OPINION AND ORDER
This Freedom of Information Act ("FOIA") suit involves a request for draft text, memoranda, and communications relating to the Trans Pacific Partnership ("TPP"), a wide-ranging, multilateral trade agreement negotiated among the United States and eleven countries bordering both sides of the Pacific Ocean.
On September 25, 2015, this Court upheld some of USTR's initial withholding determinations — including its withholdings of draft text of earlier iterations of the agreement — and further instructed USTR to submit additional information to justify other withholdings. See Intellectual Prop. Watch v. U.S. Trade Representative ("IP Watch I"), 134 F.Supp.3d 726 (S.D.N.Y. 2015). USTR has made those additional submissions, and the parties now cross-move for summary judgment on the validity of the remaining withholdings.
Furthermore, at the time the Court decided IP Watch I, the final TPP text was still being negotiated among the twelve participating countries. Since then, however, the twelve countries have agreed on and signed the final text of the agreement: The final agreement was announced on October 5, 2015, the final text was published on November 5, 2015, and the TPP was signed by all twelve countries on February 4, 2016.
For the reasons explained, summary judgment will not be granted in favor of either party at this time, because both sides deserve the opportunity to respond further to the Court's analysis below before the motions are resolved definitively. Plaintiffs' Rule 60(b) motion for reconsideration is DENIED in substantial part, save for a small exception applicable to six particular documents.
A. The TPP
The TPP is a wide-ranging trade agreement among twelve countries on both sides of the Pacific Ocean. In addition to topics traditionally covered by trade agreements, such as tariffs and market access, the TPP sweeps far broader to cover nearly all
The twelve participating TPP countries entered into a confidentiality agreement at the outset of negotiations, which stated as follows:
Declaration of Barbara Weisel (Doc. 44) ¶ 11.
The TPP must be ratified by the domestic governments of the participating countries in order to enter into force. Pursuant to Article 30.5 of the final text, the TPP will enter into force only (i) upon written notice from all twelve countries of the completion of their "applicable legal procedures" for ratification, or (ii) if unanimous notice has not been given within two years of the signing of the final agreement, upon notice of ratification from "at least six of the original signatories, which together account for at least 85 per cent of the combined gross domestic product of the original signatories in 2013." See TPP Art. 30.5, available at https://ustr.gov/sites/default/files/TPP-Final-Text-Final-Provisions.pdf.
As the last sentence of the confidentiality agreement makes clear, the agreement terminates only upon the TPP's entry into force (or the breakdown of negotiations). The confidentiality agreement thus continues to remain operative despite the fact that participating countries agreed to and signed the final text.
B. Industry Trade Advisory Committees
The Trade Act of 1974 (the "Trade Act") requires the President to "seek information
Section 2155(g) of the Trade Act governs confidential communications among ITAC members, other private-sector actors, and the U.S. government. 19 U.S.C. § 2155(g). Because the provision's precise language is important to the resolution of this case, section § 2155(g) is reproduced in pertinent part below:
C. Plaintiffs' FOIA Request and
IP Watch I
IP Watch I lays out the history of this litigation in more detail. See 134 F.Supp.3d at 732-34. What follows is a condensed summary:
Plaintiffs submitted their initial FOIA request on March 23, 2012, seeking, among other things, draft text of TPP provisions related to intellectual property, U.S. negotiation positions regarding intellectual property, and communications between USTR and ITACs 3, 8, 10, and 15.
USTR withheld the Decision Memoranda and Draft Chapters in full pursuant to multiple exemptions from FOIA's disclosure requirements, and withheld some ITAC Communications in full and some only partially by disclosing redacted versions. The parties cross-moved for summary judgment on the validity of USTR's withholdings.
