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Case 1:08-cv-01599-RMC Document 3 Filed 10/14/2008 Page 1 of 1

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER )
FOUNDATION )
454 SHOTWELL STREET )
SAN FRANCISCO, CA 94110, )
)
and )
)
PUBLIC KNOWLEDGE )
1875 CONNECTICUT AVE., NW )
SUITE 650 )
WASHINGTON, DC 20009 ) Civil Action No. 08-1599 (RMC)
)
Plaintiffs, )
)
v. )
)
OFFICE OF THE UNITED STATES )
TRADE REPRESENTATIVE )
600 17TH STREET, NW )
WASHINGTON, DC 20508 )
)
Defendant. )
______________________________)

PRAECIPE

The Clerk of the Court will please enter the appearance of

Brentin V. Evitt as counsel for defendant in the above-captioned

civil action.

/s/
Dated: October 14, 2008 Brentin V. Evitt
Senior Counsel
Office of Information and Privacy
United States Department of Justice
1425 New York Ave., NW, Suite 11050
Washington, DC 20530-0001
(202) 514-5419
Case 1:08-cv-01599-RMC Document 4 Filed 10/28/2008 Page 1 of 1

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER )
FOUNDATION, ET AL., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-1599 (RMC)
)
OFFICE OF THE UNITED STATES )
TRADE REPRESENTATIVE, )
)
Defendant. )
______________________________)

PRAECIPE

The Clerk of the Court will please enter the appearance of

Vanessa R. Brinkmann as principal counsel for defendant in the

above-captioned civil action.

/s/
Dated: October 28, 2008 Vanessa R. Brinkmann
Attorney-Advisor
Office of Information and Privacy
United States Department of Justice
1425 New York Ave., NW, Suite 11050
Washington, DC 20530-0001
(202) 616-5462

Counsel for Defendant


Case 1:08-cv-01599-RMC Document 5 Filed 10/30/2008 Page 1 of 5

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER )
FOUNDATION, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-1599 (RMC)
)
OFFICE OF THE UNITED STATES )
TRADE REPRESENTATIVE, )
)
Defendant. )
____________________________________)

ANSWER

Defendant, by its undersigned attorneys, hereby answers as follows:

FIRST DEFENSE

The Complaint fails to state a claim upon which relief can be granted.

SECOND DEFENSE

In response to the numbered paragraphs, and the unnumbered section of the Complaint

entitled "Requested Relief," defendant admits, denies, or otherwise avers as follows:

1. First and second sentences: These sentences consist of plaintiff's characterization of

the action, which do not require an answer, but insofar as an answer may be seemed required,

deny. Third sentence: Deny, as a conclusion of law.

2. This paragraph consists of plaintiff's allegations regarding jurisdiction and venue,

which do not require answers, but insofar as answers may be deemed required, deny.

3-4. Deny, for lack of knowledge or information sufficient to form a belief as to the truth

of the allegations.
Case 1:08-cv-01599-RMC Document 5 Filed 10/30/2008 Page 2 of 5

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5. Deny, except to aver that the Office of the United States Trade Representative (USTR)

is subject to the Freedom of Information Act (FOIA) in this case and maintains certain records to

which plaintiffs seek access.

6. Deny, except to aver release of an October 23, 2007 press release by USTR concerning

negotiations toward an Anti-Counterfeiting Trade Agreement (ACTA), to which the Court is

respectfully referred for a complete and accurate statement of its contents.

7. First sentence: Admit. Second sentence: Deny, and aver that in the Federal Register

notice dated February 15, 2008, USTR requested comments on ACTA from interested parties by

March 21, 2008 and not March 22, 2008.

8. Deny, for lack of knowledge or information sufficient to form a belief as to the truth of

the allegations.

9. Deny.

10. Deny, except to aver receipt of a letter from plaintiffs dated June 11, 2008, to which

the Court is respectfully referred for a complete and accurate statement of its contents.

11. Admit.

12. First sentence: Deny, except to aver receipt of a letter from plaintiffs dated June 11,

2008, to which the Court is respectfully referred for a complete and accurate statement of its

contents. Second sentence: Deny, as a conclusion of law. Third sentence: Deny, except to aver

receipt of a letter from plaintiffs dated June 11, 2008, to which the Court is respectfully referred

for a complete and accurate statement of its contents.

13. Deny, except to aver receipt of a letter from plaintiffs dated June 11, 2008, to which

the Court is respectfully referred for a complete and accurate statement of its contents.
Case 1:08-cv-01599-RMC Document 5 Filed 10/30/2008 Page 3 of 5

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14. First sentence: Deny, except to aver receipt of a letter from plaintiffs dated June 11,

2008, to which the Court is respectfully referred for a complete and accurate statement of its

contents. Second sentence: Deny, for lack of knowledge or information sufficient to form a

belief as to the truth of the allegations. Third sentence: Deny, except to aver receipt of a letter

from plaintiffs dated June 11, 2008, to which the Court is respectfully referred for a complete and

accurate statement of its contents.

15. Deny, except to aver receipt of a letter from plaintiffs dated June 11, 2008, to which

the Court is respectfully referred for a complete and accurate statement of its contents.

16. First sentence: Admit that counsel for plaintiffs were contacted by telephone on June

23, 2008 by USTR employees David Apol and Elizabeth Glaser. Second sentence: Admit that

Mr. Apol and Ms. Glaser informed plaintiffs' counsel that plaintiffs' FOIA request was broadly

worded and asked him to consider the possibility of narrowing the scope of plaintiffs' request in

order to facilitate the search for and processing of any responsive records.

17-19. Deny, except to aver receipt of a letter from plaintiffs dated July 24, 2008, to

which the Court is respectfully referred for a complete and accurate statement of its contents.

20. Admit.

21. Admit.

22. Deny, and aver that USTR communicated by telephone with counsel for plaintiffs

regarding this FOIA request on June 23, 2008.

23-25. Deny, as conclusions of law.

