§ 432. Operational files of the National Geospatial-Intelligence Agency
(a)
Exemption of certain operational files from search, review, publication, or disclosure
(1)
The Director of the National Geospatial-Intelligence Agency, with the coordination of the Director of National Intelligence, may exempt operational files of the National Geospatial-Intelligence Agency 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 Geospatial-Intelligence Agency (hereafter in this section referred to as “NGA”) concerning the activities of NGA that before the establishment of NGA were performed by the National Photographic Interpretation Center of the Central Intelligence Agency (NPIC), that document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems.
(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
(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.
(5)
The provisions of paragraph (1) may not be superseded except by a provision of law which is enacted after December 3, 1999, and which specifically cites and repeals or modifies its provisions.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 NGA 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 NGA, 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, NGA 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 NGA 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 NGA’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 NGA has improperly withheld requested records because of failure to comply with any provision of this subsection, the court shall order NGA 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.
(b)
Decennial review of exempted operational files
(1)
Not less than once every 10 years, the Director of the National Geospatial-Intelligence Agency 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 NGA 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: