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)
|