FAS Note: The following language was enacted in the FY 2006 Defense Authorization Act (H.R. 1815) in December 2006. See conference report H.Rep. 109-360.

     SEC. 933. OPERATIONAL FILES OF THE DEFENSE INTELLIGENCE 
                   AGENCY.

       (a) Protection of Operational Files of Defense Intelligence 
     Agency.--
       (1) Protection of files.--Title VII of the National 
     Security Act of 1947 (50 U.S.C. 431 et seq.) is amended by 
     adding at the end the following new section:

         ``Operational files of the Defense Intelligence Agency

       ``Sec. 705. (a) Exemption of Operational Files.--The 
     Director of the Defense Intelligence Agency, in coordination 
     with the Director of National Intelligence, may exempt 
     operational files of the Defense Intelligence Agency from the 
     provisions of section 552 of title 5, United States Code, 
     which require publication, disclosure, search, or review in 
     connection therewith.
       ``(b) Operational Files Defined.--(1) In this section, the 
     term `operational files' means--
       ``(A) files of the Directorate of Human Intelligence of the 
     Defense Intelligence Agency (and any successor organization 
     of that directorate) that document the conduct of foreign 
     intelligence or counterintelligence operations or 
     intelligence or security liaison arrangements or information 
     exchanges with foreign governments or their intelligence or 
     security services; and
       ``(B) files of the Directorate of Technology of the Defense 
     Intelligence Agency (and any successor organization of that 
     directorate) that document the means by which foreign 
     intelligence or counterintelligence is collected through 
     technical systems.
       ``(2) Files that are the sole repository of disseminated 
     intelligence are not operational files.
       ``(c) Search and Review for Information.--Notwithstanding 
     subsection (a), exempted operational files shall continue to 
     be subject to search and review for information concerning:
       ``(1) United States citizens or aliens lawfully admitted 
     for permanent residence who have requested information on 
     themselves pursuant to the provisions of section 552 or 552a 
     of title 5, United States Code.
       ``(2) Any special activity the existence of which is not 
     exempt from disclosure under the provisions of section 552 of 
     title 5, United States Code.
       ``(3) The specific subject matter of an investigation by 
     any of the following for any impropriety, or violation of 
     law, Executive Order, or Presidential directive, in the 
     conduct of an intelligence activity:
       ``(A) The Committee on Armed Services and the Permanent 
     Select Committee on Intelligence of the House of 
     Representatives.
       ``(B) The Committee on Armed Services and the Select 
     Committee on Intelligence of the Senate.
       ``(C) The Intelligence Oversight Board.
       ``(D) The Department of Justice.
       ``(E) The Office of General Counsel of the Department of 
     Defense or of the Defense Intelligence Agency.
       ``(F) The Office of Inspector General of the Department of 
     Defense or of the Defense Intelligence Agency.
       ``(G) The Office of the Director of the Defense 
     Intelligence Agency.
       ``(d) Information Derived or Disseminated From Exempted 
     Operational Files.--(1) Files that are not exempted under 
     subsection (a) that contain information derived or 
     disseminated from exempted operational files shall be subject 
     to search and review.
       ``(2) The inclusion of information from exempted 
     operational files in files that are not exempted under 
     subsection (a) shall not affect the exemption under 
     subsection (a) of the originating operational files from 
     search, review, publication, or disclosure.
       ``(3) The declassification of some of the information 
     contained in an exempted operational file shall not affect 
     the status of the operational file as being exempt from 
     search, review, publication, or disclosure.
       ``(4) Records from exempted operational files that have 
     been disseminated to and referenced in files that are not 
     exempted under subsection (a) and that have been returned to 
     exempted operational files for sole retention shall be 
     subject to search and review.
       ``(e) Allegation; Improper Withholding of Records; Judicial 
     Review.--(1) Except as provided in paragraph (2), whenever 
     any person who has requested agency records under section 552 
     of title 5, United States Code, alleges that the Defense 
     Intelligence Agency has withheld records improperly because 
     of failure to comply with any provision of this section, 
     judicial review shall be available under the terms set forth 
     in section 552(a)(4)(B) of title 5, United States Code.
       ``(2) Judicial review shall not be available in the manner 
     provided under paragraph (1) as follows:
       ``(A) In any case in which information specifically 
     authorized under criteria established by an Executive order 
     to be kept secret in the interest of national defense or 
     foreign relations which is filed with, or produced for, the 
     court by the Defense Intelligence Agency, such information 
     shall be examined ex parte, in camera by the court.
       ``(B) The court shall determine, to the fullest extent 
     practicable, issues of fact based on sworn written 
     submissions of the parties.
       ``(C) When a complainant alleges that requested records 
     were improperly withheld because of improper placement solely 
     in exempted operational files, the complainant shall support 
     such allegation with a sworn written submission based upon 
     personal knowledge or otherwise admissible evidence.
       ``(D)(i) When a complainant alleges that requested records 
     were improperly withheld because of improper exemption of 
     operational files, the Defense Intelligence Agency shall meet 
     its burden under section 552(a)(4)(B) of title 5, United 
     States Code, by demonstrating to the court by sworn written 
     submission that exempted operational files likely to contain 
     responsible records currently perform the functions set forth 
     in subsection (b).
       ``(ii) The court may not order the Defense Intelligence 
     Agency to review the content of any exempted operational file 
     or files in order to make the demonstration required under 
     clause (i), unless the complainant disputes the Defense 
     Intelligence Agency's showing with a sworn written submission 
     based on personal knowledge or otherwise admissible evidence.
       ``(E) In proceedings under subparagraphs (C) and (D), the 
     parties shall not obtain discovery pursuant to rules 26 
     through 36 of the Federal Rules of Civil Procedure, except 
     that requests for admission may be made pursuant to rules 26 
     and 36.
       ``(F) If the court finds under this subsection that the 
     Defense Intelligence Agency has improperly withheld requested 
     records because of failure to comply with any provision of 
     this subsection, the court shall order the Defense 
     Intelligence Agency to search and review the appropriate 
     exempted operational file or files for the requested records 
     and make such records, or portions thereof, available in 
     accordance with the provisions of section 552 of title 5, 
     United States Code, and such order shall be the exclusive 
     remedy for failure to comply with this section (other than 
     subsection (f)).
       ``(G) If at any time following the filing of a complaint 
     pursuant to this paragraph the Defense Intelligence Agency 
     agrees to search the appropriate exempted operational file or 
     files for the requested records, the court shall dismiss the 
     claim based upon such complaint.
       ``(H) Any information filed with, or produced for the court 
     pursuant to subparagraphs (A) and (D) shall be coordinated 
     with the Director of National Intelligence before submission 
     to the court.
       ``(f) Decennial Review of Exempted Operational Files.--(1) 
     Not less than once every 10 years, the Director of the 
     Defense Intelligence Agency and the Director of National 
     Intelligence shall review the exemptions in force
     under subsection (a) to determine whether such exemptions may 
     be removed from a category of exempted files or any portion 
     thereof. The Director of National Intelligence must approve 
     any determinations to remove such exemptions.
       ``(2) The review required by paragraph (1) shall include 
     consideration of the historical value or other public 
     interest in the subject matter of the particular category of 
     files or portions thereof and the potential for declassifying 
     a significant part of the information contained therein.
       ``(3) A complainant that alleges that the Defense 
     Intelligence Agency has improperly withheld records because 
     of failure to comply with this subsection may seek judicial 
     review in the district court of the United States of the 
     district in which any of the parties reside, or in the 
     District of Columbia. In such a proceeding, the court's 
     review shall be limited to determining the following:
       ``(A) Whether the Defense Intelligence Agency has conducted 
     the review required by paragraph (1) before the expiration of 
     the 10-year period beginning on the date of the enactment of 
     this section or before the expiration of the 10-year period 
     beginning on the date of the most recent review.
       ``(B) Whether the Defense Intelligence Agency, in fact, 
     considered the criteria set forth in paragraph (2) in 
     conducting the required review.
       ``(g) Termination.--This section shall cease to be 
     effective on December 31, 2007.''.
       (2) Clerical amendment.--The table of contents in the first 
     section of the National Security Act of 1947 is amended by 
     inserting after the item relating to section 704 the 
     following new item:

