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

CHARLES R. SMITH,

Plaintiff,
v.

DEPARTMENT OF COMMERCE,

Defendant

Civil Action No. 3:98CV716

DEFENDANT'S RESPONSE TO REQUEST FOR FOIA DOCUMENTS

COMES NOW the defendant Department of Commerce, through its attorney Joan E. Evans, Assistant United States Attorney for the Eastern District of Virginia, and respectfully makes the following response to plaintiff's request for documents pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552 et seq., ("the Act"), and pursuant to the Order of this honorable court entered February 23, 1999.

1. FOIA Request

On June 1, 1998 plaintiff Charles R. Smith made a request to the defendant Department of Commerce (hereafter, "the defendant" or "the department") for "[a]ll information on China's Commission of Science, Technology, and Industry for National Defense or "COSTIND" between January 1, 1993 and the present." In a follow-up telephone call between the plaintiff' and Brenda Dolan, the department' s FOIA officer, the defendant was advised that Mr. Smith intended his request to cover only information concerning COSTIND which relates to export or technology transfers. Based on this understanding, the defendant' s FOIA officer turned


the request over to the Bureau of Export Affairs (BXA), which was the component of the Department of Commerce that -- in the opinion of the FOIA officer -- was most likely to possess responsive documents.

In its initial response dated September 1, 1998, the plaintiff was advised that the defendant could neither confirm nor deny the existence of responsive documents from two components of the BXA: the Office of Exporter Services and the Office of Export Enforcement.1 In addition, the plaintiff was advised that "[n]o other components of BXA located responsive documents." Following plaintiff's appeal of the defendant's response, this court directed the defendant to renew its search for responsive documents using more liberal criteria for its search. In addition, the court directed the defendant to release for in camera inspection any documents as to which a claim of exemption from disclosure was being made, together with the reasons for non-disclosure as to each such document.

The defendant has provided 17 pages of classified documents directly to the court.

In addition, the defendant has disclosed 1,005 pages of documents (numbered 1-1005) in full, and 22 pages of documents in redacted form (numbered. R1-R22). The defendant has withheld 115 pages of documents in their entirety, as wholly exempt from disclosure (numbered E1-E115). The following memorandum discusses the classified documents, documents R1 through R22, and documents E1 through E115.

1 In neither confirming nor denying the existence of certain documents, the defendant made what has come to be known as a "Glomar response." The term 'Glomar response' is derived from a case concerning a FOIA request for records relating to an underwater sea craft called the "Glomar Explorer;" which craft was registered under the name of a public corporation but actually operated by the CIA. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) for the etiology of the Glomar response.

2

Classified Documents

1. SECRET 15 page report - March 25, 1998

2. SECRET 9 pages of charts - no date

3. SECRET 8 pages of charts - no date

4. SECRET 4 pages of charts - no date

5. SECRET 19 page report - December 19, 1997

6. SECRET 22 pages of charts - no date

7. SECRET 17 page report - July 15, 1996

8. SECRET 33 pages of charts - no date

9. SECRET 5 page cable - March 31, 1994

10. SECRET 6 page report - March 25-26, 1998

11. SECRET 1 page chart - no date

12. CONFIDENTIAL 5 page memo - March 17, 1998

13. CONFIDENTIAL 3 page cable - August 25, 1994

14. CONFIDENTIAL 3 page cable - August 25, 1994 and 3 page fax - March 13, 1998.

15. CONFIDENTIAL 3 page fax - March 13, 1998

16. SECRET letter - October 7, 1993 and 43 page report - June 22, 1993

17. SECRET 10 page report - April 30, 1996

Discussion

17 pages of documents which have been classified have been withheld from the plaintiff in their entirety pursuant to exemption (b)(1) of the Act, 5 U.S.C. 552(b)(1)(A).

3

Exemption (b)(1)(A) protects from disclosure national security information concerning the national defense or foreign policy, provided the information has been properly classified in accordance with the requirements of a pertinent executive order.

The 17 classified documents all fall within the (b)(1) exemption because each contains national security information concerning the national defense or the United States foreign policy; each was created by a government department or agency other than the Department of Commerce; and each has been properly classified in accordance with the norms set forth in Executive Order No. 12,958 (Feb. 27, 1996)(3, C.F.R. 353 (1997), reprintedat **, or its predecessor, Executive Order No. 12,356. Under Executive Order 12958 and its predecessor, these documents may not be disclosed without the authorization of the creating department or agency. The documents, created by the United States Department of Defense, Central Intelligence Agency or Department of State, address various aspects of China's activities that are the subject of U. S. foreign policy efforts and could (or do) concern the national defense. As the documents include information that relates to sensitive foreign relations or foreign activities, they are properly excludeable under the pertinent executive orders and exemption b(1)(A) of the Act. The release of these documents could harm the effective conduct of U. S. foreign policy and the protection of U. S. national security.

