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”), 5 U.S.C.
§ 552. 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, 505 F.
Supp. 2d 150, 153-54 (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 5 U.S.C. § 552(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, 571 F.3d 62, 66
(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., 477 U.S. 242, 255 (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, 257 F.3d 828, 833
(D.C. Cir. 2001); Weisburg v. Dep’t of Justice, 627 F.2d 365, 368
(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. 5 U.S.C.
§ 552(a)(4)(B); see also Akin, Gump, Strauss, Hauer & Feld, LLP
v. U.S. Dep’t of Justice, 503 F. Supp. 2d 373, 378 (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. 5 U.S.C. §§ 552(a), (b);
Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir.
1996). Although there is a “strong presumption in favor of
disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173
(1991), there are nine exemptions to disclosure set forth in 5
U.S.C. § 552(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, 484 F.2d 820, 823 (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. Id. at 823-24. 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. Id. at 826; see also Oglesby,
79 F.3d at 1176 (“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, 484 F.2d at 826; see also Mead Data Cent., Inc. v. U.S.
Dep’t of Air Force, 566 F.2d 242, 251 (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, 412 F. Supp. 2d 60, 65 (D.D.C.
2006), remanded on other grounds, No. 06-5130, 2007 WL 1234984
(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[.]” 5 U.S.C. § 552(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, 830 F.2d 210, 224 (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, 473 F.3d 370, 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.’” Id. (alteration in
original) (quoting Halperin v. CIA, 629 F.2d 144, 149 (D.C. Cir.
1980)); see also Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of
Justice, 331 F.3d 918, 927 (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, 164 F.3d
20, 31 (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, 830 F.2d at 223-25 (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, 983 F.2d
248, 250 (D.C. Cir. 1993) (quoting King, 830 F.2d at 224).
An agency affidavit must provide “detailed and specific
information” demonstrating a logical nexus between the material
and exemption claimed to justify summary judgment. Campbell, 164
F.3d at 30. Assertions in agency affidavits that are
contradicted by other evidence in the record do not meet this
standard. See Halperin, 629 F.2d at 148.
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.” 60 Fed. Reg. 19826
§ 1.2(a)(4) (revoked by Executive Order 13526, 75 Fed. Reg. 707,
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.” Id.
§ 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), 1998 WL 699074, 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), 1990 WL 236108, 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, 984 F.2d 461 (D.C. Cir. 1993); Azmy v. U.S. Dep’t
of Def., 562 F. Supp. 2d 590, 600 (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, 505 F. Supp. 2d at 157. - 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), 2005 WL 3276303, 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,
629 F.2d at 148, 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, 511 F. Supp. 2d 56, 66 (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