ODNI Tries to Sneak Through Astronomically High MDR Fees Out of Step with Obama Administration’s Open Gov Commitments

$72 an hour seriously out of step with other agencies, open government commitments.

The Office of the Director of National Intelligence’s (ODNI) new plan to charge requesters up to $72 per hour to review Mandatory Declassification Review (MDR) requests, even if no information is found or if all of the information that is found must be withheld, is out of step both with the Obama administration’s National Action Plan (NAP) transparency commitments and other agencies’ reasonable fee structures. Steve Aftergood notes that commercial enterprise don’t charge anywhere  near what ODNI is proposing, and “Neither do most of ODNI’s peer agencies.” ODNI is following the CIA’s bad —and ultimately unsuccessful— example with this tactic, and its plan to price out requesters from making legitimate declassification requests will go into effect by April 26, 2016, “unless adverse comment is received by March 28, 2016.”

The contact person at ODNI, by the way, is Jennifer L. Hudson, who can be reached at 703-874-8085.

ODNI’s high fees support OTG’s earlier reports. 

The ODNI’s actions hurts both ordinary requesters and the Obama administration by making the White House look uncommitted to fulfilling its NAP commitments, specifically its commitment to create a classification reform committee that would, among other improvements, expand and improve MDR. Rather, it gives further credence to a recent OpentheGovernment.org (OTG) report that concludes that the administration is not fulfilling its commitments to improve FOIA or other open government benchmarks, and an earlier progress report finding that overall the Obama administration has failed to take advantage of the OGP platform and capitalize on transparency initiatives, noting that, “certain areas of secrecy continue to cast a dark shadow over the entire OGP process.”

The move also severely undercuts the ODNI’s previous attempts to be more transparent with “IC On The Record”, its tumblr account that was set up in an attempt to rebrand itself after the Edward Snowden leaks to provide “Direct access to factual information related to the lawful foreign surveillance activities of the U.S. Intelligence Community”.

Pricing out the public from making legitimate declassification requests only makes it more likely that more Snowdens will leak documents the public can’t afford to request.

Why would ODNI propose such a bad new rule and not invite public comment at a time when the Obama administration could use a transparency win and after the CIA failed to push nearly the exact same rule through in 2012?

Because MDR —thanks to its unique appeals process—  eventually allows declassification decisions to be removed from under the control of an individual agency to an independent, democratic, outside entity. This entity is sometimes called the “secrecy court of last resort,” the Interagency Security Classification Appeals Panel (ISCAP).

ISCAP is composed of senior-level representatives appointed by the Departments of State, Defense, and Justice, the National Archives, the Office of the Director of National Intelligence, and the National Security Advisor. These senior representatives review classified documents, and vote to determine if some or all of the information agencies have argued must remain secret can be released without harming US national security –majority vote rules.

According to the most recent US government report on classification, these officials have overruled agency classifications 75 percent of the time.

“The Panel affirmed the prior agency classification decisions in 113
documents (25 percent), declassified 181 documents (40
percent) in their entirety, and declassified 157 documents
35 percent) in part.“

The CIA’s efforts in 2012 were thwarted after thirty-six groups —including the Archive— signed on to fight to force the CIA to repeal its regulations (and after Kel McClanahan of National Security Counselors filed a lawsuit showing this secret regulations change was illegal). Only after this did the CIA “as a courtesy to requesters… decide[] not to charge fees under the new [Mandatory Declassification Review] regulation while judicial review of the regulation is pending.”

Proposing a rule that would effectively price out requesters before they can even file an MDR request —ostensibly because agencies don’t like being consistently told their secrecy claims are unsubstantiated, and doing so by ignoring notice-and-comment requirements, is not in keeping with the Obama administration’s open government commitments and ODNI’s earlier attempts to be more transparent. OTG will be submitting comments against the new fee rules as will the Archive. Join us in telling the ODNI to get back on the right track