In addition, the names of individuals in some of the documents are also being withheld pursuant to exemption (b)(3), which protects from disclosure information specifically exempted from disclosure by statute, provided that the relevant statute either (A) requires that the 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 to be

4

withheld. The statute which exempts the information from disclosure is section six of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403g), which satisfies part B of exemption (b)(3) and which protects identifying information about Central Intelligence Agency (CIA) personnel, including the functions, names, and official titles of personnel employed by the CIA. The release of these names could expose these employees to potentially dangerous situations.

II Non-classified Documents Withheld in Whole

For the following reasons, the documents numbered E1 through E116 were withheld in their entirety.

Five-page report "US Technology Transfers to China" DFI International - March 1-22, 1998 (E1-E5). This document is withheld under 5 U.S.C. 552 (b)(4), because it consists of confidential commercial information relating to the business and trade of U.S. companies in China and Hong Kong. The information from a corporation as part of that corporation's contract with the government. The information is confidential because its release is likely to impair the government' s ability to collect such information in the future. The corporation was able to collect the information by promising the business and foreign government officials interviewed that their views would be kept confidential. If this information is released, it will impair the government' s ability to contract to obtain similar information in the future.

2. Two-page list "RPT, OEE. SCREEN" - February 1, 1997 (E6-E7).

5

Exemptions: 5 U.S.C. (b)(5), (b)(7)(A) and (E). This document is withheld under (b)(5) because it contains information used in ongoing decisions on whether to approve or deny applications to export dual-use items (commodities and technologies that have commercial uses but also can be used to develop conventional arms and weapons of mass destruction (i.e. nuclear, chemical, and biological weapons and missiles to deliver such weapons). The Department of Commerce's Bureau of Export Administration (BXA), along with other departments and agencies, reviews such applications to determine whether the proposed exports could harm U.S. national security or foreign policy. This document is part of the electronic database BXA uses to evaluate parties to the proposed export. Release of it would harm the decision making process and could confuse the public because parties are placed on the screen for a variety of reasons.

This document is withheld under (b)(7) because it was compiled and is used to carry out the investigatory activities of the export enforcement unit of the Department of Commerce' s Bureau of Export Administration (BXA). Specifically, it is pan of an electronic database used to screen applications for the export of dual-use items (commodities and technologies that have commercial uses but also can be used to develop conventional arms and weapons of mass destruction (i.e. nuclear, chemical, and biological weapons and missiles to deliver such weapons). These license applications are screened to prevent and investigate possible violations of the Export Administration Regulations. The parties on this screening list are placed there based on a variety of sources developed and used by BXA's export control enforcement personnel.

The release of this document could reasonably be expected to interfere with this screening process by allowing persons to take steps to evade the screening process. Release

6

would also disclose BXA's techniques and procedures for enforcing the Export Administration Regulations.

3. Two-page list "RPT.OEE. SCREEN" - February 24, 1996 (E8-E9).

Exemptions: (b)(5),(b)(7)(A) and (5). This document is withheld under (b)(5) because it contains information used in ongoing decisions on whether to approve or deny applications to export dual- use items (commodities and technologies that have commercial uses but also can be used to develop conventional arms and weapons of mass destruction (i.e. nuclear, chemical, and biological weapons and missiles to deliver such weapons). The Department of Commerce's Bureau of Export Administration (BXA), along with other departments and agencies, reviews such applications to determine whether the proposed exports could harm U.S. national security or foreign policy. This document is part of the electronic database BXA uses to evaluate parties to the proposed export. Release of it would harm the decision making process and could confuse the public because parties are placed on the screen for a variety of reasons. This document is withheld under (b)(7) because it was compiled and is used to carry out the investigatory activities of the export enforcement unit of the Department of Commerce' s Bureau of Export Administration (BXA). Specifically, it is part of an electronic database used to screen applications for the export of dual-use items (commodities and technologies that have commercial uses but also can be used to develop conventional arms and weapons of mass destruction (i.e. nuclear, chemical, and biological weapons and missiles to deliver such weapons). These license applications are screened to prevent and investigate possible violations of the Export Administration Regulations. The parties on this screening list are placed

7


there based on a variety of sources developed and used by BXA's export control enforcement personnel.

