Disclosure of Information Collected Under the Export Administration Act ( 1981 )

Disclosure of Information Collected Under
the Export Administration Act
Information collected under the Export Administration A ct which is authorized to be
made available to other federal agencies under the Paperwork Reduction A ct of 1980
may be released by the Department o f Commerce to federal law enforcement and
intelligence agencies without a prior determination that it would serve the national
interest to do so.
Section 12(c) of the Export Administration A ct was not intended to prohibit disclosure to
other federal agencies, but merely prohibits disclosure of certain confidential trade
information to the public.
Confidential information obtained pursuant to the Export Administration A ct which is
not covered by the Paperwork Reduction Act, and is exempt from disclosure under the
Freedom of Information A ct, may be released to federal law enforcement and intelli­
gence agencies notwithstanding the prohibition in 18 U.S.C. § 1905, if the Secretary of
Commerce determines under § 12(c) o f the Export Administration Act that failure to
make such disclosure would be contrary to the national interest.
In the exercise of his discretion under § 12(c), the Secretary o f Commerce is subject to
the review and direction o f the President, and the President thus has the power, which
he has previously exercised, to direct the Secretary to make a determination and
authorize release of information.
August 24, 1981
MEMORANDUM OPINION FOR THE COUNSEL FOR
INTELLIGENCE POLICY, DEPARTMENT OF JUSTICE
This responds to your request for our opinion whether the Export
Administration Act precludes the Secretary of Commerce from making
a general determination that the national interest would be served by
the routine disclosure of information collected under the Act to law
enforcement and intelligence agencies. You also asked whether the
Export Administration Act would authorize an amendment to the regu­
lations promulgated under the Act to define “export” to include the
release of goods or technical data where the transferer “knows or has
reason to know” that they will be shipped or transmitted from the
United States to a foreign country. We addressed and resolved this
question by our memorandum to the Department of Commerce of July
28, 1981, and a more extensive memorandum to the Department of
State of July 1, 1981, copies of which we have enclosed for you. With
respect to the first question, we have concluded that all information
collected by the Department of Commerce under the Export Adminis-
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tration Act of 1979, Pub. L. No. 96-72, 93 Stat. 503, 50 U.S.C. App.
§§ 2401-2420 (Supp. Ill 1979), which falls under the definition of “col­
lection of information” set forth in the Paperwork Reduction Act of
1980, Pub. L. No. 96-511, § 2(a) 94 Stat. 2812, 44 U.S.C. §§ 3501-3520(Supp. IV 1980), may be released to other federal agencies, including
law enforcement and intelligence agencies. With respect to other confi­
dential information obtained pursuant to the Export Administration Act
which is not covered by the Paperwork Reduction Act, we perceive no
legal reason why the Secretary of Commerce cannot make a general­
ized determination that disclosure to federal law enforcement and intel­
ligence agencies is in the national interest and waive the confidential
treatment of the information to the extent of such a transfer.
I. Paperwork Medtactiom Act
Our analysis focuses initially on the Paperwork Reduction Act rather
than on the question specifically raised by your request—whether infor­
mation obtained under the Export Administration Act could be dis­
closed to federal law enforcement agencies upon a general determina­
tion by the Secretary of Commerce that such disclosure is in the
national interest—because we believe that, with the enactment of the
Paperwork Reduction A ct after the submission of your opinion request,
most of the information is authorized to be disclosed to other federal
agencies without a national interest determination by the Secretary.
With respect to information that may be shared under the Paperwork
Reduction Act, the question of the need for a national interest determi­
nation arises only when a federal agency seeks to disclose confidential
information obtained under the Export Administration Act to the
public.
The Paperwork Reduction Act of 1980, which replaced the Federal
Reports Act, Pub. L. No. 90-620, 82 Stat. 1302, provides:
The Director [of Office of Management and Budget] may
direct an agency to make available to another agency, or
an agency may make available to another agency, infor­
mation obtained pursuant to an information collection re­
quest if the disclosure is not inconsistent with any applica­
ble law.
94 Stat. at 2822, 44 U.S.C. §3510 (Supp. IV 1980). Thus, the Department
of Commerce is authorized by the Paperwork Reduction Act to share
information with other federal agencies, including law enforcement and
intelligence agencies, when the following conditions are present:
1) The information is obtained pursuant to an information
collection request; and
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2) The disclosure of information is not inconsistent with
any applicable law.
