Wisconsin Project v. U.S. Dept. of Commerce

• Decision Date: 31 January 2003
• Docket Number: No. 01-5356.,01-5356.
• Citation: 317 F.3d 275
• Parties: WISCONSIN PROJECT ON NUCLEAR ARMS CONTROL, Appellant, v. UNITED STATES DEPARTMENT OF COMMERCE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

317 F.3d 275

WISCONSIN PROJECT ON NUCLEAR ARMS CONTROL, Appellant, v. UNITED STATES DEPARTMENT OF COMMERCE, Appellee.

No. 01-5356.

United States Court of Appeals, District of Columbia Circuit.

Argued November 7, 2002.

Decided January 31, 2003.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia (No. 99cv02673).

Scott L. Nelson argued the cause for appellant. With him on the briefs was David C. Vladeck. Alan B. Morrison entered an appearance.

Steve Frank, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and Leonard Schaitman, Attorney.

Eric L. Hirschhorn, Anne W. Stukes, Janice S. Amundson, and Quentin Riegel were on the brief for amici curiae Industry Coalition on Technology Transfer, et al., in support of appellee.

Before: RANDOLPH and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

Dissenting opinion filed by Circuit Judge RANDOLPH.

ROGERS, Circuit Judge:

The principal question on appeal is whether Exemption 3 of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(b)(3) (2000), permits the Department of Commerce to withhold from public disclosure information contained in export license applications. This determination requires the court to address the nature of the reference in FOIA Exemption 3 to statutes allowing documents to be withheld. Under the Export Administration Act, 50 U.S.C. app. §§ 2401-20 (2000), which from time to time has been enacted as temporary legislation, manufacturers of dual-use commodities — that is, products that can be used for both military and civilian purposes — must obtain a license from the Department before they may export their products. The Wisconsin Project on Nuclear Arms Control ("the Wisconsin Project") requested access under FOIA to these export license applications. The Department responded by providing aggregate data while declining, under Exemption 3, to supply much of the requested specific export data. In light of the unique statutory framework created by Congress to retain the confidentiality of export data, we affirm the grant of summary judgment to the Department.

I.

The Export Administration Act ("EAA") authorizes the Department of Commerce to establish a regulatory scheme governing the export of dual-use items. 50 U.S.C. app. §§ 2401-20. The Department accordingly promulgated the Export Administration Regulations ("export regulations"), which set forth exporters' obligations and specify the types of products that are subject to the EAA's requirements. 15 C.F.R. §§ 730-74 (2002). Section 12(c) of the EAA provides 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 [of Commerce] to be in the national interest." 50 U.S.C. app. § 2411(c). The Department has incorporated this confidentiality provision into the export regulations. 15 C.F.R. pt. 736, supp. 2 (2002).

Congress originally enacted the export control system as part of the Export Control Act of 1949, Pub.L. 81-11, § 6(c), 63 Stat. 7, 8-9, and subsequently replaced it with the Export Administration Act of 1969, Pub.L. 91-184, § 7(c), 83 Stat. 841, 845. Congress has enacted each version of the statute as a temporary measure, explaining that "such important regulatory legislation should be periodically reviewed." H.R.Rep. No. 95-459, at 13 (1977). From time to time, however, Congress has amended the EAA to reinstate its provisions and on each occasion has included a sunset provision specifying the date on which the EAA will expire. 50 U.S.C. app. § 2419 (2000). The current version of the statute — the EAA of 1979 — has lapsed six times, for periods ranging from as short as five days to as long as six years. Each time the EAA has expired, the President has promptly declared a national emergency and has extended the regulatory scheme by executive order. See, e.g., Exec. Order No. 13,222, 2001 WL 943862, 3 C.F.R. 783 (2002); Exec. Order No. 12,867, 1993 WL 388306 3 C.F.R. 649 (1994); Exec. Order No. 12,730, 1990 WL 385147, 3 C.F.R. 305 (1991); Exec. Order No. 12,470, 1984 WL 87931, 3 C.F.R. 168 (1985); Exec. Order No. 12,444, 1983 WL 85344, 3 C.F.R. 214 (1984); Exec. Order No. 11,940, 1976 WL 21343, 3 C.F.R. 150 (1977).

