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Court Rejects BIS Effort to Exempt Export License Information from Disclosure

Monday, September 30, 2013
Sandler, Travis & Rosenberg Trade Report

A U.S. district court has rejected one of the Bureau of Industry and Security’s arguments in its effort to avoid disclosing information on export license applications, raising the possibility that such information could be obtained under the Freedom of Information Act. The court also said it needs further information before ruling on whether two other FOIA exemptions may be invoked to deny access to this information.

According to the decision, Electronic Frontier Foundation v. Department of Commerce centers on EFF’s request for “records that it believes could shed light on the government’s role in facilitating the export of U.S.-made surveillance technology to foreign governments that use the technology to monitor and suppress dissidents and human rights activists.” In denying that request the BIS invoked Exemption 3 under the FOIA, which allows federal agencies to withhold information that is specifically exempted from disclosure by statute. The BIS pointed out that section 12(c)(1) of the Export Administration Act of 1979 requires, with limited exceptions, the withholding from public disclosure of information obtained for the purpose of consideration of, or concerning, export license applications.

The court, however, determined that because the EAA is no longer in force (having last expired in 2001) it can no longer serve as the basis for an Exemption 3 claim. The authorities of the EAA are maintained through a combination of the International Emergency Economic Powers Act and annual continuations of a 2001 executive order declaring a national emergency with respect to export control regulations, and the BIS urged the court to declare this a “comprehensive legislative scheme” sufficient to allow the use of Exemption 3. The court declined, stating that (a) the IEEPA is not a statute within the scope of Exemption 3 because it makes no reference to withholding documents from the public and (b) the 2001 executive order is not a statute and may not be interpreted as extending the EAA’s expiration date.

The BIS also contended that portions of the records EFF sought may be withheld under FOIA Exemptions 4 and 5, which apply to trade secrets and commercial or financial information obtained from a person and privileged or confidential and interagency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency. However, the court said it needs more information to determine the validity of these arguments, including information on the market for each type of technology that is the subject of a withheld license application and whether any of the material contained in those applications may have already been disclosed.

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