Intellectual Property Watch et al v. United States Trade Representative
Filing
103
OPINION AND ORDER re: 90 MOTION for Reconsideration Pursuant to Rule 60(b) filed by William New, Intellectual Property Watch. Both Plaintiffs' and USTR's motions for summary judgment are denied at this time, and will b e revisited after USTR has the opportunity to make further submissions establishing that the information and advice contained in the withheld ITAC Communications were submitted in confidence. Once again, those additional submission are due on or befo re September 30, 2016, Plaintiffs' required response is due on or before October 31, 2016, and USTR's optional reply is due on or before November 14, 2016. Plaintiffs' Rule 60(b) motion is denied in substantial part, with the small exc eption of the six documents withheld solely because they contained proposals made by ITAC members. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 90. It is SO ORDERED. (As further set forth in this Order.) (Brief due by 9/30/2016. Reply to Response to Brief due by 11/14/2016., Responses to Brief due by 10/31/2016) (Signed by Judge Edgardo Ramos on 8/31/2016) (kko)
8-31-2016
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
INTELLECTUAL PROPERTY WATCH and
WILLIAM NEW,
Plaintiffs,
OPINION AND ORDER
- against 13 Civ. 8955 (ER)
UNITED STATES TRADE REPRESENTATIVE,
Defendant.
Ramos, D.J.:
This Freedom of Information Act (“FOIA”) suit involves a request for draft text,
memoranda, and communications relating to the Trans Pacific Partnership (“TPP”), a wideranging, multilateral trade agreement negotiated among the United States and eleven countries
bordering both sides of the Pacific Ocean. 1 Intellectual Property Watch, a news organization,
and its editor-in-chief, William New (together, “Plaintiffs”) submitted their FOIA request to the
United States Trade Representative (“USTR” or the “agency”), and now challenge USTR’s
withholdings of certain responsive documents that the agency determined were exempt from
FOIA’s disclosure requirements.
On September 25, 2015, this Court upheld some of USTR’s initial withholding
determinations—including its withholdings of draft text of earlier iterations of the agreement—
and further instructed USTR to submit additional information to justify other withholdings. See
Intellectual Prop. Watch v. U.S. Trade Representative (“IP Watch I”), 134 F. Supp. 3d 726
1
The other eleven countries are: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New
Zealand, Peru, Singapore, and Vietnam. Declaration of Barbara Weisel (Doc. 44) ¶ 5.
(S.D.N.Y. 2015). USTR has made those additional submissions, and the parties now cross-move
for summary judgment on the validity of the remaining withholdings.
Furthermore, at the time the Court decided IP Watch I, the final TPP text was still being
negotiated among the twelve participating countries. Since then, however, the twelve countries
have agreed on and signed the final text of the agreement: The final agreement was announced
on October 5, 2015, the final text was published on November 5, 2015, and the TPP was signed
by all twelve countries on February 4, 2016. 2 At the time of writing, the agreement is being
considered by the governments of the participating countries because, as explained further
below, it requires ratification from a certain proportion of those countries in order to enter into
force. See Second Declaration of Jonathan Manes (“2d Manes Decl.”) (Doc. 92), Exs. A, B;
Second Supplemental Declaration of Barbara Weisel (“2d Supp. Weisel Decl.”) (Doc. 98) ¶¶ 2,
23. Given this change in circumstances since IP Watch I, Plaintiffs have moved for relief under
Rule 60(b) of the Federal Rules of Civil Procedure, seeking reconsideration of the Court’s initial
judgment that draft TPP text containing proposals made by the United States could properly be
withheld under an exemption to FOIA. (Doc. 90).
For the reasons explained, summary judgment will not be granted in favor of either party
at this time, because both sides deserve the opportunity to respond further to the Court’s analysis
below before the motions are resolved definitively. Plaintiffs’ Rule 60(b) motion for
reconsideration is DENIED in substantial part, save for a small exception applicable to six
particular documents.
2
The full text is available on USTR’s website: https://ustr.gov/trade-agreements/free-trade-agreements/transpacific-partnership/tpp-full-text.
2
I. BACKGROUND
A. The TPP
The TPP is a wide-ranging trade agreement among twelve countries on both sides of the
Pacific Ocean. In addition to topics traditionally covered by trade agreements, such as tariffs and
market access, the TPP sweeps far broader to cover nearly all spheres of commercial-related
activity in the participating countries. See IP Watch I, 134 F. Supp. 3d at 730–31; The Trans
Pacific Partnership (“TPP”), OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE,
https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-full-text
(last visited July 29, 2016) (linking to TPP chapters on such topics as trade remedies, textiles,
financial services, telecommunications, electronic commerce, state-owned enterprises,
intellectual property, environment, labor, competition, and development). The TPP chapters
most relevant to this litigation are (i) Electronic Commerce, (ii) Trade Remedies, and (iii)
Intellectual Property. The ratification process, in which the domestic governments of the
participating countries debate whether to assent to the final agreement, is currently underway.
The twelve participating TPP countries entered into a confidentiality agreement at the
outset of negotiations, which stated as follows:
[A]ll participants agree that the negotiating texts, proposals of each Government,
accompanying explanatory material, emails related to the substance of the
negotiations, and other information exchanged in the context of the negotiations,
is provided and will be held in confidence, unless each participant involved in a
communication subsequently agrees to its release. This means that the documents
may be provided only to (1) government officials or (2) persons outside
government who participate in that government’s domestic consultation process
and who have a need to review or be advised of the information in these
documents. Anyone given access to the documents will be alerted that they
cannot share the documents with people not authorized to see them. All
participants plan to hold these documents in confidence for four years after entry
into force of the Trans Pacific Partnership Agreement, or if no agreement enters
into force, for four years after the last round of negotiations.
3
Declaration of Barbara Weisel (Doc. 44) ¶ 11.
The TPP must be ratified by the domestic governments of the participating countries in
order to enter into force. Pursuant to Article 30.5 of the final text, the TPP will enter into force
only (i) upon written notice from all twelve countries of the completion of their “applicable legal
procedures” for ratification, or (ii) if unanimous notice has not been given within two years of
the signing of the final agreement, upon notice of ratification from “at least six of the original
signatories, which together account for at least 85 per cent of the combined gross domestic
product of the original signatories in 2013.” See TPP Art. 30.5, available at
https://ustr.gov/sites/default/files/TPP-Final-Text-Final-Provisions.pdf. 3
As the last sentence of the confidentiality agreement makes clear, the agreement
terminates only upon the TPP’s entry into force (or the breakdown of negotiations). The
confidentiality agreement thus continues to remain operative despite the fact that participating
countries agreed to and signed the final text.
B. Industry Trade Advisory Committees
The Trade Act of 1974 (the “Trade Act”) requires the President to “seek information and
advice from representative elements of the private sector and the non-Federal governmental
sector” regarding trade negotiations and policy. 19 U.S.C. § 2155(a). The Act authorizes the
President to establish industry-specific advisory committees, populated by representative
members of key sectors and groups of the economy affected by trade policy. See § 2155(c). The
result is a system of “industry trade advisory committees” (“ITACs”) that are dedicated to
3
More specifically, if six participating countries constituting 85% of aggregate GDP of the twelve countries give
written notice of ratification within the two-year period following the signing of the final agreement, the TPP will
enter into force sixty days after the expiration of that two-year period. See TPP Art. 30.5(2). If six such countries
have not given notice within the two-year period, the TPP will enter into force sixty days following the date on
which six such countries do provide that notice. See TPP Art. 30.5(3).
4
different sectors of the economy and are comprised of members from the private sector who
“provide policy advice, technical advice and information, and advice on other factors” relevant
to trade negotiations. § 2155(d). Among the disputed documents at issue here are
communications sent among ITAC members, USTR, and other private sector actors, discussing
various issues related to TPP negotiations, both via email and via a secured website, the “Cleared
Advisor” website, which is essentially a message board that serves as a forum for ITAC
members to communicate with USTR. See IP Watch I, 134 F. Supp. 3d at 731–32.
Section 2155(g) of the Trade Act governs confidential communications among ITAC
members, other private-sector actors, and the U.S. government. 19 U.S.C. § 2155(g). Because
the provision’s precise language is important to the resolution of this case, section § 2155(g) is
reproduced in pertinent part below:
(g) Trade secrets and confidential information
(1) Trade secrets and commercial or financial information which is privileged or
confidential, and which is submitted in confidence by the private sector or non-Federal
government to officers or employees of the United States in connection with trade
negotiations, may be disclosed upon request to—[(A) U.S. government officials
designated by USTR; (B)–(C) certain designated members of Congress and congressional
staffers]—for use in connection with matters referred to in subsection (a) of this section. 4
(2) Information other than that described in paragraph (1), and advice submitted in
confidence by the private sector or non-Federal government to officers or employees of
the United States, to the Advisory Committee for Trade Policy and Negotiations, or to
any advisory committee established under subsection (c) of this section, in connection
with matters referred to in subsection (a) of this section, may be disclosed upon request
to—[the individuals described in (g)(1), plus other ITAC members]
(3) Information submitted in confidence by officers or employees of the United States to the
Advisory Committee for Trade Policy and Negotiations, or to any [ITAC established
under this section], may be disclosed in accordance with rules issued by the United States
Trade Representative and the Secretaries of Commerce, Labor, Defense, Agriculture, or
other executive departments, as appropriate, after consultation with the relevant [ITACs].
