Times Publishing Co v. U.S. Dept. of Commerce, No. 00-14390

• Decision Date: 04 January 2001
• Docket Number: No. 00-14390
• Citation: 236 F.3d 1286
• Parties: (11th Cir. 2001) TIMES PUBLISHING COMPANY, Plaintiff-Appellee, MEDIA GENERAL OPERATIONS, INC. d.b.a. THE TAMPA TRIBUNE, Intervenor-Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant-Appellant. Non-Argument Calendar
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1286

236 F.3d 1286 (11th Cir. 2001)

TIMES PUBLISHING COMPANY, Plaintiff-Appellee, MEDIA GENERAL OPERATIONS, INC. d.b.a. THE TAMPA TRIBUNE, Intervenor-Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant-Appellant.

No. 00-14390

Non-Argument Calendar

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

January 4, 2001

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Middle District of Florida

D. C. Docket No. 99-02100-CIV-T-26B

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

HULL, Circuit Judge:

The United States Department of Commerce appeals the district court's grant of summary judgment in favor of Appellees on their Freedom of Information Act claims seeking the disclosure of information concerning all applications for export licenses granted to export goods or services to Cuba from 1996-1999. For the reasons stated below, we reverse and hold that the requested export licensing information is protected from disclosure under the Freedom of Information Act.

I.

Appellees Times Publishing Company ("Times") and Media General Operations, Inc., d/b/a The Tampa Tribune (the "Tribune") filed requests pursuant to the Freedom of Information Act, 5 U.S.C. 552 ("FOIA"), seeking information concerning applications for licenses granted to export goods and services to Cuba from 1996- 1999. Specifically, Appellees sought the names of all licensees and the goods and services covered by each license during the specified time period. The Department of Commerce denied the requests under Exemption 3 of FOIA which protects records from disclosure which are specifically exempted from disclosure "by statute." In doing so, the Department of Commerce relied upon section 12(c) of the Export Administration Act of 1979, 50 U.S.C. app. 2411(c) ("EAA").

Times filed suit in the United States District Court for the Middle District of Florida seeking to compel the disclosure of the requested information. The Tribune was permitted to intervene. Although Appellees did not contest the Department of Commerce's contention that section 12(c) of the EAA was designed to protect the requested export licensing information from disclosure, Appellees alleged that the withholding of the information was unjustified because section 12(c) of the EAA had lapsed on August 20, 1994 - almost five years prior to their FOIA requests. The parties filed cross-motions for summary judgment in the district court based upon the undisputed record and the court granted summary judgment in favor of Times and the Tribune. The Department of Commerce timely appealed.¹

II. A.The Freedom of Information Act

The fundamental principle underlying FOIA is public access to government documents. John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 (1989). "Without question, the Act is broadly conceived ... to permit access to official information long shielded unnecessarily from public view and ... to create a judicially enforceable right to secure such information from possibly unwilling official hands." Id. at 151 (quoting EPA v. Mink, 410 U.S. 73, 80 (1973)). Indeed, FOIA reflects a general philosophy of "full agency disclosure unless information is exempted under clearly delineated statutory language." Id. at 152 (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 360- 61 (1976))(quotation marks omitted). Although there are limited exemptions to the disclosure requirements of FOIA, these exemptions "do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976). As a result, exemptions to FOIA disclosure are to be narrowly construed and the burden is on the agency seeking to prevent disclosure to prove their application. 5 U.S.C. 552(a)(4)(B); see also John Doe Agency v. John Doe Corp., 493 U.S. at 152. Nonetheless, the Supreme Court has made clear that "[d]espite these pronouncements of liberal congressional purpose, ... the statutory exemptions are intended to have meaningful reach and application." Id.

Exemption 3, relied upon by the Department in this case, specifically exempts from disclosure matters excepted by statute, as follows:

matters that are ... specifically exempted from disclosure by statute ..., provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld

5 U.S.C. 552(b)(3). The "unmistakable thrust" of the statutory exemption provided by Exemption 3 of FOIA is to ensure that basic policy decisions on governmental secrecy are made by the legislative rather than by the executive branch. American Jewish Congress v. Kreps, 574 F.2d 624, 628 & n.34 (D.C. Cir. 1978)("A central aim of the Freedom of Information Act has been to substitute legislative judgment for administrative discretion."). "Nondisclosure is countenanced by Subsection (B) [of Exemption 3] if, but only if, the enactment is the product of congressional appreciation of the dangers inherent in airing particular data and incorporates a formula whereby the administrator may determine precisely whether disclosure in any instance would pose the hazard that Congress foresaw." Id. at 628-29.

