THE COURT BATTLE OVER COSTIND

JUDGE PAYNE ORDERS COMMERCE TO TURN OVER DOCUMENTS

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division


FILED

JUN 29 1999

CLERK, U.S. DISTRICT COURT
RICHMOND VA

CHARLES R. SMITH,

Plaintiff,

V.

                           Civil Action No. 3:98CV716

DEPARTMENT OF COMMERCE,

Defendant.

                             ORDER

In response to this Court's order of April 22, 1999, the
Department of Commerce produced directly to the Court, for in
camera review, the following documents which relate to the
plaintiff's pending Freedom of Information Act (FOIA) production
request: 1) Classified Documents (17 documents); 2) Unclassified
Redacted Documents (22 pages, R1-R22); and 3) Unclassified
Documents Withheld in their Entirety (116 pages, E1-Ell6).  Per
the agency, they are entitled to withhold and/or redact the
foregoing docUments pursuant to one of the statutory exemptions
set forth at 5 U.S.C. 552(b). Having conducted an in camera
review of the documents in conjunction with the respective
briefs, the following is hereby ORDERED:

A) EXEMPTIONS GRANTED

1) The claimed exemptions pursuant to 5 U.S.C. 552(b)(1) is
GRANTED with respect to all of the classified documents as they
are authorized pursuant to ". . . Executive order to be kept
secret in the interest of national defense or foreign policy."
All of the classified documents fall within the (b) (1)
exemption because each contains national security information
concerning the national defense or foreign policy interests of
the United States.    The Court also notes that each document
was created by an agency other than the Department of Commerce
and under Exec. Order No. 12,958, 60 FR 19825 (April 15, 1995),
these documents may not be disclosed without the authorization
of the creating department or agency.  See id. at 3.7. In
addition, the Court has no basis from which to conclude that the
documents are not in fact properly classified pursuant to such
Executive order.

2) The claimed exemption pursuant to 5 U.S.C. 552(b)(3) is
GRANTED for those classified documents which reveal identifying
information about Central Intelligence Agency (C!A) personnel.
Pursuant to the Central Intelligence Agency Act of 1949, such
information is statutorily exempt from disclosure. See 50 U.S.C.
403; CIA v. Sims, 471U.S. 159 (1985).

3) The claimed exemption pursuant to 5 U.S.C. 552(b)(4) is
GRANTED for the following documents as they reflect "commercial
or financial information" and release is likely to impair the
government's ability to obtain similar information in the future
or will cause substantial harm to the competitive position of
the entity from which the information was obtained.

          i) unclassified Redacted Documents: Pages R2-R3, R7

          ii) Unclassified Withheld Documents: Pages E1-E5,

4) The claimed exemption pursuant to 5 U.S.C. 552(b)(5) is
GRANTED for the following documents as they reflect inter- or
intra-agency non-final decisions, proposals, draft documents,
deliberations, and/or export/license applications currently
under review.

          i) Unclassified Withheld DoCumentS: Pages E6-E9, E26-42,
          E48-52 E56-65, E70-86, E110, E114.

5) The claimed exemption pursuant to 5 U.S.C. 552(b)(7) is
GRANTED for the following documents as they were complied and
prepared to carry out government investigatory purposes in
enforcing export administration regulations and/or they relate
to ongoing government investigations.

          i) Unclassified withheld Documents: Pages E6-E22.

B)       EXEMPTIONS DENIED

1) The claimed exemption pursuant to 5 U.S.C. 552(b)(4) is
DENIED with respect to the following document.

          i) Unclassified Redacted Documents: Page R10

Not later than 5:00 p.m., July 12, 1999, the defendant shall
deliver to the plaintiff an unredacted copy of the foregoing
document.

2) The claimed exemption pursuant to 5 U.S.C. 552(b)(5) is
DENIED with respect to the following documents.

          i) Unclassified Redacted Documents:  Page R11

          ii) Unclassified Withheld Documents:  Pages E53-E55

Not later than 5:00 p.m., July 12, 1999, the defendant shall
deliver to the plaintiff unredacted copies of the foregoing
documents.

3) The claimed exemption pursuant to 5 U.S.C. 552(b)(7) is
DENIED with respect to the following document.

          i) Unclassified Redacted Documents: Page R11

Not later than 5:00 p.m., July 12, 1999, the defendant shall
deliver to the plaintiff unredacted copies of the foregoing
document.

