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WINDELS, MARX, DAVIES & IVES v. DEPARTMENT OF COMM

December 9, 1983

WINDELS, MARX, DAVIES & IVES, Plaintiff,
v.
DEPARTMENT OF COMMERCE, Defendant



The opinion of the court was delivered by: FLANNERY

 This matter came before the court on defendant's motion for summary judgment. For the reasons stated below, defendant's motion is granted.

 Background

 The plaintiff in this case is a law firm which has filed an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking disclosure of a computer program used by the United States Department of Commerce (DOC) to perform calculations necessary to determine if a foreign steel producer has violated U.S. "antidumping" laws by selling steel in the U.S. market at less than fair value, see 19 U.S.C. § 1673. One of plaintiff's clients is a foreign steel producer which is currently under investigation by DOC for possible violations of U.S. antidumping laws, and the computer program sought by plaintiff is tailored to instruct DOC computers to perform the specific calculations necessary to determine whether plaintiff's client should be further investigated for selling steel in the U.S. at less than fair value. During the course of DOC's antidumping investigation of plaintiff's client, plaintiff's client has been required to produce numerous records and invoices detailing its foreign and domestic selling patterns, and it has also submitted to DOC a computer tape containing such information. The DOC computer program at issue is a series of related instructions directing the computer to perform selected calculations and numerical analyses necessary to the investigation, in a particular sequence, on the data submitted by plaintiff's client to determine the "margin of dumping," if any. The program consists of 944 lines, 108 of which are narrative lines that separate the program into eleven segments and summarize what the computer does in each segment.

 Plaintiff has exhausted all administrative efforts to obtain the computer program, as required by FOIA. In this action DOC has asserted that the program at issue is exempt from disclosure under Exemptions 2 and 7(E) of FOIA, 5 U.S.C. § 552(b)(2),(b)(7)(E). To support its claims, DOC has filed two detailed affidavits by Mr. Charles Ludolph, Chief Economist in DOC's Office of Policy for Import Administration. The agency claims in its June 30, 1983 Ludolph affidavit that "access to this computer program would render it useless as a significant investigative tool utilized by the Department of Commerce in its antidumping investigations, and [will] enable companies to violate the antidumping regulations while escaping detection." June 30 Ludolph affidavit at 10. The agency supports its Exemption 2 claim by asserting that the program is for internal use by the agency to assist in performing this audit, and is withheld because its release would reveal auditing and investigative techniques which would enable foreign companies to adjust their sales transactions to avoid detection of antidumping violations, thereby creating a significant risk that U.S. laws would be circumvented. The Ludolph affidavit describes in some detail how release of the program would enable foreign companies to avoid detection, and further asserts that even the release of parts of the program would also pose a significant risk. The DOC affidavit supports the agency's Exemption 7(E) claim by asserting that release of the program would reveal confidential agency investigative techniques and procedures employed in a civil law enforcement proceeding.

 Plaintiff has submitted an affidavit, executed by an attorney in its firm who frequently represents foreign companies in antidumping cases, wherein it is alleged that the release of the computer program at issue would not create a significant risk that antidumping laws would be circumvented, primarily because it would be too difficult for foreign companies to make the numerous bookkeeping and transactional changes necessary to conceal dumping even if they knew what transactions would be targeted by DOC audits. Thus, although plaintiff concedes that disclosure of the program might make enforcement more difficult, see Plaintiff's Opposition at 14,20, it asserts that the risk of circumvention of the law created by disclosure would not be "significant." Plaintiff argues that because of this factual dispute with DOC over the degree of risk to DOC enforcement efforts that would be created by disclosure of the computer program, summary judgment is not appropriate. In addition, plaintiff contests defendant's assertion that the computer program at issue is secret and for internal use. Plaintiff has produced two affidavits attesting that DOC has released computer programs in other antidumping investigations, on the basis of which plaintiff argues that the program it seeks contains no non-disclosable secrets since similar programs have been released in the past.