The release of this document could reasonably be expected to interfere with this screening process by allowing persons to take steps to evade the screening process. Release would also disclose BXA's techniques and procedures for enforcing the Export Administration Regulations.

4. Two-page e-mail "Helms Testimony" - December 21, 1997 (E10-E11) Exemptions: (b)(5), (b)(7)(A) and (E). This document is withheld under (b)(5) because it contains information related to ongoing decisions on whether to approve or deny applications to export dual-use items (commodities and technologies that have commercial uses but also can be used to develop conventional arms and weapons of mass destruction (i.e. nuclear, chemical, and biological weapons and missiles to deliver such weapons). The Department of Commerce's Bureau of Export Administration (BXA), along with other departments and agencies, reviews such applications to determine whether the proposed exports could harm U.S. national security or foreign policy. Release of it would harm the decision making process.

This document is withheld under (b)(7) because it was compiled and is used to carry out the investigatory activities of the export enforcement unit of the Department of Commerce's Bureau of Export Administration (BXA). Specifically, it was written by BXA's export control enforcement representative in China and it refers specifically to both to an investigation and a document used in BXA's investigatory process.

The release of this document could reasonably be expected to interfere with the

8

specific investigation and BXA's ongoing efforts to enforce the Export Administration Regulations.

5. Nine-page printout "Screen Search" - no date (E14-E22). Exemptions: (b)(5), (b)(7)(A) and (E). This document is withheld under (b)(5) because it contains information used in ongoing decisions on whether to approve or deny applications to export dual-use items (commodities and technologies that have commercial uses but also can be used to develop conventional arms and weapons of mass destruction (i.e. nuclear, chemical, and biological weapons and missiles to deliver such weapons). The Department of Commerce's Bureau of Export Administration (BXA), along with other departments and agencies, reviews such applications to determine whether the proposed exports could harm U.S. national security or foreign policy. This document is part of the electronic database BXA uses to evaluate parties to the proposed export. Release of it would harm the decision making process and could confuse -the public because parties are placed on the screen for a variety of reasons.

This document is withheld under (b)(7) because it was compiled and is used to carry out the investigatory activities of the export enforcement unit of the Department of Commerce' s Bureau of Export Administration (BXA). Specifically, it is part of an electronic database used to screen applications for the export of dual-use items (commodities and technologies that have commercial uses but also can be used to develop conventional arms and weapons of mass destruction (i.e. nuclear, chemical, and biological weapons and missiles to deliver such weapons). These license applications are screened to prevent and investigate possible violations of the Export Administration Regulations. The parties on this screening list are placed

9

there based on a variety of sources developed and used by BXA' s export control enforcement personnel.

The release of this document could reasonably be expected to interfere with this screening process by allowing persons to take steps to evade the screening process. Release would also disclose BXA's techniques and procedures for enforcing the Export Administration Regulations.

6. Six-page memo "Approval of the Asia Pacific Mobile Telecommunications License Applications" - no date (E26-E31). Exemptions: (b)(4), (b)(5). This document is withheld under (b)(4)because it contains contain commercial information regarding a company' s specific business transaction (a proposed export subject to U.S. export control regulations) obtained from that company on the understanding that the government would keep it confidential. Release of this information could both impair the government's ability to obtain similar information in the future and could expose the submitting company' s competitive position to substantial harm.

This document is withheld under (b)(5) because it contains information used in ongoing decisions on whether to approve or deny applications to export dual-use items (commodities and technologies that have commercial uses but also can be used to develop conventional arms and weapons of mass destruction (i. e. nuclear, chemical, and biological weapons and missiles to deliver such weapons). The Department of Commerce's Bureau of Export Administration (BXA), along with other departments and agencies, reviews such applications to determine whether the proposed exports could harm U.S. national security or

10

foreign policy. This document is part of the electronic database BXA uses to evaluate parties to the proposed export. Release of it would harm the decision making process.

7. Six-page memo "Approval of the Asia Pacific Mobile Telecommunications License Applications" - no date (E32-E37). Exemptions: (b)(4), (b)(5). This document is withheld under (b)(4)because it contains contain commercial information regarding a company's specific business transaction (a proposed export subject to U.S. export control regulations) obtained from that company on the understanding that the government would keep it confidential. Release of this information could both impair the government's ability to obtain similar information in the future and could expose the submitting company's competitive position to substantial harm.