26. Defendant reasserts its answers to paragraphs 1-25.

27. Deny, as a conclusion of law.


Case 1:08-cv-01599-RMC Document 5 Filed 10/30/2008 Page 4 of 5

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28. Defendant reasserts its answers to paragraphs 1-25.

29. Deny, as a conclusion of law.

Plaintiff's first unnumbered paragraph, which appears under the heading "Requested

Relief": This paragraph contains plaintiff's prayer for relief, which does not require an answer,

but insofar as an answer may be deemed required, deny.

Each and every allegation not heretofore expressly admitted or denied is denied.

Defendant denies that plaintiff is entitled to the relief prayed for or to any relief

whatsoever.
Case 1:08-cv-01599-RMC Document 5 Filed 10/30/2008 Page 5 of 5

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WHEREFORE, defendant, having fully answered, respectfully asks that this action be

dismissed with prejudice and that defendant be granted its costs.

Respectfully submitted,

___________________________________
JEFFREY A. TAYLOR
(DC Bar #498610)
United States Attorney

___________________________________
RUDOLPH CONTRERAS
(DC Bar # 434122)
Assistant United States Attorney

/s/
Dated: October 30, 2008 Vanessa R. Brinkmann
Attorney-Advisor
Office of Information and Privacy
United States Department of Justice
1425 New York Ave., NW, Suite 11050
Washington, DC 20530-0001
(202) 616-5462

Counsel for Defendant


Case 1:08-cv-01599-RMC Document 7 Filed 11/14/2008 Page 1 of 4

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER )
FOUNDATION, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-1599 (RMC)
)
OFFICE OF THE UNITED STATES )
TRADE REPRESENTATIVE, )
)
Defendant. )
____________________________________)

DEFENDANT'S UNOPPOSED MOTION FOR ENLARGEMENT OF TIME

Defendant, by its undersigned attorneys, respectfully moves the Court, pursuant to Rule

6(b) of the Federal Rules of Civil Procedure, for an order granting an enlargement of five

business days, to and including November 21, 2008, within which the parties must submit a Joint

Proposed Scheduling Order to the Court.

Plaintiff commenced this action on September 17, 2008, pursuant to the Freedom of

Information Act (FOIA), 5 U.S.C. § 552 (2006), amended by OPEN Government Act of 2007,

Pub. L. No. 110-175, 121 Stat. 2524, seeking access to certain records of the Office of the United

States Trade Representative pertaining to the Anti-Counterfeiting Trade Agreement (ACTA).

(See Pl.'s Compl., filed Sept. 17, 2008.) Defendant filed its Answer on October 30, 2008. (See

Def.'s Answer, filed Oct. 30, 2008.)

On November 6, 2008, the Court ordered the parties to submit a Joint Proposed

Scheduling Order, to include a proposed date for filing of the administrative record and a

proposed dispositive motion schedule, by November 14, 2008. Pursuant to the Court's

November 6, 2008 order, counsel for plaintiff and defendant have conferred with respect to both
Case 1:08-cv-01599-RMC Document 7 Filed 11/14/2008 Page 2 of 4

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a schedule for the remaining processing of plaintiff's request and a schedule for the subsequent

briefing by the parties.

At the time this action was filed, defendant was continuing to process plaintiff's FOIA

request and had not yet completed its search for records responsive to the request. Subsequent to

the filing of this action, and while defendant continued its records search, counsel for plaintiff

and defendant conferred in an effort to cooperate on the resolution of this search. As a result,

defendant has advised plaintiff's counsel as to the methodology of its search process, and has

taken suggestions from plaintiff on how best to identify the records it seeks. At this time,

however, defendant's search is still ongoing and the parties continue to confer on the processing

of the request. Although defendant has completed a portion of its search for documents

concerning ACTA, defendant's search for e-mail records responsive to plaintiff's request has

required greater time and is continuing at present. Defendant expects to complete the initial

assessment of responsive e-mail records within a few days, at which time it will be in a better

position to inform plaintiff in discussions regarding the final processing of its request and the

briefing of the issues in this litigation.

Defendant respectfully suggests that the requested enlargement of time would not

materially delay this action and should facilitate its most efficient adjudication by allowing

defendant additional time to determine how many responsive records must be processed before

the parties further discuss the proposed processing and briefing schedules.

As required by the Local Civil Rule 7(m), counsel for plaintiff has been consulted

regarding the relief requested in this motion and has advised defendant's principal counsel that

plaintiff does not oppose this enlargement of time of five business days for the parties to file a

Joint Proposed Scheduling Order.


Case 1:08-cv-01599-RMC Document 7 Filed 11/14/2008 Page 3 of 4

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Conclusion

For the foregoing reasons, defendant respectfully requests that the Court grant its motion

for an enlargement of time. A proposed Order is submitted herewith.

Respectfully submitted,

JEFFREY A. TAYLOR
(D.C. Bar #498610)
United States Attorney

RUDOLPH CONTRERAS
(D.C. Bar #434122)
Assistant United States Attorney

/s/
Dated: November 14, 2008 VANESSA R. BRINKMANN
Attorney-Advisor
United States Department of Justice
Office of Information and Privacy
1425 New York Ave., N.W., Suite 11050
Washington, D.C. 20530-0001
(202) 616-5462

Counsel for Defendant


Case 1:08-cv-01599-RMC Document 7 Filed 11/14/2008 Page 4 of 4

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER )
FOUNDATION, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-1599 (RMC)
)
OFFICE OF THE UNITED STATES )
TRADE REPRESENTATIVE, )
)
Defendant. )
____________________________________)

ORDER

Upon consideration of Defendants' Unopposed Motion for Enlargement of Time, of the entire

record herein, and it appearing to the Court that the granting of the motion, pursuant to Rule 6(b) of

the Federal Rules of Civil Procedure, would be just and proper, it is by the Court this day of

2008,

ORDERED that Defendants' Unopposed Motion for Enlargement of Time be, and it hereby

is, granted; and it is further

ORDERED that the time within which the parties must file their Joint Proposed Scheduling

Order be, and it hereby is, enlarged by five (5) business days, to and including November 21, 2008.

