Section 2003.13 - Appeals of agency decisions denying declassification under mandatory review provisions in section 3.5 of the OrderSection 3.5 of the Order requires agencies to conduct a mandatory declassification review, upon request, of classified information that meets the requirements set out in the Order. An agency may deny such a review for specific reasons set out in section 5.3(a) of the Order. If an agency denies a request for such review, a person may appeal the denial through the agency's appeal process. After that process, a person may further appeal to the ISCAP.
(a)Jurisdiction. The ISCAP considers and decides appeals from denials of mandatory review for declassification requests that otherwise meet the standards of the Order if:(1) The appeal is filed in accordance with these procedures;(2) The appellant has previously filed a request for mandatory declassification review at the agency that originated, or is otherwise responsible for, the information in question, and filed an appeal at the agency level. The request and appeal must have followed the agency's established procedures or, if the agency has failed to establish procedures, the appellant must have filed a written request directly with the agency head or designated senior agency official;(3) The appellant has:(i) Received a final agency decision denying his or her request; or(ii) Not received-(A) An initial decision on the request for mandatory declassification review from the agency within one year of its filing, or(B) A final decision on an agency level appeal within 180 days of the filing of the appeal;(4) There is no action pending in the federal courts regarding the information in question;(5) The information in question has not been the subject of an access review by the Federal courts or the ISCAP within the past two years; and(6) The information in question is not the subject of a prepublication review or other administrative process pursuant to an approved nondisclosure agreement.(b)Submission of appeals. Appeals may be submitted to the Panel by email or mail. Appeals should be sent via email to: ISCAP@nara.gov or by mail to: Executive Secretary, Interagency Security Classification Appeals Panel; Attn: Mandatory Declassification Review Appeals; c/o Information Security Oversight Office; National Archives and Records Administration; 700 Pennsylvania Avenue NW., Room 503; Washington, DC 20408.(1) The appeal must contain enough information for the Executive Secretary to be able to obtain all pertinent documents about the mandatory declassification review appeal from the affected agency.(2) No classified information should be included within the initial appeal correspondence. The Executive Secretary will arrange for the transmittal of classified information from the agency after receiving the appeal. If it is impossible for the appellant to file an appeal without including classified information, prior arrangements must be made by contacting the Panel in one of the two methods listed above.(c)Timeliness of appeals. An appeal to the ISCAP must be filed within 60 days of:(1) The date of the final agency decision; or(2) The agency's failure to meet the time frames established in paragraph (a)(3)(i) and (ii) of this section.(d)Rejection of appeals. If the Executive Secretary determines that an appeal does not meet the requirements of the Order or these bylaws, the Executive Secretary notifies the appellant in writing that the appeal will not be considered by the ISCAP. The notification includes an explanation of why the appeal is deficient.(e)Preparation of appeals and creation of appeals files. The Executive Secretary notifies the senior agency official or primary member, alternate, or liaison of the affected agency(ies) when an appeal is lodged. Under the direction of the ISCAP, the Executive Secretary supervises the preparation of an appeal file, pertinent portions of which are presented to the members of the Panel for review prior to a vote on the appeal. The appeal file eventually includes all records pertaining to the appeal.(f)Narrowing appeals. To expedite the resolution of appeals and minimize backlogs, the Executive Secretary consults as relevant with appellants and agencies to narrow or prioritize the information subject to the appeal.(g)Resolution of appeals. The Panel may vote to affirm the agency's decision, to reverse the agency's decision in whole or in part, or to remand the matter to the agency for further consideration. A decision to reverse an agency's decision requires the affirmative vote of at least a majority of the members present. In circumstances in which members abstain from voting, a Panel decision to reverse an agency's classification decision requires the affirmative vote of at least a majority of the members present.(h)Notification. The Executive Secretary promptly notifies the appellant and designated senior agency official in writing of the Panel's decision.(i)Agency appeals. Within 60 days of receipt of an ISCAP decision that reverses a final agency decision, the agency head may petition the President through the National Security Advisor to overrule the Panel's decision.(j)Protection of classified information. All persons involved in the appeal will make every effort to minimize the inclusion of classified information in the appeal file. Any classified information contained in the appeal file is handled and protected in accordance with the Order and its implementing directives. Information that is subject to an appeal from an agency decision denying declassification under the mandatory review provisions of the Order remains classified unless and until a final decision is made to declassify it.(k)Maintenance and disposition of file. The Executive Secretary shall maintain the appeal file among the ISCAP's records in accordance with 44 U.S.C. 2201-2207 (Presidential Records Act).