US Says Disclosing Full Entity List Proposal Could Reveal Sensitive Intelligence Operations
National security justified the Commerce Department’s decision to withhold much of its final proposal to place importer Yangtze Memory Technologies Company on the Entity List, the U.S. said again in a supplemental briefing filed Feb. 2 (Husch Blackwell v. Department of Commerce, D.D.C. # 1:24-02733).
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In 2024, law firm Husch Blackwell filed a civil Freedom of Information Act lawsuit in the U.S. District Court for the District of Columbia on behalf of its client, Yangtze Memory. It had sent a FOIA request to Commerce’s Bureau of Industry and Security for its proposal that the importer be placed on the Entity List, including all attachments and indices. But the department refused to provide hundreds of pages of responsive documents, leading to the suit.
Some of those documents contain information classified as top secret because they could cause “exceptionally grave damage to national security,” the U.S. said.
The documents were gathered under the Foreign Intelligence Surveillance Act of 1978, it said. They contain information that would reveal “specific enforcement methodologies and analytical frameworks used to detect illicit technology transfers”; endanger U.S. sources of intelligence, including foreign partners; and damage trust with U.S. allies, it said.
As a result, those documents fall under exemption 1 to FOIA, which covers information that is classified to protect national security, it said.
The remaining withheld documents, meanwhile, fall under exemption 3 for information that is prohibited from disclosure by another federal law, it argued.
The district court agreed in an October 2025 opinion that exemption 3 applied to information subject to the Export Reform Control Act’s confidentiality provision (see 2510200049). The court told Commerce to further explain how the information it withheld from Husch Blackwell was similar to the examples of confidential information provided by the ERCA.
The ERCA defines as confidential license applications, classification or advisory opinions, license determinations, information gathered in an investigation and information gathered under an international treaty.
The U.S. said that “Entity List activities are similar to, and closely linked with, the licensing activities listed in 50 U.S.C. 4820(h)(1)(B).”
It also said that the Entity List was “central” to the ERCA’s goal of export control as “a means through which certain license requirements are determined.” The Entity List and licensing requirements, in other words, are two sides of the same coin, it said.
And some of the documents related specifically to enforcement activities, it said, and so could undermine the effectiveness of BIS Export Enforcement special agents and the agency’s analysts’ access to information they needed to make Entity List recommendations, if disclosed.