50 U.S.C. § 3146: Protection of certain files…

Summary

When an intelligence agency sends files it treats as "exempted operational files" to the Office of the Director of National Intelligence (ODNI), those files normally do not have to be searched, reviewed, published, or released under the Freedom of Information Act (FOIA). FOIA rules can apply, though, if the ODNI record contains information taken from an exempted file unless the ODNI made the record only to organize that file, if the ODNI shares the record outside its own officers, employees, or contractors, or if the file is no longer labeled exempted. Just giving exempted files to ODNI does not by itself make them subject to FOIA. ODNI must still search these files for requests by U.S. citizens or lawful permanent residents about themselves, for any "special activity" whose existence is not secret, and for oversight investigations into possible wrongdoing by certain bodies (the Senate and House Intelligence Committees, the Intelligence Oversight Board, the Department of Justice, ODNI, and the Intelligence Community Inspector General). The Director of National Intelligence must review these exemptions at least once every 10 years to see if parts can be declassified, and must consider historical or public interest and whether much of the material could be declassified. A person who says records were wrongly withheld can go to federal court, but the court can only check whether the ten-year review was done on time (measured from October 7, 2010, or from the last review) and whether the required factors were considered. Only a law passed after October 7, 2010 that specifically changes this rule can override it. In FOIA lawsuits, courts may review classified material privately, rely on sworn written statements, and limit normal discovery. ODNI can show by sworn statement that responsive records are in exempted files given by an intelligence element, and the court normally will not require ODNI to open those files unless the complainant rebuts that showing with sworn evidence. If the court finds improper withholding, it will order ODNI to search the appropriate exempted files and release records under FOIA; that order is the sole remedy. If ODNI agrees to search the files after a complaint is filed, the court will dismiss the case. "Exempted operational file" means a file an intelligence element has exempted from FOIA; "Office" means ODNI.

Title 50, §3146

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(a)Inapplicability of FOIA to exempted operational 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 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)Effect of providing files to ODNI

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)Search and review for certain purposes

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)Decennial review of exempted operational files

(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)Supersedure of other laws

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)Allegation; improper withholding of records; judicial review

(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)Definitions

In this section: (1)

(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