Intellectual Property Watch et al v. United States Trade Representative
Filing
127
OPINION AND ORDER: For the reasons set forth above, USTR's motion for summary judgment on the remaining communications is GRANTED, and Plaintiffs' motion is DENIED. (Signed by Judge Edgardo Ramos on 9/30/2018) (jwh) Transmission to Orders and Judgments Clerk for processing.
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.:
Before the Court is a Freedom of Information Act (“FOIA”) suit involving a request for
communications relating to the Trans Pacific Partnership (“TPP”), a wide-ranging, plurilateral
trade agreement formerly negotiated among the United States and eleven Asia-Pacific countries. 1
Intellectual Property Watch, a news organization that reports on international intellectual
property issues, and its editor-in-chief, William New (together, “Plaintiffs”) submitted their
FOIA request to the United States Trade Representative (“USTR” or the “agency”). The parties
cross-moved for summary judgment with Plaintiffs challenging USTR’s withholdings and
redactions of certain responsive documents that the agency determined were exempt from
FOIA’s disclosure requirements. See Docs. 42, 46, 48, 61.
Pursuant to two prior opinions, the Court granted in part and denied in part each of the
parties’ respective motions. See Intellectual Prop. Watch v. U.S. Trade Representative (“IP
Watch I ”), 134 F. Supp. 3d 726 (S.D.N.Y.2015); Intellectual Prop. Watch v. United States Trade
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On January 23, 2017, the United States withdrew from participation in the TPP. The remaining eleven AsiaPacific countries are: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru,
Singapore, and Vietnam. Declaration of Barbara Weisel (Doc. 44) ¶ 5. On march 8, 2018, the remaining eleven
countries entered the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, which incorporates
much of what had been negotiated under the TPP. See https://www.csis.org/analysis/tpp-cptpp.
Representative (“IP Watch II”), 205 F. Supp. 3d 334 (S.D.N.Y. 2016). The Court now
principally decides whether certain communications withheld under Exemption 3, were
“submitted in confidence” and therefore properly withheld pursuant to 19 U.S.C. § 2155(g)(2)(3).
For the reasons set forth below, USTR’s motion for summary judgment on the remaining
communications is GRANTED, and Plaintiffs’ motion is DENIED.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. ITACs and the TPP
The Court assumes familiarity with the record and its prior opinions in IP Watch I and IP
Watch II, which detail the facts and procedural history of this case, and discusses here only those
facts necessary for its disposition of the instant motions. 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 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). These
ITACs were called on during the course of TPP negotiations to provide counsel to U.S.
Government negotiators. 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. See IP Watch I, 134 F. Supp. 3d at 731–32.
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B. Plaintiffs’ FOIA Request and IP Watch I
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 certain ITACs. 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. As relevant here, USTR’s
searches produced roughly 700 pages of emails among USTR, ITAC members, and nonmember, private-sector consultants, 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.
These communications are referred to as “ITAC Communications.”
USTR withheld some ITAC Communications in full and some only partially by redacting
portions of responsive communications. The parties cross-moved for summary judgment on the
validity of USTR’s withholdings.
IP Watch I was decided on September 25, 2015. See IP Watch I, 134 F. Supp. 3d 726.
This Court upheld USTR’s withholdings of memoranda and drafts chapters of the TPP, as well
as select 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
3
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 “intraagency.” 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, the Court was unable to rule on the propriety of
USTR’s withholdings under Exemption 3 or 4 because USTR had not provided sufficient
evidence to sustain its burden of withholding documents under those exemptions. 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.
C. IP Watch II
To support its withholdings of ITAC Communications pursuant to Exemption 3, 2 in
November and December of 2015 USTR submitted: (1) two Vaughn indices describing
communications and providing withholding justifications for information submitted by email or
posted to the Cleared Advisor Website and withheld almost exclusively pursuant to FOIA
Exemption 3 (Doc. 78, Ex. 1; Doc. 71, Ex. 2); (2) affidavits and declarations of USTR
employees and ITAC members attesting to the nature of those communications and the custom
and practice of communications between USTR, ITAC members, and the private sector (Docs.
73, 74–75, 86, 88); and (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).
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
2
USTR withdrew its reliance on FOIA Exemption 4, relying exclusively on Exemption 3 to justify withholdings of
ITAC Communications. USTR Letter (Doc. 70) at 3 n.3.
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reconsideration of the Court’s affirmance of the withholdings USTR made under Exemption 1.
(Doc. 90). Plaintiffs urged reconsideration because the Court’s reasoning in IP Watch I turned in
part on the fact that TPP negotiations were still ongoing.
IP Watch II was decided on August 31, 2016. See IP Watch II, 205 F. Supp. 3d 334.
Recognizing that the Court’s prior opinion had determined that Section 2155(g) served as a
withholding statute for purposes of Exemption 3, but had not expressly identified the operative
test for determining when a communication is submitted “in confidence” under that Section, the
Court clarified which standard controlled. In doing so, the Court adopted the well-established
test set forth in Landano for FOIA Exemption 7(D), which exempts information submitted to law
enforcement that could reveal the identity of a confidential source. See U.S. Dep’t of Justice v.
Landano, 508 U.S. 165, 172 (1993). The Court therefore held that the operative test for
determining when a communication is “submitted in confidence” “is whether the submitter
‘provided information under an express assurance of confidentiality or in circumstances from
which such an assurance could be reasonably inferred.’” IP Watch II, 205 F. Supp. 3d at 346
(quoting Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 486 (2d Cir. 1999) (quoting
Landano, 508 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). Having clarified the appropriate evidentiary standard
applicable to Section 2155(g), the Court withheld decision on the cross-motions for summary
judgment and permitted the parties to submit additional declarations or evidence and further brief
that issue. See IP Watch II, 205 F. Supp. 3d at 348–49. The Court also determined that USTR
could rely on the ITAC Manual to support its withholding of communications under Section
2155(g), which generally governs information submitted in confidence between the U.S.
