UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_____________________________ ) CENTER FOR INTERNATIONAL ) ENVIRONMENTAL LAW, ) ) Plaintiff, ) ) v. ) Civil Action No. 01-498 (RWR) ) OFFICE OF THE UNITED STATES ) TRADE REPRESENTATIVE et al., ) ) Defendants. ) _____________________________ )

MEMORANDUM OPINION AND ORDER

The Center for International Environmental Law (“CIEL”)

brought this action against the United States Trade

Representative1 and his office (collectively “USTR”), seeking

documents under the Freedom of Information Act (“FOIA”),

. USTR has renewed its motion for summary judgment

regarding one document.2 Because USTR has not sufficiently

demonstrated that disclosure of the document would harm the

United States’ national security interests, USTR’s renewed motion

for summary judgment will be denied.

1 Ron Kirk has been substituted as a defendant under Federal Rule of Civil Procedure 25(d). 2 USTR filed a notice stating that three previously withheld documents had been released to the CIEL and that document 1 was the only remaining document at issue. (See Notice of Release of Documents, Nov. 21, 2008.) - 2 -

BACKGROUND

The background of this case is fully discussed in Ctr. for

Int’l Envtl. Law v. Office of U.S. Trade Representative,

(D.D.C. 2007). Briefly, CIEL filed a FOIA

request with USTR seeking documents concerning sessions of the

Negotiating Group on Investment for the Free Trade Agreement of

the Americas (“FTAA”). During one of these negotiations, USTR

provided to negotiators documents containing the United States’

position on trade investment issues. The nations participating

in the FTAA had an understanding that any negotiating document

produced or received in confidence during the negotiations would

not be released to the public unless all nations agreed. (Defs.’

Suppl. Br. in Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Suppl.

Br.”), Lezny Decl. ¶ 5.)

The United States submitted the document in dispute here

during FTAA negotiations, and the FTAA Administrative Secretariat

deemed it restricted. No restricted FTAA document appears to

have been released by any of the participating nations. (Id.

¶ 6.) After the countries negotiating the FTAA derestricted

three of the four documents at issue, the defendant released

those documents to the plaintiff. (Notice of Release of

Documents, Nov. 21, 2008.) Document 1, which USTR argues is a

classified national security document protected from disclosure

under

(b)(1), is the only document that remains in - 3 -

dispute. The document explains the United States’ initial

proposed position on the meaning of the phrase “in like

circumstances.” (Defs.’ Suppl. Br., Vaughn Index ¶ 1.) This

phrase “appears in rules requiring each party to provide

investors from the other party that have made or seek to make

investments in the party’s territory ‘national treatment’ and

‘most-favored-nation’ treatment (MFN).” (Defs.’ Suppl. Br.,

Bliss Decl. ¶ 13.)

In its supplemental brief renewing its motion for summary

judgment, USTR argues that disclosure of document 1 would breach

a non-disclosure agreement and damage foreign relations by

causing nations to adopt more rigid trade positions, resulting in

less favorable trade terms for the United States. (Defs.’ Suppl.

Br. at 6-7.) USTR further argues that disclosure of document 1

would harm the United States’ position in future trade litigation

and subject the United States to trade or investment retaliation.

(Id. at 8-9.) CIEL opposes, arguing that USTR did not “establish

that disclosure of the documents reasonably could be expected to

result in damage to U.S. foreign relations or national security.”

(Pl.’s Resp. to Defs.’ Suppl. Br. in Supp. of Their Mot. for

Summ. J. (“Pl.’s Resp.”) at 2.)

DISCUSSION

Summary judgment may be granted when the materials in the

record show “that there is no genuine dispute as to any material - 4 -

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Moore v. Hartman,

(D.C. Cir. 2009). A court must draw all reasonable inferences

from the evidentiary record in favor of the non-moving party.

See Anderson v. Liberty Lobby, Inc.,

(1986).

In a FOIA suit, an agency is entitled to summary judgment if it

demonstrates that no material facts are in dispute and that all

information that falls within the class requested either has been

produced, is unidentifiable, or is exempt from disclosure.

Students Against Genocide v. Dep’t of State,

(D.C. Cir. 2001); Weisburg v. Dep’t of Justice,

(D.C. Cir. 1980). A district court must conduct de novo review

of the record in a FOIA case, and the agency resisting disclosure

bears the burden of persuasion in defending its action.

(a)(4)(B); see also Akin, Gump, Strauss, Hauer & Feld, LLP

v. U.S. Dep’t of Justice,

(D.D.C. 2007).

The FOIA requires agencies to comply with requests to make

their records available to the public, unless information is

exempted by clear statutory language.

(a), (b);

Oglesby v. U.S. Dep’t of Army,

(D.C. Cir.

