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Denial of Freedom of Information Request Upheld on Appeal


A decision upholding the government's denial of a Freedom of Information Act request was affirmed by the Court of Appeals for the District of Columbia because the technical information requested fell within the relevant nondisclosure statute. The government invoked FOIA Exemption 3 (5 USC 522(b)(3)), which covers information "specifically exempted from disclosure by statute," to deny the plaintiff's request for certain technical information concerning the care, maintenance, and repair of military equipment. The government cited 10 USC 130 as the statute preventing it from disclosing the requested information. Under section 130(a), the government may withhold "any technical data with military or space application" that cannot be exported without a specific license under the relevant export control statutes. On appeal from the District Court for the District of Columbia ( 53 CCF 79,190), the government argued the case was moot because it provided the plaintiff with unredacted copies of the requested documents pursuant to Department of Defense Directive 5230.25 but not under FOIA. The plaintiff, however, challenged the government's use of the directive, alleging it would suffer continuing injury because the directive places restrictions on the use of requested documents that FOIA does not. The court agreed and found the government's policy could impair the plaintiff's lawful access to information in the future, which was enough to avoid mootness (see 34 CCF 75,423).

Statute's Coverage

Turning to the merits, the court concluded 10 USC 130 met the Exemption 3 requirements and the information that was withheld fell within that statute's coverage. Specifically, because "technical data with military or space application" plainly set forth a "particular type of matter to be withheld," section 130(a) readily qualified as an Exemption 3 statute. In addition, because the information sought by the plaintiff qualified as "technical data with military or space application" that cannot be exported without a specific license under the relevant export statutes, the withheld information clearly fell within the coverage of section 130(a). The plaintiff, however, further argued Congress intended section 130(a)'s withholding authority under FOIA to be limited by regulation to "sophisticated technologies," which it equated with the "critical technologies" that are excluded from the purview of Directive 5230.25. However, nothing in the text of section 130(b) indicated a congressional intent to restrict by regulation the broad authorization to withhold data from FOIA disclosure that section 130(a) grants the Secretary of Defense. Similarly, the legislative history of section 130(a) did not demonstrate Congress intended DoD to issue regulations under section 130(b) that would narrow section 130(a)'s withholding authority. ( Newport Aeronautical Sales v. Dept. of the Air Force, CA-DC, 56 CCF 79,852)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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