Intellectual Prop. Watch v. U.S. Trade Representative
| Decision Date | 25 September 2015 |
| Docket Number | No. 13 Civ. 8955(ER).,13 Civ. 8955(ER). |
| Citation | 134 F.Supp.3d 726 |
| Parties | INTELLECTUAL PROPERTY WATCH and William New, Plaintiffs, v. UNITED STATES TRADE REPRESENTATIVE, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Jonathan Manes, David A. Schultz, Media Freedom and Information Access Clinic, Yale Law School, New Haven, CT, for Plaintiffs.
Preet Bharara, Ellen Blain, United States Attorney, Southern District of New York, New York, NY, for Defendant.
Intellectual Property Watch and William New ("Plaintiffs") bring this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2012), against the United States Trade Representative ("USTR," "the government," or "the agency"). Plaintiffs seek disclosure of documents related to the Trans–Pacific Partnership ("TPP"), a free-trade agreement currently being negotiated among eleven Asia–Pacific countries and the United States. (Doc. 1). USTR withholds certain documents in full and redacts portions of other documents, under various statutory exemptions to FOIA's disclosure requirements. The parties cross-move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docs. 42, 48). For the following reasons, both parties' motions are GRANTED in part and DENIED in part.
The TPP is a comprehensive free-trade agreement that the United States is currently negotiating with eleven other countries in the Asia–Pacific region.1 Decl. Barbara Weisel Supp. Gov't Mot. Summ. J. ("Weisel Decl.") (Doc. 44) ¶ 5. The eventual goal is to include within the agreement a region of Asia–Pacific countries that represents more than forty percent of global output and over one-third of global trade. Id. ¶ 6. The scope of the negotiations is vast, sweeping in trade in goods, textiles, services, investment, labor, the environment, e-commerce, telecommunications, and intellectual property rights, to name only some of the covered issues. See TPP Issue–by–Issue Information Center, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-issue-issue-negotiating-objectives (last visited Sept. 15, 2015). As of the date of this Opinion and Order, the TPP is still being negotiated among the twelve nations.
At the outset of negotiations, all twelve of the negotiating countries, including the United States, entered into a confidentiality agreement drafted and circulated by the Ministry of Foreign Affairs and Trade for New Zealand. Weisel Decl. ¶ 10; id., Ex. A. The agreement, in pertinent part, states as follows:
[A]ll participants agree that the negotiating texts, proposals of each Government, accompanying explanatory material, emails related to the substance of the negotiations, and other information exchanged in the context of the negotiations, is provided and will be held in confidence, unless each participant involved in a communication subsequently agrees to its release. This means that the documents may be provided only to (1) government officials or (2) persons outside government who participate in that government's domestic consultation process and who have a need to review or be advised of the information in these documents. Anyone given access to the documents will be alerted that they cannot share the documents with people not authorized to see them. All participants plan to hold these documents in confidence for four years after entry into force of the Trans Pacific Partnership Agreement, or if no agreement enters into force, for four years after the last round of negotiations.
Id. ¶ 11. By entering into the agreement, the participating countries sought to encourage "frank exchanges of views, positions, and specific negotiating proposals" and to "facilitate the resolution of differing national interests and perspectives." Id. ¶ 12. While USTR stresses the importance of confidentiality to the securing of a final agreement, Plaintiffs point to a host of domestic and foreign legislators and outside commentators who have criticized the secrecy of the TPP process. See, e.g., Mem. Supp. Pls.' Cross–Mot. Summ. J. ( ) (Doc. 49) 2–3.
