§3141 — Title 50 War and National Defense | U.S. Code

Summary

The Director of the CIA, working with the Director of National Intelligence, can keep certain CIA “operational files” from being published or released under the Freedom of Information Act. Operational files include three types: files from the National Clandestine Service about running foreign intelligence or counterintelligence operations and liaison with foreign services; files from the Directorate for Science and Technology about technical means of collecting intelligence; and files from the Office of Personnel Security about checks of possible foreign intelligence sources. Even if files are exempt, they must still be searched or reviewed in some cases: when a U.S. citizen or a lawful permanent resident asks for their own records under FOIA or the Privacy Act; when the record concerns a “special activity” whose existence is not protected from disclosure; or when a specific oversight body is investigating possible wrongdoing. Oversight bodies named include congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice, the CIA’s Office of General Counsel, the CIA’s Office of Inspector General, and the Office of the Director of National Intelligence. Non-exempt files that contain information copied from exempt files must be searched, but copying that information into non-exempt files does not remove the exemption from the original operational files. The CIA’s exemption can only be changed by a later law passed after October 15, 1984 that specifically says so. If someone sues claiming the CIA improperly withheld records, the court can review the claim under FOIA rules but with special procedures: classified information can be shown to the judge in private; parties should use sworn written statements to prove facts; discovery is limited; the CIA can meet its burden by sworn submissions showing the exempt files still serve the listed functions; and if the court finds improper withholding, it will order the CIA to search the exempt files and release any releasable records. The Director of the CIA and the Director of National Intelligence must review these exemptions at least once every ten years, considering historical value and declassification potential. A person may sue to check only whether the review happened on time and whether those criteria were considered.

Title 50, §3141

War and National Defense — Source: USLM XML via OLRC

(a)The Director of the Central Intelligence Agency, with the coordination of the Director of National 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)In this section, the term “operational files” means—

(1)files of the National Clandestine Service which document the conduct of foreign intelligence or counterintelligence operations or intelligence or security liaison arrangements or information exchanges with foreign governments or their intelligence or security services;

(2)files of the Directorate for Science and Technology which document the means by which foreign intelligence or counterintelligence 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;

(c)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 (Freedom 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 investigation by the congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice, the Office of General Counsel of the Central Intelligence Agency, the Office of Inspector General of the Central Intelligence Agency, or the Office of the Director of National Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity.

(d)(1)Files that are not exempted under subsection (a) of this section which contain information derived or disseminated from exempted operational files shall be subject to search and review.

(2)The inclusion of information from exempted operational files in files that are not exempted 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)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)Whenever any person who has requested agency records under section 552 of title 5 (Freedom of Information Act), alleges that the Central Intelligence 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 specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign relations which is filed with, or produced for, the court by the Central Intelligence Agency, such information shall be examined ex parte, in camera by the court;

(2)the court shall, to the fullest extent practicable, 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 operational files, the complainant shall support such allegation with a sworn written submission, based upon personal knowledge or otherwise admissible evidence;

(4)(A)when a complainant alleges that requested records were improperly withheld because 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 currently perform the functions set forth in subsection (b) of this section; and

(B)the court may not order the Central Intelligence Agency to review the content of any exempted operational file or files in order to make the demonstration required under subparagraph (A) of this paragraph, unless the complainant disputes the Central Intelligence Agency’s showing with a sworn written submission based on personal knowledge or otherwise admissible evidence;

(5)in proceedings under paragraphs (3) and (4) of this subsection, the parties shall not obtain discovery pursuant to rules 26 through 36 of the Federal Rules of Civil Procedure, except that requests for admission may be made pursuant to rules 26 and 36;

(6)if the court finds under this subsection that the Central Intelligence Agency has improperly withheld requested records because of failure to comply with any provision of this section, the court shall order the Central Intelligence Agency 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 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)(1)Not less than once every ten years, the Director of the Central Intelligence Agency and 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 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 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 Central Intelligence Agency has conducted the review required by paragraph (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 Agency, in fact, considered the criteria set forth in paragraph (2) in conducting the required review.

Notes & Related Subsidiaries

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 referenced in amendment notes below reflect the classification of such sections prior to their editorial reclassification. 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 “National Clandestine Service” for “Directorate of Operations”. 2004—Subsec. (a). Pub. L. 108–458, § 1071(a)(6)(A), substituted “The Director of the Central Intelligence Agency, with the coordination of the Director of National 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), substituted “Director of the Central Intelligence Agency and the Director of National Intelligence” for “Director of Central Intelligence”. 2003—Pub. L. 108–136, § 922(d)(1)(B), substituted “Operational 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 probable 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 section 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 directed the substitution of “paragraph (1)” for “of subsection (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), substituted “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 enactment of this title or within ten years after the last review, and (2) whether the Central Intelligence Agency, in fact, considered the criteria set forth in subsection (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 “congressional 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 AmendmentFor Determination by President that amendment by Pub. L. 108–458 take effect on Apr. 21, 2005, see Memorandum 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.”

§3141 Operational Files of the Central Intelligence Agency

Summary

Title 50, §3141

Notes & Related Subsidiaries

Editorial Notes

References in Text

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Effective Date

Amendments

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