Competitive Enter. Inst. v. U.S. Dep't of State
| Decision Date | 15 September 2020 |
| Docket Number | Case No. 17-cv-02032 (APM) |
| Citation | 486 F.Supp.3d 171 |
| Parties | COMPETITIVE ENTERPRISE INSTITUTE, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, Defendant. |
| Court | U.S. District Court — District of Columbia |
Christopher Cochran Horner, Government Accountability & Oversight P.C., Keswick, VA, Charles Devin Watkins, Sam Kazman, Competitive Enterprise Institute, Washington, DC, for Plaintiff.
Daniel Patrick Schaefer, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.
This lawsuit arises from three Freedom of Information Act ("FOIA") requests that Plaintiff Competitive Enterprise Institute ("CEI") made to Defendant United States Department of State (the "Department") from August to October 2017. Plaintiff seeks to compel production of documents related to the Department's handling of the 2016 Paris Climate Agreement.1 See Compl., ECF No. 1, ¶ 1. On April 22, 2016, the Secretary of State (the "Secretary") authorized the United States to enter the Paris Agreement as an Executive Agreement, a form of multilateral agreement that does not require approval by the advice and consent of the Senate that a treaty requires under Article II of the U.S. Constitution. Plaintiff's FOIA request seeks documents specifically related to the Secretary's decision as to the form of the Paris Agreement.
After the initiation of this lawsuit, the parties agreed upon a narrowing of the scope of Plaintiff's three FOIA requests, and the Department produced over 170 responsive documents across two initial productions. Among those documents were several almost fully redacted versions of a legal memorandum that accompanied an "action memorandum" to the Secretary, seeking authorization to join the Paris Agreement. The Department justifies withholding the legal memorandum under FOIA Exemption 5, on the grounds that it is protected by the deliberative process and attorney-client privileges. Plaintiff challenges the Department's privilege claims on multiple grounds.
Before the court are the parties’ cross-motions for partial summary judgment. The single issue presented is whether the Department's withholding of the legal memorandum is justified under FOIA Exemption 5. It is, the court finds, based on the deliberative process privilege. The court therefore need not address the assertion of the attorney-client privilege. Accordingly, Defendant's Cross-Motion for Partial Summary Judgment is granted and Plaintiff's Motion for Partial Summary Judgment is denied.
The U.S. State Department is the chief agency responsible for international agreements and treaties. "The Secretary of State is responsible, on behalf of the President, for ensuring that all proposed international agreements of the United States are fully consistent with United States foreign policy objectives." 22 C.F.R. § 181.4(a). To that end, the Department's governing body of policy and procedures, its Foreign Affairs Manual, provides that "[n]egotiations of treaties, or other ‘significant’ international agreements ... are not to be undertaken ... until authorized in writing by the Secretary or an officer specifically authorized by the Secretary for that purpose." U.S. State Dep't, 11 Foreign Affairs Manual ("FAM") 724.1 (2006).2 The internal process for obtaining such written authorization is known as the "Circular 175 Procedure," named after "Department Circular No. 175, December 13, 1955," the document that initially established the process for proper coordination and approval of treaties and international agreements within the Department. See 11 FAM 721; see also Def.’s Cross-Mot. for Partial Summ. J., ECF No. 32, Mem. of P. & A. in Opp'n to Pl.’s Mot. for Partial Summ. J. and in Supp. of Def.’s Cross-Mot. for Partial Summ. J., ECF No. 32-1 [hereinafter Def.’s Cross-Mot.], at 6–8, Decl. of Eric F. Stein, ECF No. 32-3 [hereinafter Stein Decl.], ¶ 8.
The Circular 175 Procedure is spelled out in Volume 11, Chapter 700 of the FAM, which explains that "[a] request for authorization to negotiate and/or conclude a treaty or other international agreement takes the form of an action memorandum addressed to the Secretary or other principal to whom such authority has been delegated." 11 FAM 724.3(a) (). As the primary advisor to the Department and other U.S. Government agencies on all facets of treaty law, the Office of Treaty Affairs within the Department's Office of the Legal Advisor ("OLC") oversees implementation of the Circular 175 procedure. See Stein Decl. ¶ 33. OLC also must provide a memorandum of law to accompany each C-175 action memo, which "may include, among other things, analysis of how to interpret the specific terms of the agreement, analysis of other relevant international law that may bear upon the operation of the agreement, authority to implement various components of the agreement under U.S. law, or any legal risks raised by the agreement." Id. ¶ 36; see 11 FAM 724.3(h)(3). At a minimum, "[a]ll legal memoranda accompanying Circular 175 requests ... will discuss thoroughly the legal authorities underlying the type of agreement recommended." 11 FAM 723.4(a). And "[w]hen there is any question whether an international agreement should be concluded as a treaty or as an international agreement other than a treaty," the FAM provides a separate procedure for "transmit[ting] a memorandum thereon to the Secretary (or designee) for a decision." 11 FAM 723.4(b).
In addition to the OLC memorandum of law, the C-175 action memo is accompanied by "[t]he U.S. draft, if available, of any agreement," or "[t]he text of any agreement and related exchange of notes, agreed minutes, or other document to be signed," 11 FAM 724.3(h)(1)–(2), and any other attachments "that provide ... [any] other relevant background information for the decision maker's review and reference," Def.’s Cross-Mot. at 4; see also Pl.’s Reply in Opp'n to Def.’s Cross-Mot. for Partial Summ. J. & in Supp. of Pl.’s Mot. for Partial Summ. J., ECF No. 36 [hereinafter Pl.’s Opp'n], Pl.’s Response to Def.’s Stmt. of Mat. Facts, ECF No. 36-1 [hereinafter Pl.’s Resp. to Facts], ¶ 38. The package of documents is then "cleared" (or signed off on) by other relevant offices and agencies prior to submission to the Secretary (or his designee) for review and authorization. See Stein Decl. ¶ 35; Pl.’s Resp. to Facts ¶ 46; see also 11 FAM 724.3(a). Key among those offices is OLC, which must clear "[a]ny draft of a proposed treaty or agreement, or any action regarding the negotiation, conclusion, ratification or approval, or termination, as well as the existence, status, and application, of any international agreement to which the United States is or may become a party." 11 FAM 713.2.
From August 31, 2017 to October 10, 2017, Plaintiff submitted three FOIA requests to the Department related to the Paris Agreement, with specific emphasis on the Circular 175 process. See Pl.’s Resp. to Facts ¶ 1. Plaintiff's August 31, 2017 request sought emails and text messages sent to or from two State Department officials between August 1, 2014 and January 20, 2017, hitting on a handful of search terms, including "Circular 175." See Pl.’s Resp. to Facts ¶ 1; Stein Decl. ¶ 5. Plaintiff's October 6 and October 10, 2017 requests were essentially identical and sought certain communications to or from two other Department officials. Id.
Although the Department acknowledged receipt of Plaintiff's FOIA request, it did not respond within the statutory deadline of 20 working days. See Compl. ¶ 3. Following the filing of this lawsuit, the parties met and agreed on a narrowing of search terms to reduce the number of responsive documents. See Stein Decl. ¶ 7; Pl.’s Resp. to Facts ¶ 1. The Department "also agreed to prioritize the production of records containing the term ‘Circular 175.’ " Stein Decl. ¶ 7. Between May 4 and June 4, 2018, the Department produced 80 documents containing the term "Circular 175." Id. ¶ 8. Among the documents produced were several versions of the OLC legal memorandum, which the court will refer to as the "Legal Memo," that accompanied the C-175 action memo on authorization to join the Paris Agreement. Id. In July 2018, the parties agreed on a further narrowing of the search terms, including limiting responsive documents to communications "concerning the reason why the agreement was entered into through a legal form that did not require Senate advice and consent." Id. ¶ 9. Between September 11, 2018 and May 9, 2019, the Department produced an additional 90 documents responsive to the newly defined request. Id. ¶ 10. The Department refused, however, to produce the Legal Memo, maintaining that it is protected by the deliberative process and attorney-client privileges and therefore subject to FOIA's Exemption 5. Id. ¶ 11.
The Legal Memo at issue in this case is an attachment to the C-175 action memo that the Office of the Special Envoy for Climate Change ("Office of the Special Envoy") submitted to the Secretary to request authority to sign and accept the Paris Agreement. See Pl.’s Resp. to Facts ¶ 2. The Legal Memo is an 18-page document titled "Memorandum of Law" and signed by Legal Adviser Brian J. Egan. See id. ¶ 3. "The document is marked ‘Attorney-Client Privileged’ on each page," id. ¶ 4, and according to Defendant's declarant, Eric Stein, "contains the legal analysis deemed by the Office of the Legal Adviser, in consultation with [the Office of the Special Envoy] and other relevant policy offices and officials, to be necessary for the Secretary ... to evaluate the recommendation contained in the accompanying action memo and decide on the Department's course of action," Stein Decl. ¶ 19.
On October 3, 2017, Plaintif...
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