UNITED STATES DISTRICT JUDGE

Copies to:

David Sobel Vanessa R. Brinkmann


Marcia Hoffman Attorney-Advisor
Electronic Frontier Foundation United States Department of Justice
1875 Connecticut Ave., N.W. Office of Information and Privacy
Suite 650 1425 New York Ave., N.W., Suite 11050
Washington, D.C. 20009 Washington, D.C. 20530-0001
Case 1:08-cv-01599-RMC Document 9 Filed 01/30/2009 Page 1 of 4

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER )
FOUNDATION, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-1599 (RMC)
)
OFFICE OF THE UNITED STATES )
TRADE REPRESENTATIVE, )
)
Defendant. )
____________________________________)

JOINT MOTION TO STAY PROCEEDINGS AND AMEND BRIEFING SCHEDULE

Plaintiffs commenced this action on September 17, 2008, pursuant to the Freedom of

Information Act (FOIA), 5 U.S.C. § 552 (2006), amended by OPEN Government Act of 2007,

Pub. L. No. 110-175, 121 Stat. 2524, seeking access to certain records of the Office of the United

States Trade Representative pertaining to the Anti-Counterfeiting Trade Agreement (ACTA).

(See Pl.'s Compl., filed Sept. 17, 2008.) Defendant filed its Answer on October 30, 2008. (See

Def.'s Answer, filed Oct. 30, 2008.)

On November 21, 2008, the parties submitted a Joint Proposed Records Processing and

Briefing Schedule to the Court. (See Joint Schedule, filed Nov. 21, 2008.) On November 25,

2008, the Court approved the parties' proposed schedule and ordered that: defendant would

provide an interim response to plaintiffs by December 22, 2008; defendant would complete its

processing of plaintiffs' FOIA request and provide plaintiffs with a final response to its request

by January 16, 2009; defendant would provide plaintiffs with a draft Vaughn Index for any

withheld documents by January 23, 2009; and parties would then confer and advise the Court as
Case 1:08-cv-01599-RMC Document 9 Filed 01/30/2009 Page 2 of 4

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to the remaining issues to be resolved in a joint status report to be filed by January 30, 2009. The

Court further ordered that: defendant would file its motion for summary judgment by

February 27, 2009; plaintiffs would file their opposition and, if any, their cross-motion for

summary judgment by March 20, 2009; defendant would file its reply in support of its motion for

summary judgment and, if any, its opposition to plaintiffs' cross-motion for summary judgment

by April 3, 2009; and plaintiffs would file their reply to defendant's opposition, if any, by April

17, 2009.

In accordance with the Court's November 25, 2008 Order, defendant provided an interim

response to plaintiffs on December 22, 2008, and completed its processing of plaintiffs' FOIA

request and provided a final response to plaintiffs on January 16, 2009. Pursuant to these interim

and final responses, defendant released ten pages to plaintiffs and withheld, either in full or in part,

1390 pages pursuant to Exemptions 1, 5, and 6 of the FOIA, 5 U.S.C. § 552(b)(1), (5), and (6).1

In accordance with the Court's November 25, 2008 Order, defendant provided plaintiffs with a

draft Vaughn Index for the withheld documents on January 23, 2009.

Additionally, pursuant to the Court's November 25, 2008 Order, counsel for plaintiffs and

defendant have conferred with respect to the remaining issues to be resolved before the Court.

Counsel for plaintiffs and defendant have agreed that, as a preliminary matter, plaintiffs will not

challenge defendant's application of Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6), to the

documents at issue. Counsel for plaintiffs and defendant have also conferred regarding a recent

development in Executive Branch FOIA policy -- specifically, the issuance to the heads of federal

1
An additional fifty-four documents had already been released to plaintiffs in defendant's
first interim response dated November 14, 2008.
Case 1:08-cv-01599-RMC Document 9 Filed 01/30/2009 Page 3 of 4

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departments and agencies of a January 21, 2009 memorandum on the FOIA from President

Obama. In light of this development, the parties have agreed that effective adjudication of the

issues currently before the Court would best be served by a stay of these proceedings pending

further articulation of FOIA policy by the Attorney General. Pursuant to his January 21, 2009

memorandum, the President directed the Attorney General to issue new guidelines governing the

FOIA to the heads of executive departments and agencies. No deadline for these guidelines was

issued. The parties have agreed that staying the current proceedings until the Attorney General's

guidelines are issued will serve the interest of judicial economy and possibly preclude unnecessary

litigation. Accordingly, the parties respectfully propose, subject to the approval of the Court, that:

these proceedings be stayed until thirty days after such time as the Attorney General issues

guidelines pursuant to the President's January 21, 2009 memorandum; once the Attorney General's

guidelines are issued, defendant would review its determinations on the documents at issue and

inform plaintiffs of any changes to its prior determinations; and, within thirty days of the issuance

of the Attorney General's guidelines, the parties would confer and advise the Court in a jointly

filed status report as to the remaining issues to be resolved and proposed amendments to the

briefing schedule.

The parties respectfully suggest that in light of the recent change in Executive Branch

FOIA policy, and because Attorney General guidelines on this policy remain to be issued, it is

premature to proceed with briefing at this time, and the proceedings should therefore be stayed

until thirty days after the issuance of the Attorney General's FOIA guidelines.
Case 1:08-cv-01599-RMC Document 9 Filed 01/30/2009 Page 4 of 4

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Conclusion

For the foregoing reasons, the parties respectfully request that the Court grant their joint

motion to stay the proceedings and amend the current briefing schedule. A proposed Order is

submitted herewith.

