FAS Note: The following proposal for a new FOIA exemption for the National Security Agency's operational files is excerpted from the Defense Department's submission to Congress on the draft FY 2004 Defense Authorization Act.

Section-by-Section Analysis


Section 933. The operational files exemption proposed as Section 105E of the National Security Act of 1947, as amended, will allow the Director of the National Security Agency ("NSA" or "Agency"), in coordination with the Director of Central Intelligence, to exempt limited categories of sensitive NSA files from the search, review, and disclosure provisions of the Freedom of Information Act, 5 USC 552. This authority parallels authority currently enjoyed by the Central Intelligence Agency, the National Imagery and Mapping Agency, and the National Reconnaissance Office.

The authority to exempt operational files will allow NSA to better focus on its signals intelligence mission. Currently, when NSA receives a FOIA request for records that document the means by which foreign intelligence or counterintelligence is collected through technical means, the Agency almost invariably withholds them on the bases that they are classified and pertain to core Agency activities. The federal courts rarely overturn the Agency's withholding of these types of records. Yet, processing these requests may require Agency personnel to be diverted from key mission areas, such as fighting the war on terrorism.

The authority to exempt operational files will also improve security. The act of withholding records allows requesters to piece together a mosaic that ultimately may reveal the Agency's intelligence capabilities against or interests in its specific targets. A "no records" response adds to the mosaic by highlighting the fact that the Agency does not have the requested information, which may reveal intelligence vulnerabilities. The Agency could attempt to "Glomar" (i.e., refuse to deny the existence or non-existence of the requested records for classification reasons or because they reveal NSA's functions or activities) requests across the board, including those for which NSA previously acknowledged having records, but it is not clear that the courts would uphold such a response. In addition, exemption authority will help prevent the inadvertent release of sensitive information about the Agency's operations to adversaries of the United States.

The proposed exemption contains many safeguards. Nothing in the legislation will allow the Agency to use the exemption mechanism to conceal any impropriety or violation of law, Executive order, or Presidential directive in the conduct of an intelligence activity from investigation by the Intelligence Committees, the Intelligence Oversight Board, the Department of Justice, or appropriate Agency personnel. If enacted, the legislation will only allow the Director to exempt NSA files concerning signals intelligence or counterintelligence from search, review, or disclosure under the FOIA. In addition, the Director's authority to exempt files would be limited to those that document the means by which foreign intelligence or counterintelligence is collected by technical means; i.e., files whose disclosure would undermine, or tend to undermine, the effectiveness of the sources or methods that NSA employs to perform its assigned signals intelligence or counterintelligence duties. The exemption does not authorize the Director to exempt other categories of files that, although possibly classified, do not directly relate to NSA's signals intelligence or counterintelligence activities. For example, the authority is not intended to reach the Agency's routine personnel or security files.

Another safeguard is that the Director is required to review exempted operational files for continued exemption not less than once every 10 years. During the review, the Director must consider the historical value or other public interest in the subject matter of the files that have been exempted. This ensures that the Director will not continue to exempt files from the FOIA that are no longer suitable for such unique treatment. Also, nothing in the legislation would prevent NSA from making discretionary releases of information contained in exempt files. It is anticipated NSA will continue to release historically significant records.