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III. Foreign Intelligence, International Terrorism

The third exclusion applies to requests for “access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism” where “the existence of the records is classified information” under Exemption 1.38 These terms are defined in Executive Order 12333 or in the Foreign Intelligence Surveillance Act as follows:39

  • “Foreign intelligence” is defined as “information relating to the capabilities, intentions and activities of foreign powers, organizations or persons, but not including counterintelligence except for information on international terrorist activities.”40
  • “Counterintelligence” is defined as “information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations or persons, or international terrorist activities, but not including personnel, physical, document or communications security programs.”41
  • “International terrorism” is defined as “activities that (1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State; (2) appear to be intended (A) to intimidate or coerce a civilian population; (B) to influence the policy of a government by intimidation or coercion; or (C) to affect the conduct of a government by assassination or kidnapping; and (3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.”42

However, the exclusion applies only “as long as the existence of the records remains classified information.”43 If you believe the agency has applied this exclusion, you may argue that the fact of the existence of the information has been erroneously classified on procedural and/or substantive grounds. You should also refer to the arguments for declassification provided in the chapter on Exemption 1.

38 5 U.S.C. § 552(c)(3).

39 132 Cong. Rec. H at 9467.

40 Exec. Order 12333, § 3.4(d).

41 Id. at §3.4(a).

42 50 U.S.C. § 1801(c).

43 5 U.S.C. § 552(c)(3).