(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.
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (f)(5), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
Codification
Section was formerly classified to section 431 of this title prior to editorial reclassification and renumbering as this section. Some section numbers of this title referenced in amendment notes below reflect the classification of such sections prior to their editorial reclassification.
The text of former section 432 of this title, which was transferred to this section and redesignated as subsec. (g) by Pub. L. 108–136, § 922(b)(2)(B), was based on act July 26, 1947, ch. 343, title VII, § 702, as added Pub. L. 98–477, § 2(a), Oct. 15, 1984, 98 Stat. 2211.
Amendments
2010—Subsec. (b)(1). Pub. L. 111–259 substituted “National Clandestine Service” for “Directorate of Operations”.
2004—Subsec. (a). Pub. L. 108–458, § 1071(a)(6)(A), substituted “The Director of the Central Intelligence Agency, with the coordination of the Director of National Intelligence, may exempt operational files of the Central Intelligence Agency” for “Operational files of the Central Intelligence Agency may be exempted by the Director of Central Intelligence”.
Subsec. (c)(3). Pub. L. 108–458, § 1072(a)(7), substituted “Office of the Director of National Intelligence” for “Office of the Director of Central Intelligence”.
Subsec. (g)(1). Pub. L. 108–458, § 1071(a)(6)(B), substituted “Director of the Central Intelligence Agency and the Director of National Intelligence” for “Director of Central Intelligence”.
2003—Pub. L. 108–136, § 922(d)(1)(B), substituted “Operational files of the Central Intelligence Agency” for “Exemption of certain operational files from search, review, publication, or disclosure” in section catchline.
Subsec. (b). Pub. L. 108–136, § 922(b)(1), which directed the substitution of “In this section,” for “For purposes of this title”, was executed by making the substitution for “For the purposes of this title”, to reflect the probable intent of Congress.
Subsec. (g). Pub. L. 108–136, § 922(b)(2)(C), inserted heading.
Pub. L. 108–136, § 922(b)(2)(B), transferred text of section 432 of this title to this section, redesignated it as subsec. (g), and redesignated subsecs. (a) to (c) of that text as pars. (1) to (3), respectively, of subsec. (g).
Subsec. (g)(1). Pub. L. 108–136, § 922(b)(2)(D), struck out “of section 431 of this title” after “subsection (a)”.
Subsec. (g)(2). Pub. L. 108–136, § 922(b)(2)(E), which directed the substitution of “paragraph (1)” for “of subsection (a) of this section”, was executed by making the substitution for “subsection (a) of this section”, to reflect the probable intent of Congress.
Subsec. (g)(3). Pub. L. 108–136, § 922(b)(2)(F)(ii), substituted “to determining the following:” and subpars. (A) and (B) for “to determining (1) whether the Central Intelligence Agency has conducted the review required by subsection (a) of this section within ten years of enactment of this title or within ten years after the last review, and (2) whether the Central Intelligence Agency, in fact, considered the criteria set forth in subsection (b) of this section in conducting the required review.”
Pub. L. 108–136, § 922(b)(2)(F)(i), substituted “with this subsection” for “with this section” in first sentence.
2002—Subsec. (c)(3). Pub. L. 107–306 substituted “congressional intelligence committees” for “intelligence committees of the Congress”.
1996—Subsec. (b)(3). Pub. L. 104–93 substituted “Office of Personnel Security” for “Office of Security”.
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 3001 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 3001 of this title.
Effective Date
Pub. L. 98–477, § 4, Oct. 15, 1984, 98 Stat. 2212, provided that:
“The amendments made by subsections (a) and (b) of section 2 [enacting this subchapter and amending
section 552a of Title 5, Government Organization and Employees] shall be effective upon enactment of this Act [Oct. 15, 1984] and shall apply with respect to any requests for records, whether or not such request was made prior to such enactment, and shall apply to all civil actions not commenced prior to February 7, 1984.”