SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2016, Issue No. 19
March 1, 2016

Secrecy News Blog: http://fas.org/blogs/secrecy/

ODNI ERECTS COST BARRIER TO MANDATORY DECLASSIFICATION

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.

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.

"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."

Public comments on the new ODNI rule are due by March 28.

AN EIGHT-MEMBER SUPREME COURT, AND MORE FROM CRS

A new report from the Congressional Research Service examines the implications of having only eight members on the Supreme Court following Justice Scalia's death.

"This report provides an overview of the Supreme Court's procedural rules and requirements when the Court is staffed with less than nine members. Included in this discussion is an overview of the Court's quorum requirements, rehearing procedures, and vote count practices, with a focus on how the Court has traditionally responded to a change of composition during a term. The report concludes by highlighting over a dozen cases from the current term that could result in an evenly divided Supreme Court."

See The Death of Justice Scalia: Procedural Issues Arising on an Eight-Member Supreme Court, February 25, 2016:

Other new and updated CRS reports that were published (but not publicly released) in the past week include the following.

DOD Releases Plan to Close GTMO, CRS Legal Sidebar, February 23, 2016:

The United Kingdom and the European Union: Stay or Go?, CRS Insight, February 24, 2016:

Court-Ordered Access to Smart Phones: In Brief, February 23, 2016:

Health Care for Veterans: Suicide Prevention, updated February 23, 2016:

Prescription Drug Abuse, February 23, 2016:

Overview of Labor Enforcement Issues in Free Trade Agreements, updated February 22, 2016:

Senators' Official Personnel and Office Expense Account (SOPOEA): History and Usage, February 25, 2016:

U.S. Trade Deficit and the Impact of Changing Oil Prices, updated February 25, 2016:

The 2015 National Security Strategy: Authorities, Changes, Issues for Congress, updated February 26, 2016:

Ukraine: Current Issues and U.S. Policy, updated February 22, 2016:

Federal Court Declines to Bar the Resettlement of Syrian Refugees in Texas, CRS Legal Sidebar, February 26, 2016:

Iraqi and Afghan Special Immigrant Visa Programs, updated February 26, 2016:

Iran-North Korea-Syria Ballistic Missile and Nuclear Cooperation, updated February 26, 2016:

IT'S A PLANE: VISUAL AIRCRAFT RECOGNITION

The U.S. Army yesterday issued an updated manual to assist soldiers in identifying aircraft on the battlefield so as to determine whether they are friendly, hostile or something else.

"Soldiers must be knowledgeable in the identification of all types of aerial platforms ranging from fixed wing attack aircraft to unmanned aircraft (UA), in order to protect friendly forces and to prevent fratricide."

The task is easier said than done, however, even for an experienced observer.

The new manual characterizes the wing, engine, fuselage, and tail (or WEFT) of "a multitude of both hostile and friendly aircraft platforms."

But due to national security classification, the catalog of aircraft is incomplete.

"This publication, by nature, has a built-in time lag, and some aircraft may still be under development or classified at the time of writing, but may be fielded or unclassified at, or after, publication."

See Visual Aircraft Recognition, TC 3-01.80, February 29, 2016:

The new edition of the manual was released by the Army for unlimited public distribution. The 2006 manual that it replaces (FM 3-01.80), by contrast, was intended only for U.S. government agencies and contractors.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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