Challenging classification: a third option

AP Photo

Stephen Aftergood, pictured in his office in 2002.

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 “mandatory 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 mandatory 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. Under Executive Order 13526, ISOO establishes standards for classification and declassification. ISOO likewise has authority to “consider and take action” on complaints regarding the implementation of those standards. As a result, says Steven Aftergood of the Federation of American Scientists’ Project on Government Secrecy, ISOO complaints are not a true substitute for FOIA or MDR, but are appropriate when there is “reason to believe that an agency has violated the terms of the executive order on classification.”

ISOO complaints do differ dramatically from FOIA and MDR requests in that they challenge the propriety of the application of classification rules and standards, while requests under FOIA or MDR seek release of specific records. And while ISOO may not directly declassify information, the Director “may require the information to be declassified by the agency that originated the classification.”

OpenTheGovernment.org’s complaint is not the only pending effort to gain information about the CIA’s Detention, Rendition and Interrogation Program; the American Civil Liberties Union has also brought a FOIA suit seeking release of the full, 6,900-page report by the Senate Select Committee on Intelligence regarding CIA detention, torture, and detainee abuse. The United States District Court for the District of Columbia dismissed the ACLU’s case in May; the ACLU has appealed the ruling.

Nor is OpenTheGovernment.org alone in utilizing the ISOO process to seek declassification. The Project on Government Secrecy has documented at least three complaints that have been filed with ISOO in addition to the one filed by OpenTheGovernment.org. Nonetheless, in no publicly documented case has ISOO directly required declassification based on a complaint from a person outside the government, raising questions about the efficacy of the process.

Still, Aftergood says, the ISOO complaint process “is a way to cast a spotlight on bad classification processes” and work toward systemic reform of overclassification. “Getting a well-crafted external complaint can serve as leverage for ISOO,” he says, prompting an investigation into a certain agency or topic. Inquiries from ISOO may also prompt agencies to justify and even change their classification practices, remedies that are difficult to achieve through traditional FOIA litigation or through MDR. For that reason, ISOO complaints might be particularly valuable tools for obtaining a modicum of transparency from agencies regarding their classification systems–and, ultimately, for obtaining documents that were wrongfully classified.