Husch Blackwell Blasts Commerce's 'Inadequate' Descriptions of Documents Withheld Under FOIA
The U.S. and law firm Husch Blackwell again swapped briefs June 13 in the firm’s Freedom of Information Act dispute. Husch Blackwell said the government, which provided a list of more than 100 disclosed and undisclosed documents related to the firm’s FOIA request regarding an Entity List listing when it filed for summary judgment (see 2505300055), still wasn’t making clear which documents were actually responsive to the request (Husch Blackwell v. Department of Commerce, D.D.C. # 1:24-02733).
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“Now, for the first time, Husch Blackwell has evidence showing the Government identified a set of documents that appears to be woefully overinclusive,” the firm said in a 31-page brief.
In turn, the government filed eight pages in which it claimed that “Plaintiff misfires.” It also offered an explanation for releasing two separate “final” determinations prior to its summary judgment motion, saying that it had tracked down all nonexempt responsive documents.
Husch Blackwell’s client, Yangtze Memory Technologies, was placed on the Bureau of Industry and Security Entity List in 2022. The firm says it's seeking “a single document and its attachments: the final proposal” of the Commerce Department’s End-User Review Committee to BIS that landed the exporter on the list.
After Husch Blackwell resorted to FOIA, Commerce initially identified 533 responsive documents but refused to provide any. The department cited national security concerns, among other exemptions. After the dispute reached the courts, the government provided a Vaughn index -- a list of undisclosed documents identified as potentially responsive and Commerce's justifications for withholding each.
In its reply brief, Husch Blackwell asked the U.S. District Court for the District of Columbia to order DOJ to identify which of the documents in its Vaughn index were responsive to its request, calling the index apparently “both overinclusive and underinclusive.”
For example, it said, the index described emails and other communications as responsive to Husch Blackwell’s request even though the firm “requested only the agency’s ‘final proposal’ -- presumably, a memorandum, report, or presentation -- and attachments.”
On the other hand, the index isn’t descriptive enough to let the firm figure out what's actually responsive to its request, it said. A number of documents listed could be that final proposal, but the firm could only make educated guesses as to which, it said.
Husch Blackwell provided a snippet of the list to demonstrate. Document 22, for example, was described as eight pages long, titled “Memorandum for ERC members regarding addition to the Entity List” and withheld because it's “composed of a memorandum prepared for the ERC members regarding additions to the Entity List.”
In turn, the government said it isn’t required to provide Vaughn indexes during the administrative process -- they “typically” aren’t required until a summary judgment motion, it said, citing a number of cases.
It denied that the Vauhgn index it provided was overly vague. It said it "provided a declaration and Vaughn index explaining in detail each of the claimed exemptions."
Husch Blackwell said again that the government was relying too heavily on FOIA’s Exemption 3 -- which allows the withholding of information of which disclosure is prohibited by another law -- and the Export Control Reform Act of 2018. It also reiterated that the government incorrectly claimed the coverage of Exemption 5, which exempts predecisional "inter-agency or intra-agency memorandums or letters.” Nothing Husch Blackwell requested should fall under this exemption because the firm is seeking only Commerce’s final decision, it said.
In its own brief, the government defended itself against Husch Blackwell’s claim that it confusingly provided two separate final determination letters regarding the firm's FOIA request, one on April 11 and one on May 15. The firm said each letter came at most a few days before the court’s summary judgment deadline, causing delays.
The April 11 letter enclosed the Commerce Department Office of General Counsel’s decision to partly grant and partly deny Husch Blackwell’s FOIA appeal, the government said. BIS had already released all but seven pages of its own nonexempt documents, and it offered a final decision on those “on March 21, 2025,” when it made its supplemental production, it claimed.
“Plaintiff alleges that because both the Department of Commerce’s final determination upon Plaintiff’s appeal and BIS’s final determination upon Plaintiff’s FOIA request (after remand from Commerce) include the word ‘final,’ then the FOIA request response is incomplete,” it said. “Despite Plaintiff’s confusion between the final appeal determination and the final production for the FOIA request, the FOIA production is complete.”