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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

(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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