B.Protection of Export Licensing Information Under FOIA

Section 12(c) of the EAA provides for the confidentiality of export licensing information obtained by the government under the EAA. See 50 U.S.C. app. 2411(c). Specifically, section 12(c) states that: "information obtained for the purpose of consideration of, or concerning, license applications under this Act ... shall be withheld from public disclosure unless the release of such information is determined by the Secretary to be in the national interest." 50 U.S.C. app. 2411(c). The EAA also authorizes the Department of Commerce to promulgate regulations implementing its provisions. 50 U.S.C. app. 2414(b). The Export Administration Regulations promulgated by the Department echo section 12(c) in providing for the confidentiality of export licensing information. See 15 C.F.R. Part 736, Supp. 2 (Administrative Order One)(2000)("Consistent with section 12(c) of the Export Administration Act of 1979, as amended, information obtained by the U.S. Department of Commerce for the purpose of consideration of or concerning license applications, as well as related information, will not be publicly disclosed without the approval of the Secretary of Commerce."). Pursuant to this statute and these regulations, each export license application informs applicants that "[i]nformation furnished herewith is subject to the provisions of Section 12(c) of the Export Administration Act of 1979, 50 U.S.C. app. 2411(c), and its unauthorized disclosure is prohibited by law."

Section 12(c) of the EAA clearly qualifies as an exemption statute for purposes of FOIA Exemption 3 and protects the specific information sought by Appellees. See Lessner v. United States Dep't of Commerce, 827 F.2d 1333, 1337 (9th Cir. 1987)(finding that section 12(c) is a FOIA exemption statute and that "[n]ames of applicants certainly would be `information ... concerning applications' and therefore information that may be withheld under Section 12(c)(1)."); Durnan v. United States Dep't of Commerce, 777 F. Supp. 965, 966 (D.D.C. 1991)("Because all the documents in this case were provided to the DOC in connection with DTG's license application, they are protected from disclosure under Section 12(c) of the Export Administration Act and, therefore, fall within FOIA Exemption 3."). The current version of the EAA confidentiality provision was enacted precisely to comply with the requirements of FOIA Exemption 3 following a finding that the predecessor confidentiality provision did not qualify to exempt information from public disclosure. Lessner, 827 F.2d at 1337; Durnan, 777 F. Supp. at 966. The confidentiality provision was enacted to prevent the release of information that could damage exporters and, in turn, the country's balance of trade. Lessner, 827 F.2d at 1339. Indeed, Appellees do not argue that section 12(c) does not, by its plain terms, protect the export licensing information that they seek.

The argument raised successfully by Appellees in the district court to secure disclosure of the protected material is that the EAA, of which section 12(c) is a part, lapsed by its own terms prior to their FOIA requests. Thus, even if the language of section 12(c) covers the requested information, there was no "statute" in existence at the time of their requests to protect the information from disclosure under Exemption 3. The Department of Commerce concedes, as it must, that section 12(c) did lapse in 1994. The Department argues, however, that the statutory provision still operates to protect the export licensing information by virtue of an Executive Order of President Clinton maintaining the effectiveness of the EAA during periods of lapse. After review, we agree.

The purpose of the EAA is to provide a rational system for controlling exports by balancing national security, foreign policy, and domestic supply needs with the interest in encouraging exports to enhance U.S. economic well being. See 50 U.S.C. app. 2410. Because "such important regulatory legislation should be periodically reviewed," the EAA has always been enacted as a temporary statute. See H.R. Rep. No. 95-459, 95th Cong., 1st Sess. 13 (1977); 50 U.S.C. app. 2419 ("The authority granted by this Act ... terminates on August 20, 1994."). Courts have found, however, that Congress has empowered the President to maintain the effectiveness of the critical EAA provisions during periods of lapse through the International Emergency Economic Powers Act, 50 U.S.C. 1702(a)(1)(B) (the "IEEPA"). See United States v. Mechanic, 809 F.2d 1111, 1112 (5th Cir. 1987)(noting that President may enter an...