The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiff in this Freedom of Information Act case is Newport Aeronautical Sales ("NAS"), a commercial data library that provides qualified military contractors, including small businesses, technical data received from U.S. military agencies on an overnight basis for the purposes of facilitating contract bids. The present matter is before the Court on the Defendant Department of the Air Force's Motion to Dismiss or, In the Alternative, for Summary Judgment ("Air Force Motion") [Dkt. No. 54] pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), and 56. In its Opposition [Dkt. No. 61], Plaintiff NAS cross-motioned for summary judgment pursuant to Rule 56.
Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, Defendant's Motion is granted, and Plaintiff's Motion is denied.
For the last thirty years, NAS has submitted routine requests for technical data to the Air Force's Oklahoma City Air Logistics Center (OC-ALC) in order to service its clients. These requests typically were submitted under Department of Defense Directive ("DoDD" or "Directive") 5230.25, which limits access to "critical" technical data with military or space application to "qualified U.S. contractors," and restricts the contractors' ability to further disseminate information once access is gained. In 2003, after the Air Force began to routinely delay or deny NAS's DoDD 5230.25 requests, NAS made a general request for 155 Technical Orders ("TOs") under the Freedom of Information Act. The Air Force formally denied NAS's FOIA request in October of 2004, after commencement of this suit.
A. The Statutory and Regulatory Framework
Before discussing the procedural history of NAS's FOIA requests in more detail, an overview of the statutory and regulatory framework is in order. The Freedom of Information Act, 5 U.S.C. § 522, generally requires federal agencies to release records to the public. Section (b)(3), however, excludes matters that are "specifically exempted from disclosure by statute." 5 U.S.C. § 522(b)(3) (2008). The statute relied on by the Air Force in this case is 10 U.S.C. § 130, "Authority to Withhold From Public Disclosure Certain Technical Data." The statute exempts from disclosure "any technical data with military or space application . . . if such data may not be exported lawfully outside the United States without an approval, authorization, or license under the Export Administration Act of 1979 (50 App. U.S.C. 2401--2420) or the Arms Export Control Act (22 U.S.C. 2751 et seq.)." The statute further provides for the promulgation of regulations by the Department of Defense addressing the release of such technical data to qualified United States contractors. 10 U.S.C. § 130(b) (2008).
The Department of Defense implemented § 130 through DoDD 5230.25, "Withholding of Unclassified Technical Data from Public Disclosure." 32 C.F.R. § 250 (2008). Paragraph 2.1 clarifies the Directive's narrow scope:
[10 U.S.C. § 130] applies to all unclassified technical data with military or space application in the possession of, or under the control of, a DoD Component that may not be exported lawfully without an approval, authorization or license under E.O. 12470 . . . or the Arms Export Control Act . . . . However, the application of this Directive is limited only to such technical data that disclose critical technology with military or space application. The release of other technical data shall be accomplished in accordance with DoD Instruction 5200.21 . . . and DoD 5400.7-R . . . .
32 C.F.R. § 250(2.1) (emphasis added). DoD Instruction 5200.21 is a general instruction governing dissemination of DoD Technical Information, and DoD 5400.7-R is the regulation governing the Department's FOIA Program. Id. Neither regulation includes the limitations on access to, or dissemination of, technical data included in Directive 5230.25.
Once the controlling DoD office determines that a technical data request contains critical technology,*fn1 and therefore is governed by Directive 5230.25, paragraph 5.4.3 directs that the information be released to "qualified U.S. contractors," unless:
The technical data are being requested for a purpose other than to permit the requester to bid or perform on a contract with the Department of Defense or other U.S. Government Agency, in which case the controlling DoD office shall withhold such data if it has been determined by the DoD Component focal point . . . that the significance of such data for military purposes is such that release for purposes other than direct support of DoD-approved activities may jeopardize an important technological or military advantage of the United States.
Id. Thus, for commercial data services such as NAS that request information for further dissemination, rather than to bid on or perform a contract with the Government, technical data may be delayed or denied, despite the requester's status as a qualified U.S. contractor, if DoD determines that "release . . . may jeopardize an important technological or military advantage of the United States." Id.
Moreover, once received, the qualified U.S. contractor's ability to disseminate the information is limited to 1) foreign recipients approved, authorized, or licensed pursuant to Executive Order 12470; 2) another currently qualified U.S. contractor, "but only within the scope of the certified legitimate business purpose of such recipient"; and 3) the Departments of State and Commerce, the ...