IP Watch I was decided on September 25, 2015. This Court upheld USTR's withholdings of Decision Memoranda, Draft Chapters, and some ITAC Communications pursuant to FOIA Exemption 1 (5 U.S.C. § 552(b)(1)), which exempts from FOIA information that is properly classified pursuant to an Executive Order. IP Watch I, 134 F.Supp.3d at 736-39. Regarding the remaining ITAC Communications, USTR invoked FOIA Exemption 3 (§ 552(b)(3)), covering information specifically authorized to be withheld by statute, FOIA Exemption 4 (§ 552(b)(4)), covering trade secrets and confidential commercial information, and FOIA Exemption 5
D. New Submissions and Outstanding Issues
In response to the concerns expressed in IP Watch I, USTR made the following additional submissions in November and December of 2015 to support withholdings made under FOIA Exemption 3: (1) an index with 126 entries, listing the date, sender(s), recipient(s), subject lines, and withholding justifications for ITAC Communications submitted via email (Doc. 78, Ex. 1); (2) an index with 29 entries, listing the date, submitter, and withholding justifications for ITAC Communications submitted via the Clear Advisor website (Doc. 71, Ex. 2); (3) a copy of the agency manual outlining the operations of the ITACs that was in effect at the time of the ITAC Communications at issue here (Doc. 72, Ex. 1); (4-5) the declarations of two ITAC Cleared Advisors, who submitted certain ITAC Communications as members of, respectively, ITAC-3 on Chemicals, Pharmaceuticals, and Health-Science Products and Services, and ITAC-8 on Information and Communications Technologies, Services, and Electronic Commerce (Docs. 74-75); (6) the declarations of the Assistant U.S. Trade Representative for Intergovernmental Affairs and Public Engagement and the Director of the Industry Trade Advisory Center, who both manage the relationship between USTR and ITACs (Docs. 73, 88); and (7) the declaration of a lawyer in USTR's Office of General Counsel and now Acting Assistant U.S. Trade Representative for Intellectual Property and Innovation, who was a negotiator on IP issues during TPP negotiations (Doc. 86).
USTR has withdrawn its reliance on FOIA Exemption 4, and thus relies exclusively on Exemption 3 to justify withholdings of ITAC Communications. USTR Letter (Doc. 70) at 3 n.3.
As previously noted, the twelve TPP countries signed the final agreement on February 4, 2016. On February 15, 2016, Plaintiffs moved under Rule 60(b) of the Federal Rules of Civil Procedure, seeking reconsideration of the Court's affirmance of the withholdings USTR made under Exemption 1. (Doc. 90). Plaintiffs urge reconsideration because the Court's reasoning in IP Watch I turned in part on the fact that TPP negotiations were still ongoing.
Thus, the Court is now presented with the following issues: (1) Whether USTR has sustained its burden on summary judgment to prove the applicability of FOIA Exemption 3 to withheld ITAC Communications, and (2) whether Plaintiffs are entitled to relief under Rule 60(b) because the signing of the final TPP agreement fatally undercuts USTR's justifications for its Exemption 1 withholdings.
II. SUMMARY JUDGMENT ON USTR'S EXEMPTION 3 WITHHOLDINGS
FOIA generally requires agencies to disclose information in its custody unless that information "is exempted under clearly delineated statutory language."
FOIA cases are generally resolved by cross-motions for summary judgment. See, e.g., Nat. Res. Def. Council, Inc. v. U.S. Dep't of Interior, 73 F.Supp.3d 350, 355 (S.D.N.Y.2014) (citation omitted). "`[S]ummary judgment in favor of the FOIA plaintiff' is appropriate `[w]hen an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption,' but should be denied if the agency satisfies its burden `to show that requested material falls within a FOIA exemption.'" N.Y. Times Co. v. U.S. Dep't of Def., 499 F.Supp.2d 501, 509 (S.D.N.Y.2007) (quoting Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C.Cir. 1992)). Agencies can prevail on summary judgment by submitting affidavits that "`describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'" Wilner, 592 F.3d at 73 (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009)).
FOIA Exemption 3 applies to matters "specifically exempted from disclosure by statute," where that statute either "(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3)(A). "Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute's coverage." Am. Civil Liberties Union v. F.B.I., 59 F.Supp.3d 584, 594 (S.D.N.Y.2014) (quoting Wilner, 592 F.3d at 72).
A. Information "Submitted in Confidence" under Sections 2155(g)(2) and (g)(3)
In IP Watch I, this Court 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. There was no legislative history indicating such a change, and it would make no sense for Congress to simply single out a few entities to which information and advice "may be disclosed upon request" if there was no withholding authority in place to begin with. Thus, the Court held that section 2155(g), entitled "Trade secrets and confidential information," continued to serve as a withholding statute by requiring withholding of information and advice already deemed a "trade secret" or "confidential," and by singling out the exclusive entities to which the information and advice "may be disclosed upon request." See IP Watch I, 134 F.Supp.3d at 741-43.
What IP Watch I did not expressly address, and what the parties continue
The Court declines to adopt Plaintiffs' interpretation. Section 2155(g)(1) applies to "[t]rade secrets and commercial or financial information" that is both "privileged or confidential" and "submitted in confidence," indicating that objective confidentiality and the parties' contemporaneous, subjective expectations of confidentiality are conceptually distinct requirements. Sections 2155(g)(2) and (g)(3), notably, refer only to information or advice "submitted in confidence."