Government and members of the private sector, and that ITAC members were part of the private
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sector for purposes of Section 2155(g)(2), which specifically governs “advice submitted in
confidence by the private sector or non-Federal government” to the U.S. government or its
advisory committees. See IP Watch II, 205 F. Supp. 3d at 349–51.
Finally, the Court denied Plaintiff’s Rule 60 motion in substantial part, principally
reasoning that the public release of the TPP did not eliminate the risk that disclosure of
memoranda and draft chapters could logically and plausibly harm foreign relations. See IP
Watch II, 205 F. Supp. 3d at 353–57. The Court did, however, grant Plaintiff’s motion for
reconsideration with respect to six documents containing ITAC Communications that were
withheld under Exemption 1 but for which USTR did not plausibly and logically explain could
harm foreign relations. See IP Watch II, 205 F. Supp. 3d at 358.
The Court now determines whether USTR has sustained its burden on summary judgment
to prove that ITAC Communications were submitted in confidence and therefore properly
withheld under FOIA Exemption 3.
D. New Submissions
In support of its position, USTR has submitted the following additional documents: (1)
the declaration of Jay Taylor, an ITAC member and Vice President of International Affairs at the
Pharmaceutical Research and Manufacturers of America, who submitted and received certain
withheld ITAC Communications and testifies to his understanding that communications with
USTR were submitted in confidence (Doc. 110); (2) the supplemental declaration of Ingrid
Mitchem, the Director of the Industry Trade Advisory Center, explaining the security briefings
USTR provides ITAC members regarding the confidentiality of their communications (Doc.
111); and (3) the declaration of Janice Kaye, the Chief Counsel for Administrative Law and
Ethics Official in the Office of General Counsel at USTR, explaining why the six documents
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formerly withheld under Exemption 1 are properly withheld under Exemptions 1 and/or 3 (Doc.
112). 3
II.
LEGAL STANDARD
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
F.2d 1429, 1433 (D.C. Cir. 1992)). On the other hand, 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
3
The Court notes that the parties are in agreement that there are no remaining communications being withheld under
Exemption 1, to which Plaintiffs raise any objection. Rather the only remaining dispute centers on whether certain
portions of those communications, Vaughn Index Nos. 2, 79, 83, 112, 123, and 124, are properly withheld pursuant
to Exemption 3. See Defs.’ Letter brief at 8; Pls.’ Letter Brief at 12. USTR continues to invoke FOIA Exemption 1
in regards to several of the six ITAC Communications previously withheld under that Exemption. The Court is
satisfied that USTR has properly invoked Exemption 1 with respect to certain portions of those communications
reflecting draft TPP text. See Declaration of Janice Kaye; Vaughn Index Nos. 2, 79; see also 5 U.S.C. § 552(b)(1).
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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)). Such affidavits “are accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about the existence and discoverability of
other documents.” SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(quotation marks omitted).
III.
DISCUSSION
A. ITAC Communications Withheld Under Exemption 3
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).
“In CIA v. Sims, 471 U.S. 159 (1985), the Supreme Court adopted a two-pronged
approach to evaluating an agency's invocation of FOIA Exemption 3: First, the court must
consider whether the statute identified by the agency is a statute of exemption as contemplated
by Exemption 3; second, the court must consider whether the withheld material satisfies the
criteria of the exemption statute.” Wilner v. Nat'l Sec. Agency, No. 07 Civ. 3883(DLC), 2008 WL
2567765, at *4 (S.D.N.Y. June 25, 2008), aff'd, 592 F.3d 60 (2d Cir.2009). USTR relies on 19
U.S.C. § 2155(g)(2)-(3) of the Trade Act as a basis for withholding portions of ITAC
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Communications under Exemption 3. In IP Watch I, this Court held that Section 2155(g),
entitled “Trade secrets and confidential information,” served as a withholding statute for
purposes of FOIA Exemption 3 because it “establishes particular criteria for withholding or
refers to particular types of matters to be withheld,” 5 U.S.C. §§ 552(b)(3)(A), thereby satisfying
prong one of the Sims test. IP Watch I, 134 F. Supp. 3d at 741–43.
B. Information “Submitted in Confidence” under Sections 2155(g)(2) and (g)(3)
Section 2155(g)(2) exempts from FOIA disclosure “information . . . and advice submitted
in confidence by the private sector or non-Federal Government to [Federal employees], . . . or to
any advisory committee established under subsection (c) of this Section [in other words, the
ITAC]. Likewise, Section 2155(g)(3) exempts from disclosure “[i]nformation submitted in
confidence by officers or employees of the United States” to ITAC members, “in accordance
with rules issued by [USTR]” which, in turn, “shall define the categories of information which
require restricted or confidential handling.” 19 U.S.C. § 2155(g)(3).
Whether a document is properly withheld as confidential turns on the subjective
expectation between the submitter and the receiver. 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
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).
To satisfy this test, “an agency must present evidence . . . such as notations on the face of
a withheld document, the personal knowledge of an official familiar with the source[,] a
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statement by the source[,] or contemporaneous documents discussing practices or policies for
dealing with the source or similarly situated sources.” Houghton v. U.S. Dep’t of State, 875 F.
Supp. 2d 22, 32 n.4 (D.D.C. 2012) (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). In any
event, the evidence proffered by the Government must be “sufficiently detailed” to “permit
meaningful judicial review.” Campbell, 164 F.3d at 34. Additionally, because (g)(3) requires
that documents withheld pursuant to that provision comply with rules issued by USTR, USTR
must demonstrate compliance with its rules.
The ITAC Communications at issue here can best be grouped into three categories: (1)
communications from ITAC members to USTR, for which USTR invokes § 2155(g)(2); (2)
communications from USTR to ITAC members, for which USTR invokes § 2155(g)(3); and (3)
communications including non-ITAC members of the private sector, for which USTR invokes §
2155(g)(2) and (3). See Def’s Letter Brief, dated November 7, 2016, Doc. 109, at 4–7.
