Declassification Provisions of the 2024 Intelligence Authorization Act, Treasury Dept.’s Egregious “Still Interested” Letters, and More: FRINFORMSUM 6/16/2023

Declassification Provisions of the 2024 Intel Authorization Act

Senator Ron Wyden (D-OR) is touting the 2024 Intelligence Authorization Act (IAA), which unanimously passed the Senate Intelligence Committee this week, as “historic declassification reform legislation” that will help fix “the country’s broken classification and declassification system.” Wyden’s press release notes that the IAA includes provisions that were initially introduced with Senator Jerry Moran (R-KS) in the Declassification Reform Act of 2020, and which were subsequently included in the Classification Reform Act of 2023.

The text of 2024 IAA has not been made public, but, if it includes the main provisions of the Classification Reform Act (CRA), it deserves careful scrutiny. The CRA mandates, among other things, the establishment of an Executive Agent for Classification and Declassification, with the Director of National Intelligence serving as said Agent. The Agent would be responsible for: promoting programs to “ensure that declassification activities keep pace with classification activities;” promoting “a federated classification system” that incorporates automatic declassification and consistent declassification review across agencies; and working “with the Director of the Office of Management and Budget in developing a line item for classification and declassification in each budget of the President that is submitted for a fiscal year under section 1105(a) of title 31, United States Code.”

The selection of the DNI as the Agent could be particularly problematic, depending on who fills that role. An alternate option for Executive Agent could be the director of the Information Security Oversight Office (ISOO), which is currently a part of the National Archives and Records Administration (NARA). Some have suggested that ISOO should become a part of the DNI itself, but a more diplomatic move might be to make ISOO its own, independent office. ISOO also already reports to the president annually on the classification system, including its cost, making it a natural fit for the Executive Agent role. 

The Classification Reform Act has other potential upshots and downsides. It explicitly adds ISOO to the text of the National Security Act; includes potentially good language on not classifying information if there is any doubt it should be classified (as well as declassifying if there is any doubt the record needs continued protection); and requires considering public interest when determining harm to national security. Controversially, the bill also provides “for no more than two levels of classification,” which ostensibly means eliminating the Confidential category, potentially leading to lower-level information being classified as Secret rather than declassified. 

It is likely that much of the CRA language is now part of the IAA. But without the relevant text of the IAA, there are more questions than answers about its benefit to the classification system.

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Treasury Dept. “Still Interested” Letters Demand Signature Response

The National Security Archive has recently received dozens of “still interested” letters from the Treasury Department’s Office of Terrorism of Financial Intelligence that are more problematic than most. (“Still interested” letters are sent by agencies and threaten to close a FOIA request, even if it abides by all the rules of a perfected FOIA request and may have been pending for years, if a requester doesn’t reply affirmatively within 30 days – or sometimes less. The Archive once received a 7-day response timeframe for a request we had been waiting for 15 years to be processed.) Treasury is now requiring that FOIA requesters manually sign the letters and return them, and only upon receipt of signature will it continue to process the request.

This arbitrary requirement violates Department of Justice Office of Information Policy (OIP) guidance, which requires, among other things, that requesters are not disadvantaged by the letters. OIP guidance also states that agencies must limit the use of “still letters” and provide at least 30 days for a requester to respond.

While the use of these letters continues (presumably to help agencies cut down on their FOIA backlog), nothing in the FOIA statute itself suggests an agency may close a request if it does not receive a response from a “still interested” letter. Aside from settling possible fee disagreements, the statute does not require any further action on a requester’s part after a request has been submitted.  

The Archive’s 2021 Sunshine Week audit, “Still Interested” Letters Add Insult to Injury of Long-Ignored FOIA Requests, examines the issue in greater detail and can be read on our website. 

FOIA Advisory Subcommittee Needs Your Feedback

The FOIA Advisory Committee’s Modernization Subcommittee is seeking public feedback on its draft model determination letter. The letter, which was introduced during the most recent FOIA Advisory Committee meeting, is designed to be a template for agencies when providing initial and final determination responses, and would help standardize disparate agency responses. 

The Archive will be submitting comments on the letter, which is already good, including recommending that determination letters include information on what fees are waived for different requester categories when an agency doesn’t meet its statutorily-mandated deadlines, and informing requesters that there is a 25-year sunset to FOIA Exemption 5’s “deliberative process” privilege when that exemption is invoked.  

Comments may be submitted through the Office of Government Information Services (OGIS) Public Comments Form, and will be made public if they comply with OGIS’s Public Comment Policy.

The June 8, 2023, full FOIA Advisory Committee meeting, and all of the meeting materials, can be found here.