 In addition to asserting that there are disputed issues of fact over the effect of disclosure on enforcement capability and the confidentiality of the program, plaintiff also argues that as a matter of law neither Exemption 2 nor Exemption 7(E) justify non-disclosure of the program, and that disclosure is affirmatively required by 5 U.S.C. § 552(a)(2)(C) as an "administrative manual . . . that affect[s] a member of the public." For the reasons discussed below, this court holds that summary judgment is appropriate in this case, that disclosure of the computer program is not required by § 552(a)(2)(C), and that both Exemption 2 and Exemption 7(E) justify non-disclosure.

 DISCUSSION

 A. Propriety of Summary Judgment

 In a FOIA case, the court may grant summary judgment only if it is satisfied that the moving party has proven that no substantial and material facts are in dispute and that it is entitled to judgment as a matter of law, McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1101 (D.C. Cir. 1983). The agency has the burden of justifying non-disclosure, Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 868 (D.C. Cir. 1980), and must sustain its burden through submission of detailed affidavits which identify the documents at issue and why they fall under the claimed exemptions, Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). If the affidavits are clear, specific, and detailed, and there is no evidence in the record contradicting them or demonstrating agency bad faith, then the court need not question their veracity and must accord them substantial weight in its decision, Brinton v. Department of State, 204 U.S. App. D.C. 328, 636 F.2d 600, 606 (D.C. Cir. 1980), cert. denied, 452 U.S. 905, 69 L. Ed. 2d 405, 101 S. Ct. 3030 (1981); Hayden v. National Security Agency, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1387 (D.C. Cir. 1979), cert. denied, 446 U.S. 937, 100 S. Ct. 2156, 64 L. Ed. 2d 790 (1980).

 In this case, plaintiff contends that summary judgment is inappropriate because there are material issues of fact in dispute. First, plaintiff alleges that the program at issue is not "predominately internal," as required by Exemption 2, and would not reveal investigative techniques unknown to the public, as required by Exemption 7, because DOC has released computer programs in the past during other antidumping investigations. In support of this assertion, plaintiff has produced affidavits from two practicing attorneys attesting to DOC's release of computer programs connected with antidumping investigations of the Korean color television industry, see Silverman affidavit, and the Japanese lightweight polyester fabrics industry, see Houlihan affidavit. Plaintiff alleges that this evidence raises a question of fact as to DOC's alleged policy of nondisclosure, and casts doubt upon DOC's assertion that disclosure of the computer program here would reveal harmful secrets.

 Secondly, plaintiff asserts that there is a factual dispute over whether disclosure would create a "significant" risk that U.S. antidumping laws will be circumvented by foreign companies. In support of this contention, plaintiff submits an affidavit executed by an attorney in plaintiff's firm who argued this case at oral argument. For the reasons discussed below, the court holds that plaintiff has failed to raise a triable issue of fact regarding the effects of disclosure that precludes summary judgment. *fn1"

 In the face of DOC's affidavit detailing the significant risks to effective law enforcement posed by disclosure of the computer program at issue, plaintiff's self-executed, self-serving and highly speculative assertion to the contrary is simply too incredible to raise a genuine issue of fact so as to preclude summary judgment. Without having seen the program at issue, plaintiff has no way of knowing the significance of the auditing procedures disclosure would reveal, or the effect such disclosure would have on law enforcement. In contrast, DOC, which knows exactly what agency auditing techniques and procedures would be revealed by disclosure of the program and which possesses considerable expertise in the complex task of antidumping law enforcement, is in a position to know what risks to enforcement would be created by disclosure -- and has alleged that they would be quite significant. DOC's affidavits must be accorded "substantial weight." Speculative assertions by opposing counsel in an effort to create a factual dispute are generally held to be insufficient, see Bolt Associates, Inc. v. Alpine Geophysical Associates, Inc., 365 F.2d 742, 747 n.4 (3d Cir. 1966); Zenith Radio Corp. v. Matsushita Electric Industrial Co., 513 F. Supp. 1100, 1143 (E.D. Pa. 1981), and in FOIA cases it has been held that disputes regarding the risks created by ...


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