4
Section 2155(a) instructs the President to seek information and advice from, and to consult with, “representative
elements of the private sector and the non-Federal governmental sector” with respect to U.S. trade agreements,
objectives, negotiations, and policy.
5
Such rules shall define the categories of information which require restricted or
confidential handling by such committee considering the extent to which public
disclosure of such information can reasonably be expected to prejudice the development
of trade policy, priorities, or United States negotiating objectives. Such rules shall, to the
maximum extent feasible, permit meaningful consultations by advisory committee
members with persons affected by matters referred to in subsection (a) of this section.
C. Plaintiffs’ FOIA Request and IP Watch I
IP Watch I lays out the history of this litigation in more detail. See 134 F. Supp. 3d at
732–34. What follows is a condensed summary:
Plaintiffs submitted their initial FOIA request on March 23, 2012, seeking, among other
things, draft text of TPP provisions related to intellectual property, U.S. negotiation positions
regarding intellectual property, and communications between USTR and ITACs 3, 8, 10, and
15. 5 USTR withheld all responsive documents save for some partial disclosures of
communications between USTR and ITACs. After Plaintiffs filed suit in this Court on
December 18, 2013, the parties entered into a joint stipulation pursuant to which USTR would
undertake searches for a representative sample set of documents using search terms proffered by
Plaintiffs, which would then provide the exclusive basis for the litigation going forward. The
sample set consisted of three categories of documents, and USTR’s searches produced the
following documents:
Category 1 (“Decision Memoranda”): Two USTR-drafted memoranda
summarizing and assessing the negotiations, and providing strategic advice on
various issues. The documents are titled “Decision Memoranda on Addressing
Trade Remedies–Related Proposals in TPP,” and “Decision Memoranda on TPP
Copyright Parallel Import Proposal.”
Category 2 (“ITAC Communications”): Roughly 700 pages of emails among
USTR and ITAC members and forty-one pages of postings to the government’s
Cleared Advisor site, all of which were identified as a result of search terms
provided by Plaintiffs.
5
ITAC–3 covers Chemicals, Pharmaceuticals, Health-Science Products and Services. ITAC–8 covers Information
and Communications Technologies, Services, and Electronic Commerce. ITAC–10 covers Services and Financial
Industries. ITAC–15 covers Intellectual Property Rights.
6
Category 3 (“Draft Chapters”): Twenty-one documents containing draft text
and comments related to draft TPP chapters on intellectual property rights,
electronic commerce, and trade remedies.
USTR withheld the Decision Memoranda and Draft Chapters in full pursuant to multiple
exemptions from FOIA’s disclosure requirements, and withheld some ITAC Communications in
full and some only partially by disclosing redacted versions. The parties cross-moved for
summary judgment on the validity of USTR’s withholdings.
IP Watch I was decided on September 25, 2015. This Court upheld USTR’s
withholdings of Decision Memoranda, Draft Chapters, and some ITAC Communications
pursuant to FOIA Exemption 1 (5 U.S.C. § 552(b)(1)), which exempts from FOIA information
that is properly classified pursuant to an Executive Order. IP Watch I, 134 F. Supp. 3d at 736–
39. Regarding the remaining ITAC Communications, USTR invoked FOIA Exemption 3 (§
552(b)(3)), covering information specifically authorized to be withheld by statute, FOIA
Exemption 4 (§ 552(b)(4)), covering trade secrets and confidential commercial information, and
FOIA Exemption 5 (§ 552(b)(5)), covering intra-agency documents that would be traditionally
privileged in civil litigation. The Court rejected USTR’s use of Exemption 5, holding that
communications among ITACs and U.S. officials were not “intra-agency.” IP Watch I, 134 F.
Supp. 3d at 747–49. Additionally, although the Court held that the provision of the Trade Act
governing ITAC Communications, 19 U.S.C. § 2155(g), served as a withholding statute for
purposes of Exemption 3, USTR has not provided sufficient evidence to sustain its burden of
withholding documents under either Exemption 3 or Exemption 4. Thus, the Court requested
from USTR more detailed and document-specific justifications for the agency’s withholdings
under those two FOIA exemptions. IP Watch I, 134 F. Supp. 3d at 739–47.
7
D. New Submissions and Outstanding Issues
In response to the concerns expressed in IP Watch I, USTR made the following
additional submissions in November and December of 2015 to support withholdings made under
FOIA Exemption 3: (1) an index with 126 entries, listing the date, sender(s), recipient(s), subject
lines, and withholding justifications for ITAC Communications submitted via email (Doc. 78,
Ex. 1); (2) an index with 29 entries, listing the date, submitter, and withholding justifications for
ITAC Communications submitted via the Clear Advisor website (Doc. 71, Ex. 2); (3) a copy of
the agency manual outlining the operations of the ITACs that was in effect at the time of the
ITAC Communications at issue here (Doc. 72, Ex. 1); (4–5) the declarations of two ITAC
Cleared Advisors, who submitted certain ITAC Communications as members of, respectively,
ITAC-3 on Chemicals, Pharmaceuticals, and Health-Science Products and Services, and ITAC-8
on Information and Communications Technologies, Services, and Electronic Commerce (Docs.
74–75); (6) the declarations of the Assistant U.S. Trade Representative for Intergovernmental
Affairs and Public Engagement and the Director of the Industry Trade Advisory Center, who
both manage the relationship between USTR and ITACs (Docs. 73, 88); and (7) the declaration
of a lawyer in USTR’s Office of General Counsel and now Acting Assistant U.S. Trade
Representative for Intellectual Property and Innovation, who was a negotiator on IP issues during
TPP negotiations (Doc. 86).
USTR has withdrawn its reliance on FOIA Exemption 4, and thus relies exclusively on
Exemption 3 to justify withholdings of ITAC Communications. USTR Letter (Doc. 70) at 3 n.3.
As previously noted, the twelve TPP countries signed the final agreement on February 4,
2016. On February 15, 2016, Plaintiffs moved under Rule 60(b) of the Federal Rules of Civil
Procedure, seeking reconsideration of the Court’s affirmance of the withholdings USTR made
8
under Exemption 1. (Doc. 90). Plaintiffs urge reconsideration because the Court’s reasoning in
IP Watch I turned in part on the fact that TPP negotiations were still ongoing.
Thus, the Court is now presented with the following issues: (1) Whether USTR has
sustained its burden on summary judgment to prove the applicability of FOIA Exemption 3 to
withheld ITAC Communications, and (2) whether Plaintiffs are entitled to relief under Rule
60(b) because the signing of the final TPP agreement fatally undercuts USTR’s justifications for
its Exemption 1 withholdings.
II. SUMMARY JUDGMENT ON USTR’S EXEMPTION 3 WITHHOLDINGS
FOIA generally requires agencies to disclose information in its custody unless that
information “is exempted under clearly delineated statutory language.” Bloomberg, L.P. v. Bd.
of Governors of the Fed. Reserve Sys., 601 F.3d 143, 147 (2d Cir. 2010) (citation omitted). “The
agency asserting the exemption bears the burden of proof, and all doubts as to the applicability of
the exemption must be resolved in favor of disclosure.” Wilner v. Nat’l Sec. Agency, 592 F.3d
60, 69 (2d Cir. 2009). The Court “decides de novo whether the agency has sustained its burden”
to justify particular withholdings. Bloomberg, L.P., 601 F.3d at 147 (citations omitted).
FOIA cases are generally resolved by cross-motions for summary judgment. See, e.g.,
Nat. Res. Def. Council, Inc. v. U.S. Dep’t of Interior, 73 F. Supp. 3d 350, 355 (S.D.N.Y. 2014)
(citation omitted). “‘[S]ummary judgment in favor of the FOIA plaintiff’ is appropriate ‘[w]hen
an agency seeks to protect material which, even on the agency’s version of the facts, falls outside
the proffered exemption,’ but should be denied if the agency satisfies its burden ‘to show that
requested material falls within a FOIA exemption.’” N.Y. Times Co. v. U.S. Dep’t of Def., 499 F.
Supp. 2d 501, 509 (S.D.N.Y. 2007) (quoting Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976
9
F.2d 1429, 1433 (D.C. Cir. 1992)). Agencies can prevail on summary judgment by submitting
affidavits that “describe the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’”
Wilner, 592 F.3d at 73 (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).