(i) Communications from ITAC Members to USTR
USTR asserts that ITAC members submitted information to USTR with an expectation of
confidentiality pursuant to Section 2155(g)(2), and that those communications are therefore
exempt from disclosure under Exemption 3. For support, USTR principally relies on the two
Vaughn indices and declarations from USTR officials and ITAC members. USTR points to the
declarations of USTR officials Barbara Weisel and Melissa Keppel, the declaration of Ingrid
Mitchem, the Director of the Industry Trade Advisory Center, and the declaration of Omar Kahn,
a USTR official charged with managing the relationship between USTR and ITACs. USTR also
relies on the affidavits of three ITAC members: Greg S. Slater, Douglas T. Nelson, and Jay
Taylor, each of whom sent communications to USTR.
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Specifically, Mitchem states that as a matter of course ITAC members are regularly
provided a security briefing instructing them that their communications with USTR “are
considered confidential.” Supplemental Declaration of Ingrid Mitchem, dated October 25, 2016
(Doc. 111) ¶ 1. These briefings occur when a member joins an ITAC, when an ITAC is rechartered, “and during mandatory annual online security refreshers during” a member’s term of
service. Id. Likewise, Kahn avers that it is the position of the Office of Intergovernmental
Affairs and Public Engagement that the ITAC Manual is “co-extensive” with Section 2155(g)
and therefore “protects from disclosure communications from private sector individuals . . . that
were submitted in confidence . . . to USTR.” Declaration of Omar Kahn, dated November 6,
2015 (Doc. 73) ¶ 3. Each of the three ITAC members noted above has submitted sworn
declarations attesting to their belief that communications submitted to USTR were submitted in
confidence. For example, Taylor asserts that he received security briefings instructing him as to
the confidential nature of his communications, and that he was provided with the ITAC Manual
and informed that, pursuant to section VI of the Manual and Section 2155(g) of the Trade Act,
his communications “would be considered confidential, unless otherwise noted.” Declaration of
Jay Taylor, dated November 7, 2016 at ¶¶ 5–6. Although Slater and Nelson make no mention of
receiving any security briefings, they likewise aver that they operated with the “understanding
that [their, and their private sector affiliates’,] communications would be held in confidence in
accordance with [section] 2155(g)(2) and (g)(3) and section VI.C of the ITAC Operations
Manual.” Declaration of Greg S. Slater, dated November 5, 2015 at ¶ 5 (Doc. 75); Declaration
of Douglas T. Nelson, dated November 3, 2015 at ¶ 6 (Doc. 74). The ITAC Manual—a
contemporaneous document in force during the term of the ITAC members service— in turn
requires ITAC members to receive a security briefing, sign a “classified non-disclosure
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agreement,” and “safeguard confidential information.” Manual at VI.1. Finally, tracking the
substance of Section 2155(g)(2), the ITAC Manual informs members that “advice provided by
the Committees themselves” is one category of information that may be provided “to the U.S.
Government in confidence.” Manual at VI.4.
In response, Plaintiffs appear to concede this point and do not contend that USTR has
improperly withheld communications sent from ITAC Members to USTR pursuant to Section
2155(g)(2). This is for good reason. The language of the ITAC Manual and Section 2155(g)(2)
clearly protects from disclosure “advice submitted in confidence . . in connection with matters
[related to a member’s ITAC service].” 19 U.S.C. § 2155(g)(2); see Manual at VI.4. Likewise,
USTR officials’ testimony that ITAC members were provided the ITAC Manual and given
security briefings informing them that their communications with USTR would be made in
confidence and the affidavits of three ITAC members, which all aver that they understood their
communications with USTR were made in confidence, are reasonably detailed and specific. The
declarations from USTR officials rely on personal knowledge regarding the general practices of
USTR’s work with ITAC members and the declarations submitted by ITAC members rely on the
actual experience of those members. See Wilner, 592 F.3d at 73. Because these affidavits are
“‘not controverted by either contrary evidence in the record nor by evidence of agency bad
faith’” id. (quoting Larson, 565 F.3d at 862), they “are accorded a presumption of good faith,”
SafeCard Servs., Inc., 926 F.2d at 1200 (quotation marks omitted).
USTR has therefore proffered ample probative evidence to demonstrate that it made
explicit assurances of confidentiality to ITAC members and, accordingly, satisfies its burden of
showing that communications from ITAC members to USTR were made “in confidence,” as
required by Landano and its progeny. See Landano, 508 U.S. at 172 (requiring that “the
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particular source sp[eak] with an understanding that the communication would remain
confidential”); Ancient Coin Collectors Guild, 641 F.3d at 511–12 (noting that
“contemporaneous documents discussing practices or policies for dealing with the source or
similarly situated sources” would be sufficient “to meet the government’s burden”).
Accordingly, USTR has properly withheld under Exemption 3 all ITAC Communications from
ITAC members to USTR.
(ii) Communications from USTR to ITAC Members
The question of whether USTR properly withheld communications sent by USTR to
ITAC members under (g)(3) is more complicated and disputed vigorously by both sides. As
previously noted, Section 2155(g)(3) states:
Information submitted in confidence by officers or employees of the
United States . . . to any [ITAC], may be disclosed in accordance
with rules issued by [several agencies]. . . . 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. . . .
19 U.S.C. § 2155(g)(3) (emphasis added).
Section 2155(g)(3) therefore embodies two requirements: (1) that the communication
between federal employees and ITAC members be made in confidence, and (2) that the withheld
communications comply with rules issued by USTR or other federal agencies, in this case, the
ITAC Manual. Because an understanding of the ITAC Manual informs the parties’ claims
regarding whether the communications at issue were submitted in confidence, the Court turns
first to the latter requirement.
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(a) The Requirements of the ITAC Manual
As an initial matter, the parties dispute whether documents withheld under Section
2155(g)(3) must comply with rules promulgated pursuant to that statute. In IP Watch II, the
Court concluded that the ITAC Manual, which is promulgated by USTR and the U.S.