Originally the President relied on a provision in the Trading with the Enemy Act ("TWEA"), 50 U.S.C. app. § 5(b) (2000), for authorization to continue the export control system during lapses in the EAA. In 1977, however, Congress reformed the TWEA by enacting the International Emergency Economic Powers Act ("IEEPA") and provided that the President, upon declaration of a national emergency, may "regulate ... prevent or prohibit ... importation or exportation of ... any property in which any foreign country or a national thereof has any interest ... by any person, or with respect to any property, subject to the jurisdiction of the United States." 50 U.S.C. § 1702(a)(1) (2000). In enacting IEEPA, Congress reaffirmed the President's regulatory control over exports by broadening the scope of the EAA to include regulation of extraterritorial exports. Pub.L. No. 95-223, § 301, 91 Stat. 1625, 1629 (codified as amended at 50 U.S.C. app. §§ 2402-03 (2000)). IEEPA's legislative history, moreover, indicates that Congress intended the President to use his authority under IEEPA "to continue the Export Administration Regulations in effect" should a "lapse" occur in the EAA. H.R.Rep. No. 95-459, at 13 (1977). (No Conference Report exists, and the Senate Report is silent on this point.)

The EAA of 1979 expired by its terms in 1994, and the President, pursuant to IEEPA, again extended the export controls by Executive Order. The President declared that the EAA's expiration posed "an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States" and constituted a national emergency. Exec. Order No. 12,924, 59 Fed.Reg. 43,437, 1994 WL 450440 (Aug. 19, 1994), reprinted in 50 U.S.C. § 1701 (2000). The President ordered that the EAA's provisions "be carried out under this order so as to continue in full force and effect...." Id.

On July 27, 1999, during the period when the EAA had lapsed, the Wisconsin Project submitted a request under FOIA to the Department for "records of all license applications for dual-use commodities that the U.S. Department of Commerce approved, denied, suspended, or returned without action, for export to the People's Republic of China (including Hong Kong), India, Israel, Pakistan, and Russia, for the period beginning January 1, 1995 and extending to the present." The request stated that it included "information showing the federal agencies to which each license application was referred for review, ... each agency's recommendation on the application referred,... the applicant, the case number, the date received, the final date, the consignee-end user, the [Export Control Classification Number], the value and the statement of end use." The Department responded by letter dated August 24, 1999, turning over reports showing aggregate data for the specified countries while stating that the more detailed information was exempt from disclosure under FOIA Exemption 3.

After exhausting its administrative remedies, the Wisconsin Project sued in the district court for release of the detailed export information. While the lawsuit was pending, Congress reenacted the EAA, extending its expiration date from August 20, 1994, to August 20, 2001. Pub.L. 106-508, 114 Stat. 2360 (2000) (codified at 50 U.S.C. app. § 2419). Before the district court ruled on the Department's motion for summary judgment, the August 2001 expiration date passed, and the President once more extended the EAA's export controls by Executive Order. Exec. Order No. 13,222, 3 C.F.R. 783 (2002). The district court granted the Department's motion on September 4, 2001. Citing statements by Members of Congress and the President, the district court concluded that Congress's amendment of the EAA in 2000 made clear that the EAA covered the time period when the Wisconsin Project's request for records was pending before the Department, and it ruled that the amended EAA did not constitute an unconstitutional retroactive application of a new statute to prior conduct.

II.

The purpose of the Freedom of Information Act is "`to pierce the veil of administrative secrecy and open agency action to the light of public scrutiny ....'" Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976) (citation omitted). FOIA embodies "`a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.'" Id. at 360-61, 96 S.Ct. at 1599 (quoting S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)). FOIA accordingly mandates a "strong presumption in favor of disclosure," United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 547, 116 L.Ed.2d 526 (1991), under which the statutory exemptions to disclosure are to be "narrowly construed," Rose, 425 U.S. at 361, 96 S.Ct. at 1599. The exemptions, however, are to be given "meaningful reach and application." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 475, 107 L.Ed.2d 462 (1989). In reviewing de novo a grant of summary judgment for the government in a FOIA case, the court remains particularly "mindful that the `burden is on the agency' to show that requested material falls within a FOIA exemption." Petroleum Info. Corp. v. United States Dep't of the Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992).

Exemption 3 takes literally the requirement that disclosure prevail absent "clearly delineated statutory language," Rose, 425 U.S. at 361, 96 S.Ct. at 1599. Under Exemption 3,...