Ctr. for Int'l Envtl. Law v. USTR, No. 12-5136, 2013 WL 2450527 (D.C. Cir. June 7, 2013) (Randolph, J.)

Re: Request for one-page position paper created during negotiations over free-trade agreement Disposition: Reversing district court's grant of summary judgment to petitioner

• Exemption 1:  The Court reverses the district court's grant of summary judgment to the petitioner because the Court finds that the government properly withheld as exempt from disclosure under FOIA Exemption 1 a one-page position paper concerning the Trade Representative's commentary on the interpretation of the phrase "in like circumstances," which was created during negotiations over a free-trade agreement.  The Court notes that, "[w]hile classification at the 'top secret' or 'secret' levels requires that disclosure 'reasonably could be expected to cause exceptionally grave damage' or 'serious damage,' as the case may be, to the national security, classification at the 'confidential' level requires only that disclosure 'reasonably could be expected to cause damage to the national security.'"  The Court states that, "[h]ere, the question is whether the white paper is properly classified as 'confidential.'  The governing Executive Order does not require the identification of any specific degree of harm to support classification at the 'confidential' level."  The Court concludes that defendant has "satisfied its burden."  First, the Court rejects the district court's reasoning that, "'the risk that international arbitrators will adopt the [white paper] position, much less rely on it to the United States' detriment in arbitration, is too speculative to justify a reasonable expectation of harm to foreign relations.'"  The Court instead determines that it cannot see why, "it is so implausible that an arbitrator would look to the white paper as evidence of the United States' interpretation of the phrase—even if that document is not binding on the United States."  Second, the Court rejects the district court's reasoning that "'the United States' ability not to open with [the white paper's] interpretation in the future, or to accept it from a negotiating partner, is not realistically imperilled by disclosure.'"  The Court instead "see[s] no basis for doubting that the effectiveness of these negotiating strategies could very well be limited if a negotiating partner were aware of the positions the United States has taken in the past."  The Court notes that "[c]ourts are 'in an extremely poor position to second-guess' the Trade Representative's predictive judgment in these matters, . . . but that is just what the district court did in rejecting the agency's justification for withholding the white paper."  Again, the Court notes that, "[t]he question is not whether the court agrees in full with the Trade Representative's evaluation of the expected harm to foreign relations . . . [r]ather, the question is 'whether on the whole record the [a]gency's judgment objectively survives the test of reasonableness, good faith, specificity, and plausibility.'"  The Court, "conclude[s] that it does."