FOIA Tip No. 8—Mandatory Declassification Review
Now that you’ve finally begun to wrap your head around the complicated FOIA process, we want to introduce you to another mechanism for obtaining the release of classified information, the Mandatory Declassification Review request (MDR). MDR law has been on the books since 1995 and is authorized by Executive Order 13526, issued by President Obama on 29 December 2009 (technically, that EO is not effective until June, but its predecessor, EO 12958, as amended, also authorized MDRs), which states that any citizen may request a Mandatory Declassification Review, and agencies then must “declassify information that no longer meets the standards for classification.”
In many instances, MDRs can be quicker, simpler, and easier to win than FOIA. However, filing an MDR is different than filing a FOIA request, with its own inherent quirks and requirements. Plus, while you cannot sue in court to seek release after an MDR is denied, the appeal process if often quite fruitful. Follow along with our handy chart on the right.
First, not all documents can be requested by MDR. To be eligible, they must:
- Be classified. Unclassified documents must be FOIA’ed.
- Be narrow in scope. A document title or document number is best. Sometimes, a very narrow request that can be easily found by the agency is also permissible (like a cable from a specific embassy to the Department of State on a specific topic, during a specific period of time.)
- Not be recently requested under MDR. After a document has been subject to an MDR request, it is not eligible to be MDR’ed again until after two years.
Second, the MDR appeal/litigation process is different than that of FOIA. If an MDR request is denied, you may appeal to the agency which denied the request. The agency has 180 days to respond to the MDR appeal. After that (unlike a FOIA request), you may not litigate. You may, however, appeal a second time to the Interagency Security Classification Appeals Panel (ISCAP). ISCAP is (as of June) a seven member board of appointed representatives from the intelligence and diplomatic communities that has a consistent record of impartiality, and regularly reverses agency decisions to withhold information. So essentially, with MDR you cannot litigate but get two chances to appeal (FOIA requests get only one). (Later in this series of tips we will talk about how to craft a good appeal).
Despite the stated one-year response time for MDR requests, if an agency has a FOIA backlog (which most prominent ones do), an MDR request may be processed more quickly than a FOIA request. Also, if an agency misses either the one-year initial or 180 appeal deadline, it is possible to “leap frog” directly to the ISCAP appeals board.
MDR can also be a powerful tool at Presidential Libraries or the National Archive which often list the titles—but not the content—of documents that have yet to be declassified. Another nifty trick is to MDR the document titles that are revealed when an agency denies a FOIA request in part or in full.
So, how do you compose an MDR request? That part is relatively simple:
- Begin the letter by stating, “This is a request for a mandatory declassification review (MDR), under the terms of EO 13526 of the following.”
- Specifically describe the document(s) you are looking for. When possible, include a date and document number. A copy of a page from a book, or article where the document is cited can be helpful.
- Ask the agency to release “all reasonably segregable material.”
- Include your contact information.
If you know the title of a classified document, MDR is a good way to ask for its release.
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If a document is classified, how would you know the document title or number to ask for? is there a listing of titles of classified documents?!
Within archive folders, classified documents may be “pink sheeted”. Classified documents exist and have a place in the general filing system of all documents. When going through documents you may come across a pink sheet of paper that is the place holder for the classified document. This placeholder sheet may, but does not always include such information as authors, title, date, and the general reason the document was classified as well as an identification number. This information can be used as the foundation of a FOIA or MDR.
Good advice guys!! The only other thing I will add is that if a specific document or cable is reference in another document, newspaper/magazine/journal article, or book (especially a memoir), then you probably have a good chance of MDR. Copy the page, highlight the reference, attach it to your request, and send it in!!
For example, a while back, I went through the declassified McChrystal report and MDRed each document it referenced. I also have several of MDRs out for documents that Reagan’s aids mentioned in their “tell all” memoirs.
Still waiting to get em…. I’ll let you know what happens.
Generally (but not always) a document’s title could be unclassified even if the rest of the document is classified. There’s definitely no list of classified documents.
One way we can identify documents is to look at already-released documents and see if they refer to other documents. See for examples, FOIA Tip No. 2 on how to decipher Dept. of State cables (https://nsarchive.wordpress.com/2009/11/12/foia-tip-no-2-%E2%80%94-decipher-a-state-department-cable/) and FOIA Tip No. 5 on reading Dept. of Defense documents (https://nsarchive.wordpress.com/2009/12/07/foia-tip-5-interpret-a-defense-document/).
That said, sometimes you don’t need the document title per se. The important thing is to identify the document in a concrete way. For example, asking for “the report written by Office X in May 2004 regarding Y” might be enough to identify a document for the MDR process.
Hi,
Thanks for the great post. Another tip, based on my experience at the Reagan Library, for folders that have been FOIA’d, a withdrawal sheet is usually created which is in the beginning of each folder. The withdrawal sheets lists all the documents found in the folder and the documents classification. Classified documents at the Reagan Library are given a P-1 classification (or F-1 for older withdrawal sheets). Any document listed as P-1 or F-1 is classified. If the document is still classified (i.e., not in the folder), it usually at least as a document number on the withdrawal sheet and maybe a title and date (Ex: May 5, 1986, letter from Reagan to Gorbachev).
