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Center for International Environmental Law v. Office of the United States Trade Representative

September 5, 2007

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



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

The Center for International Environmental Law ("CIEL") brought this action against the Office of the United States Trade Representative, and Susan C. Schwab,*fn1 in her official capacity as the United States Trade Representative (collectively "USTR"), seeking documents under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The parties have filed cross-motions for summary judgment. Although there is no longer a dispute over a majority of the documents, USTR's affidavits in support of its motion for summary judgment are not sufficient to justify withholding the remaining documents at issue and USTR will be ordered to supplement those affidavits. Accordingly, USTR's motion for summary judgment will be granted in part and denied in part and CIEL's motion for summary judgment will be denied.

BACKGROUND

CIEL is a non-profit public interest organization providing environmental legal services, some of which focus on the impact of trade policy on the environment. (Compl. ¶¶ 4-5.) It filed a FOIA request with USTR seeking documents relating to sessions of the Negotiating Group on Investment ("NGI") for the Free Trade Agreement of the Americas ("FTAA").*fn2 The NGI has been working on drafting an international agreement (the "Agreement") to establish a free trade area among approximately thirty-four participating nations in the western hemisphere. In the process of these negotiations, NGI meetings were held during which the USTR provided to negotiators documents containing the attending foreign governments' proposed text and commentary for the investment portion of the Agreement. (Compl. ¶ 9.)

USTR's response to CIEL's FOIA request identified forty-six documents in its office responsive to CIEL's request but withheld all forty-six documents by relying upon 5 U.S.C. § 552(b)(5), which exempts from disclosure inter-agency and intra-agency communications protected by the deliberative process privilege. (Compl. ¶ 11.) USTR asserts that it conducted a search reasonably calculated to discover all responsive documents, and CIEL does not contest that assertion.

CIEL timely appealed to the USTR's Freedom of Information Appeals Committee, which affirmed the refusal to disclose the documents and denied CIEL's request to provide either the factual portions of the documents or a fuller explanation for withholding the documents. (Compl. ¶¶ 12, 13.) After a change in the presidential administration, the USTR, upon CIEL's request, revisited its decision but found no basis for changing its initial decision. (Compl. ¶ 14.) Following the unsuccessful administrative appeal, CIEL initiated the instant action and moved for production of a Vaughn index. Pursuant to an order by a magistrate judge, USTR provided a Vaughn Index and now moves, and CIEL cross-moves, for summary judgment.

Over the course of the proceedings, the parties have reduced the number of documents at issue from forty-six to four. USTR argued that forty-one of the requested documents are exempt from disclosure under the deliberative process privilege, 5 U.S.C. § 552(b)(5), and CIEL withdrew its claim that withholding those documents was improper. Thus, summary judgment will be granted in USTR's favor as to those forty-one documents. Additionally, USTR has released another document to CIEL. (Defs.' Mot. Summ. J., Decl. of Sylvia Harrison (Harrison Decl.) at 16.)

Only documents 1, 8, 38, and 43, which USTR argues are protected from disclosure under 5 U.S.C. §552(b)(1), remain in dispute. Each of these documents was shared with the FTAA negotiating group on investment. Document 1 explains the United States' proposed position on the phrase "in like circumstances." (Defs.' Mot. Summ. J., Ex. 5, Vaughn Index ("Vaughn Index") ¶ 1.) Document 8 delineates the United States' position on the definitions of investment, investor, and other terms. (Vaughn Index ¶ 8.) Document 38 describes the United States' position on transparency in the investment context. (Vaughn Index ¶ 38.) Finally, Document 43 sets forth the position on the terms "national treatment" and "most favored nation treatment." (Vaughn Index ¶ 43.) These four documents were classified at the "confidential" level. (Defs.' Mot. Summ. J., Decl. of Peter B. Davidson ("Davidson Decl.") at 5.)

DISCUSSION

Summary judgment is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). The burden falls on the moving party to provide a sufficient factual record that demonstrates the absence of such a genuine issue of material fact. See Beard v. Banks, 126 S.Ct. 2572, 2578 (2006). 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 upon demonstrating 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 Long v. Dep't of Justice, 450 F. Supp. 2d 42, 53 (D.D.C. 2006).

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. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). Although there is a "strong presumption in favor of disclosure," 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 narrowly as possible to provide the maximum access to agency information based on the overall purpose of the Act. Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973).

Here, USTR must show that there is no genuine issue as to whether it properly invoked the statutory exemption authorized by § 552(b)(1) to withhold information, and that all non-exempt information that is reasonably segregable has been segregated and disclosed. Exemption 1 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). USTR justifies withholding the documents based on the classification criteria of Executive Order 12,958 which permits classification of information only if "the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to national security . . . and . . . is able to identify or describe the damage." 60 Fed. Reg. 19,825, 19,826 § 1.2(a)(4).

Because the party requesting disclosure is at a disadvantage to argue misapplication of an exemption given that it cannot know the precise contents of the documents withheld, a factual dispute may arise regarding whether the documents actually fit within the cited exemptions. Vaughn, 484 F.2d at 823-24. To enable the requesting party an opportunity to effectively challenge the applicability of the exemption and the court to properly assess its validity, the party in possession of the materials must explain the specific reason for the agency's nondisclosure. Id. at 826; see, e.g., 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."). Although this explanation may include a detailed description of each document being withheld and take the form of a Vaughn index, this index is not always mandated and the government may satisfy its burden by other means. Voinche v. Fed. Bureau of Investigation, 412 F. Supp. 2d 60, 65 (D.D.C. 2006) (noting that because "courts have repeatedly held that it is the function of a Vaughn index rather than its form that is important, . . . an agency does not have to provide an index per se"). Regardless of the form of the government's declaration, it must show why exemption is appropriate and 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. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) ("[T]he 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 . . . ."). Where disclosures are not sufficiently detailed to permit a meaningful de novo review, a court may order the agency to submit more detailed disclosures. Voinche, 412 F. Supp. 2d at 65.

The D.C. Circuit has set forth specific requirements to justify withholding documents under Exemption 1: the agency affidavit must, for each redacted document or portion thereof, (1) identify the document, by type and location in the body of the 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 ...


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