Department of Commerce, could serve as one of these rules for purposes of withholdings made
under Section 2155(g)(3). See IP Watch II, 205 F. Supp. 3d at 350–51. USTR now asserts that
“the Trade Act protects any information submitted in confidence by USTR to ITAC members.”
USTR Reply, dated January 17, 2017 at 6 (emphasis in original). It claims that this conclusion
follows because Section 2155(g)(3) requires only that the information be “submitted in
confidence” by USTR, and then carves out from this general protection the limited circumstances
under which documents submitted by USTR may be “‘disclosed in accordance with rules issued
by [several agencies].’” Id. (quoting 19 U.S.C. § 2155(g)(3)). Under USTR’s view, however,
the ITAC Manual does not limit or qualify the substantive scope of (g)(3)’s protections, but
merely provides the conditions under which protected information may be disclosed.
Plaintiffs, on the other hand, contend that Section 2155(g)(3)’s protections are not
unlimited, but circumscribed by rules promulgated by USTR, in this case the ITAC Manual. See
Pls.’ Letter Brief, Dated December 23, 2016 at 11. The Manual states that “[i]information
provided in confidence by the U.S. Government to Committee members will in general be
clearly designated as falling into one of two groups: . . . Security-Classified Information” and
“Trade-Sensitive Information.” See Manual at VI.1–3. Plaintiffs read the ITAC Manual as
specifying that only communications falling into one of those two categories of information may
be considered as “submitted in confidence” within the meaning of Section 2155(g)(3). Pls.’
Letter Brief at 11. Here, USTR does not seek to withhold any communications as “security-
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classified information” and instead opts to withhold all USTR-ITAC communications as “tradesensitive information.” See Def.’s Reply, dated January 17, 2017 at 6 & n.2.
The Court rejects USTR’s claim that Section 2155(g)(3) protects “any information
submitted in confidence by USTR to ITAC members.” Def.’s Reply at 6 (emphasis in original).
This claim runs counter to the Court’s prior decisions in this case and is undermined by USTR’s
prior arguments before the Court. Section 2155(g)(3), provides not only that “[i]nformation
submitted in confidence by [USTR] to any [ITAC], may be disclosed in accordance with rules
issued by [USTR],” but it also instructs that “[s]uch rules shall define the categories of
information which require restricted or confidential handling by [ITACs] 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.” § 2155(g)(3).
Accordingly, in concluding that Section 2155(g)(3) could serve as a withholding statute in IP
Watch I, the Court read that language as “instruct[ing] USTR to establish rules for sorting
between (i) information provided by the agency that requires ‘restricted or confidential
handling,’ and (ii) information provided by the agency that is appropriate for ‘public
disclosure.’” IP Watch I, 134 F.Supp.3d at 741. In urging the Court to so hold, USTR argued
that (g)(3) “explicitly refers to ‘types of matters to be withheld,’ as well as to ‘specific criteria for
withholding,’” and therefore satisfied the requirements of a withholding statute. Gov’t Rep. at 9;
IP Watch I, 134 F.Supp.3d at 740–1; see also 5 U.S.C. § 552(b)(3)(A)(ii) (exempting from
disclosure material where statute “establishes specific criteria for withholding” or “refers to
particular types of matters to be withheld”). USTR reasoned that this conclusion followed from
the fact that it promulgated the Manual pursuant to (g)(3), and that although (g)(3) and, by
extension, the Manual, “refer[red] to disclosure of categories of information in the agency’s
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discretion, that language necessarily affords the agency equal discretion to withhold the same
categories of information.” Gov’t Rep. at 10 (emphasis added). Indeed, USTR’s Associate
General Counsel, Melissa Keppel, averred that withheld ITAC Communications “fall[] into one
of [the] two categories” identified in the Manual. Supp. Declaration of Melissa Keppel ¶ 7,
dated March 6, 2015, Doc. 63. Consistent with that reasoning, in IP Watch II the Court that held
that USTR could rely on the Manual for withholdings made under (g)(3) because the Manual
“categorize[d] information submitted by [USTR] into two groups—‘Security-Classified
Information’ and ‘Trade-Sensitive Information’” and provided guidance and examples “as to
what constitutes those two categories” of information. IP Watch II, 205 F. Supp. 3d. 334 at 349–
50. Having advocated that (g)(3) and the Manual refer to categories of information that may be
withheld (and not just disclosed), USTR cannot now be heard to argue that neither (g)(3) nor the
Manual limit the kinds of communications that may be withheld by establishing specific
categories of information that are protectable. The Court therefore concludes that
communications withheld pursuant to Section 2155(g)(3) must fall into one of the categories
identified by the ITAC Manual: they must be “security-classified information” or “tradesensitive information.”
Next, the parties dispute whether communications submitted by USTR must be explicitly
marked “trade-sensitive information” to be properly withheld. USTR appears to concede that
none of the communications at issue were marked “trade-sensitive information.” See Def.’s
Letter Br. at 6; Pls.’ Letter Br. At 11 (stating “none of the emails from USTR were marked
‘trade-sensitive’”). Relying principally on the Manual’s statement that “trade sensitive
information . . . will be clearly identified to ensure proper handling,” Manual at VI.3, § VI.4.(b),
Plaintiffs contend that this failure is fatal and that USTR has therefore not demonstrated that the
16
communications it seeks to withhold satisfy the requirements set forth in the ITAC Manual.
Plaintiffs’ Letter Brief, Dated December 23, 2016 at 11. USTR, in contrast, asserts that (g)(3)
does not require that communications be marked “trade-sensitive information” to be properly
withheld. Def.’s Letter Br. At 6. In support of its claim, USTR notes that (g)(3) contains no
express language requiring that documents be marked and the Manual does not affirmatively
provide that USTR’s failure to explicitly mark documents voids (g)(3)’s statutory protections.
Id. USTR also relies on case law suggesting that procedural defects do not require the disclosure
of the documents in question. Id. at 6–7.
