50 USC 432a: NRO Operational Files Exemption

            
 
          Sec. 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.

(July 26, 1947, ch. 343, title VII, Sec. 703, formerly title I, 
Sec. 105D, as added Pub. L. 107-306, title V, Sec. 502(a), Nov. 27, 
2002, 116 Stat. 2405; renumbered title VII, Sec. 703, and amended Pub. 
L. 108-136, div. A, title IX, Sec. 922(c), (d)(1)(D), Nov. 24, 2003, 117 
Stat. 1573, 1574; Pub. L. 108-375, div. A, title X, Sec. 1084(j), Oct. 
28, 2004, 118 Stat. 2064; Pub. L. 108-458, title I, Sec. 1071(a)(1)(GG)-
(II), Dec. 17, 2004, 118 Stat. 3689; Pub. L. 109-163, div. A, title IX, 
Sec. 933(b)(2), Jan. 6, 2006, 119 Stat. 3416.)

                       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 403-5e of this title 
prior to renumbering by Pub. L. 108-136.
                               Amendments

    2006--Subsec. (a)(3)(C)(vii). Pub. L. 109-163 added cl. (vii).
    2004--Subsec. (a)(1). Pub. L. 108-458, Sec. 1071(a)(1)(GG), 
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, Sec. 1071(a)(1)(HH), 
substituted ``Director of National Intelligence'' for ``Director of 
Central Intelligence''.
    Subsec. (b)(1). Pub. L. 108-458, Sec. 1071(a)(1)(II), substituted 
``Director of National Intelligence'' for ``Director of Central 
Intelligence'' in two places.
    2003--Pub. L. 108-136 substituted ``Operational files of the 
National Reconnaissance Office'' for ``Protection of operational files 
of the National Reconnaissance Office'' in section catchline.
                    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 
401 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 401 of this title.