Newport Aeronautical Sales v. Department of the Air Force

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2011 Decided July 17, 2012
No. 10-5037
NEWPORT AERONAUTICAL SALES ,
APPELLANT
v.
DEPARTMENT OF THE AIR FORCE ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-01283)
Paul J. Seidman argued the cause for appellant. With him
on the briefs was David J. Seidman.
W. Mark Nebeker, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
Before: GARLAND , BROWN , and GRIFFITH , Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND .
GARLAND , Circuit Judge: The Air Force invoked
Exemption 3 of the Freedom of Information Act (FOIA), which

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covers information “specifically exempted from disclosure by
statute,” to deny Newport Aeronautical Sales’ request for certain
technical information concerning military equipment. We
conclude that the information falls within the relevant
nondisclosure statute, and that it is therefore exempt from
disclosure under the Act.
I
Newport is a commercial data library that collects technical
information, including documents, from the Air Force. For a
fee, Newport then makes that information available to qualified
U.S. contractors entitled to receive it. Gathering information is
a big part of Newport’s business, and FOIA requests are an
important tool for obtaining that information.
FOIA requires executive branch agencies to make their
records available “to any person” upon request, 5 U.S.C.
§ 552(a)(3)(A), subject to nine exemptions, id. § 552(b)(1)-(9).
Relevant here is Exemption 3, which permits agencies to
withhold information exempted by a qualifying nondisclosure
statute. See 5 U.S.C. § 552(b)(3). The nondisclosure statute the
Air Force invokes is 10 U.S.C. § 130. Under § 130(a), the
Department of Defense (DOD) may withhold certain “technical
data with military or space application” that cannot be exported
without a specific license under the relevant export control
statutes. 10 U.S.C. § 130(a). Subsection 130(b) directs DOD to
promulgate regulations that “address, where appropriate,
releases of technical data to allies of the United States and to
qualified United States contractors.” Id. § 130(b).
Pursuant to the mandate of § 130(b), the Defense
Department issued Directive 5230.25. See Withholding of
Unclassified Technical Data From Public Disclosure, 49 Fed.
Reg. 48,040 (Dec. 10, 1984) (codified at 32 C.F.R. § 250). The

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Directive states that, notwithstanding the withholding authority
granted by § 130(a), it is DOD policy to provide technical data
to “qualified U.S. contractors” for “legitimate business
purposes” (with some exceptions). 32 C.F.R. § 250.4(c). To
obtain such information, the recipient must accept restrictions on
its redistribution. Id. § 250.3(a)(3)-(4). Moreover, DOD may
withhold -- even from a qualified U.S. contractor -- information
that “may jeopardize an important technological or operational
military advantage of the United States” unless the contractor
identifies a specific bid or contract that the requested
information is supporting. Id. § 250.5(d)(3). The Directive
limits its application to technical data that discloses “critical
technology,” and it provides that “[t]he release of other technical
data shall be accomplished in accordance with” other DOD
regulations. See id. § 250.2(a)(1).
In 2003 and 2004, Newport -- a qualified U.S. contractor --
filed FOIA requests for 155 technical orders concerning the
care, maintenance, and/or repair of military equipment. When
the Air Force did not respond, Newport brought the present case.
The Air Force then belatedly denied Newport’s requests, relying
on Exemption 3 and § 130. In its complaint, Newport contended
that this denial violated FOIA, 10 U.S.C. § 130, Directive
5230.25, and the Administrative Procedure Act. In particular,
Newport alleged that none of the 155 orders depicts “critical
technology,” which, it contended, means that Directive 5230.25
by its own terms does not apply and that the Air Force violated
FOIA by not releasing the orders.
The Air Force ultimately released all 155 orders during the
course of settlement discussions. It did not do so under FOIA,
however, but rather under Directive 5230.25. Notwithstanding
the release, Newport maintained its suit, seeking the orders’
release under FOIA and a declaration that the Air Force’s

