Intellectual Prop. Watch v. USTP, No. 13-8955, 2016 WL 4556985 (S.D.N.Y. Aug. 31, 2016) (Ramos, J.)
Re: Request for draft text, memoranda, and communications relating to Trans Pacific Partnership
Disposition: Denying defendant's motion for summary judgment; denying plaintiff's motion for summary judgment; granting in part and denying in part plaintiff's motion for reconsideration
- Exemption 3: "The Court will not grant summary judgment in favor of either party at this time." First, the court relates that it previously "held that section 2155(g) of the Trade Act served as a withholding statute for purposes of FOIA Exemption 3." "Specifically, while the provision used to contain a clear prohibition on disclosure ('shall not disclose') and was thus undisputedly a withholding statute in its prior iteration, Congress's amendment replacing that language with the current, discretionary 'may be disclosed upon request' language did not alter the provision's status as a withholding statute." The court then relates that "what the parties continue to dispute here, is the operative definition of 'confidential.'" "The Court declines to adopt Plaintiffs' interpretation" that "confidential" means "whether disclosure would impair the government's ability to obtain necessary information from third-party sources in the future." Instead, the court finds that "[i]t is more reasonable to interpret sections 2155(g)(2) and (g)(3) to authorize withholding of information or advice 'submitted in confidence,' and to determine whether a document is properly withheld by asking whether the information or advice contained therein was submitted with the expectation that it would be treated confidentially." The court finds that, due to this new ruling, "the parties deserve an opportunity to further brief the issue of whether USTR's declarations and Vaughn indices establish that the withheld documents contain information or advice 'submitted in confidence.'" Finally, the court clarifies that "Section 2155(g)(2) covers information submitted in confidence by ITAC members to the U.S. government."
Litigation Considerations & Exemption 1: The court addresses plaintiff's Rule 60(b)(6) motion and first finds that while "[p]laintiffs have arguably not satisfied the threshold showing of 'extraordinary circumstances' required to garner reconsideration under Rule 60(b)(6)," "[t]he Court need not resolve this issue definitively" because "[e]ven after reconsidering USTR's Exemption 1 withholdings on the current state of the record, the public release of the final TPP text does not sufficiently defeat USTR's assertions of harm to foreign relations." The court relates that "[t]he core question raised by Plaintiffs' motion for reconsideration, then, is whether disclosure of positions that the United States proposed or adopted throughout negotiations, regardless of whether those positions ended up in the final agreement or not, are properly withheld under Exemption 1 because disclosure could logically or plausibly harm foreign relations." First, the court finds that "Decision Memoranda remain properly withheld under Exemption 1" because "USTR's submissions confirm that these memoranda do not contain formal positions proposed or adopted by the United States – rather, they contain summaries of negotiations, 'candid assessments' of outstanding issues, suggestions for future negotiation strategies, and pros and cons of whether to adopt or challenge particular stances taken by other countries on trade-remedy and copyright issues" and "[p]laintiffs do not even try to dispute the plausibility that foreign relations could be harmed by disclosure of USTR's candid assessments of other countries’ proposals and interests." Second, the court finds that "USTR has also properly withheld draft text containing the positions that the U.S. proposed or adopted" because "disclosure would reveal snapshots of U.S. proposals that could lead to problematic accusations against the other eleven TPP countries" and "[p]laintiffs overstate the extent to which circumstances have changed since the Court's prior decision" because, "[w]hile the conclusion of negotiations over the final text is an important milestone, the agreement will not come into force unless and until a certain proportion of participating countries approve the agreement through their domestic legal procedures." Additionally, "USTR has also made a plausible case that disclosure of the U.S.'s evolving negotiating positions could damage other ongoing or future trade negotiations with other countries."
The court does find that "there is one exception to the Court's re-affirmance of USTR's Exemption 1 withholdings." "For the first time on this motion for reconsideration, USTR clarified that portions of six documents containing ITAC Communications were being withheld under Exemption 1 because they contained 'suggested changes or additions to draft text that ITAC members themselves drafted . . ..'" "USTR has not made a logical or plausible case that disclosure of text suggested by the private sector could harm foreign relations." "Thus, USTR must either (i) disclose these portions of ITAC Communications to the extent they can be reasonably segregated from other information properly withheld under Exemption 1, or (ii) justify these withholdings under Exemption 3 in its additional submissions[.]"
- Waiver: "The Court is not persuaded that this is an appropriate case of waiver." The court relates that "[p]laintiffs argue . . . that the release of the final TPP text waived Exemption 1 protection for the portions of the Draft Texts 'that closely track or match the final version.'" The court finds that "[t]he final text itself, therefore, does not 'match' information that would 'trace[ ] the fate of USTR's positions and proposals through to the final text.'" "Without that match, waiver is not applicable."