50 U.S.C. § 3144 — Operational files of the National Security Agency

(a) Exemption. Coordinating with the Director of National Intelligence^*, the NSA Director may exempt NSA operational files from the parts of 5 U.S.C. § 552 that require publication, disclosure, search, or review. (b) Operational files defined. (1) “Operational files” means (A) files of the NSA Signals Intelligence Directorate, or any successor organization, that document how foreign intelligence^* or counterintelligence^* is collected through technical systems; and (B) files of the NSA Research Associate Directorate, or any successor organization, that document how foreign intelligence or counterintelligence is collected through scientific and technical systems. (2) Files that are the sole repository of disseminated intelligence, and files placed in the NSA Archives or a successor organization, are not operational files. (c) Search and review for information. Despite subsection (a), exempt operational files must still be searched and reviewed for information about: (1) a United States citizen or an alien lawfully admitted for permanent residence who requested information about themselves under 5 U.S.C. § 552 or § 552a; (2) a special activity whose existence is not exempt from disclosure under 5 U.S.C. § 552; or (3) the specific subject of an investigation by any of the following into impropriety or a violation of law, an Executive order, or a Presidential directive in conducting an intelligence activity: (A) the House Committee on Armed Services or Permanent Select Committee on Intelligence; (B) the Senate Committee on Armed Services or Select Committee on Intelligence; (C) the Intelligence Oversight Board; (D) the Department of Justice; (E) the NSA Office of General Counsel; (F) the Defense Department Office of the Inspector General; (G) the NSA Office of the Director; or (H) the NSA Office of the Inspector General. (d) Information derived or disseminated from exempt operational files. (1) Files not exempt under subsection (a) that contain information derived or disseminated from exempt operational files must be searched and reviewed. (2) Putting information from exempt operational files into nonexempt files does not affect the subsection (a) exemption of the original operational files. (3) Declassifying some information in exempt operational files does not change their exempt status. (4) Records from exempt operational files that were disseminated to and referenced in nonexempt files, then returned to exempt operational files for sole retention, must be searched and reviewed. (e) Superseding other laws. Subsection (a) may be superseded only by a law enacted after November 24, 2003, that specifically cites and repeals or modifies subsection (a). (f) Allegation of improper withholding; judicial review. (1) Except as provided in paragraph (2), a person who requested agency records under 5 U.S.C. § 552 and alleges that the NSA improperly withheld records because it failed to comply with this section may obtain judicial review under 5 U.S.C. § 552(a)(4)(B). (2) The judicial review under paragraph (1) is subject to these rules: (A) If the NSA files with or produces for the court information that an Executive order specifically authorizes to be kept secret in the interests of national defense or foreign relations, the court must examine that information ex parte and in camera. (B) To the fullest extent practicable, the court must decide factual issues from the parties’ sworn written submissions. (C) If the complainant alleges that records were improperly withheld because they were placed solely in exempt operational files, the complainant must support the allegation with a sworn written submission based on personal knowledge or otherwise admissible evidence. (D)(i) If the complainant alleges that records were improperly withheld because operational files were improperly exempted, the NSA must meet its burden under 5 U.S.C. § 552(a)(4)(B) by showing the court, through a sworn written submission, that exempt operational files likely to contain responsive records currently perform the functions described in subsection (b). (ii) The court may not order the NSA to review the contents of exempt operational files to make that showing unless the complainant disputes the NSA’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 under Rules 26 through 36 of the Federal Rules of Civil Procedure, except that they may make requests for admissions under Rules 26 and 36. (F) If the court finds that the NSA improperly withheld records because it failed to comply with this section, the court must order the NSA to search and review the appropriate exempt operational files and make the requested records, or parts of them, available under 5 U.S.C. § 552. That order is the exclusive remedy for failing to comply with this section, other than subsection (g). (G) If, at any time after a complaint is filed under this paragraph, the NSA agrees to search the appropriate exempt operational files, the court must dismiss the claim based on that complaint. (H) Before the NSA submits to the court information filed or produced under subparagraphs (A) and (D), it must coordinate that information with the Director of National Intelligence. (g) Decennial review of exempt operational files. (1) At least once every 10 years, the NSA Director and the Director of National Intelligence must review the exemptions under subsection (a) to decide whether they can be removed from a category of exempt files or part of a category. The Director of National Intelligence must approve any decision to remove an exemption. (2) The review must consider the historical value or other public interest in the subject of a particular category of files or part of a category, and the possibility of declassifying a significant part of the information in them. (3) A complainant who alleges that the NSA improperly withheld records because it failed to comply with this subsection may seek judicial review in the federal district court for the district where any party resides or in the District of Columbia. The court’s review is limited to deciding: (A) whether the NSA completed the review required by paragraph (1) before the 10-year period beginning November 24, 2003, ended, or before the 10-year period beginning on the date of the most recent review ended; and (B) whether the NSA actually considered the criteria in paragraph (2).