Respectfully submitted,

/s/
DAVID L. SOBEL JEFFREY A. TAYLOR
(D.C. Bar #360418) (D.C. Bar #498610)
Electronic Frontier Foundation United States Attorney
1875 Connecticut Ave., N.W.
Suite 650
Washington, D.C. 20009
(202) 797-9009

Counsel for Plaintiffs RUDOLPH CONTRERAS


(D.C. Bar #434122)
Assistant United States Attorney

/s/
Dated: January 30, 2009 VANESSA R. BRINKMANN
Attorney-Advisor
United States Department of Justice
Office of Information and Privacy
1425 New York Ave., N.W., Suite 11050
Washington, D.C. 20530-0001
(202) 616-5462

Counsel for Defendant


Case 1:08-cv-01599-RMC Document 9-2 Filed 01/30/2009 Page 1 of 2

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER )
FOUNDATION, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-1599 (RMC)
)
OFFICE OF THE UNITED STATES )
TRADE REPRESENTATIVE, )
)
Defendant. )
____________________________________)

ORDER

Upon consideration of the parties' Joint Motion to Stay Proceedings and Amend Briefing

Schedule, it is by the Court this __________ day of ____________________ 2009,

ORDERED that the parties' Joint Motion to Stay Proceedings be, and it hereby is,

granted; and it is further

ORDERED that these proceedings shall be stayed until thirty days after such time as the

Attorney General issues guidelines pursuant to the President's January 21, 2009 memorandum on

the Freedom of Information Act; and it is further

ORDERED that upon issuance of the Attorney General's guidelines on the Freedom of

Information Act, defendant shall review its determinations on the documents at issue, inform

plaintiffs of any changes to its prior determinations; and, within thirty days of the issuance of the

Attorney General's guidelines, the parties shall confer and advise the Court in a jointly filed
Case 1:08-cv-01599-RMC Document 9-2 Filed 01/30/2009 Page 2 of 2

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status report as to the remaining issues to be resolved and proposed amendments to the briefing

schedule.

UNITED STATES DISTRICT JUDGE

Copies to:

David Sobel Vanessa R. Brinkmann


Marcia Hoffman Attorney-Advisor
Electronic Frontier Foundation United States Department of Justice
1875 Connecticut Ave., N.W. Office of Information and Privacy
Suite 650 1425 New York Ave., N.W., Suite 11050
Washington, D.C. 20009 Washington, D.C. 20530-0001
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 1 of 57

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER )
FOUNDATION, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-1599 (RMC)
)
OFFICE OF THE UNITED STATES )
TRADE REPRESENTATIVE, )
)
Defendant. )
____________________________________)

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant, by its undersigned attorneys, hereby moves the Court, pursuant to Rule 56 of

the Federal Rules of Civil Procedure, for an order granting summary judgment on the grounds

that no genuine issue of material fact exists and that defendant is entitled to judgment as a matter

of law.

In support of this motion, the Court is respectfully referred to the Declaration of Warren

Maruyama, General Counsel, Office of the United States Trade Representative;1 to the

Declaration of Stanford McCoy, Assistant United States Trade Representative for Intellectual

Property and Innovation, Office of the United States Trade Representative; to Defendant's

Statement of Material Facts as to Which There is No Genuine Issue, Pursuant to Local Civil

1
Although no longer with the Office of the United States Trade Representative, Mr.
Maruyama was General Counsel of that Office at the time his declaration was executed.
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 2 of 57

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Rule 7(h); and to the Memorandum of Points and Authorities in Support of Defendant's Motion

for Summary Judgment, all filed herewith.

Respectfully submitted,

JEFFREY A. TAYLOR
(DC Bar #498610)
United States Attorney

RUDOLPH CONTRERAS
(DC Bar #434122)
Assistant United States Attorney

/s/
Dated: May 28, 2009 Vanessa R. Brinkmann
Attorney-Advisor
Office of Information Policy
United States Department of Justice
1425 New York Ave., N.W., Suite 11050
Washington, D.C. 20530-0001
(202) 616-5462
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 3 of 57

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER )
FOUNDATION, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-1599 (RMC)
)
OFFICE OF THE UNITED STATES )
TRADE REPRESENTATIVE, )
)
Defendant. )
____________________________________)

DEFENDANT'S STATEMENT OF MATERIAL FACTS AS TO WHICH


THERE IS NO GENUINE ISSUE, PURSUANT TO LOCAL CIVIL RULE 7(h)

Pursuant to Local Civil Rule 7(h), defendant submits the following statement of material

facts as to which there is no genuine issue:

1. In May 2006, negotiators in the Office of the United States Trade Representative

(USTR), acting on behalf of the United States and building upon the government's prior efforts to

combat international piracy and counterfeiting, began discussions with foreign governments to

negotiate a multilateral Anti-Counterfeiting Trade Agreement (ACTA). (See Declaration of

Warren Maruyama, General Counsel, USTR [hereinafter Maruyama Decl.],1 filed herewith, ¶ 3;

Declaration of Stanford McCoy, Assistant United States Trade Representative (AUSTR) for

Intellectual Property and Innovation, USTR [hereinafter McCoy Decl.], filed herewith, ¶ 3-7.)

Since that time, USTR negotiators have engaged in four rounds of discussions with the

governments of Australia, Canada, the European Union and its Member States, Japan, Korea,

1
Although no longer with USTR, Mr. Maruyama was General Counsel at the time his
declaration was executed.

1
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 4 of 57

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Mexico, Morocco, New Zealand, Singapore, and Switzerland. (See Maruyama Decl. ¶ 3; McCoy

Decl. ¶ 6-10.)

2. The ACTA negotiations reflect a collective effort among theses trading partners to

establish a more effective international framework for combating piracy and counterfeiting. (See

Maruyama Decl. ¶ 6; McCoy Decl. ¶¶ 6-10.) Piracy and counterfeiting are a growing trade

policy concern to the United States, and USTR believes that a favorable outcome to the ACTA

negotiations is in the economic interest of the United States. (See Maruyama Decl. ¶ 3.) When it

is finalized, the ACTA is intended to assist the efforts of governments around the world to more

effectively combat the proliferation of counterfeit and pirated goods, which USTR views as

undermining legitimate trade and the sustainable development of the world economy, and in

some cases contributing to organized crime and exposing American citizens to potentially

dangerous fake products. (See McCoy Decl. ¶ 6-10.)

3. In December 2007, prior to circulating formal textual proposals for the ACTA, the

United States and the other governments participating in the ACTA negotiations agreed that

"documents relating to the proposed [ACTA] will be held in confidence." (See Maruyama Decl.