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alleged policy of applying Directive 5230.25 to noncritical data
violates FOIA.
The district court rejected Newport’s challenge in two
separate rulings. In 2007, it dismissed all of Newport’s non-
FOIA claims. Newport Aeronautical Sales v. Dep’t of Air
Force, 2007 WL 2007966 (D.D.C. July 11, 2007). Two years
later, it dismissed the FOIA counts as well. Newport
Aeronautical Sales v. Dep’t of Air Force, 660 F. Supp. 2d 60
(D.D.C. 2009). In so doing, the court held that § 130(a) is an
Exemption 3 statute, and that the orders in question depict
qualifying “technical data with military or space application”
within the meaning of that subsection. Because the data
therefore fell within the exemption, the court concluded that the
Air Force did not violate FOIA by withholding it. Id. at 66-67.
On appeal, Newport does not challenge the district court’s
first decision, which dismissed its non-FOIA claims. Instead, it
argues only that FOIA entitles it to the documents it seeks. See
Newport Br. 5; Oral Arg. Recording at 2:13-:25.
II
Before proceeding to the merits, we must first address the
Air Force’s contention that the case is moot because it has
provided Newport with unredacted copies of all 155 orders,
albeit under Directive 5230.25 rather than under FOIA.
Newport does not respond, as one might expect it would, by
arguing that disclosure under the Directive imposes restrictions
on its ability to redistribute the information that disclosure under
FOIA would not. See 32 C.F.R. § 250.3(a)(3)-(4); infra Part III.
To the contrary, Newport states that it is happy to abide by those
restrictions. See Newport Br. 19-20.

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Newport is not happy, however, with another requirement
of Directive 5230.25: that to obtain technical data governed by
the Directive, a qualified contractor must sometimes identify a
specific bid or contract that the data will support. See 32 C.F.R.
§ 250.5(d)(3). By its terms, Directive 5230.25 so requires, at
least when the release “may jeopardize an important
technological or operational military advantage,” id., and
Newport alleges that the Air Force has applied this requirement
even when that standard is not met, see Newport Br. 4, 16.
Newport often cannot show that it is requesting data for the
purpose of “permitt[ing] [it] to bid or perform on a contract,” 32
C.F.R. § 250.5(d)(3), because it ordinarily sells the information
to other contractors that are interested in such bids and
contracts. Although this requirement is now of no consequence
with respect to the 155 documents Newport has already
received, it contends that the requirement continues to injure it
by interfering with its ability to obtain other Air Force
documents in the future. It maintains that the requirement is
unlawful because both the Directive and § 130 (the
nondisclosure statute) only apply to critical information and not
to all of the “technical information” described in § 130(a).
Newport seeks a declaratory judgment that the Air Force’s
continuing refusal to disclose non-critical information without
qualification is contrary to FOIA. Am. Compl. at 9.
We have held that the release of requested documents to a
plaintiff renders its FOIA suit moot “with respect to those
documents.” Williams & Connolly v. SEC, 662 F.3d 1240, 1244
(D.C. Cir. 2011). We have also held, however, that “even
though a party may have obtained relief as to a specific request
under the FOIA, this will not moot a claim that an agency policy
or practice will impair the party’s lawful access to information
in the future.” Payne Enters., Inc. v. United States, 837 F.2d
486, 491 (D.C. Cir. 1988) (citing Better Gov’t Ass’n v. Dep’t of
State, 780 F.2d 86, 90-92 (D.C. Cir. 1986)); accord City of

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Houston v. Dep’t of Hous. & Urban Dev., 24 F.3d 1421, 1428-
30 (D.C. Cir. 1994). In Payne, the court found that the
plaintiff’s challenge was not moot because, in addition to
seeking documents the government had ultimately disclosed,
Payne also alleged that the Air Force was “following an
‘impermissible practice’ in evaluating FOIA requests, and that
it will suffer ‘continuing injury due to this practice.’” Payne,
837 F.3d at 491 (quoting Better Gov’t Ass’n, 780 F.2d at 91).
As in Payne, Newport challenges the permissibility of an
Air Force policy: to wit, its practice of denying FOIA requests
for data that does not depict “critical technology,” and thus
requiring Newport to seek the data under the restrictive terms of
Directive 5230.25. Newport has also shown that it will suffer
continuing injury from this allegedly unlawful policy: its
business depends on continually requesting and receiving
documents that the policy permits the Air Force to withhold in
the absence of bid or contract information that Newport cannot
always provide; and the Air Force has no intention of
abandoning that policy because it does not believe the policy
violates FOIA. See Oral Arg. Recording at 19:00-:40. This is
enough to avoid mootness under Payne.1
1 The Air Force asserts that Payne was superseded by Department
of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989). But this court
cited Payne approvingly in the post–Tax Analysts case of City of
Houston, see 24 F.3d at 1429-30, which is unsurprising given that Tax
Analysts did not involve a challenge to an agency’s ongoing FOIA
policy. The passage in Tax Analysts cited by the Air Force, which is
taken from an opinion that predates Payne, merely restates the
showing required before a court can order the production of requested
records. See Tax Analysts, 492 U.S. at 142 (quoting Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150
(1980)).

