FAS Comment Submitted via Regulations.gov
March 3, 2016

Agency: Office of the Director of National Intelligence (ODNI)
Document Type: Rulemaking
Title: Mandatory Declassification Review Program
Document ID: ODNI-2016-0001-0001


This is a comment on the ODNI direct final rule on the Mandatory 
Declassification Review (MDR) program.

I recommend that the fee provisions in Section 1704.8 of the rule 
be withdrawn and replaced with fee provisions comparable to those 
in ODNI's Freedom of Information Act program (32 CFR 1700.6).

It is clear that ODNI has the authority to recover fees in its MDR 
program. And it makes sense that fees should be charged whenever 
a valid public interest is not served by an MDR request. However, 
the proposed fee schedule in the new final role seems onerous, 
inconsistent with other agency policies, and likely to have adverse 

The ISOO implementing directive for executive order 13526 states 
that "In responding to mandatory declassification review requests 
for classified records, agency heads may charge fees in accordance 
with 31 U.S.C. 9701 or relevant fee provisions in other applicable 
statutes." There are several noteworthy points here.

First, fees are a matter of agency discretion. They "may" be charged. 
But the ODNI final rule appears to remove any such discretion and 
to categorically require that requesters "shall be responsible for 
paying all fees" under all circumstances. That is not what the 
ISOO implementing directive says.

Second, the referenced statute in 31 U.S.C. 9701 dictates several 
factors in the fee decision that are not reflected in the ODNI 
final rule. In particular, it says that the fee must be fair; that 
it should be based on actual costs to the Government; based on the 
value of the service to the requester; and based on other public 
policy or interests served. But the ODNI rule does not provide 
for any moderation of fees that would take these factors into 
account. And the proposed photocopying charge of 50 cents per page 
seems both unfair to the requester and unlikely to be based on 
actual costs to the Government.

Third, the same statute directs that fee policies "shall be as 
uniform as practicable." But the new ODNI MDR fee policy is 
significantly inconsistent with the ODNI FOIA fee policy in 32 
CFR 1700.6.

The ODNI FOIA fee policy notably charges ten cents per page, not fifty. 
It provides an automatic waiver of incurred fees that are less than $10, 
a provision that is absent from the MDR fee policy. And it admits 
the possibility of a public interest fee waiver, which is also excluded 
from the MDR fee policy. Although the ISOO implementing directive is 
silent on a waiver of fees, such a waiver is arguably implicit in 
the discretionary quality of the fee requirement.

Given the sharp disparity between the MDR and the FOIA fee policies, 
sensible requesters will naturally perceive an incentive to favor 
the FOIA process over the MDR. Is this ODNI's intent or preference? 
I don't know why that would be the case.

In sum, I suggest that ODNI MDR fee policy should be revised so as 
to conform more closely to ODNI FOIA fee policy. Making this change 
would be consistent with the ISOO implementing directive, with the 
fee statute, and, I believe, with the public interest.

Thank you for considering this comment.

Steven Aftergood
Federation of American Scientists