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CENTER FOR INT. ENVIR. LAW v. OFFICE OF THE U.S. TRADE REP.

December 19, 2002

CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW, ET AL., PLAINTIFFS,
V.
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman, United States District Judge

    OPINION

On November 9, 2001, plaintiffs Center for International Environmental Law, Friends of the Earth and Public Citizen, three non-profit groups that monitor international trade and environmental issues, filed suit under the Freedom of Information Act, 5 U.S.C. § 522 et seq., against the Office of the United States Trade Representative ("USTR") and Robert B. Zoellick, in his official capacity as the United States Trade Representative.*fn1 Plaintiffs seek to obtain information relating to the just-completed negotiation of a United States-Chile Free Trade Agreement, specifically documents that were produced by or exchanged with Chile or that relate to communications or meetings with Chile.

This matter is before the Court on cross motions for summary judgment. For the reasons stated below, the Court grants in part and denies in part both plaintiffs' motion for summary judgment and defendants' motion for summary judgment. Because the Court concludes that documents exchanged with the government of Chile are not "inter-agency" documents under Exemption 5 of the Freedom of Information Act, the Court directs USTR to release these documents to plaintiffs. It also directs USTR to identify and release any internal USTR documents that contain factual information relating to meetings or communications with Chilean officials. The Court concludes that documents withheld by USTR pursuant to Exemption 1 were properly withheld and need not be released. Finally, the Court concludes that defendants have not waived their right to assert privileges by publicly disclosing information similar to that contained in withheld documents.

I. BACKGROUND

In response to plaintiffs' request, USTR conducted a hard-copy and electronic search for all documents relating to the U.S.-Chile Free Trade Agreement negotiations, completing its initial search in early 2002. USTR's initial search, the adequacy of which plaintiffs do not challenge, identified 214 responsive documents, of which nine were released in full and 90 were released in part.

Defendants subsequently located an additional 66 documents and released one of these in full, raising the total number of responsive documents to 280, of which a total of 270 were withheld in whole or in part. Defendants' Memorandum in Support of Defendants' Motion for Summary Judgment at 2 n. 1 ("Def. Mem."), Exhibit 1, Declaration of Sybia Harrison at ¶¶ 8-10; Defendants' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and Reply in Further Support of Defendants' Motion for Summary Judgment ("Def. Opp."), Exhibit 1, Supplemental Declaration of Susan P. Cronin at ¶¶ 5-6. Plaintiffs have conceded that defendants properly withheld one of these documents (No. 110) pursuant to Exemption 4, but seek the release of the remaining 269 documents (or reasonably segregable portions thereof) in this action.

The 269 documents in question can be grouped into three categories: (1) documents exchanged between the United States and Chile (131); (2) internal United States documents that describe meetings with Chilean negotiators or proposals received from Chilean officials (156); and (3) classified documents created by or for the Trade Policy Review Group, an inter-agency group of senior officials that considers and determines United States trade policy (5).*fn2 To justify withholding the documents in the first two categories, USTR relies on Exemption 5 of the FOIA, which protects from disclosure any "inter-agency" or "intra-agency" documents that reveal an agency's deliberative process. 5 U.S.C. § 522(b)(5). Plaintiffs contest all claims of Exemption 5 privilege, both with respect to documents that were exchanged between Chile and the United States and with respect to internal documents that describe meetings with or proposals from Chilean officials. The parties have agreed on the identity of all documents exchanged with Chile. See Defendants' Report on Documents Exchanged Between the United States and Chile at ¶ 4.*fn3

Plaintiffs also challenge USTR's withholding of five documents under Exemption 1 of the FOIA, which exempts from disclosure any documents 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)(A). In addition, plaintiffs assert that defendants have waived the right to assert any privilege with respect to certain documents by publicly releasing information similar to that contained in the documents. Based on these arguments, plaintiffs seek declaratory and injunctive relief, including the release, in full or in part, of 269 documents withheld by USTR, as well as the identification and release of any additional relevant documents not yet identified by USTR.

