At the same time that 36 organizations are attempting to use political and bureaucratic pressure to force the rollback of damaging MDR regulations at the CIA, Kel McClanahan of the National Security Counselors has filed a lawsuit against the Agency in the United States District Court of the District of Columbia.
It is important to note that the National Security Counselors case is broader than just the MDR fee issue. It attacks the CIA’s willful and intentional violation of federal law in regard to MDR and the Freedom of Information Act. Below is a brief summary of the complaint’s key points.
1) In addition to bypassing the required notice and comment process when they published their new MDR fee rules, the CIA also failed to follow the Independent Offices Appropriation Act (IOAA). According to the Supreme Court interpretation of the IOAA, agencies “may not collect fees from individual parties for services which benefit the public generally.” As the proper declassification and release of government records is integral to the free flow of information between the Government and the People, the CIA’s “attempt to charge fees for this public service is in direct violation of the IOAA as interpreted by the U.S. Supreme Court.”
2) The CIA failed to follow the clear language of the Freedom of Information Act (FOIA) – and 30 years of case law – by unilaterally declaring that requesters are not allowed to limit the amount of money they will spend on FOIA requests. The CIA has done so by requiring requesters to either agree to promise to pay all fees, or refusing to process the request. Perplexingly, the CIA believes, “it is not possible to limit their searches” to a particular time limit.
3) The suit also accuses the CIA of illegally charging for automated searches that require no human effort. The CIA has claimed:
For your information, it is not possible to limit our searches for records on a particular topic to precisely two hours. Because some of the searches are automated, whereas others are not, the total search effort cannot be limited in an arbitrary way, such as the maximum amount that can be performed as you requested.
So, CIA may now be charging MDR requests up to $72 per hour for search fees that are being conducted by an computer, not a trained FOIA professional.
The NSC complaint requests the District Court do the following:
1) Declare the CIA’s recent MDR fee modifications null and void.
2) Order the CIA to publically announce that it has rescinded their new fee policy.
3) Demand that the CIA contact every MDR requester whose request was wrongfully rejected and offer the opportunity to reinstate their respective requests and then process accordingly.
4) Prohibit the CIA from attempting similar fee modifications in the future.
5) Find that CIA violated the Freedom of Information Act by counting time spent by computers performing automated searches for fee purposes.
This is a case that should be watched carefully, as the outcome could clearly show that federal agencies cannot chose to ignore Executive Orders and federal laws to prevent the public from accessing information, even if agencies would prefer to keep it private.
UNREDACTED: The National Security Archive Blog 
16 responses to “National Security Counselors Sues the CIA for Ignoring Freedom of Information Laws”
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[…] National Security Counselors Sues the CIA for Ignoring Freedom of Information Laws “At the same time that 36 organizations are attempting to use political and bureaucratic pressure to force the rollback of damaging MDR regulations at the CIA, Kel McClanahan of the National Security Counselors has filed a lawsuit against the Agency in the United States District Court of the District of Columbia. It is important to note that the National Security Counselors case is broader than just the MDR fee issue. It attacks the CIA’s willful and intentional violation of federal law in regard to MDR and the Freedom of Information Act. Below is a brief summary of the complaint’s key points.” https://nsarchive.wordpress.com/2012/02/23/national-security-counselors-sue-the-cia-for-ignoring-free… […]
It’s not just the CIA. See the comment on this post:
Notice that fees are permitted under the Mandatory Declassification Review process. See paragraph 16f at the bottom of page 64.
“Requesters may be charged fees for processing their requests in accordance with the schedule of fees in Volume 11 A of DoD 7000.14-R (Reference (bg)).”
Any ideas on how to counter it?
Good point. The key difference is that the DoD seems to have a much more reasonable fee structure– including a provision that if the total fees are less than $30, no fees will be charged. Still its of concern, and I’ll do a post on it in the near future.
Thanks.
While the Department of Defense fee structure may seem better, $30 can get consumed quickly at $52.60 per hour for managerial costs, $36.20 per hour for “professional” work, $20.80 per hour for clerical work, and duplication fees of $0.13 per page.
In addition, DoD components are supposed to establish programs to systematically review information for declassification. This requirement for a systematic review is stated in paragraph 17 on page 67 of the latest version of the information security directive DoD Manual 5200.01 Volume 1.
Specifically required is “review for declassification information that is contained in permanently valuable historical records that have been exempted from automatic declassification”.
The Air Force has set up a web site for declassified information but it looks like not all that much has been done.
There’s quite a large disconnect between agencies who have regs that allow MDR fees and agencies who actually CHARGE MDR fees. Honestly, that’s why we at NSC never caught this before; we’d never had an agency actually TRY it.
I agree that several agencies purport to allow MDR fees. DOD does, as you demonstrate, and DOJ has a subsection in its “Security Program Operating Manual” (available at http://www.nationalsecuritylaw.org/files/received/DOJJMD/SPOM.pdf) that says, “In responding to mandatory declassification review requests for classified records, DOJ components may charge fees in accordance with 31 U.S.C. 9701, relevant fee provisions in other applicable statutes, and Department of Justice MDR implementing regulations.”
That’s actually the reason for Count Two. We maintain that it’s a violation of the Independent Offices Appropriations Act (the 31 U.S.C. 9701 cited in the DOJ manual) for agencies to charge ANY fees for MDR requests. It’s just that nobody has argued this before because agencies never DID it, they just reserved the right to. Until now nobody has been able to tell a Court that he was actually HARMED by this policy. Now that the CIA has opened this door, we can get a ruling that precludes ANY agency from following suit. Thanks CIA! 🙂
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