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DURNAN v. UNITED STATES DEPT. OF COMMER.

July 22, 1991

JAYMIE A. DURNAN, Plaintiff,
v.
UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.


REVERCOMB


The opinion of the court was delivered by: GEORGE H. REVERCOMB

The defendants have moved for summary judgment in this Freedom of Information Act ("FOIA") suit challenging the Department of Commerce's ("DOC") nondisclosure of certain documents responsive to the following request:

 All documents, drawings, technical data, designs, formulations, blueprints, engineering and process drawings given to Mr. Steve Lacy, Bureau of Export Administration, of the Department of Commerce by Dale C. Danver, President of DTG, in Eastlake, Ohio in April 1985, or any material that refers and/or relates to the aforementioned transfer by Mr. Danver.

 Sometime prior to April 1985, Dale C. Danver's company, Danver Technologies Group, Inc. ("DTG"), had applied with the DOC for a license to export certain copper foil technology. In support of that application, Danver provided documents and other relevant materials to the DOC.

 In their investigation of the application, the DOC asked Gould Inc., Mr. Danver's former employer and a leading producer of copper foil, whether the technology DTG was seeking to export fell within the technical definition of copper foil technology prohibited from export. In response to this and other DOC inquiries concerning DTG's license application, Gould provided the DOC with documents relating to its technology. According to Gould, the documents were turned over with assurances by the DOC that their confidential nature would be preserved.

 Subsequently, Gould filed suit against Danver and DTG alleging that, during his employment with Gould, Danver had misappropriated proprietary information of Gould and provided that information to certain of Gould's competitors. Gould also filed suit against the recipients of the misappropriated information, including Mitsui Mining & Smelting Co., Ltd. The plaintiff in this FOIA action is an attorney in the firm defending Mitsui against Gould's suit. Gould was granted leave by the Court to intervene in this action to protect its interest in the contested documents. Relying primarily on FOIA Exemptions 3 and 4, as well as Exemptions 5 and 7, the DOC has withheld from disclosure all of the documents responsive to the plaintiff's FOIA request. The nondisclosure, therefore, includes documents provided to the DOC by Danver and DTG as well as the documents provided by Gould.

 The Court will consider the application of each Exemption separately.

 Exemption 3

 The disclosure requirements of the FOIA do not apply to documents "specifically exempted from disclosure by statute . . . provided that such statute (A) requires that 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 withheld." 5 U.S.C. § 552(b)(3) (emphasis added). The DOC asserts that all of the documents withheld in this case are exempted from disclosure by Section 12(c) of the Export Administration Act, which provides in relevant part that "information obtained for the purpose of consideration of, or concerning, license applications under this Act . . . shall be withheld from public disclosure unless the release of such information is determined by the Secretary to be in the national interest." 50 U.S.C. App. § 2411(c)(1).

 The Court holds that Section 12(c) clearly meets the criteria of Exemption 3 by specifically describing the type of information within the DOC's possession which will be withheld--license applications and related materials. In so holding, the Court concurs with the Ninth Circuit's decision in Lessner v. United States Department of Commerce, 827 F.2d 1333 (1987), and finds that the decision relied on by the plaintiff, American Jewish Congress v. Kreps, 574 F.2d 624, 632 (D.C. Cir. 1978), was nullified by Congresses' later amendment of Section 12(c).

 Because all of the documents withheld in this case were provided to the DOC in connection with DTG's license application, they are protected from disclosure under Section 12(c) of the Export Administration Act and, therefore, fall within FOIA Exemption 3. *fn1" Although Exemption 3 supports the DOC's nondisclosure of all of the documents responsive to the plaintiff's FOIA request, the Court has also considered the applicability of the other exemptions relied upon by the DOC in withholding the documents.

 Exemption 4

 This FOIA exemption excludes from disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). Although Danver has apparently waived any objection that he might have under this exemption to disclosure of the documents which he provided to the DOC, the Court must still consider the application of this exemption to Gould's documents. The plaintiff argues that in order to rely on this exemption, the defendants must establish that disclosure of the "confidential" information "is likely 'a) to impair the Government's ability to obtain necessary information in the future; or b) to cause substantial harm to the competitive position of the person from whom the information was obtained.'" Greenberg v. FDA, 803 F.2d 1213, 1216 (D.C. Cir. 1986) (quoting Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)). The plaintiff asserts that the defendants have failed to meet their burden under this standard. The Court disagrees.

 In support of their motion, the defendants have filed two declarations and a Vaughn index describing the documents withheld. In his declaration, Denis C. Kerner, an Export ...


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