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
2

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
3

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
4

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 nonFOIA 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.
5

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
6

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)).
7

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
8

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).
9

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
10

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.
11

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,
12

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.
13

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
14

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.