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