Big Brother watch

NRO USE OF FOIA EXEMPTION FOR "OPERATIONAL FILES" CHALLENGED

A lawsuit filed by the Federation of American Scientists today charged that the National Reconnaissance Office (NRO) has improperly invoked the "operational files" exemption to the Freedom of Information Act in order to withhold unclassified budget records from disclosure.

The NRO is somewhat notorious for its expansive interpretation of the FOIA exemption for "operational files," meaning records "that document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems."

Such records are exempt from the search and review requirements of the Freedom of Information Act since they are typically highly classified and are unlikely to be disclosed anyway.

But NRO has been using the operational files exemption (at 50 U.S.C. 403-5e) to withhold historical records and routine administrative records such as budget documents. This was almost certainly not the intent of Congress when it granted the exemption to the agency in 2002.

As far as could be determined, there has been no prior litigation on the use of the "operational files" exemption. Besides NRO, such an exemption has been granted to CIA, NSA and NGA. The Defense Intelligence Agency was denied an operational files
exemption in 2000, but it is trying again in next year's pending defense authorization act.

The FAS FOIA lawsuit seeks disclosure of unclassified portions of the NRO's Congressional Budget Justification Book (CBJB) for FY 2006. As recently as last year, NRO released substantial unclassified portions of the CBJB. But now it claims they are exempt from the FOIA.

A copy of the complaint filed today in DC District court may be found here.

Thanks, Andrew.