The opinion of the court was delivered by: Richard W. Roberts United States District Judge
The Center for International Environmental Law ("CIEL") brought this action against the United States Trade Representative and his office (collectively "USTR"), seeking documents under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The only document remaining at issue is "Document 1," a one-page position paper produced by the United States during negotiations to conclude a free-trade agreement with foreign nations. USTR has filed a second renewed motion for summary judgment, and CIEL has filed a cross-motion for summary judgment. Having been afforded three opportunities to justify withholding the document, USTR has not provided a plausible or logical explanation for why disclosure of the document would harm the United States' foreign relations. Accordingly, USTR's motion for summary judgment will be denied, CIEL's cross-motion will be granted, and USTR will be ordered to disclose Document 1.
The background of this case is fully discussed in Ctr. for Int'l Envtl. Law v. Office of U.S. Trade Representative ("CIEL I"), 505 F. Supp. 2d 150, 153-54 (D.D.C. 2007), and Ctr. for Int'l Envtl. Law v. Office of U.S. Trade Representative ("CIEL II"), 777 F. Supp. 2d 77, 80-81 (D.D.C. 2011). As to facts relevant here, CIEL seeks "Document 1," a position paper prepared by USTR during sessions of the Negotiating Group on Investment for the Free Trade Agreement of the Americas ("FTAA"). The purpose of the agreement was to create a free-trade area among thirty-four nations in the western hemisphere. The United States took part in FTAA negotiations during the 1990s and 2000s, but no agreement was reached. (Defs.' Stmt. of Material Facts Not in Dispute ("Defs.' Stmt.") ¶¶ 2-4.) Document 1 sets forth the United States' initial proposed position on the meaning of the phrase "in like circumstances." (Mem. of P. & A. in Supp. of Defs.' Second Renewed Mot. Summ. J. ("Defs.' Mem.") at 2.) This phrase "helps clarify when a country must treat foreign investors as favorably as local or other foreign investors -- i.e., when 'national' treatment or 'most-favored-nation' treatment applies." (Id.; Defs.' Suppl. Br. in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Suppl. Br."), Bliss Decl. ("First Bliss Decl.") ¶¶ 13-14.)
The nations participating in the FTAA negotiations agreed initially that any negotiating document produced or received in confidence during the negotiations would not be released to the public unless all nations agreed. (Defs.' Mem. at 2; Defs.' Suppl. Br., Lezny Decl. ¶ 5.) Later they "agreed that all FTAA documents would become derestricted and available for public release on December 31, 2013, unless a country were to object to the release of one of its own documents at that time." (Defs.' Mem. of P. & A. in Opp'n to Pl.'s Cross-Mot. Summ. J. and Reply Mem. in Supp. of Defs.' Second Renewed Mot. Summ. J. ("Defs.' Opp'n"), Bliss Decl. ("Third Bliss Decl.") ¶ 5.) Subsequently, the then-Deputy United States Trade Representative extended the "Confidential" classification of all FTAA documents under USTR's control until December 31, 2013, "in order to be consistent with [the United States'] international obligation." (Defs.' Mem. at 1; Third Bliss Decl. ¶ 6.) USTR classified Document 1 based on the criteria of Executive Order 12958 (Defs.' Mem. at 1), which permits classification of information if, among other requirements that are uncontested here, "the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security . . . and . . . is able to identify or describe the damage." 60 Fed. Reg. 19826 § 1.2(a)(4) (revoked by Executive Order 13526, 75 Fed. Reg. 707, which uses identical classification criteria in this context).*fn1
USTR has twice previously moved for summary judgment, arguing that disclosure of Document 1 would damage foreign relations by violating the confidentiality agreement among the FTAA nations and causing nations to adopt more rigid trade positions, resulting in less favorable trade terms for the United States. Both motions were denied on grounds that USTR had not sufficiently substantiated the asserted harms. Specifically, the most recent memorandum opinion noted that USTR had not shown it likely that disclosure of Document 1 would damage trust with other FTAA nations, because Document 1 is the United States' own material and its disclosure would not necessarily provide a basis for foreign officials to think that United States might dishonor its commitments to keep foreign information confidential. CIEL II, 777 F. Supp. 2d at 84. In addition, the opinion noted the apparent inconsistency of USTR's argument on the one hand that breaching the confidentiality agreement would damage foreign officials' trust that the United States would honor its commitments, and its argument on the other hand that disclosing the document would harm national security by hindering the United States' flexibility to assert different meanings of "in like circumstances" in different contexts, a tactic that could undermine foreign governments' trust in the United States. Id. at 85. The opinion also found unconvincing USTR's argument that disclosure of the document would create the perception among foreign nations that the United States was attempting to entrench its own interpretation of the phrase at issue, noting that USTR would not be releasing the document by way of unilateral volition, but by way of court-ordered compliance with FOIA. Id.
