The CIA has responded to a letter signed by 36 groups requesting that the it withdraw new MDR fee regulations that allow it to charge up to $72 per hour to search for documents –even if none are found. The response from the CIA’s Information Management Services: Talk to our lawyers, not us.
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 is 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 “lawsuit recently filed in federal district court” that the above letter references was in all likelihood filed by National Security Counselors. The multiple-count lawsuit –which also accuses the CIA of illegal behavior related to the Freedom of Information Act– argues that the CIA passed these MDR regulations illegally. It alleges that the CIA improperly bypassed the required notice and comment process and 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.”
So why is the CIA using tax dollars and Department of Justice resources to fight the repeal of this regulation to the bitter end in court, rather than proactively rolling it back and essentially “mooting” one count of NSC’s case? I think there are two reasons. (more…)