II. DISCUSSION

A. The Freedom of Information Act

The fundamental purpose of the Freedom of Information Act is to assist citizens in discovering "what their government is up to." United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). As such, "the Act is broadly conceived," EPA v. Mink, 410 U.S. 73, 79-80 (1973), and "disclosure, not secrecy, is the dominant objective of the Act." Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976); see also NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220 (1978). The FOIA requires public disclosure of agency records unless the requested records fall within one or more of nine carefully-structured statutory exemptions. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. at 220; Burka v. United States Dep't of Health and Human Serv., 87 F.3d 508, 515 (D.C. Cir. 1996); Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). Consistent with the Act's "goal of broad disclosure, these exemptions have been consistently given a narrow compass," United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989), and the agency bears the burden of justifying the withholding. The court determines de novo whether the exemption claimed is appropriate. See 5 U.S.C. § 522(a)(4)(B); Dep't of State v. Ray, 502 U.S. 164, 173 (1991).

In assessing a claimed exemption, a court will require the agency to provide a "[r]elatively detailed justification" through the submission of an index of documents, known as a Vaughn Index, sufficiently detailed affidavits or declarations, or both. Mead Data Central, Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977); see Oglesby v. United States Dep't of the Army, 79 F.3d at 1178; Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Furthermore, the FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided . . . after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). This comports with the policy of disclosure and prevents the withholding of entire documents, see Billington v. Dep't of Justice, 233 F.3d 581, 586 (D.C. Cir. 2000), unless the agency can demonstrate that the non-exempt portions of a document are "inextricably intertwined with exempt portions." Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999) (quoting Mead Data Central, Inc. v. United States Dep't of the Air Force, 566 F.2d at 260).

The Court may award summary judgment to a government agency solely on the basis of information provided in affidavits or declarations when the affidavits or declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record or by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d at 826-28. An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted).

B. Analysis

For the reasons stated below, the Court concludes that all documents withheld by USTR under Exemption 5 were improperly withheld, while the five documents withheld pursuant to Exemption 1 were properly withheld. The Court further finds that defendants have not waived their right to claim exemptions by releasing similar but not identical information to private individuals.*fn4

1. Exemption*fn5

Exemption 5 excludes from disclosure any documents that are "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 522(b)(5). This provision protects from disclosure those documents traditionally afforded protection "pursuant to evidentiary privileges in the civil discovery context," including those covered by the deliberative process privilege. Dow Jones & Co. v. Dep't of Justice, 917 F.2d 571, 573 (D.C. Cir. 1990) (quoting Formaldehyde Inst. v. Dep't of Health and Human Serv., 889 F.2d 1118, 1121 (D.C. Cir. 1989) (internal quotation marks omitted)). In keeping with the FOIA's goal of broad disclosure, the Section 522(b)(5) exemption is construed narrowly. Dep't of the Interior & Bureau of Indian Affairs v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) ("Klamath Water Users").

The purpose of the deliberative process privilege is to encourage the frank discussion of policy issues among government officials and to protect the government's decisionmaking processes. See Wolfe v. Dep't of Health & Human Serv., 839 F.2d 768, 773 (D.C. Cir. 1988) (en banc) (quoting S.REP. NO. 813, 89th Cong., 1st Sess. 9 (1965)). Such protection is necessary to

assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.

Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). See also Klamath Water Users, 532 U.S. at 8, quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975) (government officials "will not communicate candidly among themselves if each remark is a potential item of discovery and front page news"; the object of the deliberative process privilege is "to enhance `the quality of agency decisions.'"); Wolfe v. Dep't of Health & Human Serv., 839 F.2d at 773 ("[T]he quality of administrative decision-making would be seriously undermined if agencies were forced to operate in a fishbowl.").

In order to qualify for protection under the deliberative process privilege of Exemption 5, a document must satisfy two conditions: (1) it must be either inter-agency or intra-agency in nature,5 and (2) it must be both predecisional and part of the agency's deliberative or decisionmaking process. See Klamath Water Users, 532 U.S. at 8-9; Dow Jones & Co. v. Dep't of Justice, 917 F.2d at 574. Defendants argue that Exemption 5 applies to two categories of documents: those produced by or exchanged with Chile, and those that ...


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