Side by Side Comparison of FOIA Operational Files Exemptions

SIDE BY SIDE COMPARISON OF THE STATUTORY FOIA EXEMPTIONS FOR OPERATIONAL FILES OF THE CIA, NIMA AND NRO AND THE PROPOSED NEW FOIA EXEMPTION FOR THE OPERATIONAL FILES OF THE NSA

Prepared by the National Security Archive May 19, 2003 For Further Information Contact Meredith Fuchs (202) 994-7059 or Tom Blanton (202) 994-7068

Provision CIA Op. File NIMA Op. File NRO Op. File Proposed NSA Op. Comments Exemption Exemption Exemption File Exemption 50 USC sec. 431 50 USC sec 403-5c 50 USC sec. 403-5e (enacted 1984) (enacted 1999) (enacted 2002)

Legislative Congressional hearings No hearings. No hearings. No hearings. The intelligence agencies have different on impact of FOIA on missions and distinctive organizations. The Process CIA in 1977, 1979, No agency No agency No agency CIA documented its expenditure on FOIA 1980, 1982 1984. commitments to FOIA commitments to FOIA commitments to FOIA processing, demonstrated how the processing. processing. processing or exemption would not result in the narrowing Extensive committee explanation of how of releasable documents, and committed to reports issued by existing FOIA requests improve its FOIA processing. HPSCI, SSIC, and would be affected. House Comm. on Gov’t Those NSA annual FOIA reports that are Ops. reflecting No explanation for the available to the Archive – 1998, 1999, and legislative intent. details or methodology 2000 – list the total cost for the FOIA used in determining that program (FOIA processing and litigation) as Specific explanation NSA’s signals $1.3 million, $1.9 million, and $1 million provided by CIA of intelligence personnel respectively. Without some demonstration recordkeeping system, are being diverted to that there has been a change in its FOIA FOIA searching, and FOIA processing. program or requests in recent years, it is diversion of resources. hard to understand how the exemption will result in significant savings for the agency. Commitments to FOIA processing made by CIA.

Exemption Provides authority to Language functionally Language functionally Language functionally exempt “operational identical. identical. identical. files” from search, review, publication and Side by Side Comparison of FOIA Operational Files Exemptions May 19, 2003 Page 2 of 7

Provision CIA Op. File NIMA Op. File NRO Op. File Proposed NSA Op. Comments Exemption Exemption Exemption File Exemption 50 USC sec. 431 50 USC sec 403-5c 50 USC sec. 403-5e (enacted 1984) (enacted 1999) (enacted 2002) disclosure pursuant to the FOIA.

Definition of “(1) files of the “files of the National “files of the National “files of the National Proposed new FOIA exemption not limited Operational File Directorate of Imagery and Mapping Reconnaissance Office Security Agency … that to the analyst notes and technical targeting Operations which Agency … concerning …that document the document the means by information that the NSA purportedly seeks document the conduct the activities of NIMA means by which which foreign to protect. Because designation of of foreign intelligence that before the foreign intelligence or intelligence or exempted files is in hands of the agency, or counterintelligence establishment of NIMA counterintelligence is counterintelligence is proposal potentially reaches all records of operations or were performed by the collected through collected through the agency except for files containing solely intelligence or security National Photographic scientific and technical technical systems.” disseminated intelligence reports (which are liaison arrangements or Interpretation Center of systems.” specifically excluded from the definition). information exchanges the Central Intelligence A wide range of records could “document with foreign Agency (NPIC), that the means by which” intelligence is governments or their document the means by “collected through technical systems,” intelligence or security which foreign including records that concern the quality of services; intelligence or intelligence gathering, policy decisions (2) files of the counterintelligence is relating to intelligence gathering, NSA’s Directorate for Science collected through role in setting technical standards for and Technology which scientific and technical communications systems that could document the means systems.” eventually be the means for intelligence by which foreign gathering. CIA provided explanation of intelligence or records systems and illustration of what counterintelligence is records would fall inside and outside collected through exemption. NSA has done so only in oral scientific and technical and non-record statements. If the purpose is systems; and narrowly focused, then the statutory and (3) files of the Office report language should reflect that narrow of Personnel Security purpose. which document investigations Proposed new FOIA exemption not limited Side by Side Comparison of FOIA Operational Files Exemptions May 19, 2003 Page 3 of 7

