50 U.S.C. § 3146 — Protection of certain files of the Office of

Page 703 TITLE 50—WAR AND NATIONAL DEFENSE § 3146 to search and review the appropriate exempted operational file or files for the requested records and make such records, or portions thereof, available in accordance with the pro- visions of section 552 of title 5, and such order shall be the exclusive remedy for failure to comply with this section (other than sub- section (g)). (G) If at any time following the filing of a complaint pursuant to this paragraph the Na- tional Security Agency agrees to search the appropriate exempted operational file or files for the requested records, the court shall dis- miss the claim based upon such complaint. (H) Any information filed with, or produced for the court pursuant to subparagraphs (A) and (D) shall be coordinated with the Director of National Intelligence before submission to the court. (g) Decennial review of exempted operational files (1) Not less than once every 10 years, the Di- rector of the National Security Agency and the Director of National Intelligence shall review the exemptions in force under subsection (a) to determine whether such exemptions may be re- moved from a category of exempted files or any portion thereof. The Director of National Intel- ligence must approve any determination to re- move 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 a particular category of files or portions thereof and the potential for declassifying a significant part of the information contained therein. (3) A complainant that alleges that the Na- tional Security Agency has improperly withheld records because of failure to comply with this subsection may seek judicial review in the dis- trict court of the United States of the district in which any of the parties reside, or in the Dis- trict of Columbia. In such a proceeding, the court’s review shall be limited to determining the following: (A) Whether the National Security Agency has conducted the review required by para- graph (1) before the expiration of the 10-year period beginning on November 24, 2003, or be- fore the expiration of the 10-year period begin- ning on the date of the most recent review. (B) Whether the National Security Agency, in fact, considered the criteria set forth in paragraph (2) in conducting the required re- view. (July 26, 1947, ch. 343, title VII, § 704, as added Pub. L. 108–136, div. A, title IX, § 922(a), Nov. 24, 2003, 117 Stat. 1570; amended 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)(JJ)–(LL), Dec. 17, 2004, 118 Stat. 3689; Pub. L. 109–163, div. A, title IX, § 933(b)(3), Jan. 6, 2006, 119 Stat. 3416.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (f)(2)(E), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. CODIFICATION Section was formerly classified to section 432b of this title prior to editorial reclassification and renumbering as this section. AMENDMENTS 2006—Subsec. (c)(3)(H). Pub. L. 109–163 added subpar. (H). 2004—Subsec. (a). Pub. L. 108–458, § 1071(a)(1)(JJ), which directed amendment of par. (1) of subsec. (a) by substituting ‘‘Director of National Intelligence’’ for ‘‘Director of Central Intelligence’’, was executed to text of subsec. (a), which does not contain any pars., to reflect the probable intent of Congress. Subsec. (f)(2)(D)(i). Pub. L. 108–375 substituted ‘‘re- sponsive records’’ for ‘‘responsible records’’. Subsec. (f)(2)(H). Pub. L. 108–458, § 1071(a)(1)(KK), sub- stituted ‘‘Director of National Intelligence’’ for ‘‘Direc- tor of Central Intelligence’’. Subsec. (g)(1). Pub. L. 108–458, § 1071(a)(1)(LL), sub- stituted ‘‘Director of National Intelligence’’ for ‘‘Direc- tor of Central Intelligence’’ in two places. 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. § 3145. Omitted Section, July 26, 1947, ch. 343, title VII, § 705, as added Pub. L. 109–163, div. A, title IX, § 933(a)(1), Jan. 6, 2006, 119 Stat. 3413; amended Pub. L. 111–259, title VIII, § 804(7), Oct. 7, 2010, 124 Stat. 2747, which provided that the Director of the Defense Intelligence Agency could exempt operational files of the Defense Intelligence Agency from provisions of section 552 of title 5, defined ‘‘operational files’’, authorized certain searches of ex- empted files and of information from exempted files, provided for judicial review of withholding of records and for decennial review of exempted files, ceased to be effective on Dec. 31, 2007, pursuant to subsec. (g) of sec- tion. Editorial Notes CODIFICATION Section was formerly classified to section 432c of this title and omitted prior to editorial reclassification and renumbering as this section. § 3146. Protection of certain files of the Office of the Director of National Intelligence (a) Inapplicability of FOIA to exempted oper- ational files provided to ODNI (1) Subject to paragraph (2), the provisions of section 552 of title 5 that require search, review, publication, or disclosure of a record shall not apply to a record provided to the Office of the Director of National Intelligence by an element of the intelligence community from the exempt- ed operational files of such element. (2) Paragraph (1) shall not apply with respect to a record of the Office that— (A) contains information derived or dissemi- nated from