50 U.S.C. § 3144 — Operational files of the National Security

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 Page 702 TITLE 50—WAR AND NATIONAL DEFENSE § 3144 any successor organization of that direc- torate) that document the means by which for- eign intelligence or counterintelligence is col- lected through technical systems; and (B) files of the Research Associate Direc- torate of the National Security Agency (and any successor organization of that direc- torate) that document the means by which for- eign intelligence or counterintelligence is col- lected through scientific and technical sys- tems. (2) Files that are the sole repository of dis- seminated intelligence, and files that have been accessioned into the National Security Agency Archives (or any successor organization) are not operational files. (c) Search and review for information Notwithstanding subsection (a), exempted operational files shall continue to be subject to search and review for information concerning 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 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: (A) The Committee on Armed Services and the Permanent Select Committee on Intel- ligence of the House of Representatives. (B) The Committee on Armed Services and the Select Committee on Intelligence of the Senate. (C) The Intelligence Oversight Board. (D) The Department of Justice. (E) The Office of General Counsel of the National Security Agency. (F) The Office of the Inspector General of the Department of Defense. (G) The Office of the Director of the Na- tional Security Agency. (H) The Office of the Inspector General of the National Security Agency. (d) Information derived or disseminated from ex- empted operational files (1) Files that are not exempted under sub- section (a) that contain information 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) shall not affect the ex- emption under subsection (a) of the originating operational files from search, review, publica- tion, or disclosure. (3) 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. (4) Records from exempted operational files that have been disseminated to and referenced in files that are not exempted under subsection (a) and that have been returned to exempted operational files for sole retention shall be sub- ject to search and review. (e) Supersedure of other laws The provisions of subsection (a) may not be superseded except by a provision of law that is enacted after November 24, 2003, and that spe- cifically cites and repeals or modifies such pro- visions. (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 National Security Agency has withheld records improperly because of failure to comply with any provision of this section, judicial re- view 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 National Security Agency, 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) 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. (D)(i) When a complainant alleges that re- quested records were improperly withheld be- cause of improper exemption of operational files, the National Security Agency shall meet its burden under section 552(a)(4)(B) of title 5 by demonstrating to the court by sworn writ- ten submission that exempted operational files likely to contain responsive records cur- rently perform the functions set forth in sub- section (b). (ii) The court may not order the National Security Agency to review the content of any exempted operational file or files in order to make the demonstration required under clause (i), unless the complainant disputes the Na- tional Security Agency’s showing with a sworn written submission based on personal knowledge or otherwise admissible evidence. (E) In proceedings under subparagraphs (C) and (D), the parties may not obtain discovery pursuant to rules 26 through 36 of the Federal Rules of Civil Procedure, except that requests for admissions may be made pursuant to rules 26 and 36. (F) If the court finds under this subsection that the National Security Agency has im- properly withheld requested records because of failure to comply with any provision of this subsection, the court shall order the Agency 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-