In addition to the plain text, it would be structurally odd for Congress to integrate the trade-secret "confidentiality" test in § 2155(g)(1) and then create another provision that simply reiterates a subset of that test. See IP Watch I, 134 F.Supp.3d at 743 (treating § 2155(g)(1) as coextensive with FOIA Exemption 4). Indeed, the Senate Finance Committee's report on the original Trade Act of 1974 strongly implies that Congress thought it was creating a new FOIA exemption in (g)(2), but not in (g)(1), so it makes little sense to interpret (g)(2) in a manner that leaves it essentially subsumed by (g)(1). See S. Rep. No. 93-1298 (1974), as reprinted in 1974 U.S.C.C.A.N. 7186, 7251 (noting that the provision codified at § 2155(g)(2) would create a "limited statutory exemption" to FOIA, but not making a similar statement about the provision codified at § 2155(g)(1)).
It is more reasonable to interpret sections 2155(g)(2) and (g)(3) to authorize withholding of information or advice "submitted
There are multiple reasons to favor this interpretation, which is adopted from the well-established test governing FOIA Exemption 7(D), exempting information submitted to law enforcement that could reveal the identity of a confidential source. See 5 U.S.C. § 552(b)(7)(D); Landano, 508 U.S. at 172, 113 S.Ct. 2014; Halpern v. F.B.I., 181 F.3d 279, 298-99 (2d Cir.1999).
First, as previously noted, the text of the provisions refer only to information or advice "submitted in confidence," which compels a test that is tethered to the subjective understanding between the submitter and receiver, rather than an independent judicial assessment of whether the information communicated is objectively confidential.
Second, this interpretation is the best fit with the Court's construction of section 2155(g) as a withholding statute, because it provides the most natural sense in which the provision authorizes withholding of information or advice "already deemed" confidential — the submitter was given an express or implied assurance of confidentiality prior to submission, and USTR "may disclose" the information or advice "submitted in confidence" only to a limited number of other parties.
Third, federal courts in the District of Columbia have applied this test of confidentiality to a nearly identical provision governing the creation of the Cultural Property Advisory Committee ("CPAC"), as part of the Convention on Cultural Property Implementation Act. See 19 U.S.C. §§ 2605. Like ITACs, the CPAC is a federal advisory committee statutorily constituted to advise the Executive Branch — in this case, the State Department's Undersecretary for Educational and Cultural Affairs — on import-restriction requests from foreign governments made in the course of negotiations over multilateral agreements governing cultural artifacts. See 19 U.S.C. §§ 2602, 2605; Ancient Coin Collectors Guild, 641 F.3d at 509. The CPAC statute includes a provision, entitled "Confidential information," that closely tracks the equivalent ITAC provisions in the Trade Act, most pertinently by referring only to information "submitted in confidence" by the private sector or government employees. See 19 U.S.C. § 2605(i).
Fourth, a standard guided by contemporaneous expectations best serves the statutory purpose of "insur[ing] maximum participation by the private sector in [trade] negotiations." S. Rep. No. 93-1298; see also id. ("[T]he private sector of our economy must be given a much larger role in providing information to our negotiators and assessing the merits of an agreement than has ever been provided in the past.... [T]hose affected most by such agreements should be able to consult closely with and provide vital information to the negotiators and in turn should be consulted on a regular basis by the negotiators."). Participation by private sector actors is better assured by empowering them to request and receive assurances of confidentiality up front, because it removes the possibility that a court may come to a different conclusion and disclose information regardless. The same is true of communications to ITAC members submitted in confidence by the government.
Fifth, USTR itself adopts this expectation-based standard in the agency manual interpreting section 2155(g), and that interpretation is entitled to some deference to the extent the Court finds it persuasive. See, e.g., Barrows v. Burwell, 777 F.3d 106, 109 n. 6 (2d Cir.2015) ("[U]nder so-called `Skidmore deference,'
While IP Watch I made it clear that the touchstone for withholding under sections 2155(g)(2) and (g)(3) was whether the submission of the information was made in confidence, it is only in the instant opinion that the Court is expressly adopting the evidentiary standard from Landano and its progeny. As a result, 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." Both parties are free to submit additional declarations or other evidence, as well. See Houghton v. U.S. Dep't of State, 875 F.Supp.2d 22, 32 n. 4 (D.D.C.2012) ("[T]he government is not entitled to a blanket presumption that [submissions were made] under a commitment to confidentiality. Instead, an agency must present evidence showing that information was submitted in confidence, such as notations on the face of a withheld document, the personal knowledge of an official familiar with the source a statement by the source or contemporaneous documents discussing practices or policies for dealing with the source or similarly situated sources.") (citing Ancient Coin Collectors Guild, 641 F.3d at 511; Campbell v. DOJ, 164 F.3d 20, 34 (D.C.Cir.1998)) (internal quotation marks omitted).
