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U.S. Code as of:
01/19/04
Section 431. Operational files of the Central Intelligence Agency
(a) Exemption by Director of Central Intelligence
Operational files of the Central Intelligence Agency may be
exempted by the Director of Central Intelligence from the
provisions of section 552 of title 5 (Freedom of Information Act)
which require publication or disclosure, or search or review in
connection therewith.
(b) "Operational files" defined
In this section, the term "operational files" means -
(1) files of the Directorate of Operations which 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;
(2) files of the Directorate for Science and Technology which
document the means by which foreign intelligence or
counterintelligence is collected through scientific and technical
systems; and
(3) files of the Office of Personnel Security which document
investigations conducted to determine the suitability of
potential foreign intelligence or counterintelligence sources;
except that files which 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 of title 5 (Freedom of
Information Act) or section 552a of title 5 (Privacy Act of
1974);
(2) any special activity the existence of which is not exempt
from disclosure under the provisions of section 552 of title 5
(Freedom of Information Act); or
(3) the specific subject matter of an investigation by the
congressional intelligence committees, the Intelligence Oversight
Board, the Department of Justice, the Office of General Counsel
of the Central Intelligence Agency, the Office of Inspector
General of the Central Intelligence Agency, or the Office of the
Director of Central Intelligence for any impropriety, or
violation of law, Executive order, or Presidential directive, in
the conduct of an intelligence activity.
(d) Information derived or disseminated from exempted operational
files
(1) Files that are not exempted under subsection (a) of this
section which 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) Records from exempted operational files which have been
disseminated to and referenced in files that are not exempted under
subsection (a) of this section and which have been returned to
exempted operational files for sole retention shall be subject to
search and review.
(e) Supersedure of prior law
The provisions of subsection (a) of this section shall not be
superseded except by a provision of law which is enacted after
October 15, 1984, and which specifically cites and repeals or
modifies its provisions.
(f) Allegation; improper withholding of records; judicial review
Whenever any person who has requested agency records under
section 552 of title 5 (Freedom of Information Act), alleges that
the Central Intelligence Agency has improperly withheld records
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, except that -
(1) 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 Central
Intelligence Agency, such information shall be examined ex parte,
in camera by the court;
(2) the court shall, to the fullest extent practicable,
determine issues of fact based on sworn written submissions of
the parties;
(3) when a complaint 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;
(4)(A) when a complainant alleges that requested records were
improperly withheld because of improper exemption of operational
files, the Central 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 responsive records currently perform the
functions set forth in subsection (b) of this section; and
(B) the court may not order the Central Intelligence Agency to
review the content of any exempted operational file or files in
order to make the demonstration required under subparagraph (A)
of this paragraph, unless the complainant disputes the Central
Intelligence Agency's showing with a sworn written submission
based on personal knowledge or otherwise admissible evidence;
(5) in proceedings under paragraphs (3) and (4) of this
subsection, 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;
(6) if the court finds under this subsection that the Central
Intelligence Agency has improperly withheld requested records
because of failure to comply with any provision of this section,
the court shall order the Central 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 (Freedom of Information Act), and such order shall be the
exclusive remedy for failure to comply with this section; and
(7) if at any time following the filing of a complaint pursuant
to this subsection the Central 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.
(g) Decennial review of exempted operational files
(1) Review by Director of Central Intelligence
Not less than once every ten years, the Director of Central
Intelligence shall review the exemptions in force under
subsection (a) of this section to determine whether such
exemptions may be removed from any category of exempted files or
any portion thereof.
(2) Consideration; historical value; public interest
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) Judicial review
A complainant who alleges that the Central 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 Central Intelligence Agency has conducted the
review required by paragraph (1) before October 15, 1994, or
before the expiration of the 10-year period beginning on the
date of the most recent review.
(B) Whether the Central Intelligence Agency, in fact,
considered the criteria set forth in paragraph (2) in
conducting the required review.
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