an exempted operational file, un- Page 704 TITLE 50—WAR AND NATIONAL DEFENSE § 3146 less such record is created by the Office for the sole purpose of organizing such exempted oper- ational file for use by the Office; (B) is disseminated by the Office to a person other than an officer, employee, or contractor of the Office; or (C) is no longer designated as an exempted operational file in accordance with this sub- chapter. (b) Effect of providing files to ODNI Notwithstanding any other provision of this subchapter, an exempted operational file that is provided to the Office by an element of the in- telligence community shall not be subject to the provisions of section 552 of title 5 that require search, review, publication, or disclosure of a record solely because such element provides such exempted operational file to the Office. (c) Search and review for certain purposes Notwithstanding subsection (a) or (b), an ex- empted operational file shall continue to be sub- ject to search and review for information con- cerning any of the following: (1) 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. (2) Any special activity the existence of which is not exempt from disclosure under the provisions of section 552 of title 5. (3) The specific subject matter of an inves- tigation for any impropriety or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity by any of the following: (A) The Select Committee on Intelligence of the Senate. (B) The Permanent Select Committee on Intelligence of the House of Representatives. (C) The Intelligence Oversight Board. (D) The Department of Justice. (E) The Office of the Director of National Intelligence. (F) The Office of the Inspector General of the Intelligence Community. (d) Decennial review of exempted operational files (1) Not less than once every 10 years, the Di- rector of National Intelligence shall review the exemptions in force under subsection (a) to de- termine whether such exemptions may be re- moved from any category of exempted files or any portion thereof. (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 the Direc- tor of National Intelligence has improperly withheld records because of failure to comply with this subsection may seek judicial 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 deter- mining the following: (A) Whether the Director has conducted the review required by paragraph (1) before the ex- piration of the 10-year period beginning on Oc- tober 7, 2010, or before the expiration of the 10- year period beginning on the date of the most recent review. (B) Whether the Director of National Intel- ligence, in fact, considered the criteria set forth in paragraph (2) in conducting the re- quired review. (e) Supersedure of other laws The provisions of this section may not be su- perseded except by a provision of law that is en- acted after October 7, 2010, and that specifically cites and repeals or modifies such provisions. (f) Allegation; improper withholding of records; judicial review (1) Except as provided in paragraph (2), when- ever any person who has requested agency records under section 552 of title 5 alleges that the Office has withheld records improperly be- cause of failure to comply with any provision of this section, judicial review shall be available under the terms set forth in section 552(a)(4)(B) of title 5. (2) Judicial review shall not be available in the manner provided for under paragraph (1) as fol- lows: (A) 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 the Office, such information shall be examined ex parte, in camera by the court. (B) The court shall determine, to the fullest extent practicable, the issues of fact based on sworn written submissions of the parties. (C)(i) When a complainant alleges that re- quested records were improperly withheld be- cause of improper exemption of operational files, the Office may meet the burden of the Office under section 552(a)(4)(B) of title 5 by demonstrating to the court by sworn written submission that exempted files likely to con- tain responsive records are records provided to the Office by an element of the intelligence community from the exempted operational files of such element. (ii) The court may not order the Office to re- view the content of any exempted file in order to make the demonstration required under clause (i), unless the complainant disputes the Office’s showing with a sworn written submis- sion based on personal knowledge or otherwise admissible evidence. (D) In proceedings under subparagraph (C), a party 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 of the Federal Rules of Civil Procedure. (E) If the court finds under this subsection that the Office has improperly withheld re- quested records because of failure to comply with any provision of this section, the court shall order the Office to search and review each appropriate exempted file for the re- quested records and make such records, or por- tions thereof, available in accordance with the Page 705 TITLE 50—WAR AND NATIONAL DEFENSE § 3161 provisions of section 552 of title 5 (commonly referred to as the Freedom of Information Act), and such order shall be the exclusive remedy for failure to comply with this section. (F) If at any time following the filing of a complaint pursuant to this paragraph the Of- fice agrees to search each appropriate exempt- ed file for the requested records, the court shall dismiss the claim based upon such com- plaint. (g) Definitions In this section: (1) The term ‘‘exempted operational file’’ means a file of an element of the intelligence community that, in accordance with this sub- chapter, is exempted from the provisions of section 552 of title 5 that require search, re- view, publication, or disclosure of such file. (2) Except as otherwise specifically provided, the term ‘‘Office’’ means the Office of the Di- rector of National Intelligence. (July 26, 1947, ch. 343, title VII, § 706, as added Pub. L. 111–259, title IV, § 408(a), Oct. 7, 2010, 124 Stat. 2722.