1996). Although there is a “strong presumption in favor of

disclosure,” U.S. Dep’t of State v. Ray,

(1991), there are nine exemptions to disclosure set forth in

(b). These exemptions are to be construed as - 5 -

narrowly as possible to maximize access to agency information,

which is one of the overall purposes of the FOIA. Vaughn v.

Rosen,

(D.C. Cir. 1973).

Because the party requesting disclosure cannot know the

precise contents of the documents withheld, it is at a

disadvantage to claim misapplication of an exemption, and a

factual dispute may arise regarding whether the documents

actually fit within the cited exemptions.

. To

provide an effective opportunity for the requesting party to

challenge the applicability of an exemption and for the court to

assess the exemption’s validity, the agency must explain the

specific reason for nondisclosure.

; see also Oglesby,

(“The description and explanation the agency

offers should reveal as much detail as possible as to the nature

of the document, without actually disclosing information that

deserves protection.”). Conclusory statements and generalized

claims of exemption are insufficient to justify withholding.

Vaughn,

; see also Mead Data Cent., Inc. v. U.S.

Dep’t of Air Force,

(D.C. Cir. 1977) (noting

that “the burden which the FOIA specifically places on the

Government to show that the information withheld is exempt from

disclosure cannot be satisfied by the sweeping and conclusory

citation of an exemption” (footnote omitted)). Where disclosures

are not sufficiently detailed to permit a meaningful de novo - 6 -

review, a court may order the agency to submit more detailed

disclosures. Voinche v. FBI,

(D.D.C.

2006), remanded on other grounds, No. 06-5130,

(D.C. Cir. Feb. 27, 2007).

USTR asserts that document 1 is subject to Exemption 1,

which protects from disclosure matters that are “(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[.]”

(b)(1). The D.C. Circuit has

set forth specific requirements to justify withholding documents

under Exemption 1:

the agency affidavits must, for each redacted document or portion thereof, (1) identify the document, by type and location in the body of documents requested; (2) note that Exemption 1 is claimed; (3) describe the document withheld or any redacted portion thereof, disclosing as much information as possible without thwarting the exemption’s purpose; (4) explain how this material falls within one or more of the categories of classified information authorized by the governing executive order; and (5) explain how disclosure of the material in question would cause the requisite degree of harm to the national security.

King v. U.S. Dep’t of Justice,

(D.C. Cir.

1987).

“[I]n conducting de novo review in the context of national

security concerns, courts must accord substantial weight to an

agency’s affidavit concerning the details of the classified

status of the disputed record.” Wolf v. CIA,

, 374 - 7 -

(D.C. Cir. 2007) (internal quotation marks omitted). “[A]

reviewing court ‘must take into account . . . that any affidavit

or other agency statement of threatened harm to national security

will always be speculative to some extent, in the sense that it

describes a potential future harm.’”

(alteration in

original) (quoting Halperin v. CIA,

(D.C. Cir.

1980)); see also Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of

Justice,

(D.C. Cir. 2003) (noting that, in the

FOIA context, courts “have consistently deferred to executive

affidavits predicting harm to the national security, and have

found it unwise to undertake searching judicial review”).

However, summary judgment may be withheld and the agency

required to provide a new declaration when the agency’s affidavit

is inadequate. See Campbell v. U.S. Dep’t of Justice,

(D.C. Cir. 1998) (remanded because declaration provided

only a sweeping conclusory assertion of anticipated harm to

national security and instructed the district court to require a

new declaration); King,

-25 (remanded because

agency materials inadequately described the redacted material and

did not explain with sufficient specificity how disclosure would

harm national security). “[A]n affidavit that contains merely a

‘categorical description of redacted materials coupled with

categorical indication of anticipated consequences of disclosure - 8 -

is clearly inadequate.’” PHE, Inc. v. Dep’t of Justice,

(D.C. Cir. 1993) (quoting King,

).

An agency affidavit must provide “detailed and specific

information” demonstrating a logical nexus between the material

and exemption claimed to justify summary judgment. Campbell,

. Assertions in agency affidavits that are

contradicted by other evidence in the record do not meet this

standard. See Halperin,

.

USTR is withholding document 1 based on the classification

criteria of Executive Order 12958 (Def.’s Suppl. Br. at 5), which

permits classification of information if, among other

requirements that are uncontested here, “the original

classification authority determines that the unauthorized

disclosure of the information reasonably could be expected to

result in damage to the national security . . . and . . . is able

to identify or describe the damage.”

§ 1.2(a)(4) (revoked by Executive Order 13526,

,

which uses identical classification criteria in this context).

“‘Damage to the national security’ means harm to the national

defense or foreign relations of the United States from the

unauthorized disclosure of information, to include the

sensitivity, value, and utility of that information.”

