Intellectual Prop. Watch v. U.S. Trade Representative, No. 13-8955, 2015 U.S. Dist. LEXIS 130105 (S.D.N.Y. Sept. 25, 2015) (Ramos, J.)

 Intellectual Prop. Watch v. U.S. Trade Representative, No. 13-8955, 2015 U.S. Dist. LEXIS 130105 (S.D.N.Y. Sept. 25, 2015) (Ramos, J.)

Re: Request for records concerning Trans-Pacific Partnership

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 1:  The court holds that defendant correctly utilized Exemption 1 to withhold certain information.  The court relates that "[o]nly one requirement is contested here" – "whether 'the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security.'"  The court finds that "by limiting its request to U.S. positions and proposals, Plaintiffs have already disclaimed entitlement to much of the content of the Decision Memoranda."  "None of this information represents USTR's final positions and proposals shared with foreign governments."  "[T]he fact that TPP negotiations are ongoing makes USTR's claims of harm particularly plausible in this case."  "Potential harm to future trade negotiations is also, at the very least, plausible."  "As Plaintiffs fail to recognize, disclosure may very well reduce the U.S.'s flexibility and complicate information exchanges and bargaining with other countries not involved in TPP negotiations, regardless of the fact that the other eleven countries participating in the TPP are already privy to U.S. positions and proposals."
   
• Exemption 3:  "[T]he Court directs USTR to submit supplemental affidavits, declarations, and/or Vaughn indices in order to provide 'a sufficient degree of detail' as to withholdings and redactions of [Industrial Trade Advisory Committee] Communications under Exemption[] 3."  First, "the Court holds that § 2155(g) is a withholding statute for purposes of Exemption 3."  The court relates that "USTR withholds portions of ITAC Communications under Exemption 3 by relying on 19 U.S.C. § 2155(g) (2012), one provision of the statute that establishes the ITACs and outlines their advisory functions and operations."  The court notes that "[b]ecause the statute no longer prohibits disclosure on its face, it can only qualify as a withholding statute if it either 'establishes particular criteria for withholding' or 'refers to particular types of matters to be withheld.'"  The court finds that "[t]he text of the statute is certainly inartful, but ultimately Plaintiffs' interpretation is overly formalistic and implausible."  "Although [the] provisions do not explicitly direct USTR to withhold confidential matters from the public, such a directive is nonetheless the most reasonable reading and is consistent with the rest of the statute and its legislative history."  "While Plaintiffs argue that the statute does not refer to 'particular types of matters' because it is worded as an open-ended grant of discretion to USTR to pick and choose what will be withheld, . . . the Court agrees with USTR that it does not have the unbridled discretion that Plaintiffs allege."  "Although the Court acknowledges that its conclusion that the 1988 amendment did not change § 2155(g)'s status as a withholding statute suggests that the amendment was, as Plaintiffs maintains, a pointless exercise, the conclusion is more compelling than the argument that Congress intended to completely invert the meaning of § 2155(g) and failed to say so anywhere in the legislative history."  However, the court holds that defendant's "high-level and vague" declarations are "insufficient to meet the government's burden of providing specific explanations for the withholding of specific documents."
   
• Exemption 4:  "[T]he Court directs USTR to submit supplemental affidavits, declarations, and/or Vaughn indices in order to provide 'a sufficient degree of detail' as to withholdings and redactions of ITAC Communications under Exemption[] . . . 4."  "The Court [finds] that it is unclear how descriptions of meetings or advocacy in favor of language from other trade agreements would qualify as 'commercial or financial.'"  "USTR has thus fallen short of establishing that the entirety of its § 2155(g)(1) and Exemption 4 withholdings are 'commercial or financial' in nature."  "The Court also has difficulty, based on USTR's submissions, concluding that all of these exemptions are 'confidential' by virtue of 'impairing the government's ability' to obtain necessary information in the future."  "First and foremost, USTR's declarations rely purely on conclusory statements from the agency itself."  "Critically, none of USTR's explanations are document-specific, nor even category-specific."  "They are blanket assertions meant to cover all withholdings made under § 2155(g)(1) and Exemption 4."  "USTR also fails to respond to Plaintiffs' argument that the importance of trade negotiations and the value of participation on ITACs mean disclosure would not hamper the government's ability to obtain information from the private sector in the future."
   
• Exemption 5, Deliberative Process Privilege:  "The court . . . grants Plaintiffs' motion for summary judgment with respect to the applicability of Exemption 5 to the ITAC Communications."  The court rejects defendant's contention that "USTR asserts that ITAC Communications are intra-agency communications subject to Exemption 5 withholding."  The court relates that "USTR . . . invokes the 'consultant corollary' to Exemption 5 to argue that, because ITACs serve as consultants to USTR, communications between the two are 'intra-agency' and therefore exempt from disclosure under FOIA."  The court rejects defendant's argument that "whether an outside consultant, not acting as pure objective proxy for the agency but rather advising expressly as an interested party meant to advocate for its own interests, qualifies for protection under the consultant corollary" does not matter because "'[t]here is no basis in the statute to impose such a [disinterested-consultant] requirement.'"