This document is withheld under (b)(5) because it contains information used in ongoing decisions on whether to approve or deny applications to export dual-use items (commodities and technologies that have commercial uses but also can be used to develop conventional arms and weapons of mass destruction (i.e. nuclear, chemical, and biological weapons and missiles to deliver such weapons). The Department of Commerce' s Bureau of Export Administration (BXA), along with other departments and agencies, reviews such applications to determine whether the proposed exports could harm U.S. national security or foreign policy. This document is part of the electronic database BXA uses to evaluate parties to the proposed export. Release of it would harm the decision making process.

8. One-page e-mail "ATC Addendum" - January 24, 1995 (E38). Exemptions: (b)(5). This document is withheld under (b)(5) because it contains information related to

11

potential decisions on whether to approve or deny applications to export dual-use items (commodities and technologies that have commercial uses but also can be used to develop conventional arms and weapons of mass destruction (i.e. nuclear, chemical, and biological weapons and missiles to deliver such weapons). The Department of Commerce's Bureau of ExpOrt Administration (BXA), along with other departments and agencies, reviews such applications to determine whether the proposed exports could harm U.S. national security or foreign policy. This document is part of the electronic database BXA uses to evaluate parties to the proposed export. Release of it would harm the decision making process.

9. Three-page talking points "Telecommunications Exports to China" - January 22, 1996 (E39-E41). Exemptions: (b)(5). This document is withheld under (b)(5) because it was developed as part of the decision making process to decide whether the government should publicly respond to allegations about a particular export to China. As there is nothing on the document that indicates it was actually used for public discussions, its release would harm the decision making process by discouraging the full consideration of facts to decision makers.

10. One-page talking point "End Use/End Users" - January 22, 1996 (E42). Exemptions: (b)(5). This document is withheld under (b)(5) because it was developed as part of the decision making process to decide whether the government should publicly respond to allegations about a particular export to China. As there is nothing on the document that indicates it was actually used for public discussions, its release would harm the decision making process by

12

discouraging the full consideration of facts to decision makers.

11. One-page fax cover "China Proposal" - December 1, 1994, and attached three-page memo "Defense Conversion in China: A Proposal" - October 16, 1994 (E83-86) Originating agency: Arms Control and Disarmament Agency. Exemptions: (b)(5). This document is withheld under (b)(5) because it was developed as part of the decision making process on how the U.S. government should engage China on the conversion of China's defense enterprises to commercial production (defense conversion). Originated by another agency, its release would harm the decision making process by discouraging other agencies from providing the Department of Commerce with candid views and proposals.

12. 13-page draft report by General Accounting Office -- October xx, 1996 Originating agency: General Accounting Office (E70-E82). Exemptions: (b)(5). This document is withheld under (b)(5) because it is a draft report from the General Accounting Office (GAO). Its release could confuse the public because a final public version has already been released.

13. Five-page questions and answers regarding Hua Mei - no date Originating agency: Department of Defense (E44-E47). Exemptions: (b)(5). This document is being withheld under (b)(5) because was originated by the Department of Defense as part of the process of deciding how to respond to allegations about an export to China.

As there is nothing on the document that indicates it was actually used for public discussions, its release would harm the decision making process by discouraging the full consideration of facts to decision makers.

13

14. Two-page proposal "Proposed Eight Step Process - U.S.-China Air Traffic Control Cooperation Under the U.S. China Defense Conversion Commission" - December 28, 1994 (E48-E49). Originating agency: Department of Defense; Exemptions: (b)(3)

This document is being withheld under (b)(5) because it contains proposals originated by the Department of Defense as part of the process of deciding how to respond to allegations about an export to China. Its release would harm the decision making process by discouraging other agencies from providing the Department of Commerce with candid views and proposals.

15. Two-page chart - no date (E50-E51). Originating agency: Department of Defense; Exemptions: (b)(5). This document is being withheld under (b)(5) because it was and is used in decisions on export control and defense conversion activities with China. Its release could harm the decision making process by discouraging the Department of Defense from providing such information to the Department of Commerce in the future.

16. Seven-page fax (1 page) and background information (6 pages) - no date (E52-E58). Originating agency: Department of Defense; Exemptions: (b)(5). This document is being withheld under (b)(5) because it was used in decisions on defense conversion activities with China. Its release could harm the decision making process by discouraging the Department of Defense from providing such information to the Department of Commerce in the future.

