Magazine article The News Media and the Law (Online)

Challenging Classification: A Third Option

Magazine article The News Media and the Law (Online)

Challenging Classification: A Third Option

Article excerpt

Hannah Bloch-Wehba

Last month OpenTheGovernment.org filed a complaint seeking the release of information related to the Central Intelligence Agency's Detention, Rendition, and Interrogation Program that, they argue, has been wrongfully classified. But OTG didn't follow the common route of filing a Freedom of Information Act request or lawsuit. It didn't even seek "mandator}' declassification review," another popular option. Instead, OTG chose a rare third route: it went directly to the Information Security Oversight Office (ISOO), an office at the National Archives and Records Administration that is responsible for oversight of the national security classification system, to challenge the application of the CIA's classification rules.

Requestors seeking classified information usually use either the FOIA process or mandator}' declassification review (MDR), a process authorized in Executive Order 13526.

Under FOIA's national security exemption, records that are "(A) specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such an executive order" are exempt from disclosure. While requestors can, and often do, argue that a requested record is not "properly classified," courts often tend to defer to agency determinations regarding classification.

MDR offers another way to request declassification, but differs from FOIA in several important respects. First, requests are required to be more specific than FOIA requests. If the requested information has been reviewed in the last two years, an agency need not act on an MDR request. The form and timing of the MDR appeals process is significantly different from the FOIA process as well. If an agency denies an MDR request, the requestor must administratively appeal within the agency, which must act on the appeal within 180 days. If an agency fails to act on an MDR request within a year, or if it denies or fails to act on a requestor's appeal, the requestor may appeal to the Interagency Security Classification Appeals Panel (ISCAP).

There is no judicial review of either agency or ISCAP decisions regarding MDR. Nonetheless, MDR remains appealing to many requestors, both because its scope is broader than FOIA's - it covers all classified information, not just agency records - and because it is a less litigious process. For some agencies, too, the MDR backlog, while significant, may be shorter than the wait time for FOIA requests.

OTG's ISOO complaint is a relatively unusual third path toward declassification, albeit an indirect one. …

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