A. “Information Collection Request”
Under the Paperwork Reduction Act, an “information collection
request” is defined as a “written report form, application form, sched­
ule, questionnaire, reporting or recordkeeping requirement or other
similar method calling for the collection of information.” 94 Stat. at
2814, 44 U.S.C. § 3502(ii). “Collection of information” is defined to
include “the obtaining or soliciting of facts or opinions by any agency
through the use of “any of the above-mentioned methods which calls
for “answers to identical questions posed to, or identical reporting or
record-keeping requirements imposed on, ten or more persons, other
than agencies, instrumentalities, or employees of the United
States. . . .” 94 Stat. at 2813, 44 U.S.C. § 3502(4).
Thus, information on identical license application forms or other
reporting forms collected pursuant to the Export Administration Act,
as well as information obtained by the Commerce Department in re­
viewing records maintained by exporters pursuant to identical record­
keeping requirements issued under the Act, fall within the definition of
information obtained pursuant to an information collection request
which may be shared with other federal agencies if such disclosure is
not inconsistent with any applicable law.
B. “N ot Inconsistent with any Applicable Law"
The legislative history of the Paperwork Reduction Act makes clear
that in order for the disclosure of information to be “inconsistent with
any applicable law,”
the applicable law must prohibit the sharing of data be­
tween agencies or must totally prohibit the disclosure to
anyone outside the agency. A mere prohibition on disclo­
sure to the public would not be inconsistent with sharing
the data with another agency unless the sharing would
inexorably lead to a violation of that prohibition.
H.R. Rep. No. 835, 96th Cong., 2d Sess. 30 (1980). See also S. Rep. No.
930, 96th Cong., 2d Sess. 50 (1980).1 Because the Export Administration
Act contains a non-disclosure provision, it is necessary to determine
whether that non-disclosure provision prohibits disclosure to other fed­
eral agencies or whether it is a “mere prohibition on disclosure to the
public.”
‘ The Senate bill as reported by the Senate Committee on Governmental Affairs also excepted from
the authorization for interagency sharing of information disclosures which are inconsistent with
applicable agency policy. T hat exception was deleted by an amendment on the Senate floor. 126 Cong.
Rec. S 14690 (daily ed. Nov. 19, 1980).
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II. Section 12(c) of the Export Administration Act
The non-disclosure provision, § 12(c) of the Export Administration
Act, 93 Stat. at 531, as codified at 50 U.S.C. App. § 2411(c),2 separates
the information obtained under the Act into two categories—informa­
tion collected before and information collected after June 30, 1980.
Section 12(c) provides that all information obtained under the Export
Administration Act after June 30, 1980, except licensing information,
may be withheld from public release only to the extent permitted by
other law. Licensing information is to be withheld from public disclo­
sure unless the Secretary of Commerce determines that the release of
such information would be in the national interest. We think it is clear
from the face of § 12(c) that all the information obtained under the
Export Administration A ct after June 30, 1980, including licensing
information, may be shared with other federal agencies, assuming no
other statutory bar, if it is information obtained under’ an “information
collection request” as defined by the Paperwork Reduction Act. We
draw this conclusion because the prohibition in § 12(c) against disclo­
sure of such information, to the extent if prohibits disclosure, is directed
solely at public disclosure.
With respect to information obtained prior to June 30, 1980, we also
believe that the Paperwork Reduction Act authorizes disclosure of
information obtained under an “information request” to other federal
2(c) Confidentiality
(1) E xcept as otherwise provided by the third sentence of section 8(b)(2) [section
2407(b)(2) o f this Appendix] and by section 11(c)(2)(C) of this Act [section
2410(c)(2)(C) o f this Appendix], information obtained under this A ct [sections 2401 to
2420 o f this Appendix] on o r before June 30, 1980, which is deemed confidential,
including Shippers’ Export Declarations, o r with reference to w hich a request for
confidential treatment is m ade by the person furnishing such information, shall be
exem pt from disclosure under section 552 o f title 5, United States Code, and such
information shall not be published or disclosed unless the Secretary determines that the
withholding thereof is contrary to the national interest. Information obtained under this
A ct [sections 2401 to 2420 o f this Appendix] after June 30, 1980, may be withheld only
to the extent permitted by statute, except that information obtained for the purpose of
consideration of, or concerning, license applications under this Act [sections 2401 to
2420 o f this Appendix] shall be withheld from public disclosure unless the release of
such information is determined by the Secretary to be in the national interest. Enact­
ment of this subsection shall not affect any judicial proceeding commenced under
section 552 o f title 5, United States Code, to obtain access to boycott reports submitted
prior to O ctober 31, 1976, w hich was pending on May 15, 1979; but_such proceeding
shall be continued as if this A ct [sections 2401 to 2420 o f this Appendix] had not been
enacted.
