§3146 — Title 50 War and National Defense | U.S. Code

Summary

Stops the normal FOIA rules from forcing the Office of the Director of National Intelligence (ODNI) to search, review, or share records that another intelligence agency gives it from that agency’s specially exempt intelligence files. But ODNI must follow FOIA for records that (1) contain information taken from those exempt files unless ODNI made the record only to organize the files, (2) ODNI shares with people outside the Office, or (3) are no longer labeled as exempt. Also, simply giving an exempt file to ODNI does not by itself make that file subject to FOIA. There are limits. Exempt files must still be searched or reviewed for people who are U.S. citizens or lawful permanent residents asking for their own records, for any “special activity” whose existence must be disclosed, and for the exact subjects of official investigations by certain oversight bodies (Senate and House intelligence committees, the Intelligence Oversight Board, the Justice Department, ODNI itself, or the Intelligence Community Inspector General). The Director of National Intelligence must check at least once every 10 years (counting from October 7, 2010) whether any exemptions can be removed, weighing historical or public value and declassification potential. If someone sues, the court can only decide whether the 10-year review happened and whether those factors were considered. Classified material may be reviewed by the judge in private. ODNI can defend its actions with sworn written statements instead of opening files. If the court decides ODNI wrongly withheld records, it will order ODNI to search, review, and release the records under FOIA; if ODNI agrees to search after a suit is filed, the suit is dismissed. The law can only be changed by a later law passed after October 7, 2010 that specifically says so. Definitions: “exempted operational file” = an intelligence agency’s file that is exempt from FOIA search/review; “Office” = the Office of the Director of National Intelligence.

Title 50, §3146

War and National Defense — Source: USLM XML via OLRC

(a)(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 exempted 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 disseminated from an exempted operational file, unless such record is created by the Office for the sole purpose of organizing such exempted operational 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 subchapter.

(b)Notwithstanding any other provision of this subchapter, an exempted operational file that is provided to the Office by an element of the intelligence 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)Notwithstanding subsection (a) or (b), an exempted operational file 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 investigation 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)(1)Not less than once every 10 years, the Director of National Intelligence shall review 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 significant part of the information contained therein.

(3)A complainant that alleges that the Director 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 determining the following:

(A)Whether the Director has conducted the review required by paragraph (1) before the expiration of the 10-year period beginning on October 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 Intelligence, in fact, considered the criteria set forth in paragraph (2) in conducting the required review.

(e)The provisions of this section may not be superseded except by a provision of law that is enacted after October 7, 2010, and that specifically cites and repeals or modifies such provisions.

(f)(1)Except as provided in paragraph (2), whenever any person who has requested agency records under section 552 of title 5 alleges that the Office has withheld records improperly 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.

(2)Judicial review shall not be available in the manner provided for under paragraph (1) as follows:

(A)In any case in which information specifically authorized under criteria established by an Executive order to be kept secret in the interests 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 requested records were improperly withheld because 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 contain 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 review 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 submission 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 admissions 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 requested 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 requested records and make such records, or portions thereof, available in accordance with the 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 Office agrees to search each appropriate exempted file for the requested records, the court shall dismiss the claim based upon such complaint.

(g)In this section:

(1)The term “exempted operational file” means a file of an element of the intelligence community that, in accordance with this subchapter, is exempted from the provisions of section 552 of title 5 that require search, review, publication, or disclosure of such file.

(2)Except as otherwise specifically provided, the term “Office” means the Office of the Director of National Intelligence.

Notes & Related Subsidiaries

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.

§3146 Protection of certain files of the Office of the Director of National Intelligence

Summary

Title 50, §3146

Notes & Related Subsidiaries

Editorial Notes

References in Text

Citations & Metadata