Groups Protest and National Security Counselors File Case Action Lawsuit Over CIA's New Mandatory Declassification Review Fees

More than 30 organizations including AALL, ALA and SLA joined the National Security Archive and OpenTheGovernment in protesting the CIA's recently implemented MDR review fee schedule for effectively pricing the public out of the opportunity to challenge the CIA’s secrecy claims. Quoting from the Feb. 23, 2011 open letter to Director of National Intelligence, James Clapper, Director of the Central Intelligence Agency, David Petraeus and Director of the Information Security Oversight Office, John Fitzpatrick:

Re: CIA Regulation change to 32 CFR Part 1908 allowing the Agency to charge requesters as high as $72 per hour for Mandatory Declassification Review requests.

To whom it may concern:

We the undersigned would like to call to your attention an alarming regulation that the Central Intelligence Agency entered into the Federal Register on 23 September 2011. Finalized without any notice for public comment, this regulation could cut off access to the most effective tool the public can use to request declassification of the CIA’s secret documents, the Mandatory Declassification Review (MDR) program.

The regulation states that declassification reviews will now cost requesters up to $72 per hour, even if no information is found or released. The public must now also agree to pay a minimum of $15 in duplication fees. Throughout the government, and previously at CIA, MDR fees are commensurate to FOIA fees. Under FOIA, Congress stipulated that public interest, educational, journalism, and other fee waivers must be granted, when applicable under the statute. Furthermore, agencies must forfeit their right to collect some FOIA processing fees when they miss their processing deadline.

The effect of the CIA’s new policy will be to price the public out of submitting MDR requests, a result not at all consonant with Obama Administration transparency policy in general or its declassification policy under Executive Order 13,526 in particular.

In Groups Protest CIA’s Covert Attack on Public Access, OpenGovernment also reports:

On Wednesday, February 22nd Kel McClanahan, Executive Director of National Security Counselors (NSC), also filed a class action suit on behalf of several frequent MDR requesters against the CIA for violating the Independent Offices Appropriations Act (IOAA) by charging fees to MDR requesters for this public service. The case, in the U.S. District Court for the District of Columbia, is National Security Counselors, et al. v CIA, No. 12-284. The National Freedom of Information Coalition (NFOIC) recently announced a grant to NSC to bring the court challenge over the regulation from the Knight FOI Fund, a legal war chest administered by the NFOIC to support litigants in meritorious open-government cases.

Hat tip to SLA San Francisco Bay Region Chapter's Intersect Alert. [JH]