(2) Nothing in this Act [sections 2401 to 2420 of this Appendix] shall be construed as
authorizing the withholding o f information from the Congress, and all information
obtained at any time under this Act [sections 24pl to 2420 of this Appendix] or
previous Acts regarding th e control of exports, including any report or license applica­
tion required under this A ct [sections 2401 to 2420 o f this Appendix], shall be made
available upon request to an y committee or subcommittee of Congress of appropriate
jurisdiction. No such com m ittee or subcommittee shall disclose any information ob­
tained under this Act [sections 2401 to 2420 of this Appendix] or previous Acts
regarding the control of exports which is submitted on a confidential basis unless the
full com m ittee determines that the withholding thereof is contrary to the national
interest.
50 U.S.C. App. § 2 4 1 1(c).
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agencies because the prohibition in § 12(c) was intended to be a “mere
prohibition against public disclosure.” There is some ambiguity in
§ 12(c)’s treatment of information acquired before June 30, 1980, be­
cause, in addition to expressly exempting such information from disclo­
sure under the Freedom of Information Act (FOIA), it goes on to
provide that “such information shall not be published or disclosed
unless the Secretary determines that the withholding thereof is contrary
to the national interest.” Although this restriction could be read as a
blanket prohibition against disclosure of information obtained prior to
June 30, 1980, to anyone outside of the Department of Commerce, our
analysis of its legislative history reveals that this restriction was in­
tended only to prevent any disclosure of such information to the public
whether under the Freedom of Information Act or by a discretionary
release.
From the legislative history of § 12(c), it is apparent that the impetus
for amending the non-disclosure provision came from a court of appeals
decision that information obtained under the Export Administration Act
was not specifically exempted from disclosure for the purpose of the
Exemption 3 of the Freedom of Information Act, 5 U.S.C. § 552(b)(3),
and that such information must be publicly disclosed unless it qualified
under another FOIA exemption. See American Jewish Congress v. Kreps,
574 F.2d 624. (D.C. Cir. 1978). The Senate Banking, Housing, and
Urban Affairs Committee responded to this decision by exempting all
information obtained under the Act from disclosure, stating
[t]he Committee does not believe it is in the public inter­
est to require the disclosure to foreign and domestic com­
petitors of U.S. firms such information as the precise
value, nature, parties to the transaction and shipping date
of exports by such firms, where the sole reason such
information is provided to the United States government
is that the information is required by statute in order to
receive an export license.
S. Rep. No. 169, 96th Cong., 1st Sess. 17 (1979).
The House bill, reported by the House Commitee on Foreign Affairs,
differed from the Senate bill in that it accorded only certain types of
information obtained under the Act protection from disclosure under
the Freedom of Information Act. Like the Senate report, the House
report expressed concern solely with public disclosure of the informa­
tion obtained under the Act. H.R. Rep. No. 200, 96th Cong., 1st Sess.
11,28 (1979).
After extensive debate on the House floor, that body adopted an
amendment to § 12(c) which gave different treatment to the information
obtained before June 30, 1980, from that obtained after June 30, 1980.
Throughout the debate, it is clear that the purpose of giving confiden­
tial treatment to certain information obtained under the Act, whether
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by the approach adopted by the House committee bill or by the amend­
ment with the June 30, 1980, cutoff date, was to protect American
businesses from disclosure of sensitive financial and marketing informa­
tion to their competitors:
Mr. Fascell: Mr. Chairman, one of the problems and the
reason for the date (June 30, 1980) is that the information
asks names of customers and prices of goods which is and
should be trade secrets. That is the problem and that is
the reason for the cutoff.
125 Cong. Rec. 25,636 (1979).
Mr. Alexander: Mr. Chairman, it is important that export­
ers be allowed confidentiality on their SED’s (Shipper
Export Declarations). The data disclosed on SED’s in­
cludes confidential business information in which disclo­
sure to competitors would be harmful. Foreign competi­
tors would be especially benefited because they would not
have similar vulnerabilities.