The Court concludes that USTR’s failure to mark documents “trade-sensitive
information” does not defeat its claim for withholding. As an initial matter, the section of the
Manual that establishes the categories of information that will be considered as “provided in
confidence,” states only that such information “will in general be clearly designated as falling
into” the two established categories. See Manual § VI.B.1 (emphasis added). At a minimum,
this language suggests, contrary to Plaintiff’s claim, that an express marking of documents is not
a prerequisite to proper withholding under (g)(3). Cf. Bergheim v. Sirona Dental Sys., Inc., No.
17-548-CV, 2017 WL 4534784, at *2 (2d Cir. Oct. 11, 2017) (noting that “[a] general rule is, by
definition, not an absolute bar”).
Moreover, as USTR notes, nothing in (g)(3) requires that documents be marked to be
properly withheld. Although (g)(3) instructs that rules promulgated pursuant to that statute
“shall define the categories of information which require restricted or confidential handling,” it
does not require that documents so categorized must be marked or handled in a particular way. §
2155(g)(3) (emphasis added). This requirement is consistent with Exemption 3’s mandate that
statutes authorizing the withholding of communications establish “criteria for withholding” or
17
refer to “particular types of maters to be withheld.” 5 U.S.C. § 552(b)(3). And notably, the
language of Exemption 3 stands in stark contrast to Exemption 1, which exempts from disclosure
matters that are “specifically authorized under criteria established by an Executive order” and
requires that such documents “are in fact properly classified pursuant to such Executive order.”
Id. at 552(b)(1) (emphasis added). If Congress had wished to require strict adherence to
procedural criteria, it could have codified it in either Exemption 3 or (g)(3), as it did in
Exemption 1. Instead, (g)(3) cuts the other way. It provides that rules promulgated pursuant to
that section “shall, to the maximum extent feasible, permit meaningful consultations by advisory
committee members with persons affected by matters [relating to trade negotiations and trade
policy].” § 2155(g)(3). In view of the broad aims this provision was designed to affect, the
Court is reluctant to read (g)(3) or the Manual as imposing procedural requirements that find no
basis in the statute and would thwart its stated aims. 4
Here, the Manual defines “trade-sensitive information” as information that “would
reasonably be expected to prejudice U.S. trade policy objectives if publicly disclosed” and
provides a range of examples of the type of information that would qualify for protection under
the Manual. Manual § VI.B.1.(b). Barbra Weisel, the Assistant United States Trade
Representative for Southeast Asia and the Pacific and the chief negotiator for the TPP, avers that
USTR solicited the views of ITAC members on topics ranging from technical decisions about the
4
This conclusion is bolstered by the fact that even in the Exemption 1 context, “procedural defects do not
necessarily require [that] document[s] be disclosed.” Allen v. Cent. Intelligence Agency, 636 F.2d 1287, 1292 n.27
(D.C. Cir. 1980), overruled on other grounds by Founding Church of Scientology of Washington, D.C., Inc. v.
Smith, 721 F.2d 828, 830 (D.C. Cir. 1983); see also Lesar v. U.S. Dep’t of Justice, 636 F.2d 472, 483–85 (D.C. Cir.
1980) (concluding that the belated classification of documents withheld pursuant to Exemption 1 was “insignificant”
and did not “undermin[e] at all the agency’s classification decision”). It is only where “procedural violations . . .
undermine the agency’s decision to classify”—that is to say, where the communications fail to meet the substantive
requirements of an executive order—that “[a court] will . . . order documents to be released on that ground.”
Judicial Watch, Inc. v. U.S. Dep’t of Def., 857 F. Supp. 2d 44, 59 (D.D.C. 2012), aff'd, 715 F.3d 937 (D.C. Cir.
2013). That reasoning is instructive in the Exemption 3 context as well.
18
“wording choices in draft negotiating texts to comments on overall U.S. policy on trade-related
issues.” Declaration of Barbara Weisel (Doc. 44) ¶ 27. Weisel further testified that the U.S. and
other participating TPP countries entered into a confidentiality agreement at the outset of
negotiations. That agreement obligated participating countries to protect as confidential “emails
related to the substance of the negotiations, and other information exchanged in the context of
the negotiations” in order to “enable officials of participating governments to engage in frank
exchanges of views, positions, and specific negotiating proposals.” 5 Id. at 11–12. “The
confidential nature of these exchanges,” Weisel explains, “facilitate[s] the resolution of differing
national interests and perspectives.” Id. at 12. Conversely, the disclosure of such
communications “would discourage such exchanges” and inhibit foreign engagement with USTR
negotiators. Id. at 13. Likewise, Probir Mehta, the Acting Assistant U.S. Trade Representative
for Intellectual Property and Innovation and a USTR negotiator, avers that he exchanged with
ITAC members email communications that were “necessary to develop U.S. negotiating
strategies and trade policy and to fully understand the potential impact of proposed treaty text.”
Probir Mehta Declaration, dated December 16, 2015 at ¶ 4.
5
The confidentiality agreement states in full that:
[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.
Declaration of Barbara Weisel (Doc. 44) ¶ 11, Exhibit A at 2.
19
The Weisel and Mehta declarations demonstrate that that communications withheld under
(g)(3) fall squarely within “trade-sensitive information” because they could “reasonably be
expected to prejudice U.S. trade policy objectives if publicly disclosed.” Manual § VI.B.1.(b).
The fact that the U.S. committed to keep confidential “emails related to the substance of the
[TPP] negotiations, and other information exchanged in the context of the negotiations,” as
explained in the Weisel declaration, clearly indicates that these communications “would
reasonably be expected to prejudice U.S. trade policy objectives if publicly disclosed.” Id.
