In response to criticism of the hefty fees that could be charged to public requesters in its new Mandatory Declassification Review (MDR) rule, the Office of the Director of National Intelligence has agreed to modify the rule.
The revised rule will adopt the more flexible and forgiving approach used in ODNI’s Freedom of Information Act (FOIA) program.
“We will pull back the MDR rule and swap out the fee structure there for the fee structure in the FOIA policy,” said Jennifer Hudson, director of the ODNI Information Management Division.
This represents a substantial change. In comments on the rule submitted yesterday by the Federation of American Scientists, we recommended such a change. We noted that the MDR fee schedule was inconsistent in several respects with existing law and policy and, in particular, that it differed from the cost recovery procedures in ODNI’s FOIA program:
* The MDR rule would charge 50 cents per page for photocopying, but ODNI charges only 10 cents per page for responses to FOIA requests.
* The MDR rule would have made requesters responsible “for paying all fees,” but ODNI always waives costs of $10 or lower under FOIA.
* The MDR rule did not provide for discretionary fee waivers for public interest or other reasons, but the FOIA policy does.
Now all of these discrepancies will be eliminated. Perhaps most significantly, “We will also make sure that there is room [in the MDR process] for discretion in charging fees,” Ms. Hudson said in an email message. “I’m sure you know from looking at our FOIA reports that we have exercised our discretion to not charge fees quite a bit in the past.”
She noted, however, that “The search/review charges are identical” under the proposed MDR rule and under FOIA. “FOIA just breaks [the charges] down into 15 minute increments where the MDR rule is by the hour. The end result is the same.”
“At the end of the day, I don’t think it will make as much of a difference as people think,” she said.
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