(a) Exemption of certain operational files from search, review, publication, or disclosure
(1) The Director of the National Geospatial-Intelligence Agency, with the coordination of the Director of National Intelligence, may exempt operational files of the National Geospatial-Intelligence Agency 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 Geospatial-Intelligence Agency (hereafter in this section referred to as "NGA") concerning the activities of NGA that before the establishment of NGA were performed by the National Photographic Interpretation Center of the Central Intelligence Agency (NPIC), 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 congressional intelligence committees.
(ii) The Intelligence Oversight Board.
(iii) The Department of Justice.
(iv) The Office of General Counsel of NGA.
(v) The Office of the Director of NGA.
(vi) The Office of the Inspector General of the National Geospatial-Intelligence Agency.
(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) 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 December 3, 1999, 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 NGA 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 NGA, 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, NGA 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 NGA 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 NGA'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 NGA has improperly withheld requested records because of failure to comply with any provision of this subsection, the court shall order NGA 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 NGA 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 Geospatial-Intelligence Agency 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 NGA 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 NGA has conducted the review required by paragraph (1) before the expiration of the 10-year period beginning on December 3, 1999, or before the expiration of the 10-year period beginning on the date of the most recent review.
(B) Whether NGA, in fact, considered the criteria set forth in paragraph (2) in conducting the required review.
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 432 of this title prior to editorial reclassification and renumbering as this section, and to section 403–5c of this title prior to renumbering by Pub. L. 108–136, and to section 403–5b of this title prior to renumbering by Pub. L. 107–56.
Prior Provisions
A prior section 702 of act July 26, 1947, ch. 343, title VII, as added Pub. L. 98–477, §2(a), Oct. 15, 1984, 98 Stat. 2211; amended Pub. L. 108–136, div. A, title IX, §922(b)(2)(A), Nov. 24, 2003, 117 Stat. 1573, was transferred to section 431 of this title and redesignated as subsec. (g) by Pub. L. 108–136, div. A, title IX, §922(b)(2)(B), Nov. 24, 2003, 117 Stat. 1573. Section 431 of this title was editorially reclassified and renumbered as section 3141 of this title.
Amendments
2006—Subsec. (a)(3)(C)(vi). Pub. L. 109–163 added cl. (vi).
2004—Subsec. (a)(1). Pub. L. 108–458, §1071(a)(1)(DD), 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)(EE), substituted "Director of National Intelligence" for "Director of Central Intelligence".
Subsec. (b)(1). Pub. L. 108–458, §1071(a)(1)(FF), substituted "Director of National Intelligence" for "Director of Central Intelligence" in two places.
2003—Pub. L. 108–136, §922(d)(1)(C), amended section catchline generally, substituting "Operational files of the National Geospatial-Intelligence Agency" for "Protection of operational files of the National Imagery and Mapping Agency".
Subsec. (a)(1). Pub. L. 108–136, §921(e)(4)(A), substituted "National Geospatial-Intelligence Agency" for "National Imagery and Mapping Agency" in two places.
Subsec. (a)(2)(A). Pub. L. 108–136, §921(e)(4)(A), (B), substituted "NGA" for "NIMA" wherever appearing and substituted "National Geospatial-Intelligence Agency" for "National Imagery and Mapping Agency".
Subsec. (a)(3)(C)(iv), (v), (6)(A), (B)(i), (iv)(I). Pub. L. 108–136, §921(e)(4)(B), substituted "NGA" for "NIMA".
Subsec. (a)(6)(B)(iv)(II). Pub. L. 108–136, §921(e)(4)(B), (C), substituted "NGA" for "NIMA" and "NGA's" for "NIMA's".
Subsec. (a)(6)(B)(vi), (vii). Pub. L. 108–136, §921(e)(4)(B), substituted "NGA" for "NIMA" wherever appearing.
Subsec. (b)(1). Pub. L. 108–136, §921(e)(4)(A), substituted "National Geospatial-Intelligence Agency" for "National Imagery and Mapping Agency".
Subsec. (b)(3). Pub. L. 108–136, §921(e)(4)(B), substituted "NGA" for "NIMA" wherever appearing.
2002—Subsec. (a)(3)(C). Pub. L. 107–306 added cl. (i), redesignated cls. (iii) to (vi) as (ii) to (v), respectively, and struck out former cls. (i) and (ii) which read as follows:
"(i) The Permanent Select Committee on Intelligence of the House of Representatives.
"(ii) The Select Committee on Intelligence of the Senate."
Effective Date of 2004 Amendment
For 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.
Treatment of Certain Transferred Records
Pub. L. 106–120, title V, §501(b), Dec. 3, 1999, 113 Stat. 1619, as amended by Pub. L. 108–136, div. A, title IX, §921(g), Nov. 24, 2003, 117 Stat. 1570, provided that: "Any record transferred to the National Geospatial-Intelligence Agency from exempted operational files of the Central Intelligence Agency covered by section 701(a) of the National Security Act of 1947 (50 U.S.C. 431(a)) [now 50 U.S.C. 3141(a)] shall be placed in the operational files of the National Geospatial-Intelligence Agency that are established pursuant to section 105B [now 702] of the National Security Act of 1947 [50 U.S.C. 3142], as added by subsection (a)."
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