The Trade Act of 1974 requires the President to "seek information and advice from representative elements of the private sector and the non-Federal governmental sector with respect to" trade negotiations, such as the TPP, and the U.S.'s overall trade policy. 19 U.S.C. § 2155(a) (2012). To fulfill this mandate, the Act authorizes the President to establish industry-specific advisory committees, populated by representative members of key sectors and groups of the economy affected by trade policy. See § 2155(c). The President has thus "established a comprehensive industry trade advisory committee (ITAC) system, with subcommittees devoted to specific areas" of the economy. Weisel Decl. 23. ITACs meet at the behest of USTR and "provide policy advice, technical advice and information, and advice on other factors" relevant to trade negotiations. § 2155(d). The ITACs most relevant to this litigation are (i) ITAC–3, addressing Chemicals, Pharmaceuticals, Health/Science Products and Services; (ii) ITAC–8, addressing Information and Communications Technologies, Services, and Electronic Commerce; (iii) ITAC–10, addressing Services and Financial Industries; and (iv) ITAC–15, addressing Intellectual Property Rights. Weisel Decl. ¶¶ 24–26; Pls.' Br. 4 n. 1.
USTR, on behalf of the President, solicits input from ITAC members via a secured website, the "Cleared Advisor site," through which members can access and provide comments on draft negotiating texts and other relevant documents. USTR and ITAC members also exchange information and advice over email and during in-person meetings. "ITAC comments may range from technical comments on wording choices in draft negotiating texts to comments on overall U.S. policy on trade-related issues." Id. ¶¶ 27–28.
The activities, organization, and responsibilities of the ITACs are laid out in the ITAC Operations Manual, jointly published by USTR and the United States Department of Commerce. See Suppl. Decl. Melissa Keppel ( ) (Doc. 63), Ex. A ("Ops.Manual").2 "The Operations Manual is based upon the legal framework created by the 1974 Trade Act, as amended, the Federal Advisory Committee Act, statutes and Executive Orders relating to the handling of security classified information and public access to infor mation...." Ops. Manual v–vi. As the Operations Manual explains, because ITAC members may receive "national-security classified or highly trade-sensitive" information in the process of advising USTR, they are required to obtain security clearances and make various assurances that they will keep the information they receive from USTR confidential. See id. IV. 1–4 (describing ITAC members' security clearances and obligations with respect to handling sensitive information). The Operations Manual also explains the process by which ITAC members can make confidential submissions to USTR, including confidential commercial or financial information and advice on trade policy and negotiations. See id. IV.4–5.
Plaintiff Intellectual Property Watch is a news organization that reports on international intellectual property issues. Plaintiff William New is the Editor–in–Chief of Intellectual Property Watch. On March 23, 2012, Plaintiffs filed their initial FOIA request seeking five categories of information from USTR: (i) dates and locations of TPP negotiations and meetings; (ii) terms of the confidentiality agreement and related communications; (iii) draft text of TPP provisions related to intellectual property; (iv) U.S. negotiation positions regarding intellectual property; and (v) communications between USTR and ITACs 3, 8, 10, and 15. See Pls.' Br. 3–4; Decl. Jonathan Manes ("Manes Decl.") (Doc. 52), Ex. A. USTR responded almost a year later on March 19, 2013 and June 21, 2013, withholding all of the documents requested by Plaintiffs pursuant to various FOIA exemptions, save for the release of 354 pages of communications between USTR and ITACS. Decl. Melissa Keppel ("Keppel Decl.") (Doc. 45) ¶ 6.
After filing an administrative appeal, Plaintiffs filed suit in this Court on December 18, 2013, which initiated a series of negotiations with USTR over possible further disclosures. Pls.' Br. 4–5. Those discussions resulted in the release of records concerning the schedule of TPP negotiations and the confidentiality agreement. In addition, the parties entered into a joint stipulation endorsed by this Court on March 10, 2014, pursuant to which USTR would search for a representative sample set of documents based Plaintiffs' requests, which would then form the exclusive basis of the parties' anticipated cross-motions for summary judgment and the Court's rulings on those motions. See Joint Stipulation and Order ("Stipulation") (Doc. 19) ¶¶ 4–6. The parties agreed that the following three categories of documents would constitute the representative sample set:
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