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (f)(2)(D), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. CODIFICATION Section was formerly classified to section 432d of this title prior to editorial reclassification and renumbering as this section. SUBCHAPTER VI—ACCESS TO CLASSIFIED INFORMATION § 3161. Procedures (a) Not later than 180 days after October 14, 1994, the President shall, by Executive order or regulation, establish procedures to govern ac- cess to classified information which shall be binding upon all departments, agencies, and of- fices of the executive branch of Government. Such procedures shall, at a minimum— (1) provide that, except as may be permitted by the President, no employee in the executive branch of Government may be given access to classified information by any department, agency, or office of the executive branch of Government unless, based upon an appropriate background investigation, such access is de- termined to be clearly consistent with the na- tional security interests of the United States; (2) establish uniform minimum requirements governing the scope and frequency of back- ground investigations and reinvestigations for all employees in the executive branch of Gov- ernment who require access to classified infor- mation as part of their official responsibil- ities; (3) provide that all employees in the execu- tive branch of Government who require access to classified information shall be required as a condition of such access to provide to the em- ploying department or agency written consent which permits access by an authorized inves- tigative agency to relevant financial records, other financial information, consumer reports, travel records, and computers used in the per- formance of Government duties, as determined by the President, in accordance with section 3162 of this title, during the period of access to classified information and for a period of three years thereafter; (4) provide that all employees in the execu- tive branch of Government who require access to particularly sensitive classified informa- tion, as determined by the President, shall be required, as a condition of maintaining access to such information, to submit to the employ- ing department or agency, during the period of such access, relevant information concerning their financial condition and foreign travel, as determined by the President, as may be nec- essary to ensure appropriate security; and (5) establish uniform minimum standards to ensure that employees in the executive branch of Government whose access to classified in- formation is being denied or terminated under this subchapter are appropriately advised of the reasons for such denial or termination and are provided an adequate opportunity to re- spond to all adverse information which forms the basis for such denial or termination before final action by the department or agency con- cerned. (b)(1) Subsection (a) shall not be deemed to limit or affect the responsibility and power of an agency head pursuant to other law or Executive order to deny or terminate access to classified information if the national security so requires. Such responsibility and power may be exercised only when the agency head determines that the procedures prescribed by subsection (a) cannot be invoked in a manner that is consistent with the national security. (2) Upon the exercise of such responsibility, the agency head shall submit a report to the congressional intelligence committees. (July 26, 1947, ch. 343, title VIII, § 801, as added Pub. L. 103–359, title VIII, § 802(a), Oct. 14, 1994, 108 Stat. 3435; amended Pub. L. 106–120, title III, § 305(a), Dec. 3, 1999, 113 Stat. 1611; Pub. L. 107–306, title III, § 353(b)(2)(B), Nov. 27, 2002, 116 Stat. 2402.) Editorial Notes CODIFICATION Section was formerly classified to section 435 of this title prior to editorial reclassification and renumbering as this section. AMENDMENTS 2002—Subsec. (b)(2). Pub. L. 107–306 substituted ‘‘con- gressional intelligence committees’’ for ‘‘Permanent Select Committee on Intelligence of the House of Rep- resentatives and the Select Committee on Intelligence of the Senate’’. 1999—Subsec. (a)(3). Pub. L. 106–120 substituted ‘‘trav- el records, and computers used in the performance of Government duties’’ for ‘‘and travel records’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1999 AMENDMENT Pub. L. 106–120, title III, § 305(c), Dec. 3, 1999, 113 Stat. 1612, provided that: ‘‘The President shall modify the