¶ 4 & Attach. A; McCoy Decl. ¶ 6-10) This confidentiality agreement was designed to enable

officials of participating governments to engage in frank exchanges of views, positions, and

specific negotiating proposals. (See Maruyama Decl. ¶ 6.) USTR frequently agrees in writing

with its partners in major trade negotiations, such as the ACTA, to keep negotiating records

confidential. (McCoy Decl. ¶ 6-10.)

4. On February 8, 2008, based on the confidentiality agreement between the United

States and its negotiating partners, Mr. Maruyama issued a memorandum to USTR's ACTA
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 5 of 57

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negotiators, noting that the governments participating in the ACTA negotiations had agreed to

hold documents exchanged in the course of those negotiations in confidence, and directing that

all such documents were to be classified pursuant to Executive Order 12,958, as amended, at the

"Confidential" level as "Foreign Government Information" in accordance with that

confidentiality agreement. (See Maruyama Decl. ¶ 4 & Attach. B).

5. In order to develop the United States' position on international negotiations, and based

on its past experience in negotiating free trade agreements and conducting multilateral

intellectual property negotiations, USTR has engaged in an extensive consultative process within

the Executive Branch. USTR has identified those agencies that have key interests in a given

policy area under negotiation, and has consulted with those agencies to prepare a draft

negotiating text that is then circulated to the interagency Trade Policy Staff Committee (TPSC).2

(See McCoy Decl. ¶ 9.) As a part of this inter-agency consultative process, these agencies may

offer comments on draft text, which may in turn lead to an additional round of drafting within

USTR. (See id.)

6. In addition to its inter-agency consultative process and in order to develop the United

States' position on international negotiations, USTR engages, on behalf of the President, in a

statutorily-mandated consultative process in which Congress has required the President to seek

information and advice from representative elements of the private sector with respect to, among

other things, the development, implementation, and administration of United States trade policy.

See 19 U.S.C. § 2155(a)(1)(C); McCoy Decl. ¶¶ 6-10. Specifically, the Trade Act of 1974

2
The TPSC, comprised of nineteen federal agencies and offices, makes up the
sub-cabinet level mechanism for developing and coordinating U.S. Government positions on
international trade and trade-related investment issues. (See McCoy ¶ 9.)
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 6 of 57

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directs the President to establish "such sectoral or functional advisory committees as may be

appropriate" and which are representative of "all industry, labor, agricultural, or service

interests." See 19 U.S.C. § 2155(c)(2). The Trade Act of 1974 further directs that these

Presidential advisory committees meet upon request of the United States Trade Representative

and provide "policy advice, technical advice and information, and advice on other factors." See

19 U.S.C. § 2155(d).

7. In accordance with the Trade Act of 1974, the President has established the Industry

Trade Advisory Committee (ITAC) system, which includes committees devoted to specific trade-

related areas. (See McCoy Decl. ¶ 15-18.) The members of advisory committees receive

security clearances from the government and are referred to as "cleared advisors." (See id..)

8. To solicit views from cleared advisors, USTR posts documents on a secure website,

and individual cleared advisors then access the documents and provide comments directly to

individual USTR officials. (See id.) Cleared advisors' comments may range from technical

comments on wording choices in draft negotiating texts to comments on overall intellectual

property international trade policy. (See id.)

9. The Industry Trade Advisory Committee 15 (ITAC-15) is focused on intellectual

property rights and its members include representatives from the software, recording, movie, and

publishing industries, as well as the Global Health Council. (See id.)

10. The Trade Act of 1974, in establishing the advisory committee system, also specifies

the circumstances under which information or advice submitted in confidence to the United

States government, or to an advisory committee itself, can be disclosed. See 19 U.S.C. §

2155(g); McCoy Decl. ¶ 15-18. The statute provides that the information or advice may be
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 7 of 57

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disclosed to certain government officials, certain Congressional officials, and the advisory

committees themselves. See id.

11. USTR has implemented, and the cleared advisors have participated in, the advisory

committee system with an understanding that communications exchanged would be held in

confidence. (See McCoy Decl. ¶ 15-18.) This understanding is based on the language of the

statute itself, as well as on the legislative background of the Trade Act of 1974. (See id.)

Specifically, USTR recognized the confidentiality of the cleared advisor system in keeping the

language of subsection (g) of the statute described above, and on the statements of the Senate

Finance Committee which include the following:

The Committee is aware that this subparagraph would establish a limited statutory
exemption to the Freedom of Information Act, as amended. It is the view of the
Committee, however, that this exception is necessary due to the nature of the
information involved and the adverse impact which such information could have on
the ability of the United States effectively to carry out the multilateral trade
negotiations.

See Senate Report No. 93-1298, reprinted in 93 U.S.C.C.A.N. 7186, 7251; McCoy Decl. ¶ 15-18.

12. In the course of its ACTA negotiations, and on behalf of the President pursuant to the

requirements of the Trade Act of 1974, USTR has solicited views from the ITAC-15 cleared

advisors by posting draft negotiating texts on a secure cleared advisor website. (See McCoy

Decl. ¶ 15-18.) After reviewing the documents, a number of the cleared advisors provided USTR

with comments on those documents, and in some cases on the negotiations more broadly. (See

id.) Advisors from other advisory committees also have access to these texts, and some have

provided comments to USTR. (See id.)

13. In addition to its use of the mandatory cleared advisor system, USTR also issued a
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Federal Register notice on February 15, 2008 inviting public comment on the ACTA to ensure

that other organizations have an opportunity to comment on ACTA, and numerous organizations

submitted comments. See 73 Fed. Reg. 8910 (February 15, 2008); id. ¶ 18. In addition, USTR

has held meetings with a wide range of companies, trade associations representing a variety of

interests, and numerous non-governmental organizations upon request, and has taken the diverse

points of view of those entities into consideration in formulating policy relating to ACTA,

including the draft negotiating texts. (See id.) To the extent that they wish to comment publicly,

the cleared advisors may also respond in a public fashion to the Federal Register notice. (See

McCoy Decl. ¶ 18.)