Finally, the withheld communications also fall within the ambit of the examples provided
in the Manual. For instance, communications relating to the development of “U.S. negotiating
strategies and trade policy,” as described in the Mehta declaration, necessarily “relate to U.S.
negotiating objectives,” which is an example of the kind of information that falls within the
Manual’s protected categories. Id. § VI.B.2. Likewise, communications relating to the
development of “U.S. negotiating strategies and trade policy,” readily qualify as information
with “foreign policy concerns,” as described in the Manual. Id. § VI.B.2. These declarations are
entitled to “a presumption of good faith” and have not been rebutted by Plaintiffs. See SafeCard
Servs., Inc., 926 F.2d at 1200. As a result, communications submitted by USTR to ITAC
members meet the Manual’s substantive criteria and may be withheld notwithstanding that they
were not specifically marked “trade-sensitive information.”
(b) Whether Documents meeting the Requirements of the ITAC Manual
Were Submitted in Confidence
USTR contends that that its communications with ITAC members were submitted in
confidence because USTR negotiators aver that they worked “with the expectation that such
communications would remain confidential.” USTR Letter Brief at 6. For support, USTR points
to the declarations of USTR negotiators Weisel and Mehta, both of whom aver that they
20
personally exchanged emails with ITAC members with the understanding that such
communications would be confidential because they were protected by (g)(3). USTR Reply at 6;
Weisel Second Supplemental Declaration ¶ 13; Mehta Declaration ¶ 7. Weisel also stated that
ITAC members must have security clearances and that USTR refers to them as “cleared
advisors” for that reason. Weisel Declaration ¶ 23, dated October 29, 2014. Additionally, USTR
relies on the Mitchem declaration for the proposition that, as a matter of course, USTR informed
ITAC that their communications with USTR “are considered confidential, unless otherwise
noted,” per the terms of the Manual and Section 2155(g). Supplemental Mitchem Declaration ¶
1, dated October 25, 2016, Doc. 111. And, as Mitchem notes, ITAC members were provided
annual security briefings informing them “that they must keep communications from [USTR and
the Industry Trade Advisory Center] confidential,” and were required to execute a Classified
Information Nondisclosure Agreement, obligating members to keep confidential any
communications posted on the Cleared Advisor Site. Id. at ¶¶ 4–5. In light of the foregoing, the
Court rejects Plaintiffs’ claim that USTR’s declarations “are little more than bare assertions that
do not meet the standard for probative evidence.” Pls.’ Letter Brief at 11; see Ancient Coin
Collectors Guild, 641 F.3d at 511–12 (noting that “contemporaneous documents discussing
practices or policies for dealing with the source or similarly situated sources” would be sufficient
“to meet the government’s burden”); Houghton v. U.S. Dep’t of State, 875 F. Supp. 2d 22, 32 n.4
(D.D.C. 2012).
Here, each of the USTR officials noted above provides a sufficient basis for their
knowledge. Weisel and Mehta personally submitted communications to ITAC members
believing that those communications would be held in confidence by ITAC members, pursuant to
(g)(3) and the ITAC Manual. Likewise, the Mitchem declaration demonstrates that USTR
21
maintained a practice of regularly informing ITAC members in security briefings, held at the
beginning of their tenure and annually thereafter, that communications with USTR would remain
confidential, and the ITAC Manual explicitly states that “trade-sensitive information” is a
category of information that may be provided in confidence. Manual § VI.B.1–2. The Court
therefore concludes that USTR’s expectation of confidentiality—which is principally based on
the assurance that “trade-sensitive” documents are protected under (g)(3)—is based on sufficient
probative evidence. See Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 486 (2d Cir. 1999)
(requiring that information be shared “under an express assurance of confidentiality or in
circumstances from which such an assurance could be reasonably inferred”); see also Ancient
Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir. 2011). Accordingly,
USTR has properly withheld communications pursuant to (g)(3).
(iii) Communications Including Non-ITAC Members of the Private Sector
USTR seeks to withhold forty-four communications in which USTR or ITAC members
sent emails to non-ITAC, private sector individuals, 6 and fourteen communications in which
non-ITAC, private sector individuals sent emails to USTR and/or ITAC members. 7 See Def.’s
Letter Brief at 7. In seeking to withhold these communications, USTR relies on Sections
2155(g)(3) and (g)(2), respectively. Id. Plaintiffs do not materially dispute that the
communications at issue are protectable under Section 2155(g)(2)-(3). 8 Rather, they contend
6
These documents include the following Vaughn index entries: 4, 6, 12, 14.2, 15, 19.1, 19.2, 20, 23.1, 23.2, 31,
34.1, 35, 38.1, 38.2, 39, 42, 43, 46, 49, 50, 52.3, 52.4, 59.1, 65, 67, 68, 69, 71, 74, 77.1, 77.2, 77.3, 82, 83, 87, 90,
104.1, 109.2, 111.2, 111.4, 111.6, 114 and 119. See Doc. 78, Ex. 1.
7
These documents include the following Vaughn index entries: 14.1, 23.2, 34.2, 46, 47, 49, 52.3, 52.4, 71, 74,
109.1, 111.1, 111.3 and 111.5. See Doc. 78, Ex. 1.
8
Plaintiffs in no way challenge USTR’s reliance on Section 2155(g)(2), and make only a passing challenges to
USTR’s reliance on Section 2155(g)(3). Specifically, although Plaintiffs concede that (g)(3) “permit[s] ITAC
members to meaningfully consult with non-ITAC members,” Pls.’ Letter Brief at 9 (citing Section 2155(g)(3)
(“Such rules shall, to the maximum extent feasible, permit meaningful consultations by advisory committee
22
that the documents at issue here are not subject to withholding because there is insufficient
evidence that these documents were submitted with an express or implied assurance of
confidentiality. See Pls.’ Letter Brief at 3–4. The Court agrees that that is the relevant inquiry
irrespective of whether the documents were submitted by ITAC members/USTR or by non-ITAC
members.
