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TITLE IX-DEPARTMENT OF DEFENSE ORGANIZATION AND MANAGEMENT

Subtitle A-Intelligence-Related Matters

SEC. 901. OPERATIONAL FILES OF THE DEFENSE INTELLIGENCE AGENCY.

(a) PROTECTION OF OPERATIONAL FILES OF DEFENSE INTELLIGENCE AGENCY. Title I of the National Security Act of 1947 (50 U.S.C. 401 et. seq.) is amended by inserting after section 705 the following new section:

706. Operational files of the Defense Intelligence Agency

"(a) EXEMPTION OF OPERATIONAL FILES.-The Director of the Defense Intelligence Agency, in coordination with the Director of National Intelligence, may exempt operational files of the Defense Intelligence Agency from the provisions of section 552 of title 5, United States Code, which require publication, disclosure, search, or review in connection therewith.
"(b) OPERATIONAL FILES DEFINED.-(1) In this section, the term 'operational files' means:
"(A) files of the Directorate of Human Intelligence of the Defense Intelligence Agency (and any successor organization of that directorate) that 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; and
"(B) files of the Directorate of Technology of the Defense Intelligence Agency (and any successor organization of that directorate) that document the means by which foreign intelligence or counterintelligence is collected through technical systems.
"(2) Files that 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 or 552a of title 5, United States Code.
"(2) Any special activity the existence of which is not exempt from disclosure under the provisions of section 552 of title 5, United States Code.
"(3) 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-
"(A) The Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.
"(B) The Committee on Armed Services and the Select Committee on Intelligence of the Senate.
"(C) The Intelligence Oversight Board.
"(D) The Department of Justice.
"(E) The Office of General Counsel of the Department of Defense or of the Defense Intelligence Agency.
"(F) The Office of Inspector General of the Department of Defense or of the Defense Intelligence Agency.
"(G) The Office of the Director of the Defense Intelligence Agency.

"(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 that have been disseminated to and referenced in files that are not exempted under subsection (a) of this section and that have been returned to exempted operational files for sole retention shall be subject to search and review.

"(e) ALLEGATION; IMPROPER WITHHOLDING OF RECORDS; JUDICIAL REVIEW.-
(1) Except as provided in paragraph (2), whenever any person who has requested agency records under section 552 of title 5, alleges that the Defense Intelligence Agency has withheld records improperly because of failure to comply with any provision of this section, judicw review shall be available under the terms set forth in section 552(a)(4)(B) of title 5, United States Code.
"(2) Judicial review shall not be available in the manner provided under paragraph (1) as follows:
"(A) 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 Defense Intelligence Agency, such information shall be examined ex parte, in camera by the court.
"(B) The court shall determine, to the fullest extent practicable, determine issues of fact based on sworn written submissions of the parties.
"(C) 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.
"(D)(i) When a complainant alleges that requested records were improperly withheld because of improper exemption of operational files, the Defense Intelligence Agency shall meet its burden under section 552(a)(4)(B) of title 5, United States Code, by demonstrating to the court by sworn written submission that exempted operational files likely to contain responsible records currently perform the functions set forth in subsecton (b). "(ii) The court may not order the Defense Intelligence Agency to review the content of any exempted operational file or files in order to make the demonstration required under clause (i) of this paragraph, unless the complainant disputes the Defense Intelligence Agency'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 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.
"(F) If the court finds under this subsection that the Defense Intelligence Agency has improperly withheld requested records because of failure to comply with any provision of this subsection, the court shall order the Defense 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, United States Code, and such order shall be the exclusive remedy for failure to comply with this section (other than subsection(g)).
"(G) If at any time following the filing of a complaint pursuant to this subsection the Defense 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; and "(H) Any information filed with, or produced for the court pursuant to subparagraphs (A) and (D) shall be coordinated with the Director of National intelligence before submission to the court.

"(f) DECENNIAL REVIEW OF EXEMPTED OPERATIONAL FILES.-
(1) Not less than once every ten years, the Director of the Defense Intelligence Agency and the Director of National Intelligence shall review the exemptions in force under subsection (a) to determine whether such exemptions may be removed from a category of exempted files or any portion thereof. The Director of National Intelligence must approve any determinations 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 the Defense Intelligence Agency has improperly withheld records because of failure to comply with this section 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 Defense Intelligence Agency has conducted the review required by paragraph (1) before the expiration of the 10-year period beginning on the date of the enactment of this section or before the expiration of the 10-year period beginning on the date of the most recent review.
"(B) Whether the Defense Intelligence Agency, in fact, considered the criteria set forth in paragraph (2) in conducting the required review.".

(b) CLERICAL AMENDMENT.-The table of sections at the beginning of such title is amended by inserting after the item relating to section 705 the following new item: "706. Operational Files of the Defense Intelligence Agency.".

(c) OTHER AMENDMENTS.-The National Security Act of 1947 is further amended--

(1) by inserting at the end of section 702(a)(3)(C) the following new clause:
"(vii) The Office of the Inspector General of the National Geospatial-Intelligence Agency,";

(2) by inserting at the end of section 703(a)(3)(C) the following new clause:
"(vii) The Office of the Inspector General of the NRO."; and

(3) by inserting at the end of section 704(c)(3) the following subparagraph:
"(H) The Office of the Inspector General of the National Security Agency.".

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TITLE IX - DEPARTMENT OF DEFENSE ORGANIZATION AND MANAGEMENT

Subtitle A - Intelligence-Related Matters

Section 901. The proposed section 706 of the National Security Act of 1947, as laid out above, is based directly on existing sections 701 through 704 of the National Security Act of 1947. These sections currently provide the Central Intelligence Ayency, the National Geospatial-Intelligence Agency, the National Reconnaissance Office, and the National Security Agency with specific exemptions from the Freedom of Information Act (FOIA). The section above will extend these FOIA exemptions to the Defense Intelligence Agency's (DIA's) Human Intelligence and Technology Directorates' operational files in a manner similar to the other Agencies' exemptions. The new section closely follows the wording of section 704, which provided a FOIA exemption for certain NSA operational files. Section 704 is the most recently enacted FOIA exemption of the group.

Amendments to the National Security Act of 1947 that would allow FOIA exempted operational files to continue to be subject to search and review for information concerning the specific subject matter of an investigation by the respective National Geospatial-Intelligence Agency, National Reconnaissance Office, and National Security Agency Inspector General for any impropriety, or violation of law, Executive Order, or Presidential directive, in the conduct of an intelligence activity. The proposed amendments are consistent with the language proposed by the DIA.