50 U.S.C. § 432a : US Code - Section 432A: Operational files of the National Reconnaissance Office

Search 50 U.S.C. § 432a : US Code - Section 432A: Operational files of the National Reconnaissance Office

(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) of this section 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.