My other advice, is if you know that a document exists but can’t find it or think that it is still classified, called the archive and try and speak to someone who processed that collection. They might no the document you are referring to and could lead you in a better direction as to how to word the MR request.
I have a question that would make an interesting thread: in some cases I have been told to both file an MR and a FOIA for the same document to protect my appeal rights. I’m not sure that it is the right thing to do because it might slow up the process. On the other hand, if I don’t file a FOIA, it seems I lose the possibility of going to court. Does anyone have any thoughts on this?
Thanks,
Jason
Generally, an agency will either require you to choose FOIA or MDR or they will have a policy to put the requests into one bucket or the other. So, I am not sure it is effective to file both. I think the decision is more appropriately made on the age of the document, the nature of your request, and whether you want the right to sue or not.
You write, “Not be recently requested under MDR. After a document has been subject to an MDR request, it is not eligible to be MDR’ed again until after two years.” Does this mean, if anyone ELSE has filed a MDR for the document in question, within the last two years I am not able to make such a request? That seems to be a very strange regulation, what is the policy rationale?
The USG’s rationale is that if a document has been reviewed for MDR for one requester and denied, it does not want to use the resources to review the same document for another requester. Frequently, when agencies explain this denial, they include a date (two years from the original request) when the document can be requested for MDR again (by anybody).
What if a suspected Unwitting Govmt Human-Subject-Experimentee of Nonconsensual Classified Secret Human Experimentation was seeking info on possible “involuntary human-subject research experimental programs” that may or may not be intentionally classified to avoid governmental embarassment? And for which may or may not be improperly classified alleging classification is in the interest of ‘National Security?’ If the requester is possibly an unwitting experimentee of a past or current Human-Subject Research Initiative/Program/Project, he or she will not know associated titles of reports, cables, techniques, technologies, weaponries, etc nor would they likely know the “time periods” of when such experiments may have initiated and continued since as an unwitting subject, they assumingly were never consulted nor consented to participate in?
Thanks in advance as I realize its a “wordy” and complex question.
I recently received a denial of an MDR because I had filed FOIA requests for the same information (which was denied) six months earlier. The letter ended with, “Therefore, we are cancelling these requests. We will not respond again regarding requests for information as it relates to xxx.” According to my understanding of MDRs, no agency has the right to deny an MDR based on previous denials of FOIA requests. Does any one have any suggestions? By the way, the information I am requesting is between 40 and 60 years old and does not, to my reading, involve any information that is properly exempted from declassification. Robert
This is a bit of a grey area. Techincally, accordign to Executive Order 13526, An agency can deny an MDR if the specific document has been “reviewed for declassification” (through either a declass review connected to FOIA, or another MDR, by anyone, not just that requester). Many agencies don’t track this, but some of the less open ones keep track and do frequently use this tactic. If the FOIA request did not included a declassification review of the documents (sometimes agencies give b1 exemptions without completing this review) then the closure of the MDR was in error. At any rate, the agency should have given you a date when you can refile your MDR. If it did not follow these rules, you can administratively appeal its decision, then appeal to ISCAP. Hope that is helpful.
Nate,
Thanks for your comments. I have appealed their denial and will await their response. I’m trying to put together a dissertation proposal on the logistical systems the Agency used for supporting their operations in SE Asia from 1951-1975. I know the information is out there, but not one of the hundreds of FOIA requests I’ve submitted have resulted in a document being released. I now believe the don’t actually review the material I request before they send out their standard “properly classified” rejections. As I mentioned, the material I’m looking for is all quite dated and rather mundane–things like documents pertaining to the number of cargo parachutes used in Laos in August, 1972, or the official closure order for the Agency’s logistics base in Okinawa. None of it can be reasonably regarded as “properly classified.”
Many State Dept. cables are classified for only 10 years. If I wish to request cables from more than 10 years ago that I assume should be declassified, should I use FOIA (i.e., the cables were “automatically” declassified at the 10-year mark) or MDR (i.e., my request will presumably trigger the declassification)?
In all liklihood the cables were not “automatically” declassified. Although this term technically exists in the Executive Order, agencies almost never automatically declassify documents. FOIA or MDR is required. If you know the name of a document and are not planning to sue, MDR is probably the best route, as you can get to the ISCAP review board.
Thanks, very helpful — I’ll give it a try. (And sorry for delayed reply; I’ve been overseas the last few months.)
Thanks for the excellent tips, I am in somewhat of a catch-22 now, I’m looking for records within a classified RG- (its pending declassification now) and I have been pin balled between de-classification ctr. and parent archive for a while, big time limbo. Finally did MDR yet apparently there does not exist any indices or record locator in the RG to locate the papers for which I am looking. Although they do reside in the RG. Both NARA branches unable to offer remedy. I will ask about the “pink sheets” yet, am somewhat put off as I feel this is another spooling error to delay and confuse- The very fact the records in queue to be declassified is like placing them on unreachable shelf for an indeterminate time. I have had much success in past but with this subject: COMITERN, Communists and FBI/US Navy surveillance of unions and water front in 1930’s 40’s Bay area I have hit many brick walls.