``Sec. 705. Operational files of the Defense Intelligence Agency.''.

       (b) Search and Review of Certain Other Operational Files.--
     The National Security Act of 1947 is further amended--
       (1) in section 702(a)(3)(C) (50 U.S.C. 432(a)(3)(C)), by 
     adding at the end the following new clause:
       ``(vi) The Office of the Inspector General of the National 
     Geospatial-Intelligence Agency.'';
       (2) in section 703(a)(3)(C) (50 U.S.C. 432a(a)(3)(C)), by 
     adding at the end the following new clause:
       ``(vii) The Office of the Inspector General of the NRO.''; 
     and
       (3) in section 704(c)(3) (50 U.S.C. 432b(c)(3)), by adding 
     at the end the following new subparagraph:
       ``(H) The Office of the Inspector General of the National 
     Security Agency.''.


				  

	
     Operational files of the Defense Intelligence Agency (sec. 
         933)
       The Senate amendment contained a provision (sec. 922) that 
     would authorize the Director of the Defense Intelligence 
     Agency (DIA) to exempt specifically defined operational files 
     of certain elements of the DIA from disclosure under the 
     Freedom of Information Act (5 U.S.C. 552), similar to 
     protections currently authorized to other intelligence 
     agencies under Title VII of the National Security Act of 1947 
     (50 U.S.C. 431 et. seq.).
       The House bill contained no similar provision.
       The House recedes with an amendment that would terminate 
     the authorization on December 31, 2007.