The Court does not pass judgment at this time as to whether the evidence already submitted by ITAC members and USTR officials justifies withholding some or all ITAC Communications, and USTR naturally is free to rely on and refer to the voluminous submissions already made to sustain its case. (Docs. 71-75, 78, 86, 88). But if the parties do opt to submit additional briefing and/or evidence, the Court would appreciate a focus on (1) the basis for USTR's repeated assertion in the
B. USTR's Reliance on the ITAC Manual
One issue the Court can resolve at this juncture is in response to Plaintiffs' three objections to USTR's reliance on the ITAC Manual for withholdings made under section 2155(g)(3).
Plaintiffs first argue that the ITAC Manual does not sufficiently "define the categories of information which require restricted or confidential handling," as section 2155(g)(3) requires of the "rules" governing disclosure of information submitted in confidence by the United States. See Pl. Br. at 12. But the ITAC Manual does categorize information submitted by the U.S. into two groups — "Security-Classified Information" and "Trade-Sensitive Information" — providing assurances that information provided will be "clearly designated as falling into" one of the two categories, and guidance as to what constitutes those two categories, examples of the types of
Plaintiffs next maintain that the ITAC Manual is illegitimate because it was not promulgated under the Administrative Procedure Act's notice-and-comment requirements. Pl. Br. at 12-13. "Except when notice or hearing is required by statute," the Administrative Procedure Act (the "APA") does not require formal notice-and-comment procedures when agencies promulgate "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." 5 U.S.C. § 553(b)(A). The ITAC Manual is plainly interpretative in nature, as it creates no new legal rights, and does no more than explicate and clarify agency procedure with regard to a substantive duty already set forth in section 2155(g)(3). See, e.g., Perez v. Mortgage Bankers Ass'n, ___ U.S. ___, 135 S.Ct. 1199, 1204, 191 L.Ed.2d 186 (2015) ("[T]he critical feature of interpretive rules is that they are `issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.'") (quoting Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 99, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995)); Cohn v. Fed. Bureau of Prisons, 302 F.Supp.2d 267, 274 (S.D.N.Y.2004) ("A rule is interpretive if `an agency is exercising its rule-making power to clarify an existing statute or regulation,' and substantive if the agency is seeking to `create new law, rights or duties in what amounts to a legislative act.'") (quoting White v. Shalala, 7 F.3d 296, 303 (2d Cir.1993)). Plaintiffs do not attempt to argue why the ITAC Manual is substantive and not interpretative, begging the question by simply assuming that notice-and-comment procedures are required. This objection to the ITAC Manual is thus rejected.
Finally, Plaintiffs argue that USTR cannot rely on the ITAC Manual because it was not made available to the public during the time period covered by the ITAC Communications. Pl. Br. at 13 (citing 5 U.S.C. § 552(a)(2)(E)). USTR, however, has submitted a sworn declaration from the official who has managed the ITACs since 2000, attesting that the ITAC Manual "has been published online since October 2010, and was otherwise available to the public for inspection and copying since its creation in 2004." Supplemental Declaration of Ingrid Mitchem (Doc. 88) ¶ 4. The Court credits that representation. Plaintiffs' final challenge to the ITAC Manual is therefore also rejected.
C. Section 2155(g)(2)'s Application to Submissions by ITAC Members
IP Watch I implicitly rejected Plaintiffs' argument that section 2155(g)(2) applies only to information from private individuals who are not ITAC members, and thus does not authorize withholding of any information submitted by ITAC members in confidence. See Pl. Br. at 7 n.1. The Court now makes that rejection explicit: Section 2155(g)(2) covers information submitted in confidence by ITAC members to the U.S. government.
Section 2155(g)(2) governs "advice submitted in confidence by the private sector or non-Federal government," and the remainder of the statute makes clear what is meant by "the private sector." Section
D. Conclusion on the Summary Judgment Motions
The Court will not grant summary judgment in favor of either party at this time.
