Intellectual Prop. Watch v. USTR, No. 13-8955, 2018 WL 4757937 (S.D.N.Y. Sept. 30, 2018) (Ramos, J.)
Re: Request for communications concerning Trans Pacific Partnership
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
- Exemption 3: "[T]he Court concludes that communications between ["industry trade advisory committee" ("ITAC")] members/USTR and non-ITAC members are properly withheld to the extent that the declarants (and their non-ITAC-member counterparts) referenced herein are included in the communications at issue." The court relates that "USTR relies on 19 U.S.C. § 2155(g)(2)-(3) of the Trade Act as a basis for withholding portions of ITAC Communications under Exemption 3." Previously, "[the] Court held that Section 2155(g), entitled 'Trade secrets and confidential information,' served as a withholding statute for purposes of FOIA Exemption 3 because it 'establishes particular criteria for withholding or refers to particular types of matters to be withheld[.]'" The court finds that "[t]he operative test for whether information or advice can be withheld under sections 2155(g)(2) and (g)(3) . . . is whether the submitter 'provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.'" The court relates that "[t]he ITAC Communications at issue here can best be grouped into three categories: (1) communications from ITAC members to USTR, for which USTR invokes § 2155(g)(2); (2) communications from USTR to ITAC members, for which USTR invokes § 2155(g)(3); and (3) communications including non-ITAC members of the private sector, for which USTR invokes § 2155(g)(2) and (3)." The court then analyzes defendant's submissions and determines that all categories of records were "'submitted in confidence.'"