Intellectual Prop. Watch v. U.S. Trade Representative
| Citation | 344 F.Supp.3d 560 |
| Decision Date | 30 September 2018 |
| Docket Number | 13 Civ. 8955 (ER) |
| Parties | INTELLECTUAL PROPERTY WATCH and William New, Plaintiffs, v. UNITED STATES TRADE REPRESENTATIVE, Defendant. |
| Court | U.S. District Court — Southern District of New York |
John Langford, Yale Media Freedom & Information Access Clinic, Jonathan Matthew Manes, Yale Law School, New Haven, CT, David A. Schulz, Ballard Spahr LLP, New York, NY, for Plaintiffs.
Jennifer Ellen Blain, United States Attorney Office, New York, NY, for Defendant.
Before the Court is a Freedom of Information Act ("FOIA") suit involving a request for communications relating to the Trans Pacific Partnership ("TPP"), a wide-ranging, plurilateral trade agreement formerly negotiated among the United States and eleven Asia-Pacific countries.1 Intellectual Property Watch, a news organization that reports on international intellectual property issues, and its editor-in-chief, William New (together, "Plaintiffs") submitted their FOIA request to the United States Trade Representative ("USTR" or the "agency"). The parties cross-moved for summary judgment with Plaintiffs challenging USTR's withholdings and redactions of certain responsive documents that the agency determined were exempt from FOIA's disclosure requirements. See Docs. 42, 46, 48, 61.
Pursuant to two prior opinions, the Court granted in part and denied in part each of the parties' respective motions. See Intellectual Prop. Watch v. U.S. Trade Representative ("IP Watch I "), 134 F.Supp.3d 726 (S.D.N.Y.2015) ; Intellectual Prop. Watch v. United States Trade Representative ("IP Watch II "), 205 F.Supp.3d 334 (S.D.N.Y. 2016). The Court now principally decides whether certain communications withheld under Exemption 3, were "submitted in confidence" and therefore properly withheld pursuant to 19 U.S.C. § 2155(g)(2)-(3).
For the reasons set forth below, USTR's motion for summary judgment on the remaining communications is GRANTED, and Plaintiffs' motion is DENIED.
The Court assumes familiarity with the record and its prior opinions in IP Watch I and IP Watch II , which detail the facts and procedural history of this case, and discusses here only those facts necessary for its disposition of the instant motions. The Trade Act of 1974 (the "Trade Act") requires the President to "seek information and advice from representative elements of the private sector and the non-Federal governmental sector" regarding trade negotiations and policy. 19 U.S.C. § 2155(a). 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 result is a system of "industry trade advisory committees" ("ITACs") that are dedicated to different sectors of the economy and are comprised of members from the private sector who "provide policy advice, technical advice and information, and advice on other factors" relevant to trade negotiations. § 2155(d). These ITACs were called on during the course of TPP negotiations to provide counsel to U.S. Government negotiators. Among the disputed documents at issue here are communications sent among ITAC members, USTR, and other private sector actors, discussing various issues related to TPP negotiations. See IPWatch I , 134 F.Supp.3d at 731–32.
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 certain ITACs. USTR withheld all responsive documents save for some partial disclosures of communications between USTR and ITACs. After Plaintiffs filed suit in this Court on December 18, 2013, the parties entered into a joint stipulation pursuant to which USTR would undertake searches for a representative sample set of documents using search terms proffered by Plaintiffs, which would then provide the exclusive basis for the litigation going forward. As relevant here, USTR's searches produced roughly 700 pages of emails among USTR, ITAC members, and nonmember, private-sector consultants, and forty-one pages of postings to the government's Cleared Advisor site, all of which were identified as a result of search terms provided by Plaintiffs. These communications are referred to as "ITAC Communications."
USTR withheld some ITAC Communications in full and some only partially by redacting portions of responsive communications. The parties cross-moved for summary judgment on the validity of USTR's withholdings.
IP Watch I was decided on September 25, 2015. See IPWatch I , 134 F.Supp.3d 726. This Court upheld USTR's withholdings of memoranda and drafts chapters of the TPP, as well as select 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. IPWatch 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 ( § 552(b)(5) ), covering intra-agency documents that would be traditionally privileged in civil litigation. The Court rejected USTR's use of Exemption 5, holding that communications among ITACs and U.S. officials were not "intra-agency." IPWatch I , 134 F.Supp.3d at 747–49. Additionally, although the Court held that the provision of the Trade Act governing ITAC Communications, 19 U.S.C. § 2155(g), served as a withholding statute for purposes of Exemption 3, the Court was unable to rule on the propriety of USTR's withholdings under Exemption 3 or 4 because USTR had not provided sufficient evidence to sustain its burden of withholding documents under those exemptions. Thus, the Court requested from USTR more detailed and document-specific justifications for the agency's withholdings under those two FOIA exemptions. IPWatch I , 134 F.Supp.3d at 739–47.
To support its withholdings of ITAC Communications pursuant to Exemption 3,2 in November and December of 2015 USTR submitted: (1) two Vaughn indices describing communications and providing withholding justifications for information submitted by email or posted to the Cleared Advisor Website and withheld almost exclusively pursuant to FOIA Exemption 3 (Doc. 78, Ex. 1; Doc. 71, Ex. 2); (2) affidavits and declarations of USTR employees and ITAC members attesting to the nature of those communications and the custom and practice of communications between USTR, ITAC members, and the private sector (Docs. 73, 74–75, 86, 88); and (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).
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 urged reconsideration because the Court's reasoning in IP Watch I turned in part on the fact that TPP negotiations were still ongoing.
IP Watch II was decided on August 31, 2016. See IP Watch II , 205 F.Supp.3d 334. Recognizing that the Court's prior opinion had determined that Section 2155(g) served as a withholding statute for purposes of Exemption 3, but had not expressly identified the operative test for determining when a communication is submitted "in confidence" under that Section, the Court clarified which standard controlled. In doing so, the Court adopted the well-established test set forth in Landano for FOIA Exemption 7(D), which exempts information submitted to law enforcement that could reveal the identity of a confidential source. See U.S. Dep't of Justice v. Landano , 508 U.S. 165, 172, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993). The Court therefore held that the operative test for determining when a communication is "submitted in confidence" "is whether the submitter ‘provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.’ " IP Watch II , 205 F.Supp.3d at 346 (quoting Grand Cent. P'ship, Inc. v. Cuomo , 166 F.3d 473, 486 (2d Cir. 1999) (quoting Landano , 508 U.S. 165, 172, 113 S.Ct. 2014 (1993) ); see also Ancient Coin Collectors Guild v. U.S. Dep't of State , 641 F.3d 504, 509 (D.C. Cir. 2011). Having clarified the appropriate evidentiary standard applicable to Section 2155(g), the Court withheld decision on the cross-motions for summary judgment and permitted the parties to submit additional declarations or evidence and further brief that issue. See IP Watch II , 205 F.Supp.3d at 348–49. The Court also determined that USTR could rely on the ITAC Manual to support its withholding of communications under Section 2155(g), which generally governs information submitted in confidence between the U.S. Government and members of the private sector, and that ITAC members were part of the private sector for purposes of Section 2155(g)(2), which specifically governs "advice submitted in confidence by the private sector or non-Federal government" to the U.S. government or its advisory committees. See IP Watch II , 205 F.Supp.3d at 349–51.
Finally, the Court denied Plaintiff's Rule 60 motion in substantial part, principally reasoning that the public release of the TPP did not eliminate the risk that disclosure of memoranda and draft chapters could logically and plausibly harm foreign relations. See IP Watch II , 205 F.Supp.3d at 353–57. The Court did, however, grant Plaintiff's motion for reconsideration with...
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