FOIA Exemption 3 applies to matters “specifically exempted from disclosure by statute,”
where that statute either “(i) requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding
or refers to particular types of matters to be withheld.” 5 U.S.C. §§ 552(b)(3)(A). “Exemption 3
differs from other FOIA exemptions in that its applicability depends less on the detailed factual
contents of specific documents; the sole issue for decision is the existence of a relevant statute
and the inclusion of withheld material within the statute’s coverage.” Am. Civil Liberties Union
v. F.B.I., 59 F. Supp. 3d 584, 594 (S.D.N.Y. 2014) (quoting Wilner, 592 F.3d at 72).
A. Information “Submitted in Confidence” under Sections 2155(g)(2) and (g)(3)
In IP Watch I, this Court held that section 2155(g) of the Trade Act served as a
withholding statute for purposes of FOIA Exemption 3. Specifically, while the provision used to
contain a clear prohibition on disclosure (“shall not disclose”) and was thus undisputedly a
withholding statute in its prior iteration, Congress’s amendment replacing that language with the
current, discretionary “may be disclosed upon request” language did not alter the provision’s
status as a withholding statute. There was no legislative history indicating such a change, and it
would make no sense for Congress to simply single out a few entities to which information and
advice “may be disclosed upon request” if there was no withholding authority in place to begin
with. Thus, the Court held that section 2155(g), entitled “Trade secrets and confidential
10
information,” continued to serve as a withholding statute by requiring withholding of
information and advice already deemed a “trade secret” or “confidential,” and by singling out the
exclusive entities to which the information and advice “may be disclosed upon request.” See IP
Watch I, 134 F. Supp. 3d at 741–43.
What IP Watch I did not expressly address, and what the parties continue to dispute here,
is the operative definition of “confidential.” Plaintiffs insist that the subjective belief of the
submitter—whether it be an ITAC member, a non-member in the private sector, or the federal
government—cannot alone determine the “confidential” status of information or advice.
Plaintiffs’ Response to Defendant’s Supplemental Submissions (“Pl. Br.”) (Doc. 81) at 9.
Instead, Plaintiffs seek to import one of the definitions of “confidential” used to determine
whether a piece of information is a trade secret and thus properly withheld under FOIA
Exemption 4 or § 2155(g)(1)—namely, whether disclosure would impair the government’s
ability to obtain necessary information from third-party sources in the future. Id. at 9–10. 6
The Court declines to adopt Plaintiffs’ interpretation. Section 2155(g)(1) applies to
“[t]rade secrets and commercial or financial information” that is both “privileged or confidential”
and “submitted in confidence,” indicating that objective confidentiality and the parties’
contemporaneous, subjective expectations of confidentiality are conceptually distinct
requirements. Sections 2155(g)(2) and (g)(3), notably, refer only to information or advice
“submitted in confidence.”
6
For FOIA Exemption 4 to apply, the withheld information (1) “must be a ‘trade secret’ or ‘commercial or
financial’ in character,” (2) “must be ‘obtained from a person,’ ” and (3) “must be ‘privileged or confidential.’”
Inner City Press/Cmty. on the Move v. Bd. of Governors of Fed. Reserve Sys., 463 F.3d 239, 244 (2d Cir. 2006)
(quoting Nadler v. FDIC, 92 F.3d 93, 95 (2d Cir. 1996); 5 U.S.C. § 552(b)(4)). Information is “is confidential for
the purposes of Exemption 4 if its disclosure would have the effect either: ‘(1) of impairing the government’s ability
to obtain information-necessary information-in the future, or (2) of causing substantial harm to the competitive
position of the person from whom the information was obtained.’” Id. (quoting Cont’l Stock Transfer & Trust Co. v.
SEC, 566 F.2d 373, 375 (2d Cir. 1977)).
11
In addition to the plain text, it would be structurally odd for Congress to integrate the
trade-secret “confidentiality” test in § 2155(g)(1) and then create another provision that simply
reiterates a subset of that test. See IP Watch I, 134 F. Supp. 3d at 743 (treating § 2155(g)(1) as
coextensive with FOIA Exemption 4). Indeed, the Senate Finance Committee’s report on the
original Trade Act of 1974 strongly implies that Congress thought it was creating a new FOIA
exemption in (g)(2), but not in (g)(1), so it makes little sense to interpret (g)(2) in a manner that
leaves it essentially subsumed by (g)(1). See S. Rep. No. 93-1298 (1974), as reprinted in 1974
U.S.C.C.A.N. 7186, 7251 (noting that the provision codified at § 2155(g)(2) would create a
“limited statutory exemption” to FOIA, but not making a similar statement about the provision
codified at § 2155(g)(1)). 7
It is more reasonable to interpret sections 2155(g)(2) and (g)(3) to authorize withholding
of information or advice “submitted in confidence,” and to determine whether a document is
properly withheld by asking whether the information or advice contained therein was submitted
with the expectation that it would be treated confidentially. The operative test for whether
information or advice can be withheld under sections 2155(g)(2) and (g)(3), therefore, is whether
the submitter “provided information under an express assurance of confidentiality or in
circumstances from which such an assurance could be reasonably inferred.” Grand Cent. P’ship,
Inc. v. Cuomo, 166 F.3d 473, 486 (2d Cir. 1999) (quoting U.S. Dep’t of Justice v. Landano, 508
7
As the Court noted in IP Watch I, 134 F. Supp. 3d at 740 n.9, the likely reason the report did not describe the
provision codified at section 2155(g)(1) as one creating a new FOIA exemption is that the provision was essentially
coextensive with FOIA Exemption 4. Cf. Declaration of Ingrid Mitchem (“Mitchem Decl.”) (Doc. 72), Ex. A
(“Manual”) VI.4–5 (notifying ITAC members that USTR would use the standard analysis under FOIA Exemption 4
to determine whether (g)(1) or (g)(2) would apply to confidential information communicated from the private sector
to USTR). Additionally, the Court notes that the Senate version of the provision in question, as described in the
Senate Finance Committee report, was ultimately the version adopted by the whole Congress. See H.R. Conf. Rep.
No. 93-1644 (1974), as reprinted in 1974 U.S.C.C.A.N. 7367, 7376 (noting that the House receded to the Senate
version of the provision).
12
U.S. 165, 172 (1993)); see also Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d
504, 509 (D.C. Cir. 2011).
There are multiple reasons to favor this interpretation, which is adopted from the wellestablished test governing FOIA Exemption 7(D), exempting information submitted to law
enforcement that could reveal the identity of a confidential source. See 5 U.S.C. § 552(b)(7)(D);
Landano, 508 U.S. at 172; Halpern v. F.B.I., 181 F.3d 279, 298–99 (2d Cir. 1999). 8
First, as previously noted, the text of the provisions refer only to information or advice
“submitted in confidence,” which compels a test that is tethered to the subjective understanding
between the submitter and receiver, rather than an independent judicial assessment of whether
the information communicated is objectively confidential.
Second, this interpretation is the best fit with the Court’s construction of section 2155(g)
as a withholding statute, because it provides the most natural sense in which the provision
authorizes withholding of information or advice “already deemed” confidential—the submitter
was given an express or implied assurance of confidentiality prior to submission, and USTR
“may disclose” the information or advice “submitted in confidence” only to a limited number of
other parties.
Third, federal courts in the District of Columbia have applied this test of confidentiality
to a nearly identical provision governing the creation of the Cultural Property Advisory
Committee (“CPAC”), as part of the Convention on Cultural Property Implementation Act. See
19 U.S.C. §§ 2605. Like ITACs, the CPAC is a federal advisory committee statutorily
8
Under FOIA Exemption 7(D), “the Government may withhold ‘records or information’ that are (1) ‘compiled for
law enforcement purposes’ that (2) ‘could reasonably be expected to disclose the identity of a confidential
source....’” Adamowicz v. I.R.S., 552 F. Supp. 2d 355, 370 (S.D.N.Y. 2008) (quoting 5 U.S.C. § 552(b)(7)(D). “To
invoke this exemption, the Government must show, not that the document withheld is confidential, but rather that
the person who provided the information did so ‘under an express assurance of confidentiality or in circumstances
from which such an assurance could be reasonably inferred.’” Id. (quoting Landano, 508 U.S. at 172).