14. On April 6, 2009, the ACTA negotiating parties released a summary of the proposals

currently under consideration. (See id. ¶ 8.)

15. By letter dated June 11, 2008, plaintiffs submitted a Freedom of Information Act

(FOIA) request to USTR, seeking certain USTR documents pertaining to the ACTA. (See id.

¶ 19.) On July 24, 2008, pursuant to a conversation with USTR staff in which plaintiffs agreed

to narrow their request, plaintiffs submitted a modified FOIA request to USTR. (See id. &

Attach. E.)

16. In response to plaintiffs' FOIA request, USTR staff conducted a manual search of its

paper records for records responsive to plaintiffs' FOIA request. (See McCoy Decl. ¶ 29-30.)

17. In addition to its search of paper files, USTR conducted a search designed to yield all

e-mails responsive to plaintiffs' FOIA request. (See id.) In conducting this search, USTR

initially searched for all records containing the term "ACTA," and that search yielded

approximately 30,000 e-mails. (See id.) Accordingly, and upon consultation with plaintiffs,
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USTR then refined its results by searching the subject lines of the 30,000 e-mails located using

the terms "text," "civil," "criminal," "internet," "border," "statutory damages," and "anti-

circumvention"in the subject lines of the e-mails. (See id.)

18. As a result of its records searches, USTR identified 1,454 pages of material responsive

to plaintiffs' FOIA request. (See id.)

19. Plaintiff commenced this action on September 17, 2008 seeking the expedited

production of all records responsive to its FOIA request. (See Compl. ¶ 1.)

20. On November 14, 2008, USTR provided its first interim response to plaintiffs. (See

McCoy Decl. ¶ 22 & Attach. A.) Pursuant to this response, USTR disclosed fifty-four

documents to plaintiffs. (See id.) Additionally, USTR advised that it was awaiting input from

third-parties to determine whether additional documents could be disclosed, and that a final

response would be provided to plaintiffs to indicate whether any records would be withheld, and

the basis for such withholding. (See id.)

21. In a Joint Proposed Records Processing and Briefing Schedule filed on November 21,

2008, the parties informed the Court that they had agreed to a processing schedule, by which

USTR would provide an interim response to plaintiffs FOIA request by December 22, 2008.

(See Joint Schedule, filed Nov. 21, 2008.) The parties also agreed that USTR would complete its

processing of plaintiffs' FOIA request and provide plaintiffs with a final response to its request

by January 16, 2009, and would provide plaintiffs with a draft Vaughn Index for any withheld

documents by January 23, 2009. (See id.)

22. On December 22, 2008, USTR provided its second interim response to plaintiffs.

(See McCoy Decl. ¶ 23 & Attach. B.) Pursuant to this response, USTR advised plaintiffs that it
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had completed the review of 806 pages of records responsive to plaintiffs' FOIA request, and that

313 pages were being withheld in full pursuant to Exemption 1 of the FOIA, 5 U.S.C.

§ 552(b)(1). (See id.) Moreover, USTR advised plaintiffs that 186 email chains, totaling 493

pages, were being withheld in full pursuant to Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5),

and noted that Exemption 1 might also apply to these e-mails.3 (See id.) Finally, USTR advised

that, to the extent the withheld information contained private e-mail addresses, such information

was also protected by Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6). (See id.)

23. On January 16, 2009, USTR provided its final response to plaintiffs. (See McCoy

Decl. ¶ 24 & Attach. C.) Pursuant to this response, USTR disclosed an additional fourteen pages

of documents, four of which were redacted pursuant to Exemptions 5 and 6 of the FOIA,

5 U.S.C. § 552(b)(5), (b)(6). (See id.) In addition, USTR advised that 580 pages were being

withheld in full pursuant to Exemptions 1 and 5 of the FOIA. (See id.)

24. By e-mail dated January 23, 2009, the undersigned transmitted USTR's draft Vaughn

Index to plaintiffs' counsel.

25. On January 30, 2009, in light of a development in Executive Branch FOIA policy --

specifically, the issuance to the heads of federal departments and agencies of a January 21, 2009

memorandum on the FOIA from President Obama -- the parties, at plaintiffs' request, filed a

Joint Motion to Stay Proceedings and Amend Briefing Schedule with the Court. (See Joint

Motion, filed Jan. 30, 2009.) On February 3, 2009, the Court approved the parties' motion to stay

proceedings until thirty days after such time as the Attorney General issues guidelines pursuant to

3
In its final response dated January 16, 2009, USTR advised plaintiff that it had
determined that 486 pages of these records were in fact protected by Exemption 1, in addition to
Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5). (See McCoy Decl. 24 Attach. E.)
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 11 of 57

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the President's January 21, 2009 memorandum on the FOIA, but no later than June 30, 2009.

(See id.) The Court further ordered defendant, upon issuance of the Attorney General's

guidelines on the FOIA, to review its determinations on the documents at issue and inform

plaintiffs of any changes to its prior determinations. (See id.) Finally, the Court ordered the

parties to confer and advise the Court in a jointly filed status report as to the remaining issues to

be resolved and proposed amendments to the briefing schedule, to be filed within thirty days of

the issuance of the Attorney General's guidelines. (See id.)

26. The Attorney General issued his guidelines on the Freedom of Information Act in a

memorandum dated March 19, 2009. See Attorney General Holder's Memorandum for Heads of

Executive Departments and Agencies Concerning the Freedom of Information Act (Mar. 19,

2009) [hereinafter Attorney General Holder's FOIA Guidelines], available at

http://www.usdoj.gov/ag/foia-memo-march2009.pdf.

27. In accordance with the Court's February 3, 2009 Order, and in light of the Attorney

General's FOIA Guidelines, USTR conducted a "re- review" of the documents, including e-mails,

which it had previously withheld in full or in part from plaintiffs, in order to determine whether

any material was appropriate for discretionary release. (See McCoy Decl. ¶ 23.) In the course of

this review, USTR engaged in extensive internal discussions, discussions with other Executive

Branch officials, and discussions with the ITAC cleared advisors in an effort to assess the harm

in releasing any additional information, and to evaluate whether any records could be segregated

for release. (See id.)

