50 U.S.C. § 3141 — Operational files of the Central Intel-

Page 696 TITLE 50—WAR AND NATIONAL DEFENSE § 3141 ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. Executive Documents TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS For termination of Trust Territory of the Pacific Is- lands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions. SUBCHAPTER V—PROTECTION OF OPERATIONAL FILES § 3141. Operational files of the Central Intel- ligence Agency (a) Exemption by Director of Central Intelligence Agency The Director of the Central Intelligence Agen- cy, with the coordination of the Director of Na- tional Intelligence, may exempt operational files of the Central Intelligence Agency from the provisions of section 552 of title 5 (Freedom of Information Act) which require publication or disclosure, or search or review in connection therewith. (b) ‘‘Operational files’’ defined In this section, the term ‘‘operational files’’ means— (1) files of the National Clandestine Service which document the conduct of foreign intel- ligence or counterintelligence operations or intelligence or security liaison arrangements or information exchanges with foreign govern- ments or their intelligence or security serv- ices; (2) files of the Directorate for Science and Technology which document the means by which foreign intelligence or counterintel- ligence is collected through scientific and technical systems; and (3) files of the Office of Personnel Security which document investigations conducted to determine the suitability of potential foreign intelligence or counterintelligence sources; except that files which are the sole repository of disseminated intelligence are not operational files. (c) Search and review for information Notwithstanding subsection (a) of this section, exempted operational files shall continue to be subject to search and review for information concerning— (1) United States citizens or aliens lawfully admitted for permanent residence who have requested information on themselves pursuant to the provisions of section 552 of title 5 (Free- dom of Information Act) or section 552a of title 5 (Privacy Act of 1974); (2) any special activity the existence of which is not exempt from disclosure under the provisions of section 552 of title 5 (Freedom of Information Act); or (3) the specific subject matter of an inves- tigation by the congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice, the Office of Gen- eral Counsel of the Central Intelligence Agen- cy, the Office of Inspector General of the Cen- tral Intelligence Agency, or the Office of the Director of National Intelligence for any im- propriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity. (d) Information derived or disseminated from ex- empted operational files (1) Files that are not exempted under sub- section (a) of this section which contain infor- mation derived or disseminated from exempted operational files shall be subject to search and review. (2) The inclusion of information from exempt- ed operational files in files that are not exempt- ed under subsection (a) of this section shall not affect the exemption under subsection (a) of this section of the originating operational files from search, review, publication, or disclosure. (3) Records from exempted operational files which have been disseminated to and referenced in files that are not exempted under subsection (a) of this section and which have been returned to exempted operational files for sole retention shall be subject to search and review. (e) Supersedure of prior law The provisions of subsection (a) of this section shall not be superseded except by a provision of law which is enacted after October 15, 1984, and which specifically cites and repeals or modifies its provisions. (f) Allegation; improper withholding of records; judicial review Whenever any person who has requested agen- cy records under section 552 of title 5 (Freedom of Information Act), alleges that the Central In- telligence Agency has improperly withheld records because 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, except that— (1) in any case in which information specifi- cally authorized under criteria established by an Executive order to be kept secret in the in- terest of national defense or foreign relations which is filed with, or produced for, the court by the Central Intelligence Agency, such in- formation shall be examined ex parte, in cam- era by the court; (2) the court shall, to the fullest extent prac- ticable, determine issues of fact based on sworn written submissions of the parties; (3) when a complaint alleges that requested records were improperly