13
constituted to advise the Executive Branch—in this case, the State Department’s Undersecretary
for Educational and Cultural Affairs—on import-restriction requests from foreign governments
made in the course of negotiations over multilateral agreements governing cultural artifacts. See
19 U.S.C. §§ 2602, 2605; Ancient Coin Collectors Guild, 641 F.3d at 509. The CPAC statute
includes a provision, entitled “Confidential information,” that closely tracks the equivalent ITAC
provisions in the Trade Act, most pertinently by referring only to information “submitted in
confidence” by the private sector or government employees. See 19 U.S.C. § 2605(i). 9 In a
FOIA case brought against the State Department seeking communications from the private
sector, the State Department invoked Exemption 3 and, because the parties agreed, both the
district court and the Court of Appeals applied the test the Court adopts here—i.e., the test to
determine withholdings under FOIA Exemption 7(D), established by the United States Supreme
Court in U.S. Dep’t of Justice v. Landano, 508 U.S. 165 (1993)—for determining whether
information was “submitted in confidence” and thus properly withheld under the statute. Ancient
Coin Collectors Guild, 641 F.3d at 511–12; Ancient Coin Collectors Guild v. U.S. Dep’t of State,
9
As noted in IP Watch I, 134 F. Supp. 3d at 740 n.11, the CPAC provisions contain the “shall not be disclosed”
language that was originally in section 2155(g) before Congress tweaked the latter’s language. Beyond that small
wrinkle, section 2605(i)(1) of the CPAC closely tracks sections 2155(g)(1) and (g)(2) of the Trade Act, stating as
follows:
Any information (including trade secrets and commercial or financial information which is
privileged or confidential) submitted in confidence by the private sector to officers or employees
of the United States or to the Committee in connection with the responsibilities of the Committee
shall not be disclosed to any person other than to [certain government employees and CPAC
members].
Section 2605(i)(2) of the CPAC likewise tracks section 2155(g)(3) of the Trade Act, stating as follows:
Information submitted in confidence by officers or employees of the United States to the
Committee shall not be disclosed other than in accordance with rules issued by the Director of the
United States Information Agency, after consultation with the Committee. Such rules shall define
the categories of information which require restricted or confidential handling by such Committee
considering the extent to which public disclosure of such information can reasonably be expected
to prejudice the interests of the United States. Such rules shall, to the maximum extent feasible,
permit meaningful consultations by Committee members with persons affected by proposed
agreements authorized by this chapter.
14
866 F. Supp. 2d 28, 31–32 (D.D.C. 2012) (“The parties agree that 19 U.S.C. § 2605(i)(1) is a
withholding statute for the purposes of FOIA Exemption 3(b) and that the proper standard for
analyzing confidentiality is the same as that for FOIA Exemption 7(D).”). Where the relevant
question is whether information was submitted in confidence—as it is in the 7(D) context, the
CPAC context, and the ITAC context here—this Court agrees with the two Ancient Coin
Collectors Guild courts that Landano provides a workable standard.
Fourth, a standard guided by contemporaneous expectations best serves the statutory
purpose of “insur[ing] maximum participation by the private sector in [trade] negotiations.” S.
Rep. No. 93-1298; see also id. (“[T]he private sector of our economy must be given a much
larger role in providing information to our negotiators and assessing the merits of an agreement
than has ever been provided in the past….[T]hose affected most by such agreements should be
able to consult closely with and provide vital information to the negotiators and in turn should be
consulted on a regular basis by the negotiators.”). Participation by private sector actors is better
assured by empowering them to request and receive assurances of confidentiality up front,
because it removes the possibility that a court may come to a different conclusion and disclose
information regardless. The same is true of communications to ITAC members submitted in
confidence by the government.
Fifth, USTR itself adopts this expectation-based standard in the agency manual
interpreting section 2155(g), and that interpretation is entitled to some deference to the extent the
Court finds it persuasive. See, e.g., Barrows v. Burwell, 777 F.3d 106, 109 n.6 (2d Cir. 2015)
(“[U]nder so-called ‘Skidmore deference,’ we give effect to an agency’s non-legislative
interpretation of a statute ‘to the extent we find it persuasive.’”) (quoting Estate of Landers v.
Leavitt, 545 F.3d 98, 105 (2d Cir. 2008)). The persuasiveness of an agency’s non-legislative
15
interpretation is determined by “the thoroughness evident in [the agency’s] consideration, the
validity of its reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade.” Estate of Landers, 545 F.3d at 107 (quoting United
States v. Mead Corp., 533 U.S. 218, 228 (2001)) (internal quotation marks omitted). In the
operations manual promulgated by USTR to facilitate the functioning of the ITACs (the “ITAC
Manual”), the sections discussing confidential information focus on the subjective expectation of
the submitter. See Declaration of Ingrid Mitchem (“Mitchem Decl.”) (Doc. 72), Ex. A
(“Manual”) at VI.1 (noting that information “provided in confidence by the U.S. Government to
Committee members will in general be clearly designated” as being either security-classified or
trade-sensitive); id. at VI.4 (instructing ITAC members providing information “that they believe
is sensitive” to “clearly indicate that the material is submitted in confidence,” and noting that
USTR will determine only whether to withhold that information from other ITAC members, not
whether the information is objectively confidential). Although USTR does not provide explicit
or exhaustive reasoning, the agency’s interpretation is at least entitled to a modicum of deference
based on the consistency with which USTR has abided by it. Compare Mitchem Decl. ¶ 4 & Ex.
A (demonstrating that ITAC Manual operative from 2010 to 2014 employed the interpretation),
with IP Watch I, 134 F. Supp. 3d at 742 (citing post-2014 iteration of ITAC Manual for same
proposition); see also Fishman v. Daines, No. 09 Civ. 5248 (JFB), 2016 WL 853174, at *6
(E.D.N.Y. Mar. 4, 2016) (“Such consistency over time…weighs in favor of treating the Manual
with deference.”) (citations omitted).
While IP Watch I made it clear that the touchstone for withholding under sections
2155(g)(2) and (g)(3) was whether the submission of the information was made in confidence, it
is only in the instant opinion that the Court is expressly adopting the evidentiary standard from
16
Landano and its progeny. As a result, the parties deserve an opportunity to further brief the issue
of whether USTR’s declarations and Vaughn indices establish that the withheld documents
contain information or advice “submitted in confidence.” Both parties are free to submit
additional declarations or other evidence, as well. See Houghton v. U.S. Dep’t of State, 875 F.
Supp. 2d 22, 32 n.4 (D.D.C. 2012) (“[T]he government is not entitled to a blanket presumption
that [submissions were made] under a commitment to confidentiality. Instead, an agency must
present evidence showing that information was submitted in confidence, such as notations on the
face of a withheld document, the personal knowledge of an official familiar with the source a
statement by the source or contemporaneous documents discussing practices or policies for
dealing with the source or similarly situated sources.”) (citing Ancient Coin Collectors Guild,
641 F.3d at 511; Campbell v. DOJ, 164 F.3d 20, 34 (D.C. Cir. 1998)) (internal quotation marks
omitted).
The Court does not pass judgment at this time as to whether the evidence already
submitted by ITAC members and USTR officials justifies withholding some or all ITAC
Communications, and USTR naturally is free to rely on and refer to the voluminous submissions
already made to sustain its case. (Docs. 71–75, 78, 86, 88). But if the parties do opt to submit
additional briefing and/or evidence, the Court would appreciate a focus on (1) the basis for
USTR’s repeated assertion in the Vaughn index that ITAC emails were submitted in
confidence, 10 (2) potential probative evidence (whether already submitted or not) indicating the
10
Cf. Ancient Coin Collectors Guild, 641 F.3d at 512 (“[A] declaration simply asserting that a source received
express assurances of confidentiality ‘without providing any basis for the declarant’s knowledge of this alleged fact’
does not [satisfy the government’s burden].”) (quoting Campbell, 164 F.3d at 34–35); Halpern, 181 F.3d at 299
(“Nothing in the [agency] Declaration provides the type of proof required under this standard. Rather, the
Declaration relies on bare assertions that express assurances were given to the sources in question, and that the
information received was treated in a confidential manner during and subsequent to its receipt. Clearly this is
insufficient to prove an express grant of confidentiality.”).
17
existence or absence of assurances of confidentiality, 11 and (3) the extent to which the presence
of private-sector, non-ITAC members on email chains affects the “submitted in confidence”
analysis under both sections 2155(g)(2) and (g)(3). 12 The Court reiterates that it will not
consider arguments that rely on objective indicia of confidentiality tethered to speculative or
non-contemporaneous factual circumstances. 13
B. USTR’s Reliance on the ITAC Manual
One issue the Court can resolve at this juncture is in response to Plaintiffs’ three
objections to USTR’s reliance on the ITAC Manual for withholdings made under section
2155(g)(3).
Plaintiffs first argue that the ITAC Manual does not sufficiently “define the categories of
information which require restricted or confidential handling,” as section 2155(g)(3) requires of
the “rules” governing disclosure of information submitted in confidence by the United States.
