50 U.S.C. § 432b : US Code - Section 432B: Operational files of the National Security Agency

Search 50 U.S.C. § 432b : US Code - Section 432B: Operational files of the National Security Agency

(a) Exemption of certain operational files from search, review,
publication, or disclosure
The Director of the National Security Agency, in coordination
with the Director of National Intelligence, may exempt operational
files of the National Security Agency from the provisions of
section 552 of title 5 which require publication, disclosure,
search, or review in connection therewith.
(b) Operational files defined
(1) In this section, the term "operational files" means -
(A) files of the Signals Intelligence Directorate of the
National Security Agency (and any successor organization of that
directorate) that document the means by which foreign
intelligence or counterintelligence is collected through
technical systems; and
(B) files of the Research Associate Directorate of the National
Security Agency (and any successor organization of that
directorate) that document the means by which foreign
intelligence or counterintelligence is collected through
scientific and technical systems.
(2) Files that are the sole repository of disseminated
intelligence, and files that have been accessioned into the
National Security Agency Archives (or any successor organization)
are not operational files.
(c) Search and review for information
Notwithstanding subsection (a) of this section, exempted
operational files 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 by any of
the following for any impropriety, or violation of law, Executive
order, or Presidential directive, in the conduct of an
intelligence activity:
(A) The Committee on Armed Services and the Permanent Select
Committee on Intelligence of the House of Representatives.
(B) The Committee on Armed Services and the Select Committee
on Intelligence of the Senate.
(C) The Intelligence Oversight Board.
(D) The Department of Justice.
(E) The Office of General Counsel of the National Security
Agency.
(F) The Office of the Inspector General of the Department of
Defense.
(G) The Office of the Director of the National Security
Agency.
(H) The Office of the Inspector General of the National
Security Agency.
(d) Information derived or disseminated from exempted operational
files
(1) Files that are not exempted under subsection (a) of this
section that 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) 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.
(4) Records from exempted operational files that have been
disseminated to and referenced in files that are not exempted under
subsection (a) of this section and that have been returned to
exempted operational files for sole retention shall be subject to
search and review.
(e) Supersedure of other laws
The provisions of subsection (a) of this section may not be
superseded except by a provision of law that is enacted after
November 24, 2003, 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 National Security Agency 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 National
Security Agency, 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) 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.
(D)(i) When a complainant alleges that requested records were
improperly withheld because of improper exemption of operational
files, the National Security 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.
(ii) The court may not order the National Security Agency to
review the content of any exempted operational file or files in
order to make the demonstration required under clause (i), unless
the complainant disputes the National Security Agency's showing
with a sworn written submission based on personal knowledge or
otherwise admissible evidence.
(E) In proceedings under subparagraphs (C) and (D), 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.
(F) If the court finds under this subsection that the National
Security Agency has improperly withheld requested records because
of failure to comply with any provision of this subsection, the
court shall order the 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, and such order
shall be the exclusive remedy for failure to comply with this
section (other than subsection (g) of this section).
(G) If at any time following the filing of a complaint pursuant
to this paragraph the National Security 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.
(H) Any information filed with, or produced for the court
pursuant to subparagraphs (A) and (D) shall be coordinated with
the Director of National Intelligence before submission to the
court.
(g) Decennial review of exempted operational files
(1) Not less than once every 10 years, the Director of the
National Security Agency and the Director of National Intelligence
shall review the exemptions in force under subsection (a) of this
section to determine whether such exemptions may be removed from a
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 a 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 National Security 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 National Security Agency has conducted the
review required by paragraph (1) before the expiration of the 10-
year period beginning on November 24, 2003, or before the
expiration of the 10-year period beginning on the date of the
most recent review.
(B) Whether the National Security Agency, in fact, considered
the criteria set forth in paragraph (2) in conducting the
required review.