§ 1.1(l). USTR asserts that the document is properly classified

as relevant to “‘foreign relations or foreign activities of the - 9 -

United States, including confidential sources.’”3 (Defs.’ Suppl.

Br. at 6 (quoting Executive Order 12958 § 1.4(d)).)

USTR argues that release of document 1 would constitute a

breach of its agreement with the other nations participating in

the FTAA negotiations. (Defs.’ Suppl. Br. at 7.) Karen Lezny,

the Deputy Assistant United States Trade Representative for the

FTAA, states that

[t]here is an understanding among the 34 participating governments, consistent with longstanding practice in multiparty trade negotiations, that they will not release to the public any negotiating documents they produce or receive in confidence in the course of the negotiations unless there is a consensus among the 34 governments to do so.

(Id., Lezny Decl. ¶ 5.) The United States submitted document 1

to the Secretariat during FTAA negotiations and, as agreed by the

nations, the Secretariat marked the negotiation documents as

restricted. (Id. ¶ 6.) In USTR’s experience, foreign

governments may be under pressure to safeguard local economic

interests, which are affected by USTR’s efforts to protect U.S.

firms’ investments from “arbitrary or unfair government conduct”

3 CIEL argues that the document “more properly fall[s] under Section 1.5(b) as ‘foreign government information[.]’” (Pl.’s Resp. at 6-7 n.6.) While the “foreign government information” classification could apply, documents created by the USTR and submitted during FTAA negotiations can also fall within the classification category relating to “foreign relations or foreign activities” of the United States. Because the parties agree that the document falls into some classification category, the relevant inquiry is whether USTR has identified adequately the harm that would result from disclosure. - 10 -

by foreign nations. (Id., Bliss Decl. ¶ 10.) USTR claims that

if foreign nations expect that their trade positions will be

publicly disclosed, their room to negotiate will be

“substantially reduce[d]” given the local economic pressures.

(Id.) CIEL contends that “there is no expectation that a

government is required to keep its own negotiating positions

confidential from its own citizens” and that the United States

has made its negotiating positions known to its citizens through

public briefings and consultations in the past. (Pl.’s Resp.,

Magraw Decl. ¶¶ 4-7.)

The prospect of revealing foreign government information

typically supports withholding disclosure under Exemption 1. See

Students Against Genocide v. Dep’t of State, Civil Action No. 96-

667 (CKK/JMF),

, at *11 (D.D.C. Aug. 24, 1998)

(finding that defendant’s affidavit, which asserted that

disclosure of foreign government information would make foreign

governments less willing to provide information in the future,

supported application of Exemption 1); Krikorian v. Dep’t of

State, Civil Action No. 88-3419 (RCL),

, at *2

(D.D.C. Dec. 19, 1990) (finding application of Exemption 1

supported by the defendant’s affidavit, which asserted that

disclosure of foreign government information would breach the

“accepted diplomatic practice that when a foreign government

conveys information to, or consults confidentially with, a U.S. - 11 -

Government official, it does so on the understanding that the

nature or substance of such exchanges will not be divulged” and

“would also discourage foreign officials from providing our

government with sensitive confidential information in the future”

(internal quotation marks and footnote omitted)), remanded on

other grounds,

(D.C. Cir. 1993); Azmy v. U.S. Dep’t

of Def.,

(S.D.N.Y. 2008) (finding

exemption appropriate because disclosure of information provided

to the Joint Task Force-Guantanamo “would impair [the

department’s] ability to obtain information from foreign

governments in the future, who will be less likely to cooperate

with the United States if they cannot be confident that the

information they provide will remain confidential”). However,

while disclosure here would breach the understanding with the

other participating governments, the claim that such a breach

would harm national security is much less compelling than it was

in Students Against Genocide, Krikorian, or Azmy, since the

United States would be revealing its own position only, not that

of any other country. USTR, therefore, has not shown it likely

that disclosing document 1 would discourage foreign officials

from providing information to the United States in the future

because those officials would have no basis for concluding that

the United States would dishonor its commitments to keep foreign

information confidential. - 12 -

However, USTR also asserts that disclosure –– even of a

document that the United States itself produced –– could

“undermine the ability of the United States to negotiate and

conclude the FTAA and other trade and investment agreements on

terms favorable to the U.S. economic and security interests” by

damaging the trust that negotiating partners have in the United

States. (Def.’s Suppl. Br., Bliss Decl. ¶ 8.) USTR concludes

that in the absence of mutual trust, the U.S.’ trade partners

“are more likely to adopt and maintain rigid negotiating

positions[,]” reducing the likelihood of eventual agreement.

(Id. ¶ 10.) USTR’s explanation here is more detailed than the

explanation that it unsuccessfully made in the earlier round of

summary judgment motions.4 However, the explanation is also

inconsistent with USTR’s professed rationale for not disclosing

the meaning of “in like circumstances.”