See Pl. Br. at 12. But the ITAC Manual does categorize information submitted by the U.S. into
two groups—“Security-Classified Information” and “Trade-Sensitive Information”—providing
11
Cf. Halpern, 181 F.3d at 298–299 (discussing potential probative evidence that a submitter “did in fact receive an
express promise of confidentiality,” including affidavits attesting that assurances were made or are set forth in the
documents themselves, contemporaneous documents reflecting express assurances, or evidence of a “consistent
policy” of granting confidentiality) (citing Ferguson v. FBI, 83 F.3d 41, 42–43 (2d Cir. 1996); Davin v. U.S. Dep’t
of Justice, 60 F.3d 1043, 1061 (3d Cir. 1995)); Amnesty Int’l USA v. C.I.A., 728 F. Supp. 2d 479, 527–28 (S.D.N.Y.
2010) (upholding Exemption 7(D) withholding based on express and implied assurances of confidentiality made in
agency regulation); Adamowicz v. I.R.S., 672 F. Supp. 2d 454, 475–76 (S.D.N.Y. 2009) (“Where an agency relies on
an express assurance of confidentiality…it must offer probative evidence that the source did in fact receive an
express grant of confidentiality…, such as…an official’s personal knowledge about the source….”) (quoting
Dipietro v. Exec. Office for United States Att’ys, 357 F. Supp. 2d 177, 185 (D.D.C. 2004) (internal quotation marks
omitted), aff’d, 402 F. App’x 648 (2d Cir. 2010).
12
See Pl. Br. at 8–9, 13–14; cf. Adamowicz v. I.R.S., 402 F. App’x 648, 653 (2d Cir. 2010) (holding that inadvertent
disclosures by agency did not vitiate confidentiality because “the promised confidentiality could only be waived by
the source”) (citing Ferguson, 957 F.2d at 1068; United Techs. Corp. v. NLRB, 777 F.2d 90, 96 (2d Cir. 1985) (“The
privilege belongs to the beneficiary of the promise of confidentiality and continues until he or she waives it.”)).
13
Cf. Halpern, 181 F.3d at 300 (“[I]t makes no difference in our analysis whether now, in hindsight, the objective
need for confidentiality has diminished; what counts is whether then, at the time the source communicated with [the
agency], the source understood that confidentiality would attach.”).
18
assurances that information provided will be “clearly designated as falling into” one of the two
categories, and guidance as to what constitutes those two categories, examples of the types of
information likely to be communicated, the extent to which the categories can be shared with
non-ITAC members, how the different categories will be communicated, and how they should be
handled from a security standpoint. See Manual at VI.1–3. Since Plaintiffs offer no benchmark
or authority for what “sufficient” categorization would look like, and USTR is owed at least
“some deference” in interpreting what the statutory provision requires of an agency manual,
Kuhne v. Cohen & Slamowitz, LLP, No. 07 Civ. 1364 (HB), 2008 WL 608607, at *4 (S.D.N.Y.
Mar. 5, 2008), the ITAC Manual meets the categorization requirement set forth in § 2155(g)(3).
Plaintiffs next maintain that the ITAC Manual is illegitimate because it was not
promulgated under the Administrative Procedure Act’s notice-and-comment requirements. Pl.
Br. at 12–13. “Except when notice or hearing is required by statute,” the Administrative
Procedure Act (the “APA”) does not require formal notice-and-comment procedures when
agencies promulgate “interpretative rules, general statements of policy, or rules of agency
organization, procedure, or practice.” 5 U.S.C. § 553(b)(A). The ITAC Manual is plainly
interpretative in nature, as it creates no new legal rights, and does no more than explicate and
clarify agency procedure with regard to a substantive duty already set forth in section 2155(g)(3).
See, e.g., Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015) (“[T]he critical feature
of interpretive rules is that they are ‘issued by an agency to advise the public of the agency’s
construction of the statutes and rules which it administers.’”) (quoting Shalala v. Guernsey
Mem’l Hosp., 514 U.S. 87, 99 (1995)); Cohn v. Fed. Bureau of Prisons, 302 F. Supp. 2d 267,
274 (S.D.N.Y. 2004) (“A rule is interpretive if ‘an agency is exercising its rule-making power to
clarify an existing statute or regulation,’ and substantive if the agency is seeking to ‘create new
19
law, rights or duties in what amounts to a legislative act.’”) (quoting White v. Shalala, 7 F.3d
296, 303 (2d Cir. 1993)). Plaintiffs do not attempt to argue why the ITAC Manual is substantive
and not interpretative, begging the question by simply assuming that notice-and-comment
procedures are required. This objection to the ITAC Manual is thus rejected.
Finally, Plaintiffs argue that USTR cannot rely on the ITAC Manual because it was not
made available to the public during the time period covered by the ITAC Communications. Pl.
Br. at 13 (citing 5 U.S.C. § 552(a)(2)(E)). USTR, however, has submitted a sworn declaration
from the official who has managed the ITACs since 2000, attesting that the ITAC Manual “has
been published online since October 2010, and was otherwise available to the public for
inspection and copying since its creation in 2004.” Supplemental Declaration of Ingrid Mitchem
(Doc. 88) ¶ 4. The Court credits that representation. Plaintiffs’ final challenge to the ITAC
Manual is therefore also rejected.
C. Section 2155(g)(2)’s Application to Submissions by ITAC Members
IP Watch I implicitly rejected Plaintiffs’ argument that section 2155(g)(2) applies only to
information from private individuals who are not ITAC members, and thus does not authorize
withholding of any information submitted by ITAC members in confidence. See Pl. Br. at 7 n.1.
The Court now makes that rejection explicit: Section 2155(g)(2) covers information submitted
in confidence by ITAC members to the U.S. government.
Section 2155(g)(2) governs “advice submitted in confidence by the private sector or nonFederal government,” and the remainder of the statue makes clear what is meant by “the private
sector.” Section 2155(a), the general provision demonstrating the purpose of the statute,
instructs the President to seek information and advice from, and to consult with, “representative
elements of the private sector and the non-Federal governmental sector” with regards to U.S.
20
trade policy and negotiations. Section 2155(c) authorizes creation of the ITACs “to provide
general policy advice on matters referred to in subsection (a) of this section.” Thus, ITAC
members are among the “elements of the private sector” referred to in section 2155(a), and are
thus permitted to submit information in confidence under section 2155(g)(2). And beyond the
plain language, Plaintiffs’ interpretation borders on the absurd—there is no rational explanation
for why Congress would create ITACs specifically to advise the government on trade
negotiations but not permit ITAC members to submit information or advice in confidence, even
though non-ITAC members can submit in confidence to ITACs and USTR, and USTR can
submit in confidence to ITACs. See USTR Response (Doc. 85) at 4 (“Under this interpretation,
the statute would not cover confidential information or advice that ITAC members submitted to
USTR. This runs directly counter to the purpose of the Trade Act….”).
D. Conclusion on the Summary Judgment Motions
The Court will not grant summary judgment in favor of either party at this time.
Should USTR want to make additional submissions to support its Exemption 3
withholdings, it must do so on or before September 30, 2016. Plaintiffs must submit a response
to those submissions on or before October 31, 2016. USTR is permitted, but not required, to file
a reply on or before November 14, 2016.
III. PLAINTIFFS’ RULE 60(B) MOTION
Based on the conclusion of TPP negotiations and the release of the final agreement,
Plaintiffs have moved the Court to revisit its decision in IP Watch I and “order disclosure of the
draft texts (and other materials) to the extent they reflect TPP positions advanced or adopted by
the U.S. government.” Memorandum of Law in Support of Plaintiffs’ Motion for Relief
21
Purusant to Rule 60(b) (“Pl. 60 Br.”) (Doc. 91) at 2. As explained below, that motion is denied
in substantial part, save for a small set of withholdings of ITAC Communications that USTR has
not justified under Exemption 1.
Rule 60(b)(6) authorizes the Court to relieve a party from a final judgment or order for
“any” reason that “justifies relief” and is not covered by the grounds for relief provided by Rules
60(b)(1)–(5). “Rule 60(b)(6) ‘confers broad discretion on the trial court to grant relief when
appropriate to accomplish justice.’” United Airlines, Inc. v. Brien, 588 F.3d 158, 176 (2d Cir.
2009) (quoting Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir. 1986)). “Relief is warranted
‘where there are extraordinary circumstances, or where the judgment may work an extreme and
undue hardship, and should be liberally construed when substantial justice will thus be served.’”
Id. (quoting Matarese, 801 F.2d at 106)).
A. “Extraordinary Circumstances” Required for Rule 60(b)(6) Relief
As a preliminary matter, Plaintiffs have arguably not satisfied the threshold showing of
“extraordinary circumstances” required to garner reconsideration under Rule 60(b)(6). See, e.g.,
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (“[O]ur cases have required a movant seeking
relief under Rule 60(b)(6) to show ‘extraordinary circumstances’ justifying the reopening of a
final judgment.”) (citations omitted); Justice v. City of New York, No. 13 Civ. 4016 (MKB), 2015
WL 4523154, at *2 (E.D.N.Y. July 27, 2015) (“[Rule 60(b)(6) motions] are disfavored and
should only be granted upon a showing of ‘extraordinary circumstances, or extreme hardship.’”)
