§ 2003.11 Appeals of agency decisions regarding classification challenges under section 1.8 of the Order. Authorized holders of information who, in good faith, believe that its classification status is improper may challenge an agency's classification of the information in accordance with agency procedures. After challenging the classification at the agency level, the authorized holder may appeal the agency's decision to the ISCAP. ( a ) *Jurisdiction.* The ISCAP will consider and decide appeals from classification challenges that otherwise meet the standards of the Order if: ( 1 ) The appeal is filed in accordance with these procedures;
( 2 ) The appellant has previously challenged the classification action at the agency that originated, or is otherwise responsible for, the information in question. The previous challenge must have followed the agency's established procedures or, if the agency has failed to establish procedures, the appellant must have filed a written challenge directly with the agency head or designated senior agency official, as defined in section 5.4(d) of the Order;
( 3 ) The appellant has: ( i ) Received a final agency decision denying his or her challenge; or
( ii ) Not received— ( A ) An initial written response to the classification challenge from the agency within 120 days of its filing, or
( B ) A written response to an agency level appeal within 90 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 a FOIA or mandatory declassification review within the past two years; and
( 6 ) The information in question has not been 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: Classification Challenge 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 classification challenge 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 designated senior agency official, and, if applicable, the 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 ) *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.
( g ) *Notification.* The Executive Secretary promptly notifies the appellant and the designated senior agency official in writing of the Panel's decision.
( h ) *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. The information at issue remains classified until the President has issued a decision.
( i ) *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 being challenged for classification remains classified unless and until a final decision is made to declassify it.
( j ) *Maintenance and disposition of file.* The Executive Secretary maintains the appeal file among the ISCAP's records in accordance with 44 U.S.C. 2201-2207 (the Presidential Records Act).