USTR contends that communications including non-ITAC private sector individuals were
properly withheld pursuant to Section 2155(g)(2) and (3) because USTR has a “long-standing
practice” of permitting ITAC members to consult with members in private industry so that USTR
receives the most “robust advice possible.” Def.’s Letter Brief at 7. For support, USTR relies on
the declarations of Mitchem and Kahn, USTR officials responsible for managing the relationship
between USTR and ITACs, as well as the ITAC Manual itself. Specifically, Mitchem avers that
Section VI.B.3 of the Manual “authorizes an ITAC member to consult with ‘non-members in the
private sector, both in their own firms or elsewhere in industry, who may be affected by
proposed trade agreements or trade policy matters.’” Mitchem Decl. ¶ 6 (quoting ITAC Manual,
Section VI.B.3). Mitchem explains that the Section VI.C of the Manual recognizes that “the
private sector” specifically includes “individuals, firms, associations, and [ITAC] Committee
members” themselves, and that such actors “may provide information to the U.S. Government in
confidence in connection with trade negotiations.’” Mitchem Decl. ¶ 7 (quoting ITAC Manual,
members with persons affected by matters referred to in subsection (a).”), they assert that (g)(3) “does not permit
USTR to consult directly with non-ITAC members.” Id. The Court finds this contention to be without merit. The
flaw in this argument flows from the fact that ITACs are managed by the USTR, which is obligated to “make
available to the [ITACs] such staff, information, personnel, . . . and assistance as it may reasonably require to carry
out its activities,” 2155 (b)(3), (h), and is the body that conducts trade negotiations on behalf of the United States.
Indeed, the individuals Plaintiffs claim vitiate the ITAC members’ expectation of confidentiality are the very
individuals that were charged with negotiating the TPP based on the advice provided by ITAC members and nonITAC members. For example, Probir Mehta, an Acting Assistant U.S. Trade Representative charged with
negotiating the TPP, is one such individual Plaintiffs claim destroys ITAC members’ expectation of confidentiality.
In short, the whole point of ITACs having “meaningful consultations” with the private sector is so that USTR can
negotiate effectively. To deny USTR’s access to this information is to thwart the negotiation itself.
23
Section VI.C). According to Mitchem, that provision was “drafted to be . . . consistent and coextensive with Section [2155](g)(2).” Id. ¶ 9; see also Kahn Decl. ¶¶3–4 (stating that the Manual
and Trade Act “protect from disclosure communications from private sector individuals . . . to
USTR regarding proposed trade agreements and trade policy matters”). And, as noted above,
Mitchem avers that ITAC members were provided security briefings during which they were
advised that their communications with “private sector individuals” would need to be kept
confidential. Mitchem Supp. Decl. ¶¶ 1–2. Additionally, USTR points to the testimony of
Mehta, the Acting Assistant U.S. Trade Representative charged with negotiating the TPP, who
testified that he believed his communications with non-ITAC members would be held in
confidence pursuant to Section 2155(g)(3) and the ITAC Manual. Mehta Decl. ¶¶ 6–9.
USTR also notes that four ITAC members specifically aver that they, and their affiliates,
employees, or colleagues, as the case may be, understood their communications regarding TPP
negotiations would be held in confidence. Def.’s Letter Brief at 7; see Declaration of Douglas T.
Nelson, dated November 3, 2015, Doc.74, ¶¶ 8–9 (“I and [firm] affiliates provided USTR with
the above information, advice and analyses with the understanding that they would remain
confidential”); Declaration of Greg S. Slater, dated November 5, 2015, Doc. 75 ¶¶ 5–8 (“I and
other [firm] employees provided USTR with the above information, advice and analyses with the
understanding that they would remain confidential.”); Declaration of Jay Taylor, dated
November 7, 2016, at ¶¶ 6-10 (“I and my . . . colleagues provided USTR with . . . information,
advice and analyses with the understanding that they would remain confidential.”); Ives
Declaration, Doc. 113, Ex. 1, ¶¶ 5-10 (same). On these bases, USTR concludes that
communications including non-ITAC members were provided under an express assurance of
24
confidentiality from both ITAC members and their private sector colleagues. See USTR Reply
at 1–4. 9
In response, Plaintiffs challenge both the ITAC members/USTR’s expectation of
confidentiality as well as the expectation of non-ITAC members. This first contention can be
dealt with easily, as there is overwhelming probative evidence that ITAC members/USTR
communicated with non-ITAC members with an expectation of confidentiality. In addition to
the declarations from four ITAC members averring that they understood their own
communications with non-ITAC members would be kept in confidence, the declarations of
Mitchem, Kahn, and Mehta, and the ITAC Manual itself, provide ample evidence that ITAC
members were informed as a matter of course that their communications with the private sector
would be provided “in confidence.” Mitchem Decl. ¶ 7 (quoting ITAC Manual, Section VI.C
(“the private sector . . . may provide information to the U.S. Government in confidence in
connection with trade negotiations”)). The declarations by individual ITAC members/USTR are
probative evidence of an express assurance because they are “statements by the source” that they
understood their communications would be held in confidence. See Houghton, 875 F. Supp. 2d
at 32 n.4 (citing Ancient Coin Collectors Guild, 641 F.3d at 511; Campbell, 164 F.3d at 34).
Likewise, the declarations from Mitchem and Kahn, who oversaw the ITACs, is sufficient
because they provide “personal knowledge of an official familiar with the source[s]” and because
the ITAC Manual they rely on is a “contemporaneous document[] discussing practices or
policies for dealing with the source or similarly situated sources.” Id.
9
In its reply, USTR offers the affidavit of Philip Agress, a non-ITAC member and Senior Vice President at the
Advanced Medical Technology Association (“AdvaMed”), with whom ITAC member Ralph Ives consulted. USTR
Reply at 2. Agress states that Ives “assured [him] that the advice and information [he] provided would remain
confidential, and directed [him] to keep confidential information [he] received from [Ives] and/or USTR regarding
the TPP.” Declaration of Philip Agress, dated January 12, 2017, Doc. 120, ¶ 6. Although the Court finds this
declaration further supports the conclusion, discussed infra, that non-ITAC members gave and were given express
assurances of confidentiality, it concludes that such declarations are not necessary to its holding.