(quoting DeCurtis v. Ferrandina, 529 F. App’x 85, 86 (2d Cir. 2013)). Specifically, Plaintiffs
have not presented any new facts that show that USTR’s contemporaneous withholding
decisions and this Court’s affirmance of those decisions were wrong or unjust at the time they
were made. See James v. U.S. Secret Serv., 725 F. Supp. 2d 207, 209 (D.D.C. 2010) (denying
22
reconsideration under Rule 60(b)(6) where plaintiff failed to “present any new facts or arguments
showing that the Court’s July 23, 2007 judgment upholding Defendants’ disposition of his
September 15, 2005 FOIA requests was unjust”); Lion Raisins, Inc. v. U.S. Dep’t of Agric., No.
05 Civ. 00062 (OWW), 2008 WL 3834271, at *10 (E.D. Cal. Aug. 14, 2008) (“Plaintiff Lion
seeks a review of the FOIA decision by the agency anew, and not at the time of the denial, which
has been finally decided. Plaintiff Lion has not presented any evidence or argument on the
original denial of its FOIA request. It instead seeks to have the court review the FOIA denial in
light of the present circumstances which the law does not support.”) (citing Bonner v. U.S. Dep’t
of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (Ginsberg, J.)); cf. Labow v. U.S. Dep’t of Justice,
66 F. Supp. 3d 104, 129 (D.D.C. 2014) 14(“Labow is not entitled to reprocessing because he has
not shown that the government erroneously withheld the information when it processed his
request in 2011 and 2012.”) (citations mitted). Instead, Plaintiffs invoke Rule 60(b)(6) to ask the
Court to reassess USTR’s withholding decisions under present day circumstances, bucking the
“general rule” that “a FOIA decision is evaluated as of the time it was made and not at the time
of a court’s review.” N.Y. Times Co. v. Dep’t of Justice, 756 F.3d 100, 110 n.8 (2d Cir. 2014)
(citing Bonner v. U.S. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (Ginsberg, J.)). 15
Plaintiffs are correct to argue the Second Circuit will permit consideration of agency disclosures
made during the pendency of appeal and post-dating the district court’s judgment affirming an
agency’s withholding decisions. See Florez v. Cent. Intelligence Agency, No. 15 Civ. 1055,
2016 WL 3769948, at *7 (2d Cir. July 14, 2016); N.Y. Times, 756 F.3d at 111 n.8. But the cases
Plaintiffs cite do not fully the carry the day here, because they did not involve Rule 60(b)(6)
14
Opinion rev’d on other grounds, 2016 WL 4150929 (2d Cir. Aug. 5, 2016).
15
Opinion amended on denial of reh’g, 758 F.3d 436 (2d Cir. 2014), supplemented, 762 F.3d 233 (2d Cir. 2014),
and reh’g denied, 762 F.3d 233 (2d Cir. 2014).
23
motions, and because the later disclosures in those cases were arguably used only to question the
agency’s original withholding decisions, not to force the agency to provide new withholding
justifications based on an updated record. Cf. N.Y. Times, 756 F.3d at 111 n.8 (describing the
government’s post-request disclosures as “inconsistent with some of its prior claims”) (emphasis
added); ACLU v. CIA, 710 F.3d 422, 427–28 (D.C. Cir. 2013) (finding CIA’s original response
that confirming or denying existence of documents would harm national security was no longer
logical or plausible given statements from President and two other top government officials).
That said, Plaintiffs make the much stronger pragmatic case, as it would “not serve the purposes
of FOIA or the interests of justice” to force Plaintiffs to file a new FOIA request and wait a
significant amount of time to receive essentially the same response that USTR has already
provided here. Florez, 2016 WL 3769948, at *7 (calling consideration of disclosures that postdated district court judgment “the most sensible approach,” where refusing consideration would
relegate plaintiff to re-file FOIA request in order to receive same response agency made on
appeal, and concluding that “there is no reason we should not take into account the reality in
which this action proceeds”); but see Lion Raisins, 2008 WL 3834271, at *6 (denying
reconsideration under Rule 60(b)(6) because the plaintiff “has the ability to file a new FOIA
request based on the current conditions before the USDA,” which demonstrated a “lack of
extraordinary circumstances”).
The Court need not resolve this issue definitively. Even after reconsidering USTR’s
Exemption 1 withholdings on the current state of the record, the public release of the final TPP
text does not sufficiently defeat USTR’s assertions of harm to foreign relations.
24
B. USTR’s Exemption 1 Withholdings Following the Signing of the TPP
At the outset, it is important to clarify the scope of Plaintiffs’ challenge to Exemption 1
withholdings on reconsideration. Plaintiffs, repeatedly and explicitly, limit their request to
disclosure of the “specific positions that the United States proposed or adopted in negotiations.”
Pl. 60 Br. at 8 (emphasis added); see also Pl. 60 Br. at 7; Pl. 60 Rep. at 2–3 & n.1. Plaintiffs do
not seek disclosure of the positions taken and proposals made by any of the other eleven
participating countries, essentially conceding that such information is properly withheld. See Pl.
60 Rep. at 3–4. The core question raised by Plaintiffs’ motion for reconsideration, then, is
whether disclosure of positions that the United States proposed or adopted throughout
negotiations, regardless of whether those positions ended up in the final agreement or not, are
properly withheld under Exemption 1 because disclosure could logically or plausibly harm
foreign relations.
FOIA Exemption 1 authorizes agencies to withhold information that is “(A) specifically
authorized under criteria established by an Executive order to be kept secret in the interest of
national defense or foreign policy and (B) are in fact properly classified pursuant to such
Executive order.” 5 U.S.C.§ § 552(b)(1). For its Exemption 1 withholdings, USTR relies on
Executive Order 13526, entitled “Classified National Security Information.” Exec. Order No.
13526, 75 Fed. Reg. 707 (Dec. 29, 2009) (“E.O. 13526”). Information is properly classified
under E.O. 13526 only if “the unauthorized disclosure of the information reasonably could be
expected to result in damage to the national security.” E.O. 13526 § 1.1(a)(4). “Damage to the
national security” is defined in part as “harm to the national defense or foreign relations of the
United States….” Id. § 6.1(l).
25
The main point of contention between Plaintiffs and USTR is whether disclosure could
harm foreign relations. “Notwithstanding the presumption in favor of disclosure, when the
claimed exemption implicates national security, ‘an agency’s justification for invoking a FOIA
exemption is sufficient if it appears logical or plausible.’” Ctr. for Constitutional Rights v.
C.I.A., 765 F.3d 161, 166 (2d Cir. 2014) (quoting Wilner, 592 F.3d at 69) (emphasis added), cert.
denied, 135 S. Ct. 1530 (2015). “Because the agencies responsible for national security ‘have
unique insights into what adverse [e]ffects might occur as a result of public disclosures,’ courts
are ‘required to accord substantial weight to an agency’s affidavit concerning the details of the
classified status of the disputed record.’” Azmy v. U.S. Dep’t of Def., 562 F. Supp. 2d 590, 597
(S.D.N.Y. 2008) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)).
(a) Decision Memoranda
The Decision Memoranda remain properly withheld under Exemption 1. Cf. IP Watch I,
134 F. Supp. 3d at 736–37 (noting that Plaintiffs’ limiting their Exemption 1 challenge to
positions proposed or adopted by the U.S. effectively insulated Decision Memoranda from
disclosure). USTR’s submissions confirm that these memoranda do not contain formal positions
proposed or adopted by the United States—rather, they contain summaries of negotiations,
“candid assessments” of outstanding issues, suggestions for future negotiation strategies, and
pros and cons of whether to adopt or challenge particular stances taken by other countries on
trade-remedy and copyright issues. See 2d Supp. Weisel Decl. ¶¶ 6–9 (representing that the
Decision Memoranda do not contain draft text); Declaration of Victor Mroczka (“Mroczka
Decl.”) (Doc. 100) ¶ 16 (describing content of trade-remedy Decision Memorandum as “analyses
of the pros and cons of whether the United States should engage on proposals regarding
transparency and due process provisions in the TPP Trade Remedies chapter or draft its own
26
counter-proposal”); Supplemental Declaration of Probir Mehta (“Mehta Decl.”) (Doc. 101) ¶ 13
(describing content of IP Decision Memorandum as “assess[ing] whether the United States
should continue or change a particular stance on other TPP partners’ proposals” and “if so, how
to deploy that change in stance” given the “contentious and difficult” nature of issue). The fact
that U.S. negotiators “depart from positions suggested in the Decision Memoranda without
changing, rescinding or redrafting them” confirm the transient nature of the content in these
documents, belying the possibility that they contain formal proposals put forth by the United
States. 2d Supp. Weisel Decl. ¶ 6. And indeed, to the extent the Decision Memoranda do not
contain any of the United States’ own proposed or adopted positions, Plaintiffs do not even try to
dispute the plausibility that foreign relations could be harmed by disclosure of USTR’s candid
assessments of other countries’ proposals and interests. See Mroczka Decl., ¶ 16; Mehta Decl. ¶
13; 2d Supp. Weisel Decl. ¶ 24.