28. On April 30, 2009, USTR advised plaintiffs that its re-review of the previously

withheld records was completed, and released an additional thirty-six pages to plaintiffs, with
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excisions made pursuant to Exemptions 1, 2, and 5 of the FOIA 5 U.S.C. § 552(b)(1), (b)(2),

(b)(5).4 (See id. ¶ 27 & Attach. D.) This disclosure also included material that, while not strictly

responsive to plaintiff's request, USTR nonetheless disclosed as a matter of courtesy. (See id.)

29. Subsequent to its April 30, 2009 supplemental disclosure, USTR determined that

some of the withheld records were also protected by Exemption 3 of the FOIA.

30. Attached to Mr. McCoy's declaration is a Vaughn Index containing a detailed

description of the withheld documents. (See McCoy Decl. Attach. E.) Because certain records

are similar to one another, USTR has categorized them into nine distinct groups. (See id.) The

Vaughn Index describes the responsive documents contained in each group, including such

information as the date and the general content of the material, provides the number of pages for

each group, and identifies the FOIA Exemptions and, for documents protected pursuant to

Exemption 5 of the FOIA, the civil discovery privileges, pursuant to which USTR withheld the

records in full or part. (See id.)

31. In sum, all that remains at issue are USTR's application of Exemptions 1, 2, and 3,

5 U.S.C. § 552(b)(1), (b)(2), (b)(3), and its application of Exemption 5 (attorney-client and

deliberative process privileges), 5 U.S.C. § 552(b)(5), to the 1362 pages of documents identified

in Groups 1-9 of the Vaughn Index.5 (See McCoy Decl. Attach. E.)

4
This supplemental disclosure included a document prepared by USTR for the TPSC to
launch the ACTA negotiations. (See McCoy Decl. ¶ 27.)
5
Pursuant to the parties' agreement as reflected in a Joint Motion on January 30, 2009,
plaintiffs have advised that they will not challenge the application of Exemption 6 to the
documents at issue. (See Joint Motion, filed Jan. 30, 2009.)
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 13 of 57

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32. USTR has reviewed each page of the responsive records at issue, and has determined

that all reasonably segregable information has been disclosed to plaintiffs. (See Maruyama ¶ 9;

McCoy ¶¶ 39-46, 51-68.) In fact, USTR has obtained the consent of participating governments

to release certain ACTA documents, such as agendas and the confidentiality agreement itself, to

the public, and consulted extensively with other agencies in order to release any non-exempt

information to plaintiffs. (See id.) USTR has also made a discretionary release of
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thirty-six pages pursuant to its April 30, 2009 supplemental response to plaintiffs.6 (See McCoy

¶ 24.)

Respectfully submitted,

JEFFREY A. TAYLOR
(D.C. Bar #498610)
United States Attorney

RUDOLPH CONTRERAS
(D.C. Bar #434122)
Assistant United States Attorney

/s/
Dated: May 28, 2009 VANESSA R. BRINKMANN
Attorney-Advisor
United States Department of Justice
Office of Information Policy
1425 New York Ave., N.W., Suite 11050
Washington, D.C. 20530-0001
(202) 616-5462

Counsel for Defendant

6
This supplemental disclosure included a document prepared by USTR for the TPSC to
launch the ACTA negotiations, the first time a "TPSC paper" has been released. (See McCoy
Decl. ¶ 24.)
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 15 of 57

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER )
FOUNDATION, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-1599 (RMC)
)
OFFICE OF THE UNITED STATES )
TRADE REPRESENTATIVE, )
)
Defendant. )
____________________________________)

MEMORANDUM OF POINTS OF AUTHORITIES IN


SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Preliminary Statement

Plaintiffs filed this action on September 17, 2008, pursuant to the Freedom of Information

Act (FOIA), 5 U.S.C. § 552 (2006), amended by OPEN Government Act of 2007, Pub. L. No.

110-175, 121 Stat. 2524, seeking access to certain agency records pertaining to the Anti-

Counterfeiting Trade Agreement (ACTA), maintained by defendant Office of the United States

Trade Representative (USTR). Defendant USTR now moves for summary judgment in this

action on the ground that no information has been improperly withheld from plaintiffs. In

support of its motion, defendant has filed herewith the Declarations of Warren Maruyama,

General Counsel of USTR [hereinafter Maruyama Decl.],1 and of Stanford McCoy, Assistant

United States Trade Representative (AUSTR) for Intellectual Property and Innovation, USTR

[hereinafter McCoy Decl.].

Defendant's supporting declarations, attached hereto, recount the chronology related to

1
Although he is no longer with USTR, Mr. Maruyama was USTR's General Counsel at
the time his declaration was executed.
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 16 of 57

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the administrative processing of plaintiffs' FOIA request, identify the documents at issue, and

fully describe and justify the information withheld by defendant pursuant to Exemptions 1, 2, 3,

and 5 of the FOIA, 5 U.S.C. § 552(b)(1), (b)(2), (b)(3), (b)(5).

On the basis of these declarations, the accompanying exhibits and Vaughn Index, the

entire record herein, and for the reasons set forth below, defendant respectfully submits that there

exists no genuine issue of material fact and that the defendant is entitled to judgment as a matter

of law pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Factual and Procedural Background

I. The Anti-Counterfeiting Trade Agreement

In May 2006, negotiators in the Office of the United States Trade Representative (USTR),

acting on behalf of the United States and building upon the government's prior efforts to combat

international piracy and counterfeiting, began discussions with foreign governments to negotiate

a multilateral Anti-Counterfeiting Trade Agreement (ACTA). (See Declaration of Warren

Maruyama, General Counsel, USTR [hereinafter Maruyama Decl.], filed herewith, ¶ 3;

Declaration of Stanford McCoy, Assistant United States Trade Representative (AUSTR) for

Intellectual Property and Innovation, USTR [hereinafter McCoy Decl.], filed herewith, ¶ 3-7.)

Since that time, USTR negotiators have engaged in four rounds of discussions with the

governments of Australia, Canada, the European Union and its Member States, Japan, Korea,

Mexico, Morocco, New Zealand, Singapore, and Switzerland. (See Maruyama Decl. ¶ 3; McCoy

Decl. ¶ 7.)

The ACTA negotiations reflect a collective effort among theses trading partners to

establish a more effective international framework for combating piracy and counterfeiting. (See
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Maruyama Decl. ¶ 3; McCoy Decl. ¶¶ 6-10.) Piracy and counterfeiting are a growing trade

policy concern to the United States, and USTR believes that a favorable outcome to the ACTA

negotiations is in the economic interest of the United States. (See McCoy Decl. ¶¶ 6-10.) When

it is finalized, the ACTA is intended to assist the efforts of governments around the world to

more effectively combat the proliferation of counterfeit and pirated goods, which USTR views as

undermining legitimate trade and the sustainable development of the world economy, and in

some cases contributing to organized crime and exposing American citizens to potentially

dangerous fake products. (See McCoy Decl. ¶¶ 6-10.)

In December 2007, prior to circulating formal textual proposals for the ACTA, the United

States and the other governments participating in the ACTA negotiations agreed that "documents

relating to the proposed [ACTA] will be held in confidence." (See Maruyama Decl. ¶ 4 &

Attach. A; McCoy Decl. ¶¶ 6-10.) This confidentiality agreement was designed to enable

officials of participating governments to engage in frank exchanges of views, positions, and

specific negotiating proposals. (See Maruyama Decl. ¶ 6.) USTR frequently agrees in writing

with its partners in major trade negotiations, such as the ACTA, to keep negotiating records

confidential. (McCoy Decl. ¶¶ 6-10.)

On February 8, 2008, based on the confidentiality agreement between the United States

and its negotiating partners, Mr. Maruyama issued a memorandum to USTR's ACTA negotiators,

noting that the governments participating in the ACTA negotiations had agreed to hold

documents exchanged in the course of those negotiations in confidence, and directing that all

such documents were to be classified pursuant to Executive Order 12,958, as amended, at the

"Confidential" level as "Foreign Government Information" in accordance with that


Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 18 of 57

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confidentiality agreement. (See Maruyama Decl. ¶ 4 & Attach. B).

On April 6, 2009, the ACTA negotiating parties released a summary of the proposals

currently under consideration. (See McCoy Decl. ¶ 10.)

II. The Industry Trade Advisory Committee System

In addition to its inter-agency consultative process and in order to develop the United

States' position on international negotiations, USTR engages, on behalf of the President, in a

statutorily-mandated consultative process in which Congress has required the President to seek

information and advice from representative elements of the private sector with respect to, among

other things, the development, implementation, and administration of United States trade policy.

See 19 U.S.C. § 2155(a)(1)(C); McCoy Decl. ¶¶ 15-18. Specifically, the Trade Act of 1974

directs the President to establish "such sectoral or functional advisory committees as may be

appropriate" and which are representative of "all industry, labor, agricultural, or service

interests." See 19 U.S.C. § 2155(c)(2). The Trade Act of 1974 further directs that these

Presidential advisory committees meet upon request of the United States Trade Representative

and provide "policy advice, technical advice and information, and advice on other factors." See

19 U.S.C. § 2155(d).

In accordance with the Trade Act of 1974, the President has established the Industry

Trade Advisory Committee (ITAC) system, which includes committees devoted to specific trade-

related areas. (See McCoy Decl. ¶¶ 15-18.) The members of advisory committees receive

security clearances from the government and are referred to as "cleared advisors." (See id. ¶ 16.)

To solicit views from cleared advisors, USTR posts documents on a secure website, and

individual cleared advisors then access the documents and provide comments directly to

individual USTR officials. (See id.)


Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 19 of 57

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The Industry Trade Advisory Committee 15 (ITAC-15) is focused on intellectual property

rights and its members include representatives from the software, recording, movie, and

publishing industries, as well as the Global Health Council. (See id.) In the course of its ACTA

negotiations, and on behalf of the President pursuant to the requirements of the Trade Act of

1974, USTR has solicited and received views from the ITAC-15 cleared advisors by posting draft

negotiating texts on a secure cleared advisor website. (See id.)

In addition to its use of the cleared advisor system, USTR also issued a Federal Register

notice on February 15, 2008 inviting public comment on the ACTA, and has held meetings with

a wide range of companies, trade associations representing a variety of interests, and numerous

non-governmental organizations upon request, and has taken the diverse points of view of those

entities into consideration in formulating policy relating to ACTA, including the draft negotiating

texts. (See id. ¶ 18.) To the extent that they wish to comment publicly, the cleared advisors may

also respond in a public fashion to the Federal Register notice. (See id.)

III. The FOIA Request

By letter dated June 11, 2008, plaintiffs submitted a FOIA request to USTR, seeking

certain USTR documents pertaining to the ACTA. (See id. ¶ 19.) On July 24, 2008, pursuant to

a conversation with USTR staff in which plaintiffs agreed to narrow their request, plaintiffs

submitted a modified FOIA request to USTR. (See id.)

In response to plaintiffs' FOIA request, USTR staff conducted a manual search of its

paper records, and an electronic search of its e-mails, for responsive records. (See id. ¶¶ 29-30).

As a result of its records searches, USTR identified 1,454 pages of material responsive to

plaintiffs' FOIA request. (See id.)

On November 14, 2008, USTR provided its first interim response, in which it disclosed
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 20 of 57

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fifty-four documents, to plaintiffs. (See id. ¶ 22 & Attach. A.)

In a Joint Proposed Records Processing and Briefing Schedule filed on November 21,

2008, the parties informed the Court that they had agreed to a processing schedule, by which

USTR would provide an interim response to plaintiffs FOIA request by December 22, 2008.

(See Joint Schedule, filed Nov. 21, 2008.) The parties also agreed that USTR would complete its

processing of plaintiffs' FOIA request and provide plaintiffs with a final response to its request

by January 16, 2009, and would provide plaintiffs with a draft Vaughn Index for any withheld

documents by January 23, 2009. (See id.)

On December 22, 2008, USTR provided its