US Says FOIA Exemption, ECRA Create Nondisclosure Presumption for Entity List Documents
Information collected under the Export Control Reform Act is “presumptively withheld” from Freedom of Information Act requests, the U.S. said July 14 in a case involving the disclosure of documents related to an addition to the Entity List (Husch Blackwell v. Department of Commerce, D.D.C. # 1:24-02733).
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The case stems from a complaint filed by law firm Husch Blackwell, which argued that the U.S. was failing to provide documents requested under FOIA because it was relying on a “novelly broad” interpretation of ECRA (see 2505300055 and 2506240003). The U.S. this week defended its reliance on the exemption, FOIA Exemption 3, and ECRA, to withhold the documents, saying that both actually demonstrate that information collected under ECRA is “presumptively withheld, absent a release determination by the Secretary of Commerce.”
In its own brief submitted the same day, Husch Blackwell said the U.S. failed to address, and therefore conceded, the firm’s broader interpretation of ECRA and FOIA Exemption 3, which the U.S. said "exempts from disclosure information that is specifically exempted from disclosure by statute."
And the firm said that the U.S. “does not contest that the BIS Entity List is one of the most powerful tools in the U.S. Government’s arsenal, or that, accordingly, there is a strong public interest in the records sought by Husch Blackwell.”
The government also claimed the FOIA request “is not as narrow” as the law firm claims. The request asks for not only “a single document and its attachments” -- the final proposal Commerce relied upon in its decision to put Husch Blackwell’s client, importer Yangtze Memory Technologies Company, on its Entity List -- but also for “any accompanying attachments, exhibits, or appendices” Commerce submitted to the End-User Review Committee to support including Yangtze Memory on the list, it said.
The U.S. argued that its Vaughn Index, a list describing the documents the government refused to disclose and its justifications for withholding each, wasn’t inadequate, despite what Husch Blackwell claimed. The list adequately describes 121 documents the government chose not to disclose and links each to a FOIA exemption, the U.S. said.
Agencies are presumed to have complied with a FOIA request and provided all nonexempt “reasonably segregable material” unless the requester can offer “some ‘quantum of evidence’” to the contrary, it said. Husch Blackwell’s “speculation that some of the documents may not be responsive based on their descriptions, does not meet the threshold to overcome that presumption,” it said.
In turn, the firm argued that it has the evidence to meet that presumption. It again claimed that the Vaughn Index’s descriptions appear “both overinclusive and underinclusive.”