For the reasons set forth below the Court determines that although Exemption (b) (3) is inapplicable here, Treasury has properly invoked Exemption (b) (1) of the FOIA. The American Jewish Congress' request for the documents, therefore, is denied and the complaint dismissed.
The material facts may be briefly stated. The Department denied disclosure to the plaintiff on two grounds. First, disclosure of the country aggregates would reveal holdings of specific investors which are government entities. Such disclosure, the Department argues, is specifically prohibited by Exemption (b) (3) of the FOIA, which is applicable to documents "expressly exempted from disclosure by statute." Second, disclosure of the requested information revealing the holdings of government investors would cause identifiable damage to the foreign relations of the United States. This ground invokes Exemption (b) (1) of the FOIA, which is applicable to documents "specifically authorized . . . to be kept secret in the interest of national defense or foreign policy." In this connection the government also relied upon Executive Order 12065, 3 C.F.R. 190 (1979).
As to Exemption (b) (3), two statutes are cited by the government: the Bretton Woods Agreements Act (Bretton Woods Act), 59 Stat. 515, 22 U.S.C. § 286f, and the International Investment Survey Act of 1976 (Survey Act), 22 U.S.C. §§ 3101 et seq. Both Acts provide for the gathering of information on foreign investment in the United States. Section 8(a) of the Bretton Woods Act authorizes the President to "require any person to furnish such information as the President may determine to be essential to comply with [a request for information from the International Monetary Fund]," 22 U.S.C. § 286f(a). The International Monetary Fund requires the United States to furnish information on the portfolio investments of foreign investors in the United States. Section 4(c) (1) of the Survey Act requires the President to conduct a "comprehensive benchmark survey of foreign portfolio investment in the United States at least once every five years . . . ." 22 U.S.C. § 3103(c) (1). In order to collect that information, the Act authorizes the Secretary of the Treasury to promulgate regulations which "may require any person subject to the jurisdiction of the United States . . . to furnish, under oath, any report containing information which is determined to be necessary to carry out the international investment surveys and studies conducted under [the] Act." Section 5(b) (2), 22 U.S.C. § 3104(b) (2).
Pursuant to those statutes, the Department of the Treasury's Office of International Financial Reports prepares statistical reports and analyses of the portfolio investments in the United States by foreign residents.
The portfolio investment data collected on Treasury's report forms include bank deposits and Treasury bills, the two types of portfolio investment which are the subject of the plaintiff's FOIA request.
Since 1934, Treasury has required banks and other reporters to furnish information on the liabilities of U.S. institutions to "foreigners." The present report forms separately identify portfolio holdings of several broad categories of "foreigners," including "foreign official institutions," "unaffiliated foreign banks," and "all other foreigners." The report forms are submitted to a Federal Reserve bank, where they are then coded into a computer system. Since 1935, the Department has published tables summarizing the information which it has collected.
Prior to 1974, the figures for Middle East countries were published on a country-by-country basis, as is the case with other countries. In 1974 the revenues of oil-exporting countries substantially increased and the Treasury Department began publishing the data for oil-exporting countries in the Middle East and Africa solely on a regional basis. Thus, the Department publishes the aggregate portfolio holdings of Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates; it does not break down, on a country-by-country basis, these aggregate figures.
On March 12, 1981, the AJC requested access to all Treasury documents relating to the aggregate investment in U.S. banks and purchase of U.S. Treasury bills by individuals or governments in 16 Arab countries.
The request was later orally modified to include information on only three countries -- Saudi Arabia, Kuwait, and the United Arab Emirates. The Department denied the request and a subsequent appeal.
The AJC then sought relief through this FOIA proceeding.
The only Treasury record at issue in this case is a portion of a table titled "Estimated Outstanding Portfolio Investment in the United States of Oil-Exporting Countries as of Year-End 1980."
Figures showing country aggregates have been expurgated from that table. The table was prepared in February 1981 and classified "Confidential" on February 2, 1981.
The Department provided two reasons for its decision to withhold the information. First, it stated that the two statutes trigger Exemption (b) (3) and preclude Treasury from disclosing the information sought by the plaintiff. In each of the three Arab countries, the government or governmental financial institutions hold most of the country's portfolio investments. Thus, by revealing the aggregate figure for a particular country's investments, Treasury would, it asserted, indirectly reveal the investment of a particular government or governmental authority. Both statutes prohibit disclosure of the investments of an individual investor, and, therefore, Treasury concluded that the requested document was exempt from disclosure under FOIA. Second, the Department relied upon Exemption (b) (1) and refused the requested document, asserting that it was protected because of national defense or foreign policy concerns.
As in any FOIA case, the Court is required to "determine the matter de novo, and . . . the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B). A document can only be withheld from the requester if the information falls within one of nine enumerated exemptions. 5 U.S.C. § 552(b). Summary judgment is warranted if the agency affidavits provide the justification for non-disclosure with reasonably specific detail; demonstrate that the information withheld falls logically within the claimed exemption; and are not controverted either by contrary evidence in the record or by evidence of agency bad faith. Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724, 738 (D.C.Cir.1981).
The (b) (3) Exemption
Section 552(b) (3) exempts from disclosure 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.