Provision CIA Op. File NIMA Op. File NRO Op. File Proposed NSA Op. Comments Exemption Exemption Exemption File Exemption 50 USC sec. 431 50 USC sec 403-5c 50 USC sec. 403-5e (enacted 1984) (enacted 1999) (enacted 2002) conducted to determine to the specific directorates or offices within the suitability of NSA that generate and maintain files potential foreign concerning the setting up of SIGINT intelligence or operations. CIA exemption is limited. counterintelligence sources;” Proposed new FOIA exemption not limited to current operations creates potential black-hole for completed operations that may include historically valuable records.

No agency explanation provided that illustrates how exemption would affect pending FOIA requests.

Files not included “files which are the sole “files which are the sole “files which are the sole “files which are the sole This provision suggests that disseminated in Operational repository of repository of repository of repository of intelligence reports are not excluded from disseminated disseminated disseminated disseminated the definition of operational files unless File Definition intelligence are not intelligence are not intelligence are not intelligence are not they are maintained in completely operational files.” operational files.” operational files.” operational files.” segregated files. This protection may be meaningless because it is not clear from the agency’s justification whether disseminated intelligence reports are maintained in this manner.

Op. Files Still  FOIA or Privacy  FOIA or Privacy  FOIA or Privacy  FOIA or Privacy Subject to Search Act requests by US Act requests by US Act requests by US Act requests by US and Review Citizens and Citizens and Citizens and Citizens and Lawful Residents Lawful Residents Lawful Residents Lawful Residents for information for information for information for information about themselves. about themselves. about themselves. about themselves. Side by Side Comparison of FOIA Operational Files Exemptions May 19, 2003 Page 4 of 7

Provision CIA Op. File NIMA Op. File NRO Op. File Proposed NSA Op. Comments Exemption Exemption Exemption File Exemption 50 USC sec. 431 50 USC sec 403-5c 50 USC sec. 403-5e (enacted 1984) (enacted 1999) (enacted 2002)  Any special  Any special  Any special  Any special activity the activity the activity the activity the existence of which existence of which existence of which existence of which is not exempt from is not exempt from is not exempt from is not exempt from disclosure. disclosure. disclosure. disclosure.

 “the specific  “the specific  “the specific  “the specific Proposed new FOIA exemption is not subject matter of an subject matter of an subject matter of an subject matter of an overridden by investigation by entities with investigation by the investigation by investigation by investigation for monitoring or oversight responsibility congressional any of the any of the any impropriety, or related to the NSA: Senate Armed Services intelligence following for any following for any violation of law, Committee, Information Security Oversight committees, the impropriety, or impropriety, or Executive order, or Office, Department of Defense Inspector Intelligence violation of law, violation of law, Presidential General and Department of Defense Oversight Board, Executive order, or Executive order, or directive, in the General Counsel. Potentially gives agency the Department of Presidential Presidential conduct of an a means of preventing such entities from Justice, the Office directive, in the directive, in the intelligence activity effectively exercising their authority with of General Counsel conduct of an conduct of an by: (i) The respect to the NSA. of the Central intelligence intelligence Permanent Select Intelligence activity: activity: (i) The Committee on Agency, the Office (i) The Permanent congressional Intelligence of the of Inspector Select Committee intelligence House of General of the on Intelligence of committees. Representatives. Central Intelligence the House of (ii) The (ii) The Select Agency, or the Representatives. Intelligence committee on Office of the (ii) The Select Oversight Board. Intelligence of the Director of Central Committee on (iii) The Senate. Intelligence for any Intelligence of the Department of (iii) The impropriety, or Senate. Justice. Intelligence violation of law, (iii) The (iv) The Office of Oversight Board. Executive order, or Intelligence General Counsel of (iv) The Presidential Oversight Board. NIMA. Department of directive, in the (iv) The (v) The Office of Justice. conduct of an Department of the Director of (v) the Office of Side by Side Comparison of FOIA Operational Files Exemptions May 19, 2003 Page 5 of 7

