FOIA Post (2002): FOIA Amended by Intelligence Authorization Act

December 19, 2002

FOIA Amended by

Intelligence Authorization Act

Amidst an extraordinary flurry of activity during a "lame duck"

legislative session, Congress has enacted, and the President has now signed

into law, a statute containing a provision that directly amends the Freedom

of Information Act regarding FOIA requests that are made to agencies within

the intelligence community.

On November 15, Congress passed the Intelligence Authorization Act for Fiscal

Year 2003, Public Law 107-306, a law directed primarily to substantive program

matters pertaining to intelligence agencies such as the Central Intelligence

Agency, the National Security Agency, and parts of the Departments of Defense

and State. Contained within this omnibus legislation, which was signed into

law on November 27, was a provision entitled, "Prohibition on Compliance

with Requests for Information Submitted by Foreign Governments." It reads

as follows:

Section 552(a)(3) of title 5, United States Code, is

amended--

(1) in subparagraph (A) by inserting "and except as

provided in subparagraph (E)," after "of this

subsection,"; and

(2) by adding at the end the following:

"(E) An agency, or part of an agency, that is an

element of the intelligence community (as that term

is defined in section 3(4) of the National Security Act

of 1947 (50 U.S.C. 401a(4))) shall not make any record

available under this paragraph to--

"(i) any government entity, other than a State,

territory, commonwealth, or district of the United

States, or any subdivision thereof; or

"(ii) a representative of a government entity

described in clause (i).".

Pub. L. No. 107-306, 116 Stat.

2383, § 312 (to be codified at 5 U.S.C.

§ 552(a)(3)(A), (E)).

In effect, this new statutory language in the FOIA now precludes any covered

intelligence agency from disclosing records in response to any FOIA request

that is made by any foreign government or international governmental organization.

By its terms, it prohibits disclosure in response to requests made by such other-than-U.S.

governmental entities either directly or through a "representative."

5 U.S.C. § 552(a)(3)(E)(ii) (as amended).

This means that for any FOIA request that by its nature appears as if it might

have been made by or on behalf of a non-U.S. governmental entity, a covered

agency may inquire into the particular circumstances of the requester in order

to properly implement this new FOIA provision. This is not unlike the consideration

of a FOIA requester's circumstances that an agency must undertake for purposes

of determining a requester's proper "fee status" under the Act or

a requester's entitlement to "expedited processing." See, e.g., 5

U.S.C. § 552(a)(4)(A)(ii)(II) (requiring agencies to determine, for fee

purposes, whether a FOIA requester is "a representative of the news media");

see also 5 U.S.C. § 552(a)(6)(E) (containing comparable provision, for

expedition purposes, concerning "person primarily engaged in disseminating

information," as well as certification mechanism where required).

The only agencies affected by this amendment are those that are part of, or

contain "an element of," the "intelligence community." As

defined in the National Security Act of 1947, as amended, they consist of the

Central Intelligence Agency; the National Security Agency; the Defense Intelligence

Agency; the National Imagery and Mapping Agency; the National Reconnaissance

Office; certain other reconnaissance offices within the Department of Defense;

"the intelligence elements of the Army, the Navy, the Air Force, the Marine

Corps, the Federal Bureau of Investigation, the Department of the Treasury,

the Department of Energy, and the Coast Guard [or, by statutory succession,

of the soon-to-exist Department of Homeland Security]"; the Bureau of Intelligence

and Research in the Department of State; and "such other elements of any

other department or agency as may be designated by the President, or designated

jointly by the Director of Central Intelligence and the head of the department

or agency concerned, as an element of the intelligence community." 50 U.S.C.

§ 401a(4) (2000).

This FOIA amendment is similar to a legislative proposal that was advanced

in Congress during the early 1980s, one that would have limited the FOIA's use

to "United States persons." See, e.g.,

FOIA

Update, Vol. III, No.

1, at 3 (reprinting initial FOIA reform bill introduced in 1981). Although that

proposal was passed by the Senate as part of the FOIA reform efforts that led

to the enactment of the 1986 FOIA amendments, see

FOIA Update, Vol. V, No. 1, at

1, 6 (reflecting progression of amendment bills in Senate), it was opposed in

the House and did not become part of the 1986 FOIA amendments, see FOIA Update,

Vol. VII, No. 4, at 1-2 (describing culmination of legislative activity in 1986).

One concern over such a statutory limitation on the FOIA's use was with its

enforceability, particularly given the growing use of "surrogate"

FOIA requesters. See FOIA Update,

Vol. VII, No. 1, at 1-2.

This legislation originated in the House of Representatives on July 18, when

the House Permanent Select Committee on Intelligence adopted a substitute to

its previous intelligence authorization bill that included this new legislative

language, together with an underlying committee report that appeared to address

a different such provision. See H.R. Rep. No. 107-592, at 27 (2002) (clarifying

intelligence committee's "intent to not restrict making records available

under [subsections (a)(1) or (a)(2) of the FOIA]," but speaking of "requests

from foreign governments and foreign nationals"). Less than a week later,

in a late-night legislative session, the bill passed the House, with the FOIA

provision unchanged, based upon the same underlying legislative report.

While no such provision was contained in the counterpart intelligence authorization

bill that worked its way through the Senate, the two counterpart bills proceeded

to reconciliation in conference between the House and the Senate -- first in

mid-October and then again after Congress reconvened for its extraordinary

"lame duck" session in mid-November. This FOIA amendment provision

was retained by the House/Senate conference committee and then was passed by

both Houses of Congress -- even though the committees and subcommittees holding

jurisdiction over the FOIA in neither the House nor the Senate considered amending

the FOIA through it. See FOIA Post,

"FOIA Post Interview:   Chairman Stephen

Horn" (posted 12/19/02) (statement by chairman of FOIA subcommittee in

House characterizing amendment outcome as a "bypass [of] the normal legislative

process").

This is only the seventh time in its thirty-six-year history that the FOIA has

been significantly amended. The first time that it was amended was in 1974,

when Congress also enacted the Privacy Act of 1974, 5 U.S.C. § 552a. Comparable

major amendments to the FOIA were enacted in 1986, as the Freedom of Information

Reform Act of 1986, and in 1996, in the form of the Electronic Freedom of Information

Act Amendments of 1996. See

"Introduction" Section of "Justice

Department Guide to the Freedom of Information Act" (tracing history of

FOIA's legislative development).

Additionally, the FOIA was amended in 1976 to tighten its

Exemption 3 standards, in conjunction with the enactment of the Government in

the Sunshine Act, 5 U.S.C. § 552b; it was amended in 1978 to update its

provision for administrative disciplinary proceedings, 5 U.S.C. § 552(a)(4)(F);

and it was amended in 1984 when Congress repealed its expedited judicial review

provision, former subsection (a)(4)(D) of the Act, in favor of a comparable

statutory provision that applies to civil litigation more generally. See

FOIA

Update, Vol. VI, No. 2, at 6.   (posted 12/23/02)

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