withheld because of improper placement solely in exempted oper- ational files, the complainant shall support such allegation with a sworn written submis- sion, based upon personal knowledge or other- wise admissible evidence; (4)(A) when a complainant alleges that re- quested records were improperly withheld be- cause of improper exemption of operational files, the Central Intelligence Agency shall meet its burden under section 552(a)(4)(B) of title 5 by demonstrating to the court by sworn written submission that exempted operational files likely to contain responsive records cur- Page 697 TITLE 50—WAR AND NATIONAL DEFENSE § 3141 rently perform the functions set forth in sub- section (b) of this section; and (B) the court may not order the Central In- telligence Agency to review the content of any exempted operational file or files in order to make the demonstration required under sub- paragraph (A) of this paragraph, unless the complainant disputes the Central Intelligence Agency’s showing with a sworn written sub- mission based on personal knowledge or other- wise admissible evidence; (5) in proceedings under paragraphs (3) and (4) of this subsection, the parties shall not ob- tain discovery pursuant to rules 26 through 36 of the Federal Rules of Civil Procedure, except that requests for admission may be made pur- suant to rules 26 and 36; (6) if the court finds under this subsection that the Central Intelligence Agency has im- properly withheld requested records because of failure to comply with any provision of this section, the court shall order the Central In- telligence Agency to search and review the ap- propriate 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 (Freedom of Information Act), and such order shall be the exclusive remedy for failure to comply with this section; and (7) if at any time following the filing of a complaint pursuant to this subsection the Central Intelligence Agency agrees to search the appropriate exempted operational file or files for the requested records, the court shall dismiss the claim based upon such complaint. (g) Decennial review of exempted operational files (1) Not less than once every ten years, the Di- rector of the Central Intelligence Agency and the Director of National Intelligence shall re- view the exemptions in force under subsection (a) to determine whether such exemptions may be removed 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 who alleges that the Central Intelligence 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 Central Intelligence Agency has conducted the review required by para- graph (1) before October 15, 1994, or before the expiration of the 10-year period beginning on the date of the most recent review. (B) Whether the Central Intelligence Agen- cy, in fact, considered the criteria set forth in paragraph (2) in conducting the required re- view. (July 26, 1947, ch. 343, title VII, § 701, as added Pub. L. 98–477, § 2(a), Oct. 15, 1984, 98 Stat. 2209; amended Pub. L. 104–93, title VII, § 702, Jan. 6, 1996, 109 Stat. 978; Pub. L. 107–306, title III, § 353(b)(10), Nov. 27, 2002, 116 Stat. 2402; Pub. L. 108–136, div. A, title IX, § 922(b)(1), (2)(B)–(F), (d)(1)(B), Nov. 24, 2003, 117 Stat. 1573, 1574; Pub. L. 108–458, title I, §§ 1071(a)(6), 1072(a)(7), Dec. 17, 2004, 118 Stat. 3690, 3692; Pub. L. 111–259, title VIII, § 804(6), Oct. 7, 2010, 124 Stat. 2747.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (f)(5), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. CODIFICATION Section was formerly classified to section 431 of this title prior to editorial reclassification and renumbering as this section. Some section numbers of this title ref- erenced in amendment notes below reflect the classi- fication of such sections prior to their editorial reclas- sification. The text of former section 432 of this title, which was transferred to this section and redesignated as subsec. (g) by Pub. L. 108–136, § 922(b)(2)(B), was based on act July 26, 1947, ch. 343, title VII, § 702, as added Pub. L. 98–477, § 2(a), Oct. 15, 1984, 98 Stat. 2211. AMENDMENTS 2010—Subsec. (b)(1). Pub. L. 111–259 substituted ‘‘Na- tional Clandestine Service’’ for ‘‘Directorate of Oper- ations’’. 2004—Subsec. (a). Pub. L. 108–458, § 1071(a)(6)(A), sub- stituted ‘‘The Director of the Central Intelligence Agency, with the coordination of the Director of Na- tional Intelligence, may exempt operational files of the Central Intelligence Agency’’ for ‘‘Operational files of the Central Intelligence Agency may be exempted by the Director of Central Intelligence’’. Subsec. (c)(3). Pub. L. 108–458, § 1072(a)(7), substituted ‘‘Office of the Director of National Intelligence’’ for ‘‘Office of the Director of Central Intelligence’’. Subsec. (g)(1). Pub. L. 108–458, § 1071(a)(6)(B), sub- stituted ‘‘Director of the Central Intelligence Agency and the Director of National Intelligence’’ for ‘‘Direc- tor of Central Intelligence’’. 