POGO Joins Letter Challenge CIA Secrecy

To: Director of National Intelligence, James Clapper

Director of the Central Intelligence Agency, David Petraeus

Director of the Information Security Oversight Office, John Fitzpatrick

February 23, 2012

Re: CIA Regulation change to 32 CFR Part 1908 allowing the Agency to charge requesters as high as $72 per hour for Mandatory Declassification Review requests.

To whom it may concern:

We the undersigned would like to call to your attention an alarming regulation that the Central Intelligence Agency entered into the Federal Register on 23 September 2011. Finalized without any notice for public comment, this regulation could cut off access to the most effective tool the public can use to request declassification of the CIA’s secret documents, the Mandatory Declassification Review (MDR) program.

The regulation states that declassification reviews will now cost requesters up to $72 per hour, even if no information is found or released. The public must now also agree to pay a minimum of $15 in duplication fees. Throughout the government, and previously at CIA, MDR fees are commensurate to FOIA fees. Under FOIA, Congress stipulated that public interest, educational, journalism, and other fee waivers must be granted, when applicable under the statute. Furthermore, agencies must forfeit their right to collect some FOIA processing fees when they miss their processing deadline.

The effect of the CIA’s new policy will be to price the public out of submitting MDR requests, a result not at all consonant with Obama Administration transparency policy in general or its declassification policy under Executive Order 13,526 in particular. The MDR process is a popular and successful tool for researchers, historians, public interest advocates and others, in part because of the independent accountability and oversight the program provides. Unlike with FOIA requests, if an agency fails to declassify and release the information under the MDR process, requesters can appeal the agency's decision to the Interagency Security Classification Appeals Panel (ISCAP) for independent review. According to the Information Security Oversight Office, ISCAP officials have overruled agency classification decisions more than 65 percent of the time since 1996.

This regulation was quietly adopted without notice for public comment, imposes burdensome fees inconsistent with those charged for FOIA requests, and is absolutely contrary to President Obama’s call for “an unprecedented level of openness in government.” We respectfully request that the CIA withdraw this retrograde regulation. Representatives of our organizations are happy to meet with you to discuss this issue. Please contact the National Security Archive at [email protected].

Sincerely,

American Association of Law Libraries

American Booksellers Foundation for Free Expression

American Library Association

Bill of Rights Defense Committee

Brennan Center for Justice

Californians Aware

Center for Media and Democracy

Center for National Security Studies

Citizens for Responsibility and Ethics in Washington – CREW

Collaboration on Government Secrecy

The Constitution Project

Electronic Frontier Foundation - EFF

Electronic Privacy Information Center - EPIC

Federation of American Scientists

Freedom of Information Center at the Missouri School of Journalism

iSolon.org

James Madison Project

Liberty Coalition

MuckRock

National Coalition Against Censorship

National Coalition for History

National Freedom of Information Coalition

National Security Archive

National Security Counselors

OMB Watch

OpenTheGovernment.org

Project On Government Oversight - POGO

Progressive Librarians Guild

Public Citizen

Reporters Committee for Freedom of the Press

Society of American Archivists

Society of Professional Journalists

Special Libraries Association

Sunlight Foundation

Utah Foundation for Open Government

Washington Coalition for Open Government