50 U.S.C. § 3143 — Operational files of the National Recon-

Page 700 TITLE 50—WAR AND NATIONAL DEFENSE § 3143 2002—Subsec. (a)(3)(C). Pub. L. 107–306 added cl. (i), re- designated cls. (iii) to (vi) as (ii) to (v), respectively, and struck out former cls. (i) and (ii) which read as fol- lows: ‘‘(i) The Permanent Select Committee on Intelligence of the House of Representatives. ‘‘(ii) The Select Committee on Intelligence of the Senate.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2004 AMENDMENT For Determination by President that amendment by Pub. L. 108–458 take effect on Apr. 21, 2005, see Memo- randum of President of the United States, Apr. 21, 2005, 70 F.R. 23925, set out as a note under section 3001 of this title. Amendment by Pub. L. 108–458 effective not later than six months after Dec. 17, 2004, except as otherwise expressly provided, see section 1097(a) of Pub. L. 108–458, set out in an Effective Date of 2004 Amendment; Transition Provisions note under section 3001 of this title. TREATMENT OF CERTAIN TRANSFERRED RECORDS Pub. L. 106–120, title V, § 501(b), Dec. 3, 1999, 113 Stat. 1619, as amended by Pub. L. 108–136, div. A, title IX, § 921(g), Nov. 24, 2003, 117 Stat. 1570, provided that: ‘‘Any record transferred to the National Geospatial-Intel- ligence Agency from exempted operational files of the Central Intelligence Agency covered by section 701(a) of the National Security Act of 1947 (50 U.S.C. 431(a)) [now 50 U.S.C. 3141(a)] shall be placed in the operational files of the National Geospatial-Intelligence Agency that are established pursuant to section 105B [now 702] of the National Security Act of 1947 [50 U.S.C. 3142], as added by subsection (a).’’ § 3143. Operational files of the National Recon- naissance Office (a) Exemption of certain operational files from search, review, publication, or disclosure (1) The Director of the National Reconnais- sance Office, with the coordination of the Direc- tor of National Intelligence, may exempt oper- ational files of the National Reconnaissance Of- fice from the provisions of section 552 of title 5 which require publication, disclosure, search, or review in connection therewith. (2)(A) Subject to subparagraph (B), for the pur- poses of this section, the term ‘‘operational files’’ means files of the National Reconnais- sance Office (hereafter in this section referred to as ‘‘NRO’’) that document the means by which foreign intelligence or counterintelligence is collected through scientific and technical sys- tems. (B) Files which are the sole repository of dis- seminated intelligence are not operational files. (3) Notwithstanding paragraph (1), exempted operational files shall continue to be subject to search and review for information concerning— (A) United States citizens or aliens lawfully admitted for permanent residence who have requested information on themselves pursuant to the provisions of section 552 or 552a of title 5; (B) any special activity the existence of which is not exempt from disclosure under the provisions of section 552 of title 5; or (C) the specific subject matter of an inves- tigation by any of the following for any impro- priety, or violation of law, Executive order, or Presidential directive, in the conduct of an in- telligence activity: (i) The Permanent Select Committee on Intelligence of the House of Representatives. (ii) The Select Committee on Intelligence of the Senate. (iii) The Intelligence Oversight Board. (iv) The Department of Justice. (v) The Office of General Counsel of NRO. (vi) The Office of the Director of NRO. (vii) The Office of the Inspector General of the NRO. (4)(A) Files that are not exempted under para- graph (1) which contain information derived or disseminated from exempted operational files shall be subject to search and review. (B) The inclusion of information from exempt- ed operational files in files that are not exempt- ed under paragraph (1) shall not affect the ex- emption under paragraph (1) of the originating operational files from search, review, publica- tion, or disclosure. (C) The declassification of some of the infor- mation contained in exempted operational files shall not affect the status of the operational file as being exempt from search, review, publica- tion, or disclosure. (D) Records from exempted operational files which have been disseminated to and referenced in files that are not exempted under paragraph (1) and which have been returned to exempted operational files for sole retention shall be sub- ject to search and review. (5) The provisions of paragraph (1) may not be superseded except by a provision of law which is enacted after November 27, 2002, and which spe- cifically cites and repeals or modifies its provi- sions. (6)(A) Except as provided in subparagraph (B), whenever any person who has requested agency records under section 552 of title 5 alleges that NRO has withheld records improperly because of failure to comply with any provision of this sec- tion, judicial review shall be available under the terms set forth in section 552(a)(4)(B) of title 5. (B) Judicial review shall not be available in the manner provided for under subparagraph (A) as follows: (i) In any case in which information specifi- cally authorized under criteria established by an Executive order to be kept secret in the in- terests of national defense or foreign relations is filed with, or produced for, the court by NRO, such information shall be examined ex parte, in camera by the court. (ii) The court shall, to the fullest extent practicable, determine the issues of fact based on sworn written submissions of the parties. (iii) When a complainant alleges that re- quested records are improperly withheld be- cause of improper placement solely in exempt- ed operational files, the complainant shall support such allegation with a sworn written submission based upon personal knowledge or otherwise admissible evidence. (iv)(I) When a complainant alleges that re- quested records were improperly withheld be- cause of improper exemption of operational files, NRO shall meet its burden under