III. Challenging Rejections Based on Procedural Deficiencies

In addition to meeting the substantive classification criteria in EO 13526, an agency must demonstrate conformity with its classification procedures.¹¹⁰ Identifying potential procedural defects in the agency’s classification process may raise red flags indicating that the information should not have been classified on substantive grounds. These procedures include restrictions on who may originally classify information¹¹¹ and the types of markings that must appear on a classified document, such as its level of classification and the identity of the classifying authority.¹¹²

However, you should note that even demonstrating a procedural defect may not result in a court ordering release. While a defect in an agency’s adherence to the classification procedures “would not mandate the outright release of the documents,” it may “implicate the agency’s overall classification decision,” and thereby necessitate in camera review.¹¹³

Some procedural violations “may be of such importance to reflect adversely on the agency’s overall classification decision, requiring a remand to the district court for in camera inspection; while others may be insignificant, undermining not at all the agency’s classification decision.’”¹¹⁴ One example of a procedural defect that a court noted could undermine an agency’s classification decision is one where the violation “suggests that, contrary to the EO, classification was undertaken in order to conceal a violation of law.”¹¹⁵

You should note that it is difficult to prevail against an Exemption 1 withholding solely based on procedural defects. For example, a requester unsuccessfully argued that because an agency deviated from the procedural criteria by, for example, failing to identify the person who originally classified the records, photos and videos of Osama bin Laden’s death and burial should be released.¹¹⁶ While the court acknowledged that the CIA’s declarations were “not a model of transparency,” it refused to order release based on procedural grounds because the agency had since reviewed the classification, the records were correctly marked at the time they were before the court, and “any hypothetical defect” would not undermine the CIA’s classification decision.¹¹⁷

In raising procedural defects in an agency’s classification of information, you should argue that its failure to follow procedures resulted in improper classification of material that should not be classified under the substantive guidelines of EO 13526.