2003—Pub. L. 108–136, § 922(d)(1)(B), substituted ‘‘Oper- ational files of the Central Intelligence Agency’’ for ‘‘Exemption of certain operational files from search, review, publication, or disclosure’’ in section catchline. Subsec. (b). Pub. L. 108–136, § 922(b)(1), which directed the substitution of ‘‘In this section,’’ for ‘‘For purposes of this title’’, was executed by making the substitution for ‘‘For the purposes of this title’’, to reflect the prob- able intent of Congress. Subsec. (g). Pub. L. 108–136, § 922(b)(2)(C), inserted heading. Pub. L. 108–136, § 922(b)(2)(B), transferred text of sec- tion 432 of this title to this section, redesignated it as subsec. (g), and redesignated subsecs. (a) to (c) of that text as pars. (1) to (3), respectively, of subsec. (g). Subsec. (g)(1). Pub. L. 108–136, § 922(b)(2)(D), struck out ‘‘of section 431 of this title’’ after ‘‘subsection (a)’’. Subsec. (g)(2). Pub. L. 108–136, § 922(b)(2)(E), which di- rected the substitution of ‘‘paragraph (1)’’ for ‘‘of sub- section (a) of this section’’, was executed by making the substitution for ‘‘subsection (a) of this section’’, to reflect the probable intent of Congress. Subsec. (g)(3). Pub. L. 108–136, § 922(b)(2)(F)(ii), sub- stituted ‘‘to determining the following:’’ and subpars. (A) and (B) for ‘‘to determining (1) whether the Central Intelligence Agency has conducted the review required by subsection (a) of this section within ten years of en- actment of this title or within ten years after the last review, and (2) whether the Central Intelligence Agen- Page 698 TITLE 50—WAR AND NATIONAL DEFENSE § 3142 cy, in fact, considered the criteria set forth in sub- section (b) of this section in conducting the required review.’’ Pub. L. 108–136, § 922(b)(2)(F)(i), substituted ‘‘with this subsection’’ for ‘‘with this section’’ in first sentence. 2002—Subsec. (c)(3). Pub. L. 107–306 substituted ‘‘con- gressional intelligence committees’’ for ‘‘intelligence committees of the Congress’’. 1996—Subsec. (b)(3). Pub. L. 104–93 substituted ‘‘Office of Personnel Security’’ for ‘‘Office of Security’’. 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. EFFECTIVE DATE Pub. L. 98–477, § 4, Oct. 15, 1984, 98 Stat. 2212, provided that: ‘‘The amendments made by subsections (a) and (b) of section 2 [enacting this subchapter and amending section 552a of Title 5, Government Organization and Employees] shall be effective upon enactment of this Act [Oct. 15, 1984] and shall apply with respect to any requests for records, whether or not such request was made prior to such enactment, and shall apply to all civil actions not commenced prior to February 7, 1984.’’ § 3142. Operational files of the National Geospatial-Intelligence Agency (a) Exemption of certain operational files from search, review, publication, or disclosure (1) The Director of the National Geospatial-In- telligence Agency, with the coordination of the Director of National Intelligence, may exempt operational files of the National Geospatial-In- telligence Agency from the provisions of section 552 of title 5 which require publication, disclo- sure, 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 Geospatial-In- telligence Agency (hereafter in this section re- ferred to as ‘‘NGA’’) concerning the activities of NGA that before the establishment of NGA were performed by the National Photographic Inter- pretation Center of the Central Intelligence Agency (NPIC), that document the means by which foreign intelligence or counterintel- ligence is collected through scientific and tech- nical systems. (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 congressional intelligence commit- tees. (ii) The Intelligence Oversight Board. (iii) The Department of Justice. (iv) The Office of General Counsel of NGA. (v) The Office of the Director of NGA. (vi) The Office of the Inspector General of the National Geospatial-Intelligence Agen- cy. (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) 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 December 3, 1999, 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 NGA 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 NGA, 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, NGA 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). (II) The court may not order NGA to review the content of any exempted operational file