USTR has again moved for summary judgment, clarifying and augmenting its previous arguments for withholding Document 1. USTR maintains that the United States at present is negotiating trade and investment agreements, some but not all of which involve the FTAA countries. (Defs.' Mem. at 11 (citing Second Bliss Decl. ¶ 5).) It argues that the loss of trust caused by releasing Document 1 would impede these on-going and future negotiations. Id. In addition, USTR elaborates why disclosure would decrease the United States' flexibility in on-going and future negotiations, positing that even if the United States might want Document 1's interpretation of "in like circumstances" to be accepted by foreign governments in other agreements, the United States might want to "negotiate up" to that position or to preserve its negotiating capital by accepting another country's proposal of that interpretation rather than expending effort to convince other governments to accept the United States' disclosed FTAA position. (Defs.' Mem. at 16 (citing Second Bliss Decl. ¶ 10).) USTR also reasserts its position that disclosing Document 1 would increase the risk of adverse arbitration decisions, should arbitrators be willing to look to the document for assistance in interpreting the term. (Defs.' Mem. at 13-14.) USTR contends that its desire to maintain the United States' flexibility to assert different interpretations of "in like circumstances" in different contexts is not inconsistent with its commitment to maintain foreign governments' trust by adhering to the confidentiality agreement. "Because the FTAA was never concluded, FTAA governments do not view Document 1 as binding the United States[,]" USTR argues, and "[t]hus, asserting an interpretation different from the one set forth in Document 1 would not be seen as a breach of trust." (Defs.' Mem. at 15.)
CIEL opposes USTR's motion and itself moves for summary judgment on the grounds that the defendants fail to substantiate their claims that foreign governments would lose trust in the United States in the event USTR is compelled to disclose its own negotiating document. (Pl.'s Mem. of P. & A. in Opp'n to Defs.' Second Renewed Mot. Summ. J. and in Support of Pl.'s Cross-Mot.
Summ. J. ("Pl.'s Mem.") at 13-19.) In addition, CIEL argues that USTR has not demonstrated that reduced negotiation flexibility would cause the requisite harm to national security. (Id. at 20-23.) CIEL maintains that USTR's previous disclosure of three related documents undermines the defendants' arguments for withholding Document 1. (Id. at 19-21.) Finally, CIEL contends that USTR's arguments regarding the harm from reduced flexibility continue to be inconsistent with the argument that adhering to the confidentiality agreement is necessary to maintain the trust of foreign negotiating partners. (Id. at 23-25.)
In a FOIA suit, 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). An agency is entitled to summary judgment if it demonstrates that no material facts are in dispute and that the requested material is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). In order 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, "[t]he 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." Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). Where an agency fails to meet its burden to justify application of a FOIA exemption, a court may order disclosure. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 870 (D.C. Cir. 1980).
USTR relies on FOIA Exemption 1 to oppose CIEL's request. 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). For an agency to justify withholding material under Exemption 1, it must by affidavit:
(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). Courts should accord agency affidavits expressing national security concerns substantial weight and take account of the fact that harm to national security cannot be predicted with precision but rather will always be ...