A core group of researchers and historians have filed most of the declassification appeals being reviewed by the responsible appellate body. While these individuals are working diligently to facilitate public access to long-classified records that shed light on our nation’s history, their efforts also highlight weaknesses in the declassification framework.

The Mandatory Declassification Review (MDR) process is outlined and authorized under section 3.5 of Executive Order 13526: Classified National Security Information. https://www.archives.gov/isoo/policy-documents/cnsi-eo.html

The Interagency Security Classification Appeals Panel, or ISCAP, is responsible for deciding Appeals of Mandatory Declassification Review (MDR) requests. ISCAP is administered by the Information Security Oversight Office (ISOO), part of the National Archives.

ISCAP receives appeals in three ways: either the requester has had their appeal denied at the agency level and brings it to ISCAP, or requester has waited one year without agency action on their initial declassification request, or the requester has waited six months without agency action on an MDR agency appeal. It is rare for an agency to respond to an MDR request within one year, due to resource constraints, prioritization challenges, lack of systemic review procedures, and procedural impediments to declassification. As a result, most MDR requests can be appealed directly to ISCAP without an interim agency appeal.

According to the most recent ISCAP Appeals Log (through Second Quarter of Fiscal Year 2024), https://www.archives.gov/files/declassification/iscap/appeals-log-q4-2024.xlsx. ISCAP currently has a total of 1,195 MDR appeals pending, dating back as much as 18 years. (The oldest appeal is dated 2008 but also had a 2006 case number assigned.) The appellants with the largest number of pending MDR appeals before ISCAP are:

Table 1: Pending ISCAP MDR Appeals by Appellant

• Lt Col Allan G. Johnson, USAF (ret) – historian and researcher – 424 appeals
• Dr. William Burr, historian, National Security Archive – 269 appeals
• Peter J. Pesavento, historian and author – 127 appeals
• Prof. Mary Sarotte, Johns Hopkins School of Intl Studies – 53 appeals
• Lawrence Peterkin, researcher and writer – 42 appeals
• Timothy Naftali, historian, Columbia School of Intl and Public Affairs – 31 appeals
• Joyce Battle, historian, National Security Archive – 17 appeals
• Dr. Timothy Sayle, historian, University of Toronto – 16 appeals
• Nate Jones, journalist and researcher – 15 appeals
• Erik Larson, author – 13 appeals
• Charles E. Tuten, author – 12 appeals
• James E. David – author and researcher – 10 appeals
• Kel McClanahan, attorney, National Security Counselors – 9 appeals
• Emily Willard, PhD, Investigator, researcher and historian – 9 appeals
• Tyler Jost, PhD, Brown University Watson Institute – 7 appeals

All other appellants (total) – 141 appeals

The bulk of appellants are those who can most accommodate the lengthy delays associated with the MDR process. As a result, the list is comprised mainly of academics, historians, researchers affiliated with the private National Security Archive, authors and similar researchers. The protracted and arcane nature of the process largely precludes journalists from making use of it.

Table 2: Pending ISCAP MDR Appeals by Originating Agency

AGENCY       Pending Appeals

USAF                 227
OSD                  172
CIA                    148
LBJ Library      92
NARA                  79
GHWB Library   58
Clinton Library  51
JFK Library       47
State Dept       41
NSA                38
Nixon Library     36
Army                    36
All Others       406

Table 3: Pending ISCAP MDR Appeals by Calendar Year

2008  1
2009  1
2010  2
2011  42
2012  36
2013  50
2014  40
2015  72
2016  71
2017  219
2018  153
2019  99
2020  102
2021  69
2022  42
2023  21
2024  30

The backlog of MDR appeals is growing each year, and appeals routinely take more than a decade to be decided. One factor was that during the Covid-19 pandemic many government offices were closed, and therefore the Sensitive Compartmented Information Facilities (SCIFs) in which classified documents must be reviewed were inaccessible. Additionally, MDR requesters resort to MDR appeals before ISCAP because of what they regard as the lean toward excessive secrecy in the initial MDR stages, not to mention lack of appetite for declassification during FOIA reviews or appeals. But the larger problem is that ISCAP’s MDR appeal process produces a relatively small number of decisions each year, compared with what seems to be a large number of appeals of unjustified declassification denials, often for decades-old records.

The fact that a small group of researchers accounts for the majority of declassification appeals highlights both the dedication of these individuals and potential barriers to entry for others. This concentration of appeals indicates challenges in the declassification process that deter broader participation, raising questions about transparency and accessibility. One downside of this concentration of appeals to such a small group of requesters is that it tends to reduce the number of different declassification issues that ISCAP is able to address.