(b) U.S. Proposals in Draft Chapters and ITAC Communications
Although a closer question, USTR has also properly withheld draft text containing the
positions that the U.S. proposed or adopted, whether that text appeared in the Draft Chapters or
ITAC Communications. USTR has provided a plausible account of why unilaterally disclosing
the U.S.’s evolving negotiating positions and the extent to which the U.S. got its proposals
adopted into the final agreement could harm foreign relations. Specifically, disclosure could (i)
harm relations with the eleven other TPP countries while the ratification process is ongoing, and
(ii) harm ongoing and future trade negotiations, because disclosure would both violate the
confidentiality agreement and reveal the evolution of U.S. positions on controversial trade topics.
First, Plaintiffs overstate the extent to which circumstances have changed since the
Court’s prior decision. While the conclusion of negotiations over the final text is an important
27
milestone, the agreement will not come into force unless and until a certain proportion of
participating countries approve the agreement through their domestic legal procedures. See TPP
Art. 30.5. The TPP has been a salient and fraught political question in the United States, and its
entry into force is far short of a sure thing.
Consequently, USTR officials continue to make a logical and plausible case for why
disclosure of the U.S.’s own positions “could negatively affect the ongoing discussions” with the
U.S.’s “TPP partners until entry into force.” Supp. Mehta Decl. ¶ 14. 16 These officials plausibly
attest that disclosure would reveal snapshots of U.S. proposals that could lead to problematic
accusations against the other eleven TPP countries—that they were steamrolled by the U.S. from
the start, or did not take advantage of favorable offers that the U.S. made and later retracted, or
never fought hard enough for certain negotiating objectives with respect to particular topics, or
made nefarious strategic decisions to favor certain special interests over others. 17 Such charges
may be true, but they may not be, as piecemeal disclosures from different points in the
negotiating process may distort the actual package of proposals that the U.S. was putting forth to
its negotiating partners at any given point. 18 These types of accusations and second-guessing are
16
See Mroczka Decl. ¶ 15 (same); McHale Decl. ¶ 11 (“Revealing these documents will undermine the ability of
the United States to conclude the remaining processes required for entry into force of the TPP, which require
politically sensitive steps on the part of trade partners, and which will continue to require confidential discussions on
implementing measures.”); 2d Supp. Weisel Decl. ¶ 23 (“[During ratification, the U.S.] will be working very
closely with all of our TPP partners to ensure that each country fully implements the agreement. A public release by
the United States of its own negotiating documents could negatively affect the ongoing discussions we must have
with our TPP partners until entry into force.”).
17
See Supp. Mehta Decl. ¶ 9 (attesting that disclosure of interim positions could subject a counter-party to
“unwarranted assertions that it failed to address a specific constituency’s goals by offering either excessive
concessions or not demanding sufficient concessions from others”); Mroczka Decl. ¶ 11 (same); McHale Decl. ¶ 9
(same).
18
Cf. 2d Supp. Weisel Decl. ¶ 10 (providing that countries made decisions “to take positions for strategic or tactical
negotiation reasons, with the understanding that their draft texts would not be public”); see also Supp. Mehta Decl. ¶
11 (“[A] negotiating partner may take a position solely for tactical purposes to gain support for another priority
proposal.”); Mroczka Decl. ¶ 11 (noting that snapshots of proposals out of context “can reveal strategic decisions a
country makes at a particular point that it is only willing to put forward if the package as a whole remains
confidential”); Supp. Mehta Decl. ¶ 9 (same); McHale Decl. ¶ 9 (same).
28
conceivably the stuff of political attacks that could impede or even defeat ratification of the final
agreement; that such obstacles would arise exclusively from unilateral disclosure by the U.S.
could plausibly harm foreign relations with the other eleven TPP countries. 19 As USTR’s top
negotiator attests, the how and why of evolving negotiating positions is “precisely what the
multilateral confidentiality agreement is intended to protect,” 2d Supp. Weisel Decl. ¶ 25, and
whether the decision by all twelve participating countries to keep the negotiating process
confidential until entry of force was necessary or wise, USTR has met its burden of providing at
least a logical and plausible basis for it. 20
Plaintiffs’ only response to USTR’s arguments about harm to the ratification process is to
call them “vague and implausible” because it is “unclear what discussions would be impeded”
following the conclusion of negotiations over the text itself. Pl. 60 Rep. at 5. But this is
somewhat disingenuous, because shedding light on possible objections to the final agreement
prior to its entry into force is precisely why Plaintiffs urge this Court to order disclosure of the
U.S.’s evolving negotiating positions. See id. (“Even if secrecy is necessary during negotiations
in order to reach agreement, once negotiations conclude, disclosure of the United States’ own
positions is necessary in order to inform debate in Congress (and, by extension, in public) about
whether to ratify the agreement that resulted.”) While a noble endeavor, its nobility does not
19
See Mroczka Decl. ¶ 12 (“If one TPP partner has difficulties in implementation, this would harm not only U.S.
economic interests, but also those of the other TPP partners.”).
20
As the Court previously noted, and as Plaintiffs stress, the mere existence of a confidentiality agreement, standing
alone, cannot satisfy the government’s burden of showing harm to foreign relations. See IP Watch I, 134 F. Supp.
3d at 737. But placed in its individual factual context, breach of a particular confidentiality agreement can be
significant in assessing the plausibility of the government’s assertions of harm. This is one of those cases: It
involves a complex multilateral trade agreement among twelve countries that make up a significant percentage of
the global economy, born from a negotiation process that remains protected by a broad confidentiality agreement
until the final agreement enters into force. Contrary to Plaintiffs’ belief, Pl. 60 Br. at 7, locking in the final text does
not vitiate the purpose of the confidentiality agreement, at least not according to the twelve TPP countries, who all
agreed to tether the termination of the confidentiality agreement to ratification, not to mere agreement on final text.
29
undermine the logic of USTR’s belief that disclosure would create identical opportunities for
interested parties in the eleven other participating countries.
Second, beyond ratification of the TPP, USTR has also made a plausible case that
disclosure of the U.S.’s evolving negotiating positions could damage other ongoing or future
trade negotiations with other countries. This is so for two related but distinct reasons. To start,
the actual contents of these specific disclosures could harm other trade negotiations, because any
country that enters into trade negotiations with the U.S. will have a blueprint of the U.S.’s
evolving strategy and positions deployed throughout TPP negotiations. 21 It is thus plausible that
disclosure make future negotiations more difficult for the U.S., harming its “ability to maintain
flexibility when conducting…negotiations by potentially locking the U.S. into positions that
might not be optimal in other circumstances.” 2d Supp. Weisel Decl. ¶ 24. 22
Even beyond the harm these particular disclosures may create, the precedent Plaintiffs
attempt to establish here may create problems on its own: If Plaintiffs prevail, future trade
partners will know that the U.S. will not be able to abide by a commitment to keep its interim
offers and proposals confidential. Cf. Pl. 60 Br. at 7 (“[P]laintiff seeks to establish only the
proposition that in these particular circumstances—where a multilateral agreement has been
concluded and the text published for all to see—disclosure of the United States’ own positions
21
See 2d Supp. Weisel Decl. ¶ 21 (“[R]evealing the United States’ evolving positions on any particular topic could
disclose the United States’ negotiating tactics and strategies, including how strongly the United States may have
advocated for a position, and decrease our ability to effectively use these tactics in other ongoing and future
negotiations.”); McHale Decl. ¶ 12 (attesting that revelation of a “U.S. proposal made at a particular time” in TPP
negotiations, “when the United States currently is negotiating similar agreements in other fora, would put the United
States in a disadvantageous tactical position” because “trading partners may use the document to insist on similar
treatment in other contexts”).
22
See Supp. Mehta Decl. ¶ 15 (noting other ongoing intellectual-property and e-commerce negotiations involving
similar issues, and representing that revealing positions or concessions made in TPP negotiations would put a
country “in a tactically disadvantageous position” in other negotiations and mitigate the freedom such a country
would “need to effectively offer different terms to different partners in different circumstances”); Mroczka Decl. ¶
11 (same); McHale Decl. ¶ 10 (same).
