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Judicial Watch, Inc. v. Dep't of Commerce

August 21, 2007

JUDICIAL WATCH, INC., PLAINTIFF,
v.
DEPARTMENT OF COMMERCE, AND CARLOS GUTIERREZ, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF COMMERCE DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 3

MEMORANDUM OPINION

DENYING THE PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER

I. INTRODUCTION

This case is before the court on the plaintiff's motion for a temporary restraining order ("TRO"). The plaintiff, a not-for-profit organization whose purpose is to promote a transparent government, asks the court to compel Defendants Department of Commerce and Secretary Carlos Gutierrez*fn1 to allow it to attend an upcoming meeting of the North American Competitiveness Council ("NACC") set to occur in Montebello, Canada (the "Montebello meeting" or "the meeting"). The plaintiff believes that NACC is governed by the Federal Advisory Committee Act, 5 U.S.C. App. 2 § 3(2) ("FACA"), and accordingly, NACC's meetings, records and reports must be made publicly available through the provisions of the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Because the court concludes that the plaintiff fails to demonstrate a substantial likelihood of success on the merits or irreparable injury, the court denies the plaintiff's motion.

II. FACTUAL & PROCEDURAL BACKGROUND

The plaintiff, Judicial Watch, Inc. ("Judicial Watch") is a not-for-profit educational organization with the purpose of promoting "integrity, transparency, and accountability in government." Pl.'s Mot. for TRO ("Pl.'s Mot.") at 7. To advance its purpose, the plaintiff has been investigating the activities of the Security and Prosperity Partnership of North America ("SPP") and the NACC since approximately July of 2006. Id. at 6.

At a March 2005 summit of North American leaders, U.S. President George W. Bush, Mexican President Vincente Fox and Canadian Prime Minister Paul Martin determined to engage in a cooperative effort to address areas of mutual concern to their respective countries. Id at 2-3. The result was the Security and Prosperity Partnership of North America ("SPP"). Id. at 3. In March of 2006, representatives of the three governments, including defendant Guiterrez, met with senior business leaders for their input on the priorities for the SPP and how the SPP could facilitate various business goals. Id. At this meeting, the parties discussed the possible creation of the NACC. Id.

On June 15, 2006, representatives from each government, again including defendant Gutierrez, met in Washington, D.C. to officially launch the NACC with the purpose of providing recommendations on matters of North American competitiveness. Id. at 3-4. The NACC serves as a council of "'high level business leaders from each country' who will meet annually with representatives of the United States, Mexican, and Canadian governments 'to provide recommendations and priorities on promoting North American competitiveness globally.'" Id. at 4. Specifically, the NACC consists of thirty-five members -- 15 from the United States, 10 from Canada and 10 from Mexico -- with each country determining its own membership selection process and selecting its own members. Id. The defendants delegated the selection of NACC's U.S. members to the Council of Americas and the U.S. Chamber of Commerce. Id. at 5. According to the plaintiffs, the NACC has twice met with defendant Gutierrez and his Canadian and Mexican counterparts: once in Washington, D.C. and once in Ottowa, Canada. Id. at 5-6.

The plaintiffs maintain that the NACC is governed by FACA, and that, inter alia, its meetings must be public and its records and reports must be made available through FOIA requests. Id. at 10. Since August of 2006, the plaintiff has made multiple FOIA requests to various federal agencies, including the defendants, seeking access to records regarding NACC. Id at 6. On March 23, 2007, the plaintiff submitted a request to the U.S. Chamber of Commerce to participate in NACC meetings. Id. at 7. But, the Chamber of Commerce informed the plaintiff that NACC meetings are only open to invited officials and members of the Executive committee of the NACC. Id. Dissatisfied with that response and believing that the defendants' actions have violated FACA, the plaintiff brought suit and this motion for a TRO.

III. ANALYSIS

A. The Court Denies the Plaintiff's Motion for a Temporary Restraining Order

The plaintiff contends that it is likely to succeed on the merits of its claim that the existence and operation of the NACC violates FACA. It argues that all NACC functions must be open to the public and, consequently, the plaintiff will suffer irreparable injury if it is denied access to the Montebello meeting.*fn2 Id. at 11-12. The defendants deny that the NACC is subject to FACA and maintain that the plaintiff cannot succeed on the merits of its claim that the Montebello meeting must be open to the plaintiffs. Id. at 10. The court ...


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