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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