25
Plaintiffs largely fail to address these declarations, which rely on Section 2155(g)(3)’s
express mandate that ITAC members be permitted to “meaningful[ly] consult[]” with members
of the private sector. See § 2155(g)(3). Instead, Plaintiffs assert that ITAC members had no
expectation of confidentiality in their communications with non-ITAC members because the
ITAC Manual directs “that care should be taken not to disclose . . . trade-sensitive information
itself.” Pls.’ Letter Brief at 8. Notwithstanding that proviso, the Manual also instructs that
information provided by the private sector is “provided in confidence,” and directs that such
information be kept confidential because it “may include . . . industry data regarding productive
capacity, labor costs, and marketing strategies; the effects of various negotiating results on firms’
financial performance; and final positions in connection with various issues under negotiation.”
Manual at VI.1.C. Plaintiffs’ analysis, therefore, fails to account for the fact that ITAC members
may derive their expectation of confidentiality from the information being received from, and
discussed with, members of the private sector. That directive, in combination with the language
of Section 2155(g)(3), provides a reasonable basis for the ITAC member’s expectation of
confidentiality. 10
Next, Plaintiffs contend that there is no “probative evidence” that the non-ITAC members
receiving or sending the communications at issue also received an express or implied assurance
of confidentiality. Pls.’ Letter Brief at 6–7. Indeed, they stress that the declarations provided by
USTR “merely reiterate that the ITAC members provided information under an assurance of
confidentiality; not that the non-ITAC members did so.” Id. at 7. That contention, however, is
controverted by the declarations themselves.
10
Moreover, even if ITAC members provided, erroneously or otherwise, “trade-sensitive information” to nonmembers, the Court is not persuaded that such an error would forfeit the protections of Section 2155(g)(3), given its
purpose is to ensure meaningful consultation, or that disclosure would be the appropriate remedy.
26
As noted above, each of the ITAC members who has submitted a declaration stated that
they and their affiliates, employees, or colleagues communicated with the understanding that
their communications “would remain confidential.” 11 Such evidence is plainly sufficient under
the case law, which provides that probative evidence of an express grant of confidentiality may
come in the form of “the personal knowledge [by someone] familiar with the source.”
Houghton, 875 F. Supp. 2d at 32 n.4 (quoting Ancient Coin Collectors Guild, 641 F.3d at 511;
Campbell, 164 F.3d at 34); Davin v. U.S. Dep’t of Justice, 60 F.3d 1043, 1061 (3d Cir. 1995)
(“Proof could take the form of declarations from the agents who extended the express grants of
confidentiality . . . .”). Each of these declarants has a personal basis for their knowledge, as each
is an ITAC member who holds a senior position at a corporation or industry trade association and
corresponded directly with the non-ITAC members, with whom they worked alongside or
managed. See Campbell, 164 F.3d at 34–35 (requiring “personal knowledge of the particular
events” at issue, and finding that an affidavit in which an FBI agent “simply asserted that various
sources received express assurances of confidentiality without providing any basis for the
declarant’s knowledge of this alleged fact”).
More to the point, and as discussed supra in footnote 9, Defendant has provided a
declaration from a non-ITAC member who provided information to an ITAC member. Agress
Declaration ¶ 6. Agress clearly states that he was assured that his information would be treated
11
Plaintiffs assert that to the extent ITAC members attest to the non-ITAC members own understanding, that
testimony is hearsay, and may not be considered at summary judgment. Pls.’ Letter Brief at 7. Plaintiffs do not
specify what the out of court statement that is being offered for the truth of the matter asserted is. As the Court
reads the declarations, the declarants are testifying to their own understanding, and such affidavits are admissible as
non-hearsay under Federal Rule of Civil Procedure 56. See Fed. R. Evid. 802 (noting that Rule 56 exempts
“affidavits in summary judgment proceedings” from exclusion as hearsay); Fed. R. Civ. P. 56(c)(4) (requiring
declarations be “made on personal knowledge”). This obviously does not exempt all statements within a declaration
from a hearsay challenge. But in the present case the declarants’ statements are based on their own personal
knowledge (we understood our communications “would remain confidential”), and do not advance any unsworn, out
of court statements.
27
confidentially. Id. Plaintiffs have offered no reason to question the veracity of these affidavits.
And, to the contrary, there is every reason to credit representations from senior leaders in
industry who claim to have reached mutual assurances of confidentiality with their colleagues.
After all, these interested parties were disclosing industry-sensitive information with the
potential to negatively affect their organizations if disclosed publicly. Indeed, these privatesector leaders aver that they would be significantly less likely to engage in such government
consultation if their views were not kept confidential. See Declaration of Douglas T. Nelson,
dated November 3, 2015, Doc.74, ,r,r 7-9 (discussing why members of declarant's organization
would seek to keep their industry-specific advice confidential); Declaration of Greg S. Slater,
dated November 5, 2015, Doc. 75 ,r,r 6-8 (same); Declaration of Jay Taylor, dated November 7,
2016, at ,r,r 8-9 (same); Ives Declaration, Doc. 113, Ex. 1, ,r 9 (same).
Accordingly, the Court concludes that communications between ITAC members/USTR
and non-ITAC members are properly withheld to the extent that the declarants (and their nonIT AC-member counterparts) referenced herein are included in the communications at issue. 12
IV. CONCLUSION
For the reasons set forth above, USTR's motion for summary judgment on the remaining
communications is GRANTED, and Plaintiffs' motion is DENIED.
It is SO ORDERED.
Dated:
September 30, 2018
New York, New York
Edgardo Ramcb, U.S.D.J.
12
To the extent that any communications in dispute involve ITAC members or non-ITAC members not referenced
in these declarations, USTR has not demonstrated its entitlement to withhold those communications. See Landano,
508 U.S. at 178 (noting that the government is not entitled to a "blanket" presumption that confidential sources
speak under a commitment to confidentiality).
28
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