Should USTR want to make additional submissions to support its Exemption 3 withholdings, it must do so on or before
III. PLAINTIFFS' RULE 60(B) MOTION
Based on the conclusion of TPP negotiations and the release of the final agreement, Plaintiffs have moved the Court to revisit its decision in IP Watch I and "order disclosure of the draft texts (and other materials) to the extent they reflect TPP positions advanced or adopted by the U.S. government." Memorandum of Law in Support of Plaintiffs' Motion for Relief Pursuant to Rule 60(b) ("Pl. 60 Br.") (Doc. 91) at 2. As explained below, that motion is denied in substantial part, save for a small set of withholdings of ITAC Communications that USTR has not justified under Exemption 1.
Rule 60(b)(6) authorizes the Court to relieve a party from a final judgment or order for "any" reason that "justifies relief" and is not covered by the grounds for relief provided by Rules 60(b)(1)-(5). "Rule 60(b)(6) `confers broad discretion on the trial court to grant relief when appropriate to accomplish justice.'" United Airlines, Inc. v. Brien, 588 F.3d 158, 176 (2d Cir.2009) (quoting Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir.1986)). "Relief is warranted `where there are extraordinary circumstances, or where the judgment may work an extreme and undue hardship, and should be liberally construed when substantial justice will thus be served.'" Id. (quoting Matarese, 801 F.2d at 106).
A. "Extraordinary Circumstances" Required for Rule 60(b)(6) Relief
As a preliminary matter, Plaintiffs have arguably not satisfied the threshold showing of "extraordinary circumstances" required to garner reconsideration under Rule 60(b)(6). See, e.g., Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) ("[O]ur cases have required a movant seeking relief under Rule
The Court need not resolve this issue definitively. Even 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.
B. USTR's Exemption 1 Withholdings Following the Signing of the TPP
At the outset, it is important to clarify the scope of Plaintiffs' challenge to Exemption 1 withholdings on reconsideration. Plaintiffs, repeatedly and explicitly, limit their request to disclosure of the "specific positions that the United States proposed or adopted in negotiations." Pl. 60 Br. at 8 (emphasis added); see also Pl. 60 Br. at 7; Pl. 60 Rep. at 2-3 & n. 1. Plaintiffs do not seek disclosure of the positions taken and proposals made by any of the other eleven participating countries, essentially conceding that such information is properly withheld. See Pl. 60 Rep. at 3-4. The 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.
FOIA Exemption 1 authorizes agencies to withhold information that is "(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 its Exemption 1 withholdings, USTR relies on Executive Order 13526, entitled "Classified National Security Information." Exec. Order No. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009) ("E.O. 13526"). Information is properly classified under E.O. 13526 only if "the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security." E.O. 13526 § 1.1(a)(4). "Damage to the national security" is defined in part as "harm to the national defense or foreign relations of the United States...." Id. § 6.1(l).
The main point of contention between Plaintiffs and USTR is whether disclosure could harm foreign relations. "Notwithstanding the presumption in favor of disclosure, when the claimed exemption implicates national security, `an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.'" Ctr. for Constitutional Rights v. C.I.A., 765 F.3d 161, 166 (2d Cir.2014) (quoting Wilner, 592 F.3d at 69) (emphasis added), cert. denied, ___ U.S. ___, 135 S.Ct. 1530, 191 L.Ed.2d 559 (2015). "Because the agencies responsible for national security `have unique insights into what adverse [e]ffects might occur as a result of public disclosures,' courts are `required to accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.'" Azmy v. U.S. Dep't of Def., 562 F.Supp.2d 590, 597 (S.D.N.Y.2008) (quoting Military
(a) Decision Memoranda
The Decision Memoranda remain properly withheld under Exemption 1. Cf. IP Watch I, 134 F.Supp.3d at 736-37 (noting that Plaintiffs' limiting their Exemption 1 challenge to positions proposed or adopted by the U.S. effectively insulated Decision Memoranda from disclosure). 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. See 2d Supp. Weisel Decl. ¶¶ 6-9 (representing that the Decision Memoranda do not contain draft text); Declaration of Victor Mroczka ("Mroczka Decl.") (Doc. 100) ¶ 16 (describing content of trade-remedy Decision Memorandum as "analyses of the pros and cons of whether the United States should engage on proposals regarding transparency and due process provisions in the TPP Trade Remedies chapter or draft its own counter-proposal"); Supplemental Declaration of Probir Mehta ("Mehta Decl.") (Doc. 101) ¶ 13 (describing content of IP Decision Memorandum as "assess[ing] whether the United States should continue or change a particular stance on other TPP partners' proposals" and "if so, how to deploy that change in stance" given the "contentious and difficult" nature of issue). The fact that U.S. negotiators "depart from positions suggested in the Decision Memoranda without changing, rescinding or redrafting them" confirm the transient nature of the content in these documents, belying the possibility that they contain formal proposals put forth by the United States. 2d Supp. Weisel Decl. ¶ 6. And indeed, to the extent the Decision Memoranda do not contain any of the United States' own proposed or adopted positions, Plaintiffs 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. See Mroczka Decl., ¶ 16; Mehta Decl. ¶ 13; 2d Supp. Weisel Decl. ¶ 24.
