When considering an access request for classified records it is always important to understand options and the differences between Mandatory Declassification Review (MDR) and the Freedom of Information Act (FOIA).
The rules for submitting and processing an MDR request are based on Executive Order 13526, “Classified National Security Information,” and its implementing directive, 32 C.F.R. 2001. Any individual or entity can request an agency to review classified information for declassification, regardless of its age or origin, with the exception of certain limitations set forth in the Executive Order. Any information classified under E.O. 13526 or preceding orders is subject to MDR if it meets the requirements of Section 3.5 of E.O. 13526. Presidential records prior to the Presidential Records Act of 1978 (PRA) are not subject to FOIA and must be requested via MDR – this includes all presidential records prior to the Reagan administration. Information that is not subject to MDR include:
- Information classified by the incumbent President, Vice President, or White House staff
- Committees, Commissions, or Boards appointed by the incumbent President
- Other entities within the Executive Office of the President
- Information within operations files that has been exempted by 5 U.S.C. 552 (i.e. certain CIA operations files)
- Information subject to ongoing litigation
- Information subject to a pre-publication review pursuant to a nondisclosure agreement
- Direct requests to the Intel Community from noncitizens or legal aliens may be rejected
For the request to be an MDR, in accordance with 32 C.F.R. 2001.33, researchers must provide sufficient information about the specific document so agency personnel can locate it, e.g. creator, type of document, date, and subject. A citation in a reputable publication or information in a news article that references a certain document can often provide the researcher with enough information to submit an MDR. Agencies are required to promptly process MDR requests within one year and conduct a line-by-line review for public release. Agencies will notify the researcher of the results and are required to provide the means for appeals to administrative denials, and the researcher’s rights to appeal a final agency decision to the ISCAP.
Requests that are broad in scope, or large topics that have the potential of turning up a large volume of responsive records, or entire file series, should always be submitted as a FOIA request. The Freedom of Information Act of 1967 is a federal statute that was designed to guarantee open government and provides judicially enforceable access to Executive Branch records, exempting only certain records when disclosure could cause harm. FOIA can be used by researchers to request both classified and unclassified information across all three branches of the Federal Government but does not apply to pre-PRA presidential records prior to the Reagan administration. Agencies have twenty days to initially respond to a researcher’s requests. If the agency denies the request for records, or fails to respond, researchers can file an appeal with the agency.
Under FOIA and MDR, documents previously reviewed for declassification withing the past two years are exempt from being reviewed again. Both avenues can charge fees to researchers and restrict limitations on non-U.S. citizens or legal residents. FOIA and MDR both require agencies to conduct a line-by-line review for public release and allow for an agency appeal process. MDR does, however, have some advantages by providing the researcher with an expedited appeals mechanism, and an appeal alternative to FOIA litigation. Historically, MDR has also resulted in higher positive results with declassification and higher levels of additional declassification under the MDR appeals process.
Altogether, knowing when to submit the correct type of request and providing enough details about the desired record(s), will aid the agencies in processing the request and potentially prevent researchers from receiving unnecessary request denials, and potentially help researchers gain greater access to information.