17. Three-page excerpt "China's Defense-Industrial Trading Organizations" - October 1995 (E66-E69); Originating agency: Department of Defense;

14

Exemptions: (b)(5). This document is being withheld under (b)(5) because it was used in decisions on defense conversion activities with China. Its release could harm the decision making process by discouraging the Department of Defense from providing such information to the Department of Commerce in the future.

18. Seven-page minutes "U. S.-China Joint Defense Conversion Commission Minutes of the First Meeting-Beijing, October 17, 1994 - October 17, 1994 (E59-E65) Originating agency: Department of Defense; Exemptions: (b)(5). This document is being withheld under (b)(5) because it records U.S.-China discussions on defense conversion activities. As there is no indication that this document, prepared by the Department of Defense, is the final version, its release could harm the decision making process by discouraging the Department of Defense from providing such information to the Department of Commerce in the future.

19. One-page minutes "Minutes of the Industry Roundtable on Defense Conversion in China" - no date (E110). Contains information originated by the Department of Defense; Exemptions: (b)(5). This document is being withheld under (b)(5) because it records positions reportedly taken by the Department of Defense in U.S.-China discussions on defense conversion activities. As the Department of Defense has not yet confirmed that the characterization of its position is accurate, its release could confuse the public by providing inaccurate information.

15

20. One-page chart - no date (E114). Originating agency: Department of Defense Exemptions: (b)(5). This document is being withheld under (b)(5) because it was and is used in decisions on export control and defense conversion activities with China. Its release could harm the decision making process by discouraging the Department of Defense from providing such information to the Department of Commerce in the future.

21. One- page letter - January 31, 1995 (E115). Originating agency: Department of Defense. Exemptions: (b)(5). This document is being withheld under (b)(5) because it was originated by the Department of Defense. Its release without the concurrence of that department could harm the decision making process by discouraging the sharing of such documents with the Department of Commerce in the future, thus hampering Commerce' s ability to carry out its functions.

IXI. Unclassified documents withheld in part

1. 1 page fax - October 4, 1995 and 2 page letter - no date (R23 - R24, E116) Originating agency: Department of Defense;Exemptions: (b)(5); Portions of this document are being withheld under (b)(5) because it was originated by the Department of Defense. Its release without the concurrence of that department could harm the decision making process by discouraging the sharing of such documents with the Department of Commerce in the future, thus hampering Commerce's ability to carry out its functions.

2. Nine-page minutes - 1 page fax - April 5, 1995 and 8 page "Minutes from Visit of

16

LTG Huai Guomo March 27-29, 1995" - no date (R1-Rg). Originating agency: Department of Defense. Exemptions: (b)(4),(b)(5). Portions of this document are being withheld under (b)(5) because it records positions reportedly taken by the Department of Defense in U.S.-China discussions on defense conversion activities. As the Department of Defense has not yet confirmed that the characterization of its position is accurate, its release could confuse the public by providing inaccurate information.

Portions of this document are being withheld under (b)(4) because they contain confidential commercial information, the release of which would impair the government's ability to collect such information and would cause competitive harm to the companies concerned.

3. One- page letter - January 19, 1996 (R10) Exemptions: (b)(4). Portions of this document are being withheld under (b)(4) because they contain confidential commercial information, the release of which would impair the government's ability to collect such information and would cause competitive harm to the companies concerned.

4. One-page e-mail "Chinese company list - Reply" - November 30, 1995 (R11) Exemptions: (b)(5), (b)(7). Portions of this document are being withheld under (b)(5) because they are part of two separate decision making processes (vetting of entities and persons involved in a trade mission and screening of export license applications). Release of this information would harm the decision making process by discouraging candid exchange of sensitive information and could confuse the public by releasing information which may not be current.

Portions of this document are also withheld under (b)(7) because they would

17

reveal information about BXA's export license screening process. Release of this information could enable parties to evade the requirements of the Export Administration Regulations.

5. Two-page e-mail "Export Control Interagency Working Group: 4/16/98" - April 16, 1998 (R12-R13). Exemptions: none but nonresponsive information redacted.

6. Nine-page memo "Weekly Report for the Week of April 20 - 24" - April 20, 1998 (R14-R22) Exemptions: none but nonresponsive information redacted.

Respectfully submitted,

By:

HELEN F. FAHEY UNITED STATES ATTORNEY

Joan E. Evans
Assistant United States Attorney
Suite 1800, Main Street Centre
600 E. Main Street
Richmond, Virginia 23219
804-771-2186

All content COPYRIGHT SOFTWAR (C) 2000. Any reproduction or use of content herein must be approved by SOFTWAR.