 C) MISCELLANEOUS

1) The following documents were produced in their entirety to
the plaintiff and accordingly, the defendant's claim of
entitlement to make redactions is DENIED AS MOOT.

          i) Unclassified Redacted Documents: Pages R1, R4-R6, 
             R8, R9.

2) According to the plaintiff, the following documents have
previously been provided and accordingly, the defendant's
current claim of exemption is DENIED AS MOOT:

          i) Unclassified Withheld Documents: Pages E44-E47.

3) The following documents were not addressed in the defendant's
brief and accordingly, no ruling will be made. Not later than
5:00 p.m., July 12, 1999, the defendant shall file a brief
identifying the asserted statutory exemption for the following
documents, with supporting rationale.

          i) Unclassified Withheld Documents: Pages E23-E25, E43,
             E87-E109, and E111-E113.

4) The following documents were addressed in the defendant's
brief, yet no copies were provided to the Court.

          i) Unclassified Redacted Documents: Pages R23-R24

Not later than 5:00 p.m., July 12, 1999, the defendant shall
provide copies of the foregoing documents to the Court for in
camera review.

5) The defendant asserts that the following documents are non-
responsive to the plaintiff's pending FOIA request.

          i) Unclassified Redacted Documents: Pages R12-R22.

The Court concurs with the defendant's assessment. Accordingly,
those documents need not be produced to the plaintiff.

6) The front page of document E66-E69 states all "[r]equests for
this document from outside the U.S. Government must be referred
to the Defense Intelligence Agency, Washington D.C. 20340-0001."
Not later than 5:00 p.m., July 12, 1999, the defendant shall
file a statement with the Court indicating on what date the
plaintiff's request was referred to the Defense Intelligence
Agency and what that agency's response was, or if none has been
received, the expected response date.

7) Not later than 5:00 p.m., July 12, 1999, the defendant shall
file a statement with the Court indicating on what date it
requested permission from the Department of Defense to release
documents E115 and E116 and what that agency's response was, or
if none has been received, the expected response date.

The Clerk is directed to send a copy of this Order to counsel of
record for the defendant by facsimile and regular mail and to
the plaintiff by regular mail.

It is so ordered.

Robert E. Payne
United States District Judge

Richmond, Virginia
Date:  JUN 29 1999


SOFTWAR INSIDE THE "INTELLIGENCE AGENCY"
THE WHITE HOUSE/INTELLIGENCE AGENCY DATA FOR DNC DONORS










THE SOFTWAR LAWSUIT AGAINST COMMERCE


UNITED STATES DISTRICT COURT
FOR THE COMMONWEALTH OF VIRGINIA


CHARLES R. SMITH                             )
7707 WHIRLAWAY DRIVE                         )
MIDLOTHIAN, VA 23112                         )
                                             )
         Plaintiff                           )
                                             )
         V.                                  )
                                             )
Serve For                                    )
                                             )
DEPARTMENT OF COMMERCE                       )
14TH & CONSTITUTION AVE.                     )
WASHINGTON, D.C.  20230                      )
                                             )
         Defendant                           )
                                             )
ATTORNEY GENERAL OF THE                      )
UNITED STATES                                )
MAIN JUSTICE BUILDING                        )
10TH & CONSTITUTION AVE., N.W.               )
WASHINGTON, D.C.  20530                      )
                                             )
UNITED STATES ATTORNEY FOR THE               )
EASTERN DISTRICT OF VIRGINIA                 )
MAIN STREET CENTRE, 18TH FLOOR               )
600 EAST MAIN STREET,                        )
RICHMOND, VA  23219                          )
                                             )
                                             )
                                             )
_____________________________________________)

COMPLAINT FOR DECLARATORY AND INJUCTIVE RELIEF

Comes now Plaintiff, Charles R. Smith, and hereby files a
complaint for compliance with the Freedom of Information Act
("FOIA"), 5 U.S.C.,  552 as amended, Charles R. Smith
respectfully alleges as follows:

1.  This is an action brought under FOIA to order the production
of documents and records of the Department of Commerce ("DOC").