30
and proposals during the course of negotiations would not plausibly harm foreign relations.”).
Plaintiffs argue that earlier, interim positions taken by the United States in the course of
negotiations could not plausibly hamper future negotiations once the final text of the agreement
is released. Pl. 60 Rep. at 4. But the mere fact that the final agreement may constrain future
U.S. positions does not preclude the possibility that disclosure of earlier positions may do so as
well. To the contrary, USTR makes sufficiently logical representations that future trade
negotiations may become more difficult if other countries know that all of the U.S.’s interim
positions and proposals made during future negotiations will be disclosed to the public once a
final agreement is locked in. 23 Indeed, as USTR’s top negotiator explains, these types of
confidentiality agreements are critical to trade negotiations, and setting a precedent that the U.S.
cannot abide by them would “dramatically undermine the United States’ ability to obtain
information from other partners and engage in sensitive policy discussions with countries around
the world.” 2d Supp. Weisel Decl. ¶ 22; see also id. at ¶ 20. Without this mutual trust in
confidentiality, “countries are more likely to adopt and maintain rigid negotiating positions,
significantly reducing the prospects for compromise and eventual agreement on terms favorable
to the United States.” Id. at ¶ 21. These representations are born from personal experience and
made in good faith, and even if this Court were to think them overstated, it would still defer to
the coherent and plausible views of the government officials actually tasked with conducting
these high stakes negotiations. See Ctr. for Int’l Envtl. Law v. Office of U.S. Trade
23
See Supp. Mehta Decl. ¶¶ 6–8 (representing that violation of confidentiality agreement would “damag[e] the trust
that our foreign negotiating partners have in the United States to abide by its agreement to protect documents
exchanged with an expectation of confidentiality for an agreed upon period,” undermining U.S.’s ability to negotiate
good trade deals in the future); Mroczka Decl. ¶¶ 8–10 (same); McHale Decl. ¶¶ 6–8 (same); Supp. Mehta Decl. ¶
11 (“Without mutual trust that such positions will not be disclosed for the period agreed, countries are more likely to
adopt and maintain rigid negotiating positions, significantly reducing the ability of the United States to obtain
agreement on terms favorable to its security and economic interests.”); Mroczka Decl. ¶ 14 (same).
31
Representative, 718 F.3d 899, 903 (D.C. Cir. 2013) (“The question is not whether the court
agrees in full with the Trade Representative’s evaluation of the expected harm to foreign
relations. Rather, the question is ‘whether on the whole record the [a]gency’s judgment
objectively survives the test of reasonableness, good faith, specificity, and plausibility.’”)
(quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). 24
As a final point, there is one exception to the Court’s re-affirmance of USTR’s
Exemption 1 withholdings. For the first time on this motion for reconsideration, USTR clarified
that portions of six documents containing ITAC Communications were being withheld under
Exemption 1 because they contained “suggested changes or additions to draft text that ITAC
members themselves drafted….” 2d Supp. Weisel Decl. ¶ 13. USTR has not made a logical or
plausible case that disclosure of text suggested by the private sector could harm foreign relations.
See Pl. 60 Rep. at 5–6. Thus, USTR must either (i) disclose these portions of ITAC
Communications to the extent they can be reasonably segregated from other information
properly withheld under Exemption 1, or (ii) justify these withholdings under Exemption 3 in its
additional submissions due on September 30, 2016.
24
Plaintiffs further argue that USTR’s assertions lack plausibility because unofficial leaks of draft TPP text during
TPP negotiations did not prevent the parties from reaching a final agreement. Pl. 60 Rep. at 4–5. But this argument
misses the mark for a few reasons. Participating TPP countries obviously did not gain any new knowledge or
leverage from these leaks, so Plaintiffs’ example does not speak to a case in which other countries not privy to TPP
negotiations may leverage the disclosures Plaintiffs seek in separate negotiations against the U.S. Furthermore,
unofficial leaks do not create the potentially problematic precedent that the U.S. could not keep its own proposals
confidential following negotiations over the final text of an agreement. Beyond that argument, Plaintiffs are right to
point out that USTR has not proffered a specific instance in which formal disclosure of its interim negotiating
proposals constrained its position in another negotiation. Pl. 60 Rep. at 4–5. But of course Plaintiffs also cannot
proffer a specific instance in which a court ordered the government to disclose such interim positions. Both parties
press their positions only by reference to hypotheticals, and unfortunately for Plaintiffs, USTR need only proffer
logical or plausible theories of harm to prevail, which it has.
32
(c) Waiver
The two general reasons for upholding USTR’s Exemption 1 withholdings—the ongoing
process of ratifying the TPP, and the potential harm to ongoing or future trade negotiations—
apply equally to draft proposals made or adopted by the U.S that ended up in the final agreement.
Plaintiffs argue, however, that the release of the final TPP text waived Exemption 1 protection
for the portions of the Draft Texts “that closely track or match the final version.” Pl. 60 Br. at 9–
10. Official disclosure of previously classified information can waive Exemption 1 protection
where (1) the information requested is “as specific” as the information already disclosed, (2) the
information requested “matches” the information already disclosed, and (3) the information
disclosed was “made public through an official and documented disclosure.” N.Y. Times, 756
F.3d at 113, 120 (quoting Wilson v. CIA, 586 F. 3d 171, 186 (2d Cir. 2009)).
The Court is not persuaded that this is an appropriate case of waiver. The information
Plaintiffs are requesting—the extent to which the U.S. proposed or adopted provisions that made
their way into the final agreement, and at which point in the negotiation process those proposals
were made—was not disclosed merely by the release of the final TPP agreement. Cf. Pl. 60 Br.
at 12–13 (“Access to the information sought here will allow IP-Watch and others to understand
how USTR advanced and protected American interests, tracing the fate of USTR’s positions and
proposals through to the final text.”). Release of the final TPP agreement discloses only the fact
that the final text was eventually agreed to by all twelve countries; it does not disclose which
country or countries proposed which provisions, when those proposals were made, and evolving
iterations of each proposal throughout the negotiations. The final text itself, therefore, does not
33
“match” information that would “trace[] the fate of USTR’s positions and proposals through to
the final text.” Id. Without that match, waiver is not applicable. 25
IV. CONCLUSION
Both Plaintiffs’ and USTR’s motions for summary judgment are denied at this time, and
will be revisited after USTR has the opportunity to make further submissions establishing that
the information and advice contained in the withheld ITAC Communications were submitted in
confidence. Once again, those additional submission are due on or before September 30, 2016,
Plaintiffs’ required response is due on or before October 31, 2016, and USTR’s optional reply is
due on or before November 14, 2016.
25
While a “rigid” application of the “match” requirement would strip the waiver doctrine of its force, N.Y. Times,
756 F.3d at 120 n.19, Plaintiffs cannot leverage that doctrine to obtain additional protected information that just so
happens to reside in the same document as already-disclosed information for which protection was waived, cf. id. at
119 (finding that government waived protection of legal analysis in a memo withheld under Exemption 1, but
redacting portions of memo in which legal analysis was “so intertwined with [other] facts entitled to protection that
disclosure of the analysis would disclose such facts”). Plaintiffs maintain that waiver applies only to draft text that
is identical, “prefigure[s],” or is “similar in substance” to final text. Pl. 60 Br. at 9. But Plaintiffs’ request, by its
very nature, seeks not only the text itself, but when the U.S. proposed or adopted that text, and how it evolved
throughout negotiations. To put the point another way, the portions of the Draft Chapters that arguably “match” the
final TPP text cannot be reasonably segregated from the information that Plaintiffs actually seek—whether, and at
which points in the negotiations, the United States made or adopted proposals that ended up in the final agreement—
and it is disclosure of that latter category of information that USTR plausibly claims would harm foreign relations.
Cf. 5 U.S.C. § 552(b) (“Any reasonably segregable portion of a record shall be provided to any person requesting
such record after deletion of the portions which are exempt under this subsection.”); Conti v. U.S. Dep’t of
Homeland Sec., No. 12 Civ. 5827 (AT), 2014 WL 1274517, at *25 (S.D.N.Y. Mar. 24, 2014) (“Non-exempt
portions of a document may only be withheld if they are ‘inextricably intertwined’ with the exempt portions.”)
(quoting Inner City Press/Cmty. on the Move v. Bd. of Governors of the Fed. Reserve Sys., 463 F.3d 239, 249 n.10
(2d Cir. 2006)). While Plaintiffs are right to argue that protection for information in a draft document can plausibly
be waived by its later disclosure in a final document, see Pl. 60 Rep. at 7 (“[R]evealing the same information in
different contexts is precisely the function of the official disclosure doctrine.”), that cannot be the case where
disclosure of the context itself would reveal information that is otherwise protected—here, which U.S. proposals
were made at what stages of the negotiations.
34
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