section 552(a)(4)(B) of title 5 by demonstrating to the court by sworn written submission that ex- empted operational files likely to contain re- sponsive records currently perform the func- tions set forth in paragraph (2). Page 701 TITLE 50—WAR AND NATIONAL DEFENSE § 3144 (II) The court may not order NRO to review the content of any exempted operational file or files in order to make the demonstration re- quired under subclause (I), unless the com- plainant disputes NRO’s showing with a sworn written submission based on personal knowl- edge or otherwise admissible evidence. (v) In proceedings under clauses (iii) and (iv), the parties may not obtain discovery pursuant to rules 26 through 36 of the Federal Rules of Civil Procedure, except that requests for ad- missions may be made pursuant to rules 26 and 36. (vi) If the court finds under this paragraph that NRO has improperly withheld requested records because of failure to comply with any provision of this subsection, the court shall order NRO to search and review the appro- priate exempted operational file or files for the requested records and make such records, or portions thereof, available in accordance with the provisions of section 552 of title 5 and such order shall be the exclusive remedy for failure to comply with this subsection. (vii) If at any time following the filing of a complaint pursuant to this paragraph NRO agrees to search the appropriate exempted operational file or files for the requested records, the court shall dismiss the claim based upon such complaint. (viii) Any information filed with, or pro- duced for the court pursuant to clauses (i) and (iv) shall be coordinated with the Director of National Intelligence prior to submission to the court. (b) Decennial review of exempted operational files (1) Not less than once every 10 years, the Di- rector of the National Reconnaissance Office and the Director of National Intelligence shall review the exemptions in force under subsection (a)(1) to determine whether such exemptions may be removed from the category of exempted files or any portion thereof. The Director of Na- tional Intelligence must approve any determina- tion to remove such exemptions. (2) The review required by paragraph (1) shall include consideration of the historical value or other public interest in the subject matter of the particular category of files or portions thereof and the potential for declassifying a sig- nificant part of the information contained therein. (3) A complainant that alleges that NRO has improperly withheld records because of failure to comply with this subsection may seek judi- cial review in the district court of the United States of the district in which any of the parties reside, or in the District of Columbia. In such a proceeding, the court’s review shall be limited to determining the following: (A) Whether NRO has conducted the review required by paragraph (1) before the expiration of the 10-year period beginning on November 27, 2002, or before the expiration of the 10-year period beginning on the date of the most re- cent review. (B) Whether NRO, in fact, considered the cri- teria set forth in paragraph (2) in conducting the required review. (July 26, 1947, ch. 343, title VII, § 703, formerly title I, § 105D, as added Pub. L. 107–306, title V, § 502(a), Nov. 27, 2002, 116 Stat. 2405; renumbered title VII, § 703, and amended Pub. L. 108–136, div. A, title IX, § 922(c), (d)(1)(D), Nov. 24, 2003, 117 Stat. 1573, 1574; Pub. L. 108–375, div. A, title X, § 1084(j), Oct. 28, 2004, 118 Stat. 2064; Pub. L. 108–458, title I, § 1071(a)(1)(GG)–(II), Dec. 17, 2004, 118 Stat. 3689; Pub. L. 109–163, div. A, title IX, § 933(b)(2), Jan. 6, 2006, 119 Stat. 3416.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (a)(6)(B)(v), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. CODIFICATION Section was formerly classified to section 432a of this title prior to editorial reclassification and renumbering as this section, and to section 403–5e of this title prior to renumbering by Pub. L. 108–136. AMENDMENTS 2006—Subsec. (a)(3)(C)(vii). Pub. L. 109–163 added cl. (vii). 2004—Subsec. (a)(1). Pub. L. 108–458, § 1071(a)(1)(GG), substituted ‘‘Director of National Intelligence’’ for ‘‘Di- rector of Central Intelligence’’. Subsec. (a)(6)(B)(iv)(I). Pub. L. 108–375 substituted ‘‘responsive records’’ for ‘‘responsible records’’. Subsec. (a)(6)(B)(viii). Pub. L. 108–458, § 1071(a)(1)(HH), substituted ‘‘Director of National Intelligence’’ for ‘‘Di- rector of Central Intelligence’’. Subsec. (b)(1). Pub. L. 108–458, § 1071(a)(1)(II), sub- stituted ‘‘Director of National Intelligence’’ for ‘‘Direc- tor of Central Intelligence’’ in two places. 2003—Pub. L. 108–136 substituted ‘‘Operational files of the National Reconnaissance Office’’ for ‘‘Protection of operational files of the National Reconnaissance Of- fice’’ in section catchline. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2004 AMENDMENT For Determination by President that amendment by Pub. L. 108–458 take effect on Apr. 21, 2005, see Memo- randum of President of the United States, Apr. 21, 2005, 70 F.R. 23925, set out as a note under section 3001 of this title. Amendment by Pub. L. 108–458 effective not later than six months after Dec. 17, 2004, except as otherwise expressly provided, see section 1097(a) of Pub. L. 108–458, set out in an Effective Date of 2004 Amendment; Transition Provisions note under section 3001 of this title. § 3144. Operational files of the National Security Agency (a) Exemption of certain operational files from search, review, publication, or disclosure The Director of the National Security Agency, in coordination with the Director of National Intelligence, may exempt operational files of the National Security Agency from the provi- sions of section 552 of title 5 which require publi- cation, disclosure, search, or review in connec- tion therewith. (b) Operational files defined (1) In this section, the term ‘‘operational files’’ means— (A) files of the Signals Intelligence Direc- torate of the National Security Agency (and