50 U.S.C. § 432c : US Code - Section 432C: Operational files of the Defense Intelligence Agency

Search 50 U.S.C. § 432c : US Code - Section 432C: Operational files of the Defense Intelligence Agency

(a) Exemption of operational files
The Director of the Defense Intelligence Agency, in coordination
with the Director of National Intelligence, may exempt operational
files of the Defense Intelligence 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 Directorate of Human Intelligence of the
Defense Intelligence Agency (and any successor organization of
that directorate) that document the conduct of foreign
intelligence or counterintelligence operations or intelligence or
security liaison arrangements or information exchanges with
foreign governments or their intelligence or security services;
and
(B) files of the Directorate of Technology of the Defense
Intelligence Agency (and any successor organization of that
directorate) that document the means by which foreign
intelligence or counterintelligence is collected through
technical systems.
(2) Files that are the sole repository of disseminated
intelligence 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:
(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 Department of
Defense or of the Defense Intelligence Agency.
(F) The Office of Inspector General of the Department of
Defense or of the Defense Intelligence Agency.
(G) The Office of the Director of the Defense Intelligence
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
an exempted operational file 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) 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 Defense Intelligence 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
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 interest of national defense or foreign relations
which is filed with, or produced for, the court by the Defense
Intelligence Agency, such information shall be examined ex parte,
in camera by the court.
(B) The court shall determine, to the fullest extent
practicable, issues of fact based on sworn written submissions of
the parties.
(C) When a complainant alleges that requested records were
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 Defense Intelligence 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 responsible records currently perform the
functions set forth in subsection (b) of this section.
(ii) The court may not order the Defense Intelligence 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 Defense Intelligence 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
shall not obtain discovery pursuant to rules 26 through 36 of the
Federal Rules of Civil Procedure, except that requests for
admission may be made pursuant to rules 26 and 36.
(F) If the court finds under this subsection that the Defense
Intelligence Agency has improperly withheld requested records
because of failure to comply with any provision of this
subsection, the court shall order the Defense Intelligence 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 (f)).
(G) If at any time following the filing of a complaint pursuant
to this paragraph the Defense Intelligence 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.
(f) Decennial review of exempted operational files
(1) Not less than once every 10 years, the Director of the
Defense Intelligence 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
determinations 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 the Defense Intelligence
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 Defense Intelligence Agency has conducted the
review required by paragraph (1) before the expiration of the 10-
year period beginning on January 6, 2006, or before the
expiration of the 10-year period beginning on the date of the
most recent review.
(B) Whether the Defense Intelligence Agency, in fact,
considered the criteria set forth in paragraph (2) in conducting
the required review.
(g) Termination
This section shall cease to be effective on December 31, 2007.