the time frames outlined in Appendix A to 32 C.F.R. Part 2001 (ISCAP Bylaws) have lapsed without the agency taking the required actions

Agency Processing Timeframes

Initial

[32 C.F.R. Part 2001.33(2)(i)]

“Agencies shall ordinarily make a final determination within one year from the date of receipt.”

Appeal

[32 C.F.R. Part 2001.33(2)(iii)]

“The agency appellate authority shall normally make a determination within 60 working days following the receipt of an appeal.”

Ability to Appeal Directly to ISCAP

Refer to Article VIII, section A(3) of the ISCAP bylaws, Appendix A to 32 C.F.R. Part 2001

Initial request for MDR – final agency decision within 1 year

Agency-level MDR appeals – final agency decision within 180 days

Appeal to ISCAP must be made within 60 days of the failure of the agency to meet the timeframes

What is the Process for Appealing a MDR Denial to the ISCAP?

Requests may be sent by postal mail, e-mail, or facsimile

Appeal letters should be specific enough to identify the documents and their location and should contain information regarding the agency level process fulfilled by the requester

Provide all correspondence that the requester has received

Provide personal contact information

Disposition of Initial MDR RequestsFY 1996 – 2006 (Total: 2,086,028 Pages)

Declassifiedin Full(57%)

1,193,535 pages

Declassified in Part(34%)

701,350 pages

Affirmed(9%)

191,143 pages

Disposition of MDR AppealsFY 1996 – 2006 (Total: 45,626 Pages)

Affirmed(40%)

18,314 pages

Declassified in Part(44%)

19,917 pages

Declassifiedin Full(16%)

7,395 pages

ISCAP MDR Decisions05/1996 – 09/2006 (Total: 675 Documents)

Affirmed(35.8%)

242 documents

Declassifiedin Part(43.6%)

294 documents

Declassifiedin Full

(20.6%)139

documents

What are the Advantages to filing a MDR over a FOIA?

Results• In 91% of all initial MDR requests, additional information has

been declassified

• In 60% of all agency-level MDR appeals, additional information has been declassified

• In 64% of ISCAP MDR appeals, additional information has been declassified

MDR is the only way to request a review of records located in a non-PRA Presidential Library (pre-Reagan)

Expedited appeals mechanism MDR offers an appeal alternative to litigation

What are the Advantages to filing a FOIA over a MDR?

FOIA can be used to seek unclassified records On appeal, FOIA provides means to address denials

of information pursuant to statute

Resources – Policy

The Order (E.O. 12958, as amended): http://www.archives.gov/isoo/policy-documents/eo-12958-amendment.pdf

The Directive (32 C.F.R. Part 2001): http://www.archives.gov/isoo/policy-documents/eo-12958-implementing-directive.pdf

ISCAP Bylaws (Appendix A to 32 C.F.R. Part 2001): http://www.archives.gov/isoo/policy-documents/eo-12958-implementing-dir-appendix-a.pdf

Resources - General

ISCAP: http://www.archives.gov/isoo/oversight-groups/iscap/index.html

MDR: http://www.archives.gov/isoo/oversight-groups/iscap/mdr-appeals.html

ISOO: http://www.archives.gov/isoo/

Contact Information

General

Executive Secretary, ISCAPC/O ISOO, Room 503The National Archives Building700 Pennsylvania Avenue, NWWashington, D.C. 20408

Telephone: (202) 357-5250

FAX: (202) 357-5907

E-Mail: iscap@nara.gov

ISCAP Staff

Jay BosankoAssociate Director, ISOOTelephone: 202-357-5205Email: william.bosanko@nara.gov

Kris JohnsonLead Analyst for ISCAPTelephone: 202-357-5017Email: kristofer.johnson@nara.gov

Lee MorrisonLead Analyst for PIDBTelephone: 202-357-5039Email: lee.morrison@nara.gov