ODNI Erects Cost Barrier to Mandatory Declassification - 1 views
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Anyone who submits a mandatory declassification review request to the Office of the Director of National Intelligence seeking release of classified records “shall be responsible for paying all fees” resulting from the request, according to a new ODNI regulation. And those fees are considerable. A search for a requested document costs from $20-$72 per hour. Document review runs $40-$72 per hour. And photocopying costs fifty cents per page, the new ODNI regulation said. It was published in the Federal Register on Friday, with a request for public comments. The mandatory declassification review (MDR) process was established by executive order 13526 to permit requests for declassification of information that no longer meets the standards for national security classification. The executive order’s implementing directive states that fees may be charged for responding to MDR requests for classified records. But the proposed ODNI fees seem extravagant on their face. No commercial enterprise charges anything close to fifty cents to photocopy a single page. Neither do most of ODNI’s peer agencies.
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The Department of Defense permits (though it does not require) DoD agencies to charge fees for search, review and reproduction (pursuant to DoD Manual 5230.30-M). But the DoD schedule of fees is well below the proposed ODNI rate. Instead of fifty cents per page, DoD charges thirteen cents. Instead of up to $72 per hour for search and review, DoD charges no more than $52.60 per hour. ODNI wants $10 for a CD, but DoD asks only $1.25. (See DoD 7000.14-R, Volume 11A, Chapter 4, Appendix 2, Schedule of Fees and Rates, at page 4-13). And while ODNI would make requesters liable for “all fees,” DoD says that “Fees will not be charged if the total amount to process your request is $30.00 or less.” Similarly, at the Department of State, “Records shall be duplicated at a rate of $.15 per page.” In a 2011 rule, the Central Intelligence Agency did mandate a fifty cent per page photocopy fee for MDR requests, as well as a $15 minimum charge. But the CIA policy was suspended in response to public criticism and a legal challenge from the non-profit National Security Counselors. That challenge is still pending.
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“There is nothing unusual about these [search and review] fees,” CIA told a court in 2014 in response to the legal challenge. “And the reproduction costs are similar to those employed by other agencies.” CIA noted that a National Archives regulation sets reproduction costs as high as 75 cents per page. (Last year it reached 80 cents, although a self-service copier is sometimes available for 25 cents per page.) Furthermore, CIA said in 2014, “neither set of costs reimburses the CIA for the full cost of providing the declassification review service to the requester.”
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Mandatory Declassification Review is now only for the wealthy. Note that the Freedom of Information Act requires that all search and copying fees be waived if the request is in the public interest and the request is for scholarly or news purposes. It looks like Congress should step in here and establish similar requirements for Mandatory Declassification Review. Query, whether the records if sought under both the FOIA and MDR by a scholar or news organization would have to be provided without charge if declassified.