Times Publishing Co. v. Department of Commerce

236 F.3d 1286

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 4, 2001
• Docket: 00-14390
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT JAN 04 2001 ________________________ THOMAS K. KAHN CLERK No. 00-14390 Non-Argument Calendar ________________________

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

TIMES PUBLISHING COMPANY, Plaintiff-Appellee,

MEDIA GENERAL OPERATIONS, INC. d.b.a. THE TAMPA TRIBUNE, Intervenor-Plaintiff-Appellee,

versus

UNITED STATES DEPARTMENT OF COMMERCE,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida _________________________ (January 4, 2001)

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”).

2 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

1 We review the district court’s grant of summary judgment de novo. Squish La Fish, Inc. v. Thomco Specialty Prod., Inc., 149 F.3d 1288 (11th Cir. 1998).

3 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

4 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

5 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.

6 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

7 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 executive order pursuant to special

powers granted by the IEEPA to continue operation of the provisions of the EAA

of 1979 and all rules and regulations under it); United States v. Spawr Optical

Research, Inc., 685 F.2d 1076, 1082 (9th Cir. 1982)(“It is unmistakable that

Congress intended to permit the President to use [the IEEPA’s predecessor statute]

8 to employ the same regulatory tools during a national emergency as it had

employed under the EAA.”).2

President Clinton exercised the authority given to him under the IEEPA to

issue Executive Order No. 12,924 on August 19, 1994, on the eve of the expiration

of the EAA, to allow that, “[t]o the extent permitted by law, the provisions of the

[EAA], as amended, .... shall be carried out under this order so as to continue in

full force and effect and amend, as necessary, the export control system heretofore

maintained by the Export Administration Regulations issued under the [EAA], as

amended.”

Courts addressing the continued vitality of the EAA pursuant to executive

orders have found that the Act remains effective by virtue of a presidential order

during periods of statutory lapse. See United States v. Mechanic, 809 F.2d at

1113; United States v. Spawr Optical Research, Inc., 685 F.2d at 1082.3 In

2 According to the Department, the EAA frequently lapses because the debate over reenactment of the “highly sensitive statute” often delays passage of the Act. Indeed, it appears that the current version of the EAA has lapsed five times since its passage in 1979 for periods of time ranging in length from five days to six years. See United States v. Spawr Optical Research, Inc., 685 F.2d 1076, 1081, n.12 (9th Cir. 1982)(“‘One of the reasons why the Export Administration Act has been allowed to expire so many times is because there was [IEEPA’s predecessor statute]...’”)(quoting Congressman Bingham, Emergency Controls on International Economic Transactions: Hearings on H.R. 1560 and H.R. 2382 Before the Subcommittee on International Economic Policy and Trade of the House Committee on International Relations, 95th Congress, 1st Sess. 136 (1977)). 3 We recognize that the courts in Mechanic and Spawr specifically addressed the validity of regulations adopted pursuant to the EAA during periods of statutory lapse. Although these

9 Mechanic, the Fifth Circuit upheld criminal convictions under regulations adopted

pursuant to the EAA when the criminal acts alleged in the indictment were

committed during a period in which the EAA had lapsed. Mechanic, 809 F.2d at

1113 (“Thus, at the time the offenses were committed in April 1985, the EAA of

1979 rested solely upon the President’s exercise of his powers under IEEPA.”); see

also Spawr Optical, 685 F.2d at 1082 (“We, therefore, conclude that the President

had the authority during the nine-month lapse in the EAA to maintain the export

regulations.”). Although they do not dispute the general power of the President to

continue the effectiveness of the EAA’s export control system by executive order

pursuant to the IEEPA, Appellees argue that the entry of an executive order still

cannot satisfy FOIA’s specific requirement of a statutory basis for withholding

information under Exemption 3.

Congressional intent to maintain the confidentiality of government

information is the cornerstone of Exemption 3. With respect to the export

licensing information Appellees seek, Congress has acted specifically to design a

statutory provision to maintain confidentiality. Although Congress has permitted

cases did not involve the withholding of export licensing information pursuant to a statutory FOIA exemption, these courts recognized the continued validity of the EAA by virtue of executive orders entered pursuant to the IEEPA and its predecessor statute. Further, we note the existence of a similar regulation adopted pursuant to the EAA in this case explicitly providing for the confidentiality of the export licensing information sought pursuant to section 12(c) of the EAA. See 15 C.F.R. Part 736, Supp. 2 (Administrative Order One)(2000).

10 the statute containing this provision to lapse on a number of occasions, Congress

has authorized the President, also by means of statute, to maintain the force of the

confidentiality provision by way of executive order and has acted in accordance

with the continued confidentiality of such information during those times of lapse.

Further, Congress has renewed the confidentiality provision each time it has

renewed the EAA. Finally, on November 2, 2000, Congress renewed the EAA of

1979 through August 20, 2001. In renewing the Act and ending the most recent

period of lapse, Senator Gramm, Chairman of the Senate Committee on Banking,

Housing and Urban Affairs, stated that “replacing the 1994 expiration date with a

2001 expiration date will make clear that [Commerce’s] authority to apply the

12(c) confidentiality provisions of the 1979 act is to be considered as covering any

information regarding license applications obtained during that time period, as if

there had been no interruption of authority.” 146 Cong. Rec. S11365 (Oct. 30,

2000). In signing the amendment on November 13, 2000, President Clinton also

stated: “the reauthorization confirms the Department’s ability to keep export

licensing information obtained during the lapse of the EAA from public disclosure,

which is a critical part of the Department’s export control system and protects

sensitive business information and commercial interests of U.S. exporters.”

Statement by the President, November 13, 2000. This subsequent legislative

11 history and comment by the executive branch specifically demonstrate Congress’

intent to preserve the confidentiality of the precise export license information

sought in this case pursuant to executive order during periods of lapse. See

Mechanic, 809 F.2d at 1114 (“the subsequent legislative history accompanying the

enactment of the Export Administration Amendments Act of 1985 supports the

validity of the regulation.”).

Where Congress has made plain its intention to exclude the information

sought by Appellees from public disclosure under FOIA, the purpose of Exemption

3 – to ensure that “basic policy decisions on governmental secrecy are made by the

Legislative rather than the Executive branch” – is satisfied. American Jewish

Congress, 574 F.2d at 628. In addition, where there is no dispute that Congress

granted the President authority to extend the provisions of the EAA containing the

statutory exemption and that the President has exercised this authority in signing

Executive Order 12,924, an overly technical and formalistic reading of FOIA to

disclose information clearly intended to be confidential would undermine the

Supreme Court’s direction that the FOIA exemptions are to be given meaningful

reach and application. In light of Congress’ clear expression of its intent to protect

the confidentiality of the requested export licensing information, it would be truly

nonsensical to protect such information submitted to the Department through

12 August 20, 1994, release identical information submitted between August 21, 1994

and November 13, 2000, and again protect such information from November 14,

2000 forward. The confidentiality of the export licensing information sought by

Appellees, provided by section 12(c) of the EAA, was maintained by virtue of

Executive Order 12,924.

III.

We conclude that the comprehensive legislative scheme as a whole – the

confidentiality provision of the EAA, the intended and foreseen periodic expiration

of the EAA, and the Congressional grant of power to the President to prevent the

lapse of its important provisions during such times – exempts from disclosure the

export licensing information requested by Appellees. We, therefore, reverse the

grant of summary judgment in favor of Appellees and remand to the district court

for the entry of judgment in favor of the Appellant.

REVERSED AND REMANDED