A primary issue with the declassification appeals system is that ISCAP’s decisions are not adopted as guidance or direction by the agencies that hold the records, as was originally envisioned when the Executive Order’s predecessors were drafted. It is akin to appellate court’s rulings lacking precedential value and being largely ignored by lower courts. This results in a proliferation of MDR appeals as the declassification system cannot learn from or benefit from ISCAP determinations. Unlike a court, ISCAP produces no real public written opinion explaining its reasoning to either declassify or not declassify. The National Archives and its ISOO office have acknowledged the problem.

Another significant issue with the declassification appeals system is the absence of deadlines after which records can be deemed declassified without a laborious line by line review. In other words, there is no enforceable 75-year rule. (While the Executive Order mandates 50- and 75- year rules of sorts, they are usually negated by the exceptions.) In such cases, records are kept classified essentially forever. In addition, for many old records, agencies struggle to find qualified reviewers to assess them.

A third issue is that agencies are not sending records to ISOO/ISCAP in a timely manner. The ISCAP Appeals Log shows that a large number of appeals are waiting for agencies to send over their records, and this can sometimes take years. According to the published data, ISCAP is waiting for agencies to send records for 400 of the pending 1336 MDR appeals. Those 400 cases shown as “Materials Requested from Agency” date back to 2011, with most of them (290) dating before 2018.

Finally, ISCAP processes its appeals in a way that applies a set of various factors rather than a first-in first out process. As a result, appellants have little to no idea when their appeals will be decided, and most cases typically take many years.

My Recommendations

1. Agencies should be required to adopt ISCAP’s decisions as precedents to guide future declassification decisions. This would help create a more consistent and predictable declassification process, reducing the number of appeals and ensuring that agencies learn from ISCAP’s determinations.
2. ISOO should include in its annual report public guidance for agencies explaining its reasoning for declassification decisions during that year.
3. ISOO should get additional funds to perform its valuable functions, and to help clear the declassification appeals backlog.
4. The Executive Order should provide for penalties if agencies do not provide records to ISOO/ISCAP within a reasonable timeframe.
5. The Executive Order should be modified to delay the opportunity for direct-to-ISCAP MDR appeal from one year to two years, because providing only one year for an agency declassification review is not enough and can flood ISCAP with direct appeals.  In addition, the Order should extend the too-stringent 60-day appeal timeframe to a more reasonable 90 days.
6. ISCAP should reexamine its method for queuing MDR appeals to be more transparent and more fair to appellants.
7. Agencies should regularly apply a declassification review during the review of classified records under Freedom of Information Act requests.

A robust declassification system and MDR appellate review process ensure transparency and accountability, allowing the public to access historical records and understand government actions, while protecting legitimately classified information. This fosters an informed citizenry, promotes trust in public institutions, and supports democratic principles by enabling oversight and informed decision-making. It also allows society to learn from the lessons of history, helping to prevent repeat of past mistakes and guiding future policies.

In conclusion, the current state of the declassification appeals process raises several important questions that warrant further exploration and discussion:

The Precedential Value of ISCAP Decisions: Do ISCAP decisions truly serve as potential precedents that could influence future classification and declassification decisions, such as by modifying current classification guidance? Or are these decisions so narrowly fact- and document-specific that they offer little in the way of lessons for other cases? Could it be that the precedential value of these decisions varies on a case-by-case basis? If we want to address the bulk of declassification questions at the agency level, should ISCAP be expecting adherence to reasonable norms of declassification behavior? Is such an expectation even possible?

Limits on the Demand Side of the Process: Should there be any constraints placed on the requester side of the process? Is it appropriate for a single individual to be able to file an unlimited number of appeals, potentially numbering in the hundreds? Researchers could reasonably object to any limits on the number of MDR appeals, given that the full MDR and MDR appeals process can and does take one or more decades to complete. Or are these MDR appeals just symptomatic of the lack of a reasonable, accountable declassification process at the initial MDR agency level?

The Impact of Declassification on Democracy: Is it demonstrably true, as is often claimed, that declassification promotes an informed citizenry and thereby enhances the democratic process? Or do the contested cases that come before ISCAP primarily concern narrow factual arcana of potential interest to specialists, but lacking in broader policy significance? The overall set of MDR appeals does appear to represent a broad range of important declassification issues pertaining to historically significant records. In my opinion, the procedural hurdles that a historian or researcher must overcome to bring an MDR appeal tends to bring to the table events and documentation deemed worthy of historical study.

These questions underscore the complexities and challenges inherent in the declassification appeals process.

Thanks to Steven Aftergood for his valuable observations.