Provision CIA Op. File NIMA Op. File NRO Op. File Proposed NSA Op. Comments Exemption Exemption Exemption File Exemption 50 USC sec. 431 50 USC sec 403-5c 50 USC sec. 403-5e (enacted 1984) (enacted 1999) (enacted 2002) intelligence Justice. NIMA.” General Counsel of activity.” (v) The Office of NSA. General Counsel of (vi) the Office of NRO. the Director of (vi) The Office of NSA.” the Director of NRO.”

Impact of  Non operational  Non operational  Non operational  Non operational dissemination of files that contain files that contain files that contain files that contain records from information from information from information from information from operation files operation files operation files operation files Operational files remain subject to remain subject to remain subject to remain subject to search and review. search and review. search and review. search and review.

 The  The Impact of declassification never the subject declassification of declassification of to any explanation by agencies. This some of the some of the provision undercuts the entire rationale for information in an information in an the operational file exemption; if operational file operational file information in operational files can be does not affect the does not affect the properly declassified, then it is not true operational file as operational file as that the search of such files would never being exempt from being exempt from result in records releasable under the search, review, search, review, FOIA. publication and publication and disclosure disclosure

 The presence of  The presence of  The presence of  The presence of operational file operational file operational file operational file records in non- records in non- records in non- records in non- operational files operational files operational files operational files does not change the does not change the does not change the does not change the Side by Side Comparison of FOIA Operational Files Exemptions May 19, 2003 Page 6 of 7

Provision CIA Op. File NIMA Op. File NRO Op. File Proposed NSA Op. Comments Exemption Exemption Exemption File Exemption 50 USC sec. 431 50 USC sec 403-5c 50 USC sec. 403-5e (enacted 1984) (enacted 1999) (enacted 2002) FOIA-exempt FOIA-exempt FOIA-exempt FOIA-exempt status of the status of the status of the status of the originating originating originating originating operational file. operational file. operational file. operational file.

 Records from  Records from  Records from  Records from operational files operational files operational files operational files that have been that have been that have been that have been disseminated to disseminated to disseminated to disseminated to non-operational non-operational non-operational non-operational files or referenced files or referenced files or referenced files or referenced in non operational in non operational in non operational in non operational files and have been files and have been files and have been files and have been returned to returned to returned to returned to operational files for operational files for operational files for operational files for sole retention are sole retention are sole retention are sole retention are subject to search subject to search subject to search subject to search and review. and review. and review. and review.

Supersedure of May not be superseded Language functionally Language functionally Language functionally Prior Law except by subsequent identical. identical. identical. enactment citing and repealing or modifying provisions.

Judicial Review Provides for limited Language functionally Language functionally Language functionally judicial review of identical, although identical, although identical, although complaints that records requires coordination requires coordination requires coordination have been improperly with the Director of with the Director of with the Director of designated as Central Intelligence. Central Intelligence. Central Intelligence. operational files. Side by Side Comparison of FOIA Operational Files Exemptions May 19, 2003 Page 7 of 7

Provision CIA Op. File NIMA Op. File NRO Op. File Proposed NSA Op. Comments Exemption Exemption Exemption File Exemption 50 USC sec. 431 50 USC sec 403-5c 50 USC sec. 403-5e (enacted 1984) (enacted 1999) (enacted 2002)

Decennial Review Provides for agency to Language functionally Language functionally Language functionally CIA had been required to report on review whether any identical identical identical feasibility of systemic review of exempted records may declassification of information of historical be removed from value and its efforts at improving FOIA category of exempted processing. No required reporting by NSA files. Very limited to Congress on implementation of judicial review operational files exemption is included in available if agency proposal. alleged not to have conducted decennial Decennial review has proven cumbersome review or not to have and ineffective. CIA has included as considered required operational files internal histories of criteria. declassified operations, and there is no means of challenging that designation until next decennial review.