2.  This court has jurisdiction over this action pursuant to 5
U.S.C. sec  552 (a) (4) (B).

3.  Plaintiff Charles R. Smith is a journalist and the owner of
a Virginia based information security company whose principle
place of business is 7707 Whirlaway Drive, Midlothian, Virginia.
Plaintiff, the requester of the withheld documents, is a
recognized independent journalist, as per written documentation
provided by the Department of Defense, Central Intelligence
Agency and the Department of Commerce, and is dedicated to the
dissemination of accurate information, protecting the lives,
property and privacy of all citizens.  In pursuit of those
principles, Plaintiff is empowered to take legal and other
corrective actions that will serve the public interest.

4.  Defendant Department of Commerce ("DOC") is an agency of the
United States government, established by statute and charged
with the responsibility of international and domestic commerce.
It's principle place of business, and the offices responsible
for the purposes of legal, FOIA and public affairs is located
inside the District of Columbia.  The Defendant agency has
possession of the documents and records to which Plaintiff seeks
access.

5.  Plaintiff filed with the Defendant on June 1, 1998 via mail
a FOIA request in the form of a letter to the FOIA officer,
requesting access to records within the agency under 5 U.S.C.  
552, FOIA, see Exhibit-1. Access was requested for all
information with regards to the Chinese Commission On Science,
Technology, and Industry for National Defense (COSTIND).

6.  By letter dated September 1, 1998, Defendant ("DOC")
responded to the FOIA request, see Exhibit-2.  The Defendant
indicated that NO search for responsive records were performed.
The Defendant "cannot confirm nor deny" the existence of
responsive records.  The Defendant's denial is based on the
assertion by Defendant that a search for responsive data on
"COSTIND" wound not be in the "national interest".  In addition,
the Defendant asserted that "No other components of BXA (Bureau
of Export Administration) located responsive documents" to the
FOIA request.

7.  Plaintiff appealed the withholding of these documents to the
Defendant in a letter dated September 18, 1998, see Exhibit-3.
Plaintiff noted in the appeal that the Defendant had previously
released large amounts of materials on "COSTIND", including
details on meetings with COSTIND officials and the Chairman of
LORAL Corporation.  Further documents provided by the Defendant
give detailed information on members of COSTIND and COSTIND
operations with U.S. company officials.  Plaintiff noted in the
appeal that the Defendant did not deny access to responsive
documents documents on COSTIND that were previously returned by
the Defendant.

8.  The Plaintiff has given nearly 60 days for the Defendant to
respond to the appeal, and has complied with all Defendant
requests to provide further information.  The Plantiff is in
compliance with all provisions under the Freedom of Information
Act (FOIA) 5 U.S.C.  552.

9.  As of November 17, 1998, the Defendant has failed to comply
within the time limit and the Plaintiff shall be deemed to have
exhausted its administrative remedies with respect to this
request, pursuant to 5 U.S.C.  552 (a) (6) (C).

10.  Plaintiff has a right of access to the documents and
records refused, pursuant to 5 U.S.C.,  552 (a) (3), and
Defendant has no legal basis for refusing to disclose these
documents and records to the Plaintiff.

WHEREFORE, Plaintiff prays that this Court:

         (1)  Declare that Defendant's refusal to disclose
              records requested by Plaintiff is unlawful;

         (2)  Order Defendant to make the requested records
              available to the Plaintiff,

         (3)  Award Plaintiff its costs and reasonable
              attorney's fees in this action and

         (4)  Grant such other and further relief as the Court
              may deem just and proper.


                           Respectfully submitted,
                           
                           Charles R. Smith
                           Plaintiff

November 17, 1998

THE COURT RULES IN FAVOR OF SOFTWAR


IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

CHARLES R. SMITH

Plaintiff

v.                Civil Action No. 3:98cv716

DEPARTMENT OF COMMERCE,

Defendant.

                  ORDER

Having considered the Complaint and the Answer and the other
pleadings filed herein and having conferred with counsel at an
Initial Pretrial Conference, it is hereby ORDERED that the
Initial Pretrail Conference in this action is continued for a
period of sixty (60) days so that the defendant can forthwith
identify, and promptly produce, all documents requested by the
plaintiff which are not privileged or subject to statutory or
regulatory exemption for production.

It is further ORDERED that within sixty (60) days of the date of
the entry of this ORDER the defendant shall produce for in
camera inspection all requested documents as to which any claims
of privilege inspection or statutory execmption is made together
with a brief specifically describing the claim of privilege or
other exemption from production.

The Clerk is directed to send a copy of this ORDER to all
counsel of record.

It is so ORDERED.

Judge Payne

United States District Judge

Richmond, Virginia
Date:  FEB 23 1999


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