50 U.S.C. § 3143: Operational files of the…

Summary

The Director of the National Reconnaissance Office, working with the Director of National Intelligence, can keep certain NRO “operational files” from being published, searched, or released under the rules in section 552 of title 5. Operational files are the NRO records that show how foreign intelligence or counterintelligence is collected using scientific and technical systems. If a file is the only place where already-shared intelligence is kept, it is not an operational file. Even when files are exempted, they must still be searched for records about U.S. citizens or lawful permanent residents who ask for their own records, for any “special activity” whose existence must be disclosed, and for investigations by oversight bodies (for example, the House and Senate intelligence committees, the Intelligence Oversight Board, the Department of Justice, and NRO’s legal, director, and inspector general offices). Files that are not exempt but contain material from exempt files must be searched. Moving or declassifying some information does not automatically remove an exemption. Only a law passed after November 27, 2002, that specifically names and changes this rule can override it. People who think the NRO wrongly withheld records can ask a court to review the claim under FOIA rules, but there are special limits. If classified information goes to the court, the judge will review it privately. The court will rely mainly on sworn written statements. Complainants and NRO must support key claims in sworn written form, and normal broad discovery is mostly not allowed. If the court finds NRO withheld records improperly, it will order NRO to search the exempt files and release any proper records; that order is the only remedy. At least once every 10 years the NRO Director and the Director of National Intelligence must review whether exemptions should be removed, and the DNI must approve removals. The review must consider historical value and whether much of the material can be declassified. A court may only decide if the review was done on time and if those factors were considered.

Title 50, §3143

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(a)Exemption of certain operational files from search, review, publication, or disclosure

(1)The Director of the National Reconnaissance Office, with the coordination of the Director of National Intelligence, may exempt operational files of the National Reconnaissance Office from the provisions of section 552 of title 5 which require publication, disclosure, search, or review in connection therewith.

(2)(A)Subject to subparagraph (B), for the purposes of this section, the term “operational files” means files of the National Reconnaissance Office (hereafter in this section referred to as “NRO”) that document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems.

(B)Files which are the sole repository of disseminated 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 investigation by any of the following for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity:

(i)The Permanent Select Committee on Intelligence of the House of Representatives.

(ii)The Select Committee on Intelligence of the Senate.

(iii)The Intelligence Oversight Board.

(iv)The Department of Justice.

(v)The Office of General Counsel of NRO.

(vi)The Office of the Director of NRO.

(vii)The Office of the Inspector General of the NRO.

(4)(A)Files that are not exempted under paragraph (1) which contain information derived or disseminated from exempted operational files shall be subject to search and review.

(B)The inclusion of information from exempted operational files in files that are not exempted under paragraph (1) shall not affect the exemption under paragraph (1) of the originating operational files from search, review, publication, or disclosure.

(C)The declassification of some of the information contained in exempted operational files shall not affect the status of the operational file as being exempt from search, review, publication, or disclosure.

(D)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 subject to search and review.

(5)The provisions of paragraph (1) may not be superseded except by a provision of law which is enacted after November 27, 2002, and which specifically cites and repeals or modifies its provisions.

(6)(A)Except as provided in subparagraph (B), whenever any person who has requested agency records under section 552 of title 5 alleges that NRO 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.

(B)Judicial review shall not be available in the manner provided for under subparagraph (A) as follows:

(i)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 NRO, 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 requested records are 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.

(iv)(I)When a complainant alleges that requested records were improperly withheld because of improper exemption of operational files, NRO 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 paragraph (2).

(II)The court may not order NRO to review the content of any exempted operational file or files in order to make the demonstration required under subclause (I), unless the complainant disputes NRO’s showing with a sworn written submission based on personal knowledge 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 admissions 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 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 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 produced 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 Director 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 National Intelligence must approve any determination 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 significant 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 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 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 recent review.

(B)Whether NRO, 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. (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 “Director 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 “Director of Central Intelligence”. Subsec. (b)(1). Pub. L. 108–458, § 1071(a)(1)(II), substituted “Director of National Intelligence” for “Director 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 Office” in section catchline.

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.

§3143 Operational Files of the National Reconnaissance Office

Summary

Title 50, §3143

Notes & Related Subsidiaries

Editorial Notes

References in Text

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata