BIS Reasoning Inadequate for Withholding Entity List Information, District Court Rules
The U.S. District Court for the District of Columbia on Oct. 17 rejected both the government’s and law firm Husch Blackwell’s motions for judgment in a Freedom of Information Act dispute involving the Entity List. It gave the Commerce Department time to provide adequate justifications for its decisions to withhold certain information but said the ones it already provided weren’t enough (Husch Blackwell v. Department of Commerce, D.D.C. # 24-2733.
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Husch Blackwell alleged in May that Commerce’s Bureau of Industry and Security wrongly withheld its final proposal to the End-User Review Committee to place its client on the Entity List (see 2505300055). The firm filed two FOIA requests for the proposal. Commerce initially withheld it entirely, then provided sections that were “littered with redactions often covering entire pages," the law firm said.
The federal district court held that BIS hadn’t explained its reasoning for nondisclosure and merely cited the statutory standard.
“Although an agency need not reveal the substance of what it wishes to conceal, it must provide at least some reason for nondisclosure beyond the mere recitation of damage from the release of classified information,” it said. “It has not done so here.”
It also held that the Export Control Reform Act does provide additional relief from information disclosure under FOIA’s Exemption 3, which exempts documents as defined by other statutes, such as ECRA. After analyzing the law's language and history, the court said “Congress did not wish to give carte blanche to BIS to conceal all activities under ECRA.” But it agreed that ECRA allowed for withholding of information that was “similar” to the specific examples provided by the statute.
The court also said it wouldn’t yet be holding an in-camera review of the information, but that it might do so if BIS doesn't offer further explanation about its use of FOIA’s Exemption 3.