Id. at 25,637.
Mr. Lagomarsino: The information, if published would
enable foreign and domestic competitors to gain signifi­
cant advantages in th^ same markets. It has always been
public policy to insure confidentiality of competitive busi­
ness information. . . .
If the government requires business to supply confidential
information, then government should provide protection
for that information.
Id. at 25,639.
The Senate adopted an amendment with the June 30, 1980, cutoff
with little debate, but the statement of Senator Hatch, who introduced
the amendment, reveals that the purpose of the cutoff date was to
protect information already submitted to the Commerce Department
from public disclosure and to give American businesses a period to
adjust to the public disclosure of the information (except licensing
information) submitted after the cutoff date:
Mr. Hatch: Mr. President, I am introducing an amend­
ment to delete the indefinite blanket exemption to the
Freedom of Information Act requests and replace it with
an exemption until June 30, 1980. This will give exporters
almost a year’s time to prepare for a change in the law at
that time, which would result in all export control infor­
mation being subject to the Freedom of Information Act
except for license applications. These license applications
are the items that exporters are most concerned about
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becoming available to their competitors, plus they contain
sensitive national security information.
Id. at 20,012-13.
On the basis of the language of § 12(c) as explained by its legislative
history, it is our view that § 12(c) was not intended to prohibit disclo­
sure to other federal agencies and that, to the extent it prohibits disclo­
sure at all, it is merely a prohibition against public disclosure. We
conclude, therefore, that disclosure to federal law enforcement and
intelligence agencies of information obtained pursuant to an information
“collection request” is authorized by the Paperwork Reduction Act of
1980, if not otherwise prohibited by another statute.3
That authorization does not, however, necessarily permit federal law
enforcement and intelligence agencies to disclose such information to
the public because the Paperwork Reduction Act 4 subjects those agen­
cies to the same restrictions on public release which bind the Depart­
ment of Commerce. Thus, before releasing to the public information
obtained under the Export Administration Act prior to June 30, 1980,
and licensing information obtained after June 30, 1980, it may be neces­
sary, in the absence of an overriding authorization for such release, to
obtain a determination by the Secretary of Commerce that such a
release would be in the national interest. If there are certain classes of
information the release of which to the public would be in the national
interest, we perceive no statutory bar to the Secretary’s making such a
general determination and thus removing any § 12(c) restrictions on
public release.
III. Information Not Covered by the Paperwork Reduction Act
With respect to any information obtained under the Export Adminis­
tration Act which is not regulated by the Paperwork Reduction Act,
we believe that any information that is available to the public because it
3 F or example, if the information concerns individuals and is contained in a system o f records,
disclosure to law enforcement agencies may be prohibited by the Privacy Act, 5 U.S.C. § 552a, unless
such disclosure qualifies for and has been published as routine use or unless the head of the law
enforcement agency submits a written request to the Department of Commerce specifying the particu­
lar portion of a record desired and the law enforcement activity for which the record is sought.
We do not agree with the Department of Commerce that 18 U.S.C. § 1905, which prohibits the
disclosure o f confidential trade information unless authorized by law, would bar interagency disclosure
because, assuming no other statutory prohibition against disclosure, §3510 of the Paperwork Reduc­
tion Act would authorize the disclosure. 44 U.S.C. § 3510.
4 The Paperwork Reduction Act provides
If information obtained by an agency is released by that agency to another agency, all
the provisions of law (including penalties which relate to the unlawful disclosure of
information) apply to the officers and employees of the agency to which information is
released to the same extent and in the same manner as the provisions apply to the
officers and employees o f the agency which originally obtained the information. The
officers and employees of the agency to which the information is released, in addition,
shall be subject to the same provisions of law, including penalties, relating to the
unlawful disclosure of information as if the information had been collected directly by
that agency.
94 Stat at 2822, 44 U.S.C § 3510 (Supp. IV 1980).
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is not exempt from disclosure under the Freedom of Information Act
should also be available to other federal agencies. For information that
is not available to the public, either because it is licensing information
obtained prior to June 30, 1980, or information acquired after June 30,
1980, which qualifies for another FOIA exemption, a more difficult
question arises whether the information may be disclosed to federal law
enforcement and intelligence agencies. The fact that § 12(c) does not
prohibit disclosures to other federal agencies may not necessarily mean
that interagency disclosure of non-public information not covered by
the Paperwork Reduction Act is authorized.
