10 U.S.C. § 130e

Treatment under Freedom of Information Act of certain critical infrastructure security information

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(a)Exemption.—The Secretary of Defense may exempt Department of Defense critical infrastructure security information from disclosure pursuant to section 552(b)(3) of title 5, upon a written determination that—(1) the information is Department of Defense critical infrastructure security information; and(2) the public interest consideration in the disclosure of such information does not outweigh preventing the disclosure of such information.(b)Designation of Department of Defense Critical Infrastructure Security Information.—In addition to any other authority or requirement regarding protection from dissemination of information, the Secretary may designate information as being Department of Defense critical infrastructure security information, including during the course of creating such information, to ensure that such information is not disseminated without authorization. Information so designated is subject to the determination process under subsection (a) to determine whether to exempt such information from disclosure described in such subsection.(c)Information Provided to State and Local Governments.—(1) Department of Defense critical infrastructure security information covered by a written determination under subsection (a) or designated under subsection (b) that is provided to a State or local government shall remain under the control of the Department of Defense.(2)(A) A State or local law authorizing or requiring a State or local government to disclose Department of Defense critical infrastructure security information that is covered by a written determination under subsection (a) shall not apply to such information.(B) If a person requests pursuant to a State or local law that a State or local government disclose information that is designated as Department of Defense critical infrastructure security information under subsection (b), the State or local government shall provide the Secretary an opportunity to carry out the determination process under subsection (a) to determine whether to exempt such information from disclosure pursuant to subparagraph (A).(d)Transparency.—Each determination of the Secretary under subsection (a) shall be made in writing and accompanied by a statement of the basis for the determination. All such determinations and statements of basis shall be available to the public, upon request.(e)Definition.—In this section, the term “Department of Defense critical infrastructure security information” means sensitive but unclassified information that, if disclosed, would reveal vulnerabilities in Department of Defense critical infrastructure that, if exploited, would likely result in the significant disruption, destruction, or damage of or to Department of Defense operations, property, or facilities, including information regarding the securing and safeguarding of explosives, hazardous chemicals, or pipelines, related to critical infrastructure or protected systems owned or operated by or on behalf of the Department of Defense, including vulnerability assessments prepared by or on behalf of the Department of Defense, explosives safety information (including storage and handling), and other site-specific information on or relating to installation security.(Added Pub. L. 112–81, div. A, title X, § 1091(a), Dec. 31, 2011, 125 Stat. 1604; amended Pub. L. 114–92, div. A, title X, § 1081(a)(2), Nov. 25, 2015, 129 Stat. 1000; Pub. L. 114–328, div. A, title XVI, § 1662(b), Dec. 23, 2016, 130 Stat. 2614; Pub. L. 118–31, div. A, title IX, § 901(e)(1), Dec. 22, 2023, 137 Stat. 355.)Editorial NotesAmendments

2023—Subsecs. (d) to (f). Pub. L. 118–31 redesignated subsecs. (e) and (f) as (d) and (e), respectively; struck out “, or the Secretary’s designee,” after “of the Secretary” and “, through the Office of the Director of Administration and Management” after “upon request” in subsec. (d) as redesignated; and struck out former subsec. (d). Prior to amendment, text of subsec. (d) read as follows: “The Secretary of Defense may delegate the authority to make a determination under subsection (a) to the Director of Administration and Management.”

2016—Subsecs. (b), (c), (f). Pub. L. 114–328 added subsecs. (b) and (c), redesignated former subsec. (c) as (f), and struck out former subsec. (b). Prior to amendment, text of subsec. (b) read as follows: “Department of Defense critical infrastructure security information covered by a written determination under subsection (a) that is provided to a State or local government shall remain under the control of the Department of Defense.”

2015—Pub. L. 114–92 substituted “Treatment under Freedom of Information Act of certain critical infrastructure security information” for “Treatment under Freedom of Information Act of critical infrastructure security information” in section catchline.

Notes of Decisions

Cited in 5 cases (2 in the last 5 years), 2005–2024 · leading case: Ground Zero Ctr. for Non-Violent Action v. United States Dep't of the Navy, 860 F.3d 1244 (9th Cir. 2017).

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Ground Zero Ctr. for Non-Violent Action v. United States Dep't of the Navy, 860 F.3d 1244 (9th Cir. 2017). “…types of controlled unclassified information at issue: UCNI and "critical infrastructure security information.” See 10 U.S.C. § 130e(c).”

Nat'l Inst. of Military Just. v. U.S. Dep't of Def., 404 F. Supp. 2d 325 (D.D.C. 2005). “Thus, the plaintiff opines that 10 U.S.C. § 130e(d)(3) applies, and the national security official was required to select a date for the release of the information after considering the requests of the foreign government who provided the information.”

Biddle v. U.S. Dep't of Def. (D.D.C. 2024). · cites it 5× “In doing so, the Department relies on 10 U.S.C. § 130e, which allows it to withhold “critical infrastructure security information.”

Nat'l Parks Conservation Ass'n v. US Dep't of the Navy (W.D. Wash. 2020). · cites it 2× “Exemption 3: Materials Exempted from Disclosure By Statute 5 The Navy has refused to produce 46 documents on the basis of Exemption 3, 6 citing 10 U.S.C. § 130e. As indicated earlier, of these 46 documents, 37 are responsive to 7 2018 FOIA Request and nine (9) relate to the May…”

Nat'l Parks Conservation Ass'n v. US Dep't of the Navy (W.D. Wash. 2021). “July 17, 2015) 12 (citing 10 U.S.C. § 130e). Thus, the Court will permit the Navy to further engage in the 13 process required by § 130e before ruling on the portions of the parties’ cross-motions 14 15 4 The earlier DCRIT determination exempted from disclosure “[a]ny Department…”

— 10 U.S.C. § 130e(a) — 1 case

Nat'l Parks Conservation Ass'n v. US Dep't of the Navy (W.D. Wash. 2020). “Exemption 3: Materials Exempted from Disclosure By Statute 5 The Navy has refused to produce 46 documents on the basis of Exemption 3, 6 citing 10 U.S.C. § 130e. As indicated earlier, of these 46 documents, 37 are responsive to 7 2018 FOIA Request and nine (9) relate to the May…”

— 10 U.S.C. § 130e(c) — 1 case

— 10 U.S.C. § 130e(d)(3) — 1 case

— 10 U.S.C. § 130e(f) — 1 case

Biddle v. U.S. Dep't of Def. (D.D.C. 2024). “In doing so, the Department relies on 10 U.S.C. § 130e, which allows it to withhold “critical infrastructure security information.”

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