USTR argues that disclosure of document 1 would reveal the

United States’ interpretation of the phrase “in like

4 In addition to noting the pressure on foreign governments and the possible resistance to the U.S.’ proposals, USTR also explains more specifically that the negotiations would stall because negotiating partners would “adopt similar tactics,” that release of information would be perceived by a foreign country as “an unfair effort [by the U.S.] to entrench its positions[,]” and that foreign governments are under pressure “to protect vested local economic interests from U.S. firms that seek investment protections under U.S.-negotiated trade and investment agreements from arbitrary or unfair [foreign] government conduct.” (Defs.’ Suppl. Br., Bliss Decl. ¶¶ 10-11.) Cf. Ctr. for Int’l Envtl. Law,

. - 13 -

circumstances,” which would harm the economic and security

interests of the United States. (Defs.’ Suppl. Br. at 8-9.) The

meaning of “in like circumstances” defines the conditions under

which the national treatment and most-favored-nation treatment

rules apply. (Id., Bliss Decl. ¶ 13.) Document 1 contains the

USTR’s position on the phrase’s interpretation, and USTR argues

that foreign nations could use USTR’s position as evidence that

the United States has breached investment agreements, which could

“potentially subject the United States to trade or investment

retaliation, causing harm to U.S. foreign relations.” (Id.

¶ 15.) “Under those agreements foreign investors, including

foreign governments that are investors, are entitled to pursue

arbitration against the United States to enforce the investment

protections established under the agreements.” (Id. at ¶ 14.)

There is a “wide variety of factual circumstances that could

characterize investment relationships,” and “the United States

might want to assert a broader or narrower view of the meaning

and applicability of the ‘in like circumstances’ doctrine[.]”

(Id.) USTR claims that the government would not be as effective

in asserting a broad or narrow interpretation in future

litigation with foreign investors if the United States’

interpretation of “in like circumstances” were disclosed. (Id.)

This asserted need for flexibility in defining “in like

circumstances” however, is inconsistent with USTR’s stated goal - 14 -

of maintaining the trust of its negotiating partners. It hardly

seems consonant to argue on the one hand that disclosure would

harm national security because it would undermine trade partners’

trust in the United States, and on the other hand that disclosure

would harm national security because it would prevent the United

States from articulating one interpretation of “in like

circumstances” in trade negotiations and then adjusting that

definition to suit its needs in other situations –– a tactic that

would presumably undermine the trust of foreign governments in

the United States. Although a court must defer to agency

affidavits predicting harm to the national security, “[d]eference

. . . does not mean acquiescence.” Larson v. Dep’t of State,

Civil Action No. 02-1937 (PLF),

, at *9 (D.D.C.

Aug. 10, 2005). To the extent that judicial review must at least

ensure that statements in agency affidavits are not “called into

question by contradictory evidence in the record[,]” Halperin,

, inconsistent predictions of harm from disclosure

should not provide the basis for withholding a document. Such

inconsistency is an indication of unreliability, and the agency

affidavits will be shown no deference with respect to any

justification for withholding that involves maintaining the trust

of negotiating partners. Cf. Elec. Privacy Info. Ctr. v. Dep’t

of Justice,

(D.D.C. 2007) (noting that a

court’s “decision must take seriously the government’s - 15 -

predictions about the security implications of releasing

particular information to the public, at least where those

predictions are sufficiently detailed and do not bear any indicia

of unreliability”).

Finally, USTR contends that disclosure of its own trade

positions would create the perception among foreign nations that

the United States is attempting to strengthen its bargaining

position through public pressure, which, in turn, might cause

foreign nations to attempt to increase public support for their

own positions and might reduce the likelihood of compromise among

nations. (Id., Bliss Decl. ¶ 11.) This explanation does not

provide a logical nexus between the document and the claimed

national security exemption. USTR would not be releasing

document 1 by way of a unilateral decision that a negotiating

partner could perceive as a negotiating tactic. Rather, USTR

would be releasing document 1 to comply with the FOIA –– after

protracted litigation no less –– and it is implausible that

negotiating partners would view disclosure under such

circumstances as an “unfair effort to entrench [USTR’s] positions

by generating . . . domestic pressure to resist giving ground.”

(Id.) - 16 -

CONCLUSION AND ORDER

USTR has not sufficiently shown that releasing document 1

would result in a harm to national security, and that Exemption 1

applies. Accordingly, it is hereby

ORDERED that USTR’s renewed motion [42] for summary judgment

be, and hereby is, DENIED. It is further

ORDERED that the parties file by May 12, 2011 a joint status

report and proposed order proposing a schedule on which the case

should proceed.

SIGNED this 12th day of April, 2011.

/s/ RICHARD W. ROBERTS United States District Judge