CIA Stops Charging Declassification Fees …For Now. White House and Congressional Intervention Still Needed.

Entrance to the Central Intelligence Agency

The Central Intelligence Agency’s legal counsel has confirmed that “as a courtesy to requesters,” the Agency, “has decided not to charge fees under the new [Mandatory Declassification Review] regulation while judicial review of the regulation is pending.”  The CIA, however, still “believes the new regulation is within the scope of its authority.”  Fee language has been absent in CIA letters responding to MDR requests from the National Security Archive.

The judicial review that the Agency alludes to is the multi-count MDR and FOIA lawsuit filed by Kel McClanahan of National Security Counselors.  National Security Counselors’s FOIA counts, although also very important and very strong, are not covered int his post.

NSC’s lawsuit is independent of the 36 open government groups who have signed on to pressure the repeal this retrograde (and in all likelihood, illegal) regulation (although NSC is one of the signatories to that letter).

The true motivation of the Agency stopping this “practice” during litigation may be an effort to negate National Security Counselors’ “patterns and practice” petition, and to stem the ramifications of losing this class action lawsuit.

Last September, the CIA quietly (and illegally) slipped regulations into the Federal Register that allowed it to change its Mandatory Declassification Review fee structure.  The Agency now charges up to $72 per hour of search and review –even if no documents are found or released.  It also now requires that requesters pay a whopping 50¢ per page released, at a minimum of $15 dollars per request.  Requesters must agree to pay all the before the CIA will even begin working on their MDR request.

The CIA was attempting to “price out” requesters because it hopes to prevent requesters from appealing its overzealous classification decisions to the quasi-independent Interagency Security Classification Appeals Panel (ISCAP), often referred to as “the secrecy court of last resort.”  ISCAP fully or partially overturns more than 65 percent of classification decisions, government-wide.  Because the President’s Executive Order on Classification requires the CIA to defer to ISCAP’s decisions, the Agency is attempting to make it too expensive for requesters to take their requests there.

For more background, and to read the letter we sent the Agency, see here.

The crux of National Security Counselors’ argument stems from judicial precedent about the Administrative Procedure Act that defines different types of regulation changes as “legislative” “procedural,” and “interpretative.”  “Legislative” (also known as “substantive”) types of regulation changes are typically the most impactful and therefore legally require the most scrutiny, including the public notice and comment process.  (See American Mining Congress v. Mine Safety & Health Administation, 1993.)

In the CIA’s motion, the Agency argues that because other agencies –most prominently the Department of Treasury– have (in all likelihood improperly) claimed that substantive regulation changes were merely “procedural” or “interpretative” rather than “legislative,” it can too.

McClanahan rebuts this assertion that the CIA “should be allowed to violate the law because the Department of Treasury did it first.”  Moreover, he clearly explains why the CIA’s regulation changes are “legislative.”  First, the Agency’s previous 1997 regulations on MDR were defined and promulgated by the Agency as “legislative” regulations, so the Agency’s attempt to change their designation now to avoid public scrutiny is disingenuous, a departure from precedent, and does not satisfy the requirements for promulgating a “procedural” or “interpretative” rule.

Second, the Supreme Court has held that “agencies may not collect fees under IOAA [Independent Offices Appropriations Act] from individual parties for services which benefit the public generally.”  President Obama’s Executive Order on Classification and Mandatory Declassification Review defines MDR precisely as such: “Our democratic principles require that the American people be informed of the activities of their Government.  Also, our Nation’s progress depends on the free flow of information both within the government and to the American people.” (See National Cable Television Ass’n, Inc. v. United States, 1974.)

In one final irony, by using its “discretion” to waive MDR fees, the Agency is in violation of its own (incorrectly claimed) “procedural” and/or “interpretive” regulation.  You see, the CIA’s new MDR regulation changed the Agency’s ability to charge fees from discretionary to non-discretionary.  Despite this, in violation of its new, non-discretionary regulations, the CIA is now “as a courtesy to requesters” using its discretion to not charge fees that it argues are non-discretionary.

Despite the CIA’s decision to temporarily stop charging MDR fees –and the weakness of its case– the inaction of the Obama administration on this situation is very disconcerting.  How can the American President attempt to lead a world-wide Open Government Partnership when his own Agency is rolling back transparency under his nose… and as his Department of Justice continues to doggedly defend the government’s fight against the people’s right to know?