(b) U.S. Proposals in Draft Chapters and ITAC Communications
Although a closer question, USTR has also properly withheld draft text containing the positions that the U.S. proposed or adopted, whether that text appeared in the Draft Chapters or ITAC Communications. USTR has provided a plausible account of why unilaterally disclosing the U.S.'s evolving negotiating positions and the extent to which the U.S. got its proposals adopted into the final agreement could harm foreign relations. Specifically, disclosure could (i) harm relations with the eleven other TPP countries while the ratification process is ongoing, and (ii) harm ongoing and future trade negotiations, because disclosure would both violate the confidentiality agreement and reveal the evolution of U.S. positions on controversial trade topics.
First, Plaintiffs overstate the extent to which circumstances have changed since the Court's prior decision. While 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. See TPP Art. 30.5. The TPP has been a salient and fraught political question in the United States, and its entry into force is far short of a sure thing.
Consequently, USTR officials continue to make a logical and plausible case
Second, beyond ratification of the TPP, 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. This is so for two related but distinct reasons. To start, the actual contents of these specific disclosures could harm other trade negotiations, because any country that enters into trade negotiations with the U.S. will have a blueprint of the U.S.'s evolving strategy and positions deployed throughout TPP negotiations.
Even beyond the harm these particular disclosures may create, the precedent Plaintiffs attempt to establish here may create problems on its own: If Plaintiffs prevail, future trade partners will know that the U.S. will not be able to abide by a commitment to keep its interim offers and proposals confidential. Cf. Pl. 60 Br. at 7 ("[P]laintiff seeks to establish only the proposition that in these particular circumstances — where a multilateral agreement has been concluded and the text published for all to see — disclosure of the United States' own positions and proposals during the course of negotiations would not plausibly
The two general reasons for upholding USTR's Exemption 1 withholdings — the ongoing process of ratifying the TPP, and the potential harm to ongoing or future trade negotiations — apply equally to draft proposals made or adopted by the U.S that ended up in the final agreement. Plaintiffs argue, however, 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." Pl. 60 Br. at 9-10. Official disclosure of previously classified information can waive Exemption 1 protection where (1) the information requested is "as specific" as the information already disclosed, (2) the information requested "matches" the information already disclosed, and (3) the information disclosed was "made public through an official and documented disclosure." N.Y. Times, 756 F.3d at 113, 120 (quoting Wilson v. CIA, 586 F.3d 171, 186 (2d Cir.2009)).
The Court is not persuaded that this is an appropriate case of waiver. The information Plaintiffs are requesting — the extent to which the U.S. proposed or adopted provisions that made their way into the final agreement, and at which point in the negotiation process those proposals were made — was not disclosed merely by the release of the final TPP agreement. Cf. Pl. 60 Br. at 12-13 ("Access to the information sought here will allow IP-Watch and others to understand how USTR advanced and protected American interests, tracing the fate of USTR's positions and proposals through to the final text."). Release of the final TPP agreement discloses only the fact that the final text was eventually agreed to by all twelve countries; it does not disclose which country or countries proposed which provisions, when those proposals were made, and evolving iterations of each proposal throughout the negotiations. The final text itself, therefore, does not "match" information that would "trace the fate of USTR's positions and proposals through to the final text." Id. Without that match, waiver is not applicable.
Both Plaintiffs' and USTR's motions for summary judgment are denied at this time, and will be revisited after USTR has the opportunity to make further submissions establishing that the information and advice contained in the withheld ITAC Communications were submitted in confidence. Once again, those additional submission are due on or before
Plaintiffs' Rule 60(b) motion is denied in substantial part, with the small exception of the six documents withheld solely because they contained proposals made by ITAC members.
The Clerk of the Court is respectfully directed to terminate the motion, Doc. 90.
It is SO ORDERED.
Section 2605(i)(2) of the CPAC likewise tracks section 2155(g)(3) of the Trade Act, stating as follows: