Intellectual Prop. Watch v. U.S. Trade Representative

• Decision Date: 31 August 2016
• Docket Number: 13 Civ. 8955 (ER)
• Citation: 205 F.Supp.3d 334
• Parties: INTELLECTUAL PROPERTY WATCH and William New, Plaintiffs, v. UNITED STATES TRADE REPRESENTATIVE, Defendant.
• Court: U.S. District Court — Southern District of New York

205 F.Supp.3d 334

INTELLECTUAL PROPERTY WATCH and William New, Plaintiffs,

v.UNITED STATES TRADE REPRESENTATIVE, Defendant.

13 Civ. 8955 (ER)

United States District Court, S.D. New York.

Signed August 31, 2016

David A. Schulz, Levine, Sullivan, Koch & Schulz, LLP, New York, NY, Jonathan Matthew Manes, Yale Law School, New Haven, CT, for Plaintiffs.

Jennifer Ellen Blain, United States Attorney Office, New York, NY, for Defendant.

OPINION AND ORDER

Ramos, District Judge.

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.¹ Intellectual Property Watch, a news organization, and its editor-in-chief, William New (together, "Plaintiffs") submitted their FOIA request to the United States Trade Representative ("USTR" or the "agency"), and now challenge USTR's withholdings of certain responsive documents that the agency determined were exempt from FOIA's disclosure requirements.

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, 2016.² At the time of writing, the agreement is being considered by the governments of the participating countries because, as explained further below, it requires ratification from a certain proportion of those countries in order to enter into force. See Second Declaration of Jonathan Manes ("2d Manes Decl.") (Doc. 92), Exs. A, B; Second Supplemental Declaration of Barbara Weisel ("2d Supp. Weisel Decl.") (Doc. 98) ¶¶ 2, 23. Given this change in circumstances since IP Watch I , Plaintiffs have moved for relief under Rule 60(b) of the Federal Rules of Civil Procedure, seeking reconsideration of the Court's initial judgment that draft TPP text containing proposals made by the United States could properly be withheld under an exemption to FOIA. (Doc. 90).

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.

I. BACKGROUND

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 spheres of commercial-related activity in the participating countries. See IP Watch I , 134 F.Supp.3d at 730–31 ; The Trans Pacific Partnership ("TPP"), OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-full-text (last visited July 29, 2016) (linking to TPP chapters on such topics as trade remedies, textiles, financial services, telecommunications, electronic commerce, state-owned enterprises, intellectual property, environment, labor, competition, and development). The TPP chapters most relevant to this litigation are (i) Electronic Commerce, (ii) Trade Remedies, and (iii) Intellectual Property. The ratification process, in which the domestic governments of the participating countries debate whether to assent to the final agreement, is currently underway.

The twelve participating TPP countries entered into a confidentiality agreement at the outset of negotiations, which stated 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.

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.³

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 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). 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, both via email and via a secured website, the "Cleared Advisor" website, which is essentially a message board that serves as a forum for ITAC members to communicate with USTR. See IP Watch I , 134 F.Supp.3d at 731–32.

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:

(g) Trade secrets and confidential information

(1) Trade secrets and commercial or financial information which is privileged or confidential, and which is submitted in confidence by the private sector or non-Federal government to officers or employees of the United States in connection with trade negotiations, may be disclosed upon request to—[ (A) U.S. government officials designated by USTR; (B)-(C) certain designated members of Congress and congressional staffers]—for use in connection with matters referred to in subsection (a) of this section.⁴

(2) Information other than that described in paragraph (1), and advice submitted in confidence by the private sector or non-Federal government to officers or employees of the United States, to the Advisory Committee for Trade Policy and Negotiations, or to any advisory committee established under subsection (c) of this section, in connection with matters referred to in subsection (a) of this section, may be disclosed upon request to—[the individuals described in (g)(1), plus other ITAC members]

(3) Information submitted in confidence by officers or employees of the United States to the Advisory Committee for Trade Policy and Negotiations, or to any [ITAC established under this section], may be disclosed in accordance with rules issued by the United States Trade Representative and the Secretaries of Commerce, Labor, Defense, Agriculture, or other executive departments, as appropriate, after consultation with the relevant [ITACs]. Such rules shall define the categories of information which require restricted or confidential handling by such committee considering the extent to which public disclosure of such information can reasonably be expected to prejudice the development of trade policy, priorities, or United States negotiating objectives. Such rules shall, to the maximum extent feasible, permit meaningful consultations by advisory committee members with persons

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