The existence of an affirmative authorization in the Paperwork Re­
duction Act for certain information arguably implies that some authori­
zation is required, whether by statute, either expressly or by necessary
implication, or by substantive regulation. Moreover, it may be neces­
sary to determine whether there is an authorization for disclosure to
federal law enforcement and intelligence agencies to avoid the stric­
tures of 18 U.S.C. § 1905. Section 1905 5 requires that any disclosure by
federal employees of trade secrets or confidential business be “author­
ized by law.” 6 The phrase “authorized by law” does not mean that the
authorization must be “specifically authorized by law”; it is sufficient
that the disclosure is “authorized in a general way by law.” 41 Op. A tt’
Gen. 166, 169 (1953). The following have been recognized as lawful
sources of disclosure authority under § 1905 or its predecessors: subpoe­
nas (Blair v. Oesterlein Machine Co., 275 U.S. 220, 227 (1927), United
States v. Liebert, 519 F.2d 542, 546 (3d Cir.), cert, denied, 423 U.S. 985(1975)); requests of congressional committees acting within the limits of
their jurisdiction and authority (41 Op. A tt’y Gen. 221 (1955)); substan­
tive regulations, provided that the authority on which the regulation is
based includes, either expressly or by necessary implication, the power
to waive the confidentiality of the information (Cf. Chrysler Corp. v.
6 Section 1905 reads:
W hoever, being an officer or employee of the United States or of any department or
agency thereof, publishes, divulges, discloses, or makes known in any manner or to any
extent not authorized by law any information coming to him in the course o f his
employment or ofTicial duties o r by reason o f any examination or investigation made
by, o r return, report or record made to or filed with, such department or agency or
officer o r employee thereof, w hich information concerns or relates to the trade secrets,
processes, operations, style o f work, or apparatus, or to the identity, confidential
statistical data, amount or source o f any income, profits, losses, or expenditures of any
person, firm, partnership, corporation, or association; or permits any income return or
copy thereof or any book containing any abstract or particulars thereof to be seen or
examined by any person except as provided by law; shall be fined not more than
$1,000, or imprisoned not m ore than one year, or both; and shall be removed from
office or employment.
18 U.S.C. § 1905.
8 T he question w hether 18 U.S.C. § 1905 applies to intragovemmental transfers o f information has
never been resolved. As is evident from the inclusiveness of the w ords of the statute, a literal reading
o f its provisions would seem to prohibit interagency disclosures. Opinions construing § 1905 and its
predecessor statutes have avoided resolution of the scope of § 1905 by finding legal authorization for
the disclosure sought. 31 Op. Att’y G en. 541 (1919); 41 Op. A tt’y Gen. 221 (1955).
262
Brown, 441 U.S. 281, 294-316 (1979)); or necessary statutory implication
(41 Op. Att’y Gen. 106 (1953)).
It is unnecessary, however, to decide the question whether an inde­
pendent authorization for disclosure to federal law enforcement and
intelligence agencies is required because the Secretary of Commerce
could under § 12(c) authorize disclosure to federal law enforcement and
intelligence agencies by determining that failure to make such disclo­
sures would be contrary to the national interest. We believe that the
authority to permit such interagency disclosure is necessarily included
in the greater power to disclose information publicly upon a national
interest determination. As discussed above, we perceive no statutory
bar to making such a determination, for a general class of information
or on some other generalized basis. In the exercise of his discretion to
make a national interest determination under § 12(c) to release informa­
tion, the Secretary of Commerce is, of course, subject to the review
and direction of the President. Congress Construction Corp. v. United
States, 314 F.2d 527, 530-31 (Ct. Cl.) cert, denied, 375 U.S. 817 (1963); 7
Op. Att’y Gen. 453, 469-70 (1855). Thus, the President has the power,
which President Carter exercised during his Administration, to direct
the Secretary to make such a determination and authorize release of
information obtained under the Export Administration Act to law en­
forcement and intelligence agencies on a routine basis if the President
determines it would be contrary to the national interest to withhold
such information from those agencies.
L a r r y L . S im m s
Deputy Assistant Attorney General
Office o f Legal Counsel
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