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Center For International Environmental Law v. Office of the United States Trade Representative et al

April 12, 2011

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 United States Trade Representative*fn1 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.*fn2 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.

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 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 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 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 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 (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 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 ...


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