Friday, July 12, 2013
Re: Request for records concerning the export of devices, software, or technology primarily used to intercept or block communications Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment; ordering defendant to reprocess request and if material is withheld, to provide a Vaughn Index
- Adequacy of the Search: The court concludes that defendant's "search for records was 'reasonably calculated to uncover all relevant documents.'" The defendant explained that one of the categories of regulated exports that plaintiff expressed a particular interest in was "formerly regulated under . . . one of the categories EFF specifically designated in its FOIA request, and which [the defendant] used in conducting her search for records responsive to EFF's requests." As to the other category of regulated exports which plaintiff expressed a specific interest in, the defendant's declaration explained that certain terms were "technologically distinct" and not interchangeable as the plaintiff seems to suggest, demonstrating that defendant's interpretation of the request "was reasonable." The court finds that "[w]hile agencies should work with FOIA requesters to define the parameters of their requests, FOIA requesters must phrase their requests with sufficient particularity to enable the agency conducting the search to determine what records are being requested."
- Exemption 3: The court finds that "[b]ecause [Section 12(c)(1) of the Export Administration Act (EAA)] is expired, the IEEPA [International Emergency Economic Powers Act] is not an Exemption 3 statute, and Executive Order 13222 is not a statute, Commerce cannot rely on Exemption 3 to withhold material responsive to EFF's request." The EAA expired on August 20, 2001, and no legislation has been enacted to revive it. "Since August 20, 2001, the President has maintained the EAR [sic] in effect through a series of actions taken under the authority of [IEEPA]." The defendant "urges the Court to read Exemption 3's requirement that materials be specifically exempted from disclosure 'by statute' to permit withholding based on a 'comprehensive legislative scheme' comprised of the expired EAA, the IEEPA, and the series of executive actions taken under the authority of IEEPA." The court finds that the EAA is expired and because "the President lacks the power to unilaterally amend acts of Congress, . . . Executive Order 13222 may not be interpreted as extending the EAA's August 20, 2001, expiration date." The IEEPA, "the only statute currently in effect to which Commerce points[,] . . . permits the President, upon declaring a national emergency, to regulate exports" but it "makes no reference to withholding documents from the public [and] cannot be [a] statute within the scope of Exemption 3."
- Exemption 4: The defendant "asserts that information" such as "the 'name of the exporter,' to the description of the proposed 'end use' of the item to be exported, to 'supplemental documents'" should be withheld under Exemption 4. Releasing this information, the defendant argues, would "'impair the Government's ability to obtain necessary information in the future' by making applicants wary of providing information to [defendant] out of fear that the information might be publicly disclosed." The court notes, "[b]ecause would-be exporters have no choice but to submit the requested information, disclosure would be unlikely, as a general matter, to impair the government's ability to obtain the information necessary to adjudicate applications in the future." Additionally, the defendant provided the court with two declarations but did not provide the court with a Vaughn Index. The court concludes "it is not possible to determine based on the . . . declarations that the disclosure of any of the withheld information would result in substantial harm to the competitive position of all of the applicants."
- Exemption 5: The court finds, "[w]hile it seems likely that many of the withheld notes and discussions would meet [the Exemption 5] standard, in the absence of any specific information about the notes and communications that Commerce has withheld subject to Exemption 5, it is not possible to determine whether the [deliberative process] privilege has been properly invoked."
Adequacy of Search
Updated August 6, 2014