                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
CENTER FOR INTERNATIONAL      )
ENVIRONMENTAL LAW,            )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 01-498 (RWR)
                               )
OFFICE OF THE UNITED STATES   )
TRADE REPRESENTATIVE, et al., )
                               )
          Defendants.          )
_____________________________ )

                        MEMORANDUM OPINION

     The Center for International Environmental Law (“CIEL”)

brought this action against the United States Trade

Representative and his office (collectively “USTR”), seeking

documents under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552.   The only document remaining at issue is “Document 1,” a

one-page position paper produced by the United States during

negotiations to conclude a free-trade agreement with foreign

nations.   USTR has filed a second renewed motion for summary

judgment, and CIEL has filed a cross-motion for summary judgment.

Having been afforded three opportunities to justify withholding

the document, USTR has not provided a plausible or logical

explanation for why disclosure of the document would harm the

United States’ foreign relations.   Accordingly, USTR’s motion for

summary judgment will be denied, CIEL’s cross-motion will be

granted, and USTR will be ordered to disclose Document 1.
                                - 2 -

                             BACKGROUND

       The background of this case is fully discussed in Ctr. for

Int’l Envtl. Law v. Office of U.S. Trade Representative (“CIEL

I”), 505 F. Supp. 2d 150, 153-54 (D.D.C. 2007), and Ctr. for

Int’l Envtl. Law v. Office of U.S. Trade Representative (“CIEL

II”), 777 F. Supp. 2d 77, 80-81 (D.D.C. 2011).   As to facts

relevant here, CIEL seeks “Document 1,” a position paper prepared

by USTR during sessions of the Negotiating Group on Investment

for the Free Trade Agreement of the Americas (“FTAA”).   The

purpose of the agreement was to create a free-trade area among

thirty-four nations in the western hemisphere.   The United States

took part in FTAA negotiations during the 1990s and 2000s, but no

agreement was reached.   (Defs.’ Stmt. of Material Facts Not in

Dispute (“Defs.’ Stmt.”) ¶¶ 2-4.)   Document 1 sets forth the

United States’ initial proposed position on the meaning of the

phrase “in like circumstances.”   (Mem. of P. & A. in Supp. of

Defs.’ Second Renewed Mot. Summ. J. (“Defs.’ Mem.”) at 2.)     This

phrase “helps clarify when a country must treat foreign investors

as favorably as local or other foreign investors -- i.e., when

‘national’ treatment or ‘most-favored-nation’ treatment applies.”

(Id.; Defs.’ Suppl. Br. in Supp. of Defs.’ Mot. for Summ. J.

(“Defs.’ Suppl. Br.”), Bliss Decl. (“First Bliss Decl.”) ¶¶ 13-

14.)
                                - 3 -

     The nations participating in the FTAA negotiations agreed

initially that any negotiating document produced or received in

confidence during the negotiations would not be released to the

public unless all nations agreed.   (Defs.’ Mem. at 2; Defs.’

Suppl. Br., Lezny Decl. ¶ 5.)   Later they “agreed that all FTAA

documents would become derestricted and available for public

release on December 31, 2013, unless a country were to object to

the release of one of its own documents at that time.”   (Defs.’

Mem. of P. & A. in Opp’n to Pl.’s Cross-Mot. Summ. J. and Reply

Mem. in Supp. of Defs.’ Second Renewed Mot. Summ. J. (“Defs.’

Opp’n”), Bliss Decl. (“Third Bliss Decl.”) ¶ 5.)   Subsequently,

the then-Deputy United States Trade Representative extended the

“Confidential” classification of all FTAA documents under USTR’s

control until December 31, 2013, “in order to be consistent with

[the United States’] international obligation.”    (Defs.’ Mem. at

1; Third Bliss Decl. ¶ 6.)   USTR classified Document 1 based on

the criteria of Executive Order 12958 (Defs.’ Mem. at 1), which

permits classification of information if, among other

requirements that are uncontested here, “the original

classification authority determines that the unauthorized

disclosure of the information reasonably could be expected to

result in damage to the national security . . . and . . . is able

to identify or describe the damage.”    60 Fed. Reg. 19826
                               - 4 -

§ 1.2(a)(4) (revoked by Executive Order 13526, 75 Fed. Reg. 707,

which uses identical classification criteria in this context).1

     USTR has twice previously moved for summary judgment,

arguing that disclosure of Document 1 would damage foreign

relations by violating the confidentiality agreement among the

FTAA nations and causing nations to adopt more rigid trade

positions, resulting in less favorable trade terms for the United

States.   Both motions were denied on grounds that USTR had not

sufficiently substantiated the asserted harms.   Specifically, the

most recent memorandum opinion noted that USTR had not shown it

likely that disclosure of Document 1 would damage trust with

other FTAA nations, because Document 1 is the United States’ own

material and its disclosure would not necessarily provide a basis

for foreign officials to think that United States might dishonor

its commitments to keep foreign information confidential.    CIEL

II, 777 F. Supp. 2d at 84.   In addition, the opinion noted the

apparent inconsistency of USTR’s argument on the one hand that

breaching the confidentiality agreement would damage foreign



     1
       In its cross-motion for summary judgment, CIEL argued that
Document 1 ceased to be classified under the Executive Order in
2011, but it withdrew this argument (Pl.’s Reply in Support of
Pl.’s Cross-Mot. Summ. J. at 2 n.1) in light of the defendants’
representation and supporting declaration that a USTR official
with original classification authority extended the
classification of Document 1 until December 31, 2013 (Defs.’
Opp’n at 2; Third Bliss Decl. ¶¶ 5-7). The dispute, therefore,
concerns whether the classification was proper under the criteria
set forth in the Executive Order.
                                - 5 -

officials’ trust that the United States would honor its

commitments, and its argument on the other hand that disclosing

the document would harm national security by hindering the United

States’ flexibility to assert different meanings of “in like

circumstances” in different contexts, a tactic that could

undermine foreign governments’ trust in the United States.    Id.

at 85.   The opinion also found unconvincing USTR’s argument that

disclosure of the document would create the perception among

foreign nations that the United States was attempting to entrench

its own interpretation of the phrase at issue, noting that USTR

would not be releasing the document by way of unilateral

volition, but by way of court-ordered compliance with FOIA.    Id.

     USTR has again moved for summary judgment, clarifying and

augmenting its previous arguments for withholding Document 1.

USTR maintains that the United States at present is negotiating

trade and investment agreements, some but not all of which

involve the FTAA countries.   (Defs.’ Mem. at 11 (citing Second

Bliss Decl. ¶ 5).)    It argues that the loss of trust caused by

releasing Document 1 would impede these on-going and future

negotiations.   Id.   In addition, USTR elaborates why disclosure

would decrease the United States’ flexibility in on-going and

future negotiations, positing that even if the United States

might want Document 1’s interpretation of “in like circumstances”

to be accepted by foreign governments in other agreements, the
                                 - 6 -

United States might want to “negotiate up” to that position or to

preserve its negotiating capital by accepting another country’s

proposal of that interpretation rather than expending effort to

convince other governments to accept the United States’ disclosed

FTAA position.   (Defs.’ Mem. at 16 (citing Second Bliss Decl.

¶ 10).)   USTR also reasserts its position that disclosing

Document 1 would increase the risk of adverse arbitration

decisions, should arbitrators be willing to look to the document

for assistance in interpreting the term.   (Defs.’ Mem. at 13-14.)

USTR contends that its desire to maintain the United States’

flexibility to assert different interpretations of “in like

circumstances” in different contexts is not inconsistent with its

commitment to maintain foreign governments’ trust by adhering to

the confidentiality agreement.    “Because the FTAA was never

concluded, FTAA governments do not view Document 1 as binding the

United States[,]” USTR argues, and “[t]hus, asserting an

interpretation different from the one set forth in Document 1

would not be seen as a breach of trust.”   (Defs.’ Mem. at 15.)

     CIEL opposes USTR’s motion and itself moves for summary

judgment on the grounds that the defendants fail to substantiate

their claims that foreign governments would lose trust in the

United States in the event USTR is compelled to disclose its own

negotiating document.   (Pl.’s Mem. of P. & A. in Opp’n to Defs.’

Second Renewed Mot. Summ. J. and in Support of Pl.’s Cross-Mot.
                                - 7 -

Summ. J. (“Pl.’s Mem.”) at 13-19.)      In addition, CIEL argues that

USTR has not demonstrated that reduced negotiation flexibility

would cause the requisite harm to national security.     (Id. at 20-

23.)   CIEL maintains that USTR’s previous disclosure of three

related documents undermines the defendants’ arguments for

withholding Document 1.   (Id. at 19-21.)     Finally, CIEL contends

that USTR’s arguments regarding the harm from reduced flexibility

continue to be inconsistent with the argument that adhering to

the confidentiality agreement is necessary to maintain the trust

of foreign negotiating partners.   (Id. at 23-25.)

                             DISCUSSION

       In a FOIA suit, the agency resisting disclosure bears the

burden of persuasion in defending its action.     5 U.S.C.

§ 552(a)(4)(B); see also Akin, Gump, Strauss, Hauer & Feld, LLP

v. U.S. Dep’t of Justice, 503 F. Supp. 2d 373, 378 (D.D.C. 2007).

An agency is entitled to summary judgment if it demonstrates that

no material facts are in dispute and that the requested material

is exempt from disclosure.   Students Against Genocide v. Dep’t of

State, 257 F.3d 828, 833 (D.C. Cir. 2001).      In order to provide

an effective opportunity for the requesting party to challenge

the applicability of an exemption and for the court to assess the

exemption’s validity, “[t]he description and explanation the

agency offers should reveal as much detail as possible as to the

nature of the document, without actually disclosing information
                                - 8 -

that deserves protection.”   Oglesby v. U.S. Dep’t of Army, 79

F.3d 1172, 1176 (D.C. Cir. 1996).   Where an agency fails to meet

its burden to justify application of a FOIA exemption, a court

may order disclosure.   Coastal States Gas Corp. v. Dep’t of

Energy, 617 F.2d 854, 870 (D.C. Cir. 1980).

     USTR relies on FOIA Exemption 1 to oppose CIEL’s request.

Exemption 1 protects from disclosure matters that are “(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

an agency to justify withholding material under Exemption 1, it

must by affidavit:

     (1) identify the document, by type and location in the
     body of documents requested; (2) note that Exemption 1 is
     claimed; (3) describe the document withheld or any
     redacted portion thereof, disclosing as much information
     as possible without thwarting the exemption’s purpose;
     (4) explain how this material falls within one or more of
     the categories of classified information authorized by
     the governing executive order; and (5) explain how
     disclosure of the material in question would cause the
     requisite degree of harm to the national security.

King v. U.S. Dep’t of Justice, 830 F.2d 210, 224 (D.C. Cir.

1987).    Courts should accord agency affidavits expressing

national security concerns substantial weight and take account of

the fact that harm to national security cannot be predicted with

precision but rather will always be somewhat speculative in

nature.   Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007).
                                - 9 -

Nonetheless, affidavits that contain categorical or conclusory

statements, or which are contradicted by other evidence in the

record, will not pass muster.   PHE, Inc. v. Dep’t of Justice, 983

F.2d 248, 250 (D.C. Cir. 1993); Halperin v. CIA, 629 F.2d 144,

148 (D.C. Cir. 1980).   “Ultimately, an agency’s justification for

invoking a FOIA exemption is sufficient if it appears ‘logical’

or ‘plausible.’”   ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619

(D.C. Cir. 2011) (quoting Larson v. Dep’t of State, 565 F.3d 857,

862 (D.C. Cir. 2009) (internal quotations omitted)).

     The Executive Order under which USTR classified Document 1

articulates the “degree of harm” required by providing that the

“Confidential” designation shall be applied where unauthorized

disclosure of the classified information “reasonably could be

expected to cause damage to the national security that the

original classification authority is able to identify or

describe.”   E.O. 12958 1.2(a)(3) (as amended by E.O. 13292, 68

Fed. Reg. 15315 (Mar. 25, 2003)).    “‘Damage to the national

security’ means harm to the national defense or foreign relations

of the United States from the unauthorized disclosure of

information, taking into consideration such aspects of the

information as the sensitivity, value, utility, and provenance of

that information.”   Id. § 6.1(j).   USTR asserts that the document

is properly classified because “USTR determined that the

unilateral release of Document 1 ‘reasonably could be expected to
                              - 10 -

cause damage’ to the United States’ foreign relations.”   (Defs.’

Mem. at 1 (quoting Executive Order 12958 § 1.2(a)(3)).    However,

USTR’s various arguments do not present a logical or plausible

explanation for its determination, and the record does not

support a reasonable anticipation of harm from disclosure.

     The April 12, 2011 opinion noted that while the prospect of

revealing foreign government information typically supports

withholding disclosure under Exemption 1, the claim that a breach

of the FTAA confidentiality agreement would harm national

security is less compelling here since the United States would be

revealing its own position only.   USTR maintains that because the

confidentiality agreement covered all of the material exchanged

during negotiations, the loss of trust is the same.    There is,

however, a meaningful difference between the United States’

disclosure of information that it receives in confidence from a

foreign government, with the foreign government’s understanding

that the information will be kept secret, and the United States’

disclosure of a document that it itself created and provided to

others.   While a breach of the confidentiality agreement will

occur in either case, the resulting affect on the United States’

foreign relations -- the key factor for assessing whether the

document is properly classified -- is not identical.   In Brayton

v. Office of U.S. Trade Representative, 657 F. Supp. 2d 138

(D.D.C. 2009), the court’s determination that USTR was legally
                              - 11 -

entitled to withhold a document covered by a confidentiality

agreement did not hinge on the mere existence of the agreement,

but depended on the circumstances of the specific disclosure in

that case.   In particular, the court took account of the fact

that the negotiations to which the requested document related

were ongoing and disclosure would have revealed the current and

sensitive negotiating positions of both the United States and the

European Union.   Id. at 145; see also Ctr. for Int’l Envtl. Law

v. U.S. Trade Representative, 237 F. Supp. 2d 17, 32 (D.D.C.

2002) (finding that defendants had properly invoked Exemption 1

where the defendants’ declarant articulated the particularly

sensitive and controversial topic of the requested documents, the

disclosure of which would reveal high-level internal government

deliberations and interagency disagreements).

     By contrast, USTR’s arguments regarding loss of trust are at

a high level of generality, asserting that the confidentiality

agreement facilitates the “give-and-take of negotiations” (Second

Bliss Decl. ¶ 5) without articulating particular reasons why its

foreign negotiating partners would have any continued interest in

maintaining the secrecy of the United States’ own initial

position on the phrase “in like circumstances.”   The harm

resulting from breach of the confidentiality agreement here, and

the asserted need to insulate negotiations from potential

opposition from participating nations’ “vested local economic
                              - 12 -

interests” in order to provide “room to negotiate” and make it

less likely that foreign partners will “adopt and maintain rigid

negotiating positions unfavorable to U.S. economic and security

interests” (First Bliss Decl. ¶ 10), is substantially mitigated

because the FTAA negotiations are not ongoing.   The defendants’

failure to assert any particular present sensitivities implicated

by Document 1 leaves the breach of the confidentiality agreement

as the sole basis for inferring a loss of trust.   A per se rule

that existence of a confidentiality agreement provides an

adequate basis for proper classification of a covered document is

flatly incompatible with FOIA’s commitment to subject government

activity to the “the critical lens of public scrutiny.”   Alliance

for the Wild Rockies v. Dep’t of the Interior, 53 F. Supp. 2d 32,

35 (D.D.C. 1999).   Although a court need not “agree in full with

the defendants’ evaluation of the danger,” USTR’s judgment must

pass the “test of reasonableness, good faith, specificity and

plausibility.”   Am.-Arab Anti-Discrimination Comm. v. DHS, 516 F.

Supp. 2d 83, 89 (D.D.C. 2007) (internal quotations omitted).

USTR’s arguments that a loss of trust amounting to damage to

foreign relations would occur upon disclosure here do not pass

this test.

     The standing agreement is that the nations will “not release

to the public any negotiating documents that they exchanged in

the course of the negotiations, other than on the specific
                              - 13 -

request of a participating government and in the absence of any

objection from another such government.”    (Second Bliss Decl.

¶ 4.)   The agreement therefore permits the United States to

request disclosure of a document and to disclose it if it

receives no objection.   With regard to Document 1, the record

lacks any indication that the United States’ FTAA partners would

oppose disclosure.   To be sure, the prior proceedings in this

litigation have not imposed on the USTR any obligation to request

disclosure, and, as is discussed above, USTR’s argument is that

unilateral disclosure compelled by this action would itself

constitute harm to foreign relations.   However, because breach of

a confidentiality agreement does not suffice to establish harm

where the breach is caused by release of the United States’ own

information, reasons for predicting a loss of foreign

governments’ trust must be tied, but are not tied here, to the

specific content of the document at issue.   Moreover, the FTAA

nations’ agreement that all documents will be “derestricted and

available for public release on December 31, 2013, unless a

country were to object to the release of one of its own documents

at that time” (Third Bliss Decl. ¶ 5) supports CIEL’s argument

that the primary interest protected by confidentiality is a

country’s ability to determine the release of its own materials,

not to keep others from releasing theirs.    (Pl.’s Reply at 7.)
                               - 14 -

     Aside from the arguments premised on breach of the

confidentiality agreement, USTR’s additional arguments for

withholding Document 1 do not present logical or plausible

reasons why disclosure would cause harm to United States’ foreign

relations.   First, although USTR’s renewed motion attempts to

resolve the apparent inconsistency, identified in the April 12,

2011 opinion, between USTR’s expressed desire both to maintain

the trust of foreign governments by adhering to the

confidentiality agreement and to maintain its own flexibility to

assert a different interpretation of “in like circumstances” in

different contexts, its resolution of that issue undercuts its

argument that reduced flexibility will harm foreign relations.

Specifically, USTR’s declarant clarifies that, since the FTAA has

not been concluded and the position expressed in Document 1 is

not considered binding by the FTAA nations, those governments

would not view it as a breach of trust if the United States

advanced a different interpretation of “in like circumstances” in

arbitral proceedings or in future negotiations.   (Defs.’ Mem. at

15-16 (citing Second Bliss Decl. ¶¶ 9-10).)   The declarant

emphasized, based on her “experience as a trade negotiator,” that

“[t]rade negotiating partners will commonly remind each other

that ‘nothing is agreed until everything is agreed,’ which means

that a party is free to revise its positions at any point until a

final agreement is reached.”   (Second Bliss Decl. ¶ 11.)
                              - 15 -

     Accepting USTR’s logic on this point, and assuming that the

FTAA nations will not find the United States’ shifting positions

on the term untrustworthy, the grounds for predicting that

disclosure of Document 1 would reduce significantly the United

States’ flexibility in the future are tenuous.   If, as defendants

maintain, trade negotiators understand that an initial position

like Document 1 is a non-binding starting point, and that,

accordingly, the United States may revise or withdraw it at any

time, it is unclear why disclosure of the document “reasonably

could be expected to cause damage” to the United States’ foreign

relations by reducing future flexibility.   (Defs.’ Mem. at 1.)

FTAA negotiations extended over the 1990s and 2000s, across

multiple United States administrations.   (Defs.’ Stmt. ¶ 2.)

Defendants have presented no “logical or plausible” reason, ACLU,

628 F.3d at 619 (internal quotations omitted), why future

negotiating partners would have so firm an expectation that the

current or future United States administration would or should

adhere to the same interpretation of “in like circumstances”

presented in the FTAA context such that the United States will be

impeded in presenting a different interpretation.

     For the same reason, USTR’s argument that withholding

Document 1 is necessary to preserve its negotiating capital is

unpersuasive.   According to the declarant, “[e]ven if the Untied

States was prepared to embrace in a future agreement an
                                - 16 -

interpretation of ‘in like circumstances’ identical to that

reflected in Document 1, U.S. negotiators might not want that

interpretation to be included in the opening U.S. position,” but

rather they “might want to start with a different offer, and then

‘negotiate up’ to the positions taken in Document 1” or they

might want to accept a substantially similar proposal from a

trading partner.   (Second Bliss Decl. ¶ 10.)   Neither of these

options, however, would be foreclosed by the disclosure of

Document 1.   Because the interpretive position explained in that

document is not binding and, according to USTR’s declarant, “the

United States does not risk eroding the trust of its negotiating

partners simply by altering the positions it advances during

trade negotiations” (Second Bliss Decl. ¶ 11), the United States’

ability not to open with Document 1’s interpretation in the

future, or to accept it from a negotiating partner, is not

realistically imperilled by disclosure.   Similarly, USTR’s

argument that disclosure of Document 1 could increase the United

States’ exposure to adverse arbitration decisions is

insufficiently substantiated.    The FTAA was never concluded and

arbitrators, like trade negotiators, are generally aware of the

non-binding, preliminary nature of the interpretive position

articulated in Document 1.   The case law on which USTR relies for

this proposition concerned instances where material relating to

concluded, albeit possibly unenforceable, treaties were consulted
                               - 17 -

for interpretative assistance.   (Defs.’ Opp’n at 9.)   Document 1,

as the declarant herself emphasizes (Second Bliss Decl. ¶ 7), was

expressly a preliminary position, and the risk that international

arbitrators will adopt the position, much less rely on it to the

United States’ detriment in arbitration, is too speculative to

justify a reasonable expectation of harm to foreign relations.2

                            CONCLUSION

     The present round of briefing afforded USTR a third

opportunity to meet its burden to justify application of

Exemption 1.   USTR, however, fails to provide a plausible or

logical explanation of why disclosure of Document 1 reasonably

could be expected to damage United States’ foreign relations.

USTR’s motion for summary judgment therefore will be denied,

CIEL’s cross-motion will be granted, and USTR will be enjoined

from withholding Document 1.   An appropriate order accompanies

this memorandum opinion.




     2
       CIEL argues that USTR’s release of other, related
documents in the course of this litigation undermines USTR’s
argument for withholding Document 1. (Pl.’s Reply at 2.) The
D.C. Circuit has “repeatedly rejected the argument that the
government’s decision to disclose some information prevents the
government from withholding other information about the same
subject.” ACLU, 628 F.3d at 625. The present opinion bases the
decision to grant summary judgment to the plaintiff on the
defendants’ failure to articulate logical or plausible reasons to
withhold Document 1, and does not rely on the defendants’
previous disclosure of Documents 8, 38, and 43.
                         - 18 -

SIGNED this 29th day of February, 2012.


                                   /s/
                         RICHARD W. ROBERTS
                         United States District Judge
