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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,
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
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
In November of 2000, United States President William Jefferson Clinton
Chilean President Ricardo Lagos announced that their respective
governments would begin work toward a bilateral free trade agreement. The
Office of the United States Trade Representative spearheaded the
negotiations for the United States. On June 29, 2001, plaintiffs filed a
Freedom of Information Act request with USTR asking for "[a]ll records
containing either US positions shared with Chile, or Chilean positions
shared with the United States, at any in-person meeting or in any other
manner" as well as "[a]ll records prepared . . . during the inter-agency
and/or intra-agency processes of the US government coming to positions
reflected in the records referred to above." Plaintiffs' Motion for
Summary Judgment ("Pl. Mot."), Exhibit 1, Letter from Scott Pasternack,
Earthjustice Legal Defense Fund, to Sybia Harrison, FOIA Officer, USTR,
dated June 29, 2001 at 1.
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.
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
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
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
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 ...