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III
Having assured ourselves that we have jurisdiction to
consider Newport’s appeal, we turn to the merits. In so doing,
we review the district court’s grant of summary judgment de
novo. See Students Against Genocide v. Dep’t of State, 257 F.3d
828, 833-34 (D.C. Cir. 2001). “‘In the FOIA context this
requires that we ascertain whether the agency has sustained its
burden of demonstrating that the documents requested are . . .
exempt from disclosure under the FOIA.’” ACLU v. Dep’t of
Justice, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting Gallant v.
NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)).
FOIA Exemption 3 permits agencies to withhold “matters
that are . . . specifically exempted from disclosure by [a] statute”
other than FOIA itself. See 5 U.S.C. § 552(b)(3). To qualify,
the statute must either:
(i) require[] that the matters be withheld from the
public in such a manner as to leave no discretion on the
issue; or
(ii) establish[] particular criteria for withholding or
refer[] to particular types of matters to be withheld[.]
Id. § 552(b)(3)(A). “In short, ‘only explicit nondisclosure
statutes that evidence a congressional determination that certain
materials ought to be kept in confidence will be sufficient to
qualify under the exemption.’” Wisc. Project on Nuclear Arms
Control v. Dep’t of Commerce, 317 F.3d 275, 280 (D.C. Cir.
2003) (quoting Irons & Sears v. Dann, 606 F.2d 1215, 1220
(D.C. Cir. 1979)).2
2 To qualify as an Exemption 3 statute, a statute enacted after the
OPEN FOIA Act of 2009 must also specifically cite to the relevant

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When an agency relies on a statute to deny a FOIA request
under Exemption 3, a reviewing court must ask two questions:
Does the statute meet Exemption 3’s requirements? And does
the information that was withheld fall within that statute’s
coverage? See Larson v. Dep’t of State, 565 F.3d 857, 865
(D.C. Cir. 2009). In this case, we have little difficulty
answering “yes” to both questions.
As to the first question: The nondisclosure statute that
DOD has invoked, § 130(a), provides in relevant part:
Notwithstanding any other provision of law, the
Secretary of Defense may withhold from public
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 or the Arms Export
Control Act.
10 U.S.C. § 130(a) (internal citations omitted). Another
subsection further defines “the term ‘technical data with military
or space application’” as:
any blueprints, drawings, plans, instructions, computer
software and documentation, or other technical
information that can be used, or be adapted for use, to
design, engineer, produce, manufacture, operate,
repair, overhaul, or reproduce any military or space
equipment or technology concerning such equipment.
paragraph of FOIA. 5 U.S.C. § 552(b)(3)(B). That requirement is not
at issue here because 10 U.S.C. § 130(a), first codified at 10 U.S.C.
§ 140, was enacted well before 2009. See Pub. L. No. 98-94,
§ 1217(a), 97 Stat. 690 (1983).

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Id. § 130(c). Because “technical data with military or space
application,” as further defined by subsection 130(c), plainly
sets forth a “particular type[] of matter[] to be withheld,” 5
U.S.C. § 552(b)(3)(a)(ii), subsection 130(a) readily qualifies as
an Exemption 3 statute.
Answering the second question requires even less
discussion. There is no disagreement that the information
Newport seeks qualifies as “technical data with military or space
application,” and that it cannot be exported without a specific
license under the relevant export statutes. Accordingly, the
withheld information plainly falls within the coverage of
§ 130(a).
This would ordinarily end our inquiry, especially because
Newport does not seriously dispute any of the above analysis.
Nonetheless, Newport insists that Congress intended § 130(a)’s
withholding authority under FOIA to be limited by regulation to
“sophisticated technologies,” which it equates with the “critical
technologies” that it maintains are excluded from the purview of
Directive 5230.25. Newport contends that the rulemaking
authority contained in subsection (b) of § 130, as well as the
statute’s legislative history, demonstrate this congressional
intent; that § 130(a) cannot be applied without such a limiting
regulation; and that Directive 5230.25 -- which DOD issued
under § 130(b) -- incorporates the required limitation.
There is nothing in the text of § 130(b) that evidences a
congressional intent to restrict by regulation the broad
authorization to withhold data from FOIA disclosure that
§ 130(a) grants the Secretary of Defense. Subsection 130(b)
does direct the Secretary to promulgate regulations, but the only
regulations it mentions concern “releases of technical data to
allies of the United States and to qualified United States
contractors.” 10 U.S.C. § 130(b) (emphasis added). This

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cannot be a reference to disclosure under FOIA because that
statute requires agencies to make nonexempt records “available
to any person.” 5 U.S.C. § 552(a)(3)(A). That is, “FOIA does
not make distinctions based on who is requesting the
information.” Swan v. SEC, 96 F.3d 498, 499 (D.C. Cir. 1996).
Indeed, such distinctions would serve little purpose because
“[o]nce records are released, nothing in FOIA prevents the
requester from disclosing the information to anyone else,” id. at
500, including (as Newport acknowledges) to a country like
North Korea, see Oral Arg. Recording at 11:30-12:05.
Accordingly, a provision that contemplates releases only to U.S.
allies and contractors cannot be read as limiting the Defense
Department’s withholding authority under FOIA. 3
Newport further contends that the legislative history of
§ 130 demonstrates that Congress intended the Defense
Department to issue regulations under § 130(b) that would
narrow § 130(a)’s withholding authority. Because § 130’s text
and structure so plainly refute Newport’s position, we think little
of this argument. As the Supreme Court has recently
emphasized, specifically in the FOIA context, “[l]egislative
history, for those who take it into account, is meant to clear up
ambiguity, not create it.” Milner v. Dep’t of Navy, 131 S. Ct.
1259, 1267 (2011).
3 By comparison, we note that there is another provision in § 130
that may in fact evidence congressional intent to restrict by regulation
the FOIA exemption authorized by § 130(a). The last sentence of
§ 130(a) states: “However, technical data may not be withheld under
this section if regulations promulgated under either [the Export
Administration Act or the Arms Export Control Act] authorize the
export of such data pursuant to a general, unrestricted license or
exemption in such regulations.” 10 U.S.C. § 130(a). Newport does
not rely on this provision, presumably because it is inapplicable to the
data Newport seeks.

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In any event, neither of the congressional committee reports
that Newport cites supports its contention. The relevant passage
in the Senate Report describes types of “sophisticated
technologies” that the Defense Department should “give priority
to” in issuing guidelines for withholding under § 130(a). S. Rep.
98-174, at 261 (1983). But it does not say that the Department’s
withholding authority is limited to such information, or that
release of other information should be made pursuant to FOIA
without restrictions. The relevant passage in the House
Conference Report stresses that “nothing in [§ 130] is for the
purpose of limiting competitive bidding on U.S. government
contracts,” and that “the implementing regulations must address
the release of data to qualified U.S. contractors.” H.R. Rep. 98-
352, at 251 (1983) (Conf. Rep.) (emphasis added). But this tells
us nothing we do not already know from the text of § 130(b):
that Congress envisioned the disclosure, to qualified contractors,
of some data covered by § 130(a)’s exemption. It does not show
that Congress contemplated the disclosure of such information
to the general public under FOIA.
Finally, Newport argues that we should “treat [Directive]
5230.25” as if it were itself “an Exemption 3 statute.” And
because Newport believes the Directive only authorizes the Air
Force to withhold data depicting “critical technology,” it argues
that all other data must be released under FOIA. Newport Br.
28.
We note, first, that we need not determine whether
Directive 5230.25 actually limits withholding to data depicting
critical technology, a claim the Air Force rejects. 4 Because
4 The Air Force contends that, although the Directive states that
its application is limited to “technical data that disclose critical
technology” and that “the release of other technical data shall be
accomplished in accordance with” other specified DOD regulations,

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Newport has only appealed the dismissal of its FOIA claims, see
Newport Br. 5, it is not enough for it to show that the Air
Force’s policy violates Directive 5230.25. It must also
demonstrate that the policy violates FOIA.
In support of its suggestion that we treat the Directive --
rather than § 130(a) alone -- as the relevant FOIA exemption
statute, Newport cites our decision in Wisconsin Project on
Nuclear Arms Control v. Department of Commerce, 317 F.3d
275 (D.C. Cir. 2003). Newport describes Wisconsin Project as
a case in which this court “treated an executive order issued
pursuant to Congressional delegation of authority as an
Exemption 3 statute.” Br. 27. That case, however, is inapposite.
Wisconsin Project concerned the confidentiality of
applications for export licenses submitted by manufacturers of
“dual-use commodities” -- products that can be used for both
military and civilian purposes. 317 F.3d at 277. The Export
Administration Act (EAA) contained an express authorization
permitting the Commerce Department to withhold information
contained in such applications, see 50 U.S.C. app. § 2411(c),
and the Department incorporated that withholding provision in
its export regulations, 317 F.3d at 278. The problem was that
the EAA was enacted as a temporary measure, had lapsed and
been reinstated several times, and had lapsed again at the time
the plaintiff filed a FOIA request for certain license applications.
But in addition to the EAA, Congress had enacted another
statute, the International Emergency Economic Powers Act, 50
32 C.F.R § 250.2(a)(1), those other DOD regulations “do not require
unfettered access to non-critical technology,” Air Force Br. 29.
According to the Air Force, the other regulations “do not compel the
Air Force to release the Technical Orders at issue,” but rather
“specifically permit application of Exemption 3 statutes to the
Technical Orders.” Id. at 30.

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U.S.C. § 1701 et seq., which gave the President emergency
authority to regulate certain exports, and which “Congress
intended the President to use . . . ‘to continue the Export
Administration Regulations in effect’ should a ‘lapse’ occur in
the EAA.” 317 F.3d at 278 (quoting H. R. Rep. 95-149, at 13
(1977)). Exercising that authority when the lapse did occur, the
President issued an executive order directing “that the EAA’s
provisions ‘be carried out under this order so as to continue in
full force and effect.’” Id. at 279 (quoting Exec. Order No.
12,924, 59 Fed. Reg. 43,437, 43,437 (Aug. 19, 1994)). In light
of this “unique statutory framework created by Congress to
retain the confidentiality of export data,” the court concluded
that the data was exempt from disclosure under FOIA. Id. at
277.
The decision in Wisconsin Project depended on two
premises, neither of which holds here. First, the court looked to
the executive order only because the principal nondisclosure
statute, the EAA, had lapsed. Here, 10 U.S.C. § 130 is in full
effect, and there is no reason to look elsewhere to assess the Air
Force’s withholding authority. Second, the court emphasized
that the executive order “continued precisely the provision
originated and written by Congress” -- namely, the EAA. 317
F.3d at 284 (emphasis added). Here, by contrast, Newport
maintains that the Directive only authorizes withholding of data
that discloses critical technology, a limitation absent from the
provision written by Congress -- namely, § 130. With these two
premises missing, Wisconsin Project has no application to this
case.
IV
In sum, we conclude that § 130(a) is an Exemption 3
statute, and that it covers the FOIA requests that Newport has
made to the Air Force. Because § 130(b) does not address

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disclosures under FOIA, nothing in that subsection or the
regulations promulgated thereunder limits the withholding
authority granted by § 130(a). As a consequence, even
assuming arguendo that the Air Force is violating Directive
5230.25 by restricting the disclosure of technical information
that does not depict “critical technology,” that practice does not
violate FOIA. And, as we have noted above, the only issues that
Newport has preserved on this appeal are its FOIA claims. 5
Accordingly, the judgment of the district court is
Affirmed.
5 Newport’s brief contends that the Air Force also violated FOIA
by failing to disclose “reasonably segregable” portions of the
documents at issue. Br. 34. The nature of this contention is somewhat
unclear. To the extent Newport is arguing that the Air Force should
have redacted the portions relating to “critical technology” and
released the remainder, id., this contention is foreclosed by our
conclusion that the withholding authorized by § 130(a) is not limited
to critical technology. To the extent Newport is claiming that some of
the information in the documents it seeks has previously been
disclosed in other documents released under FOIA, and so should be
released under FOIA again, id. at 34-35 (citing Cottone v. Reno, 193
F.3d 550, 554 (D.C. Cir. 1999)), that claim is about specific
documents rather than policy, and thus has been mooted by Newport’s
receipt of the requested documents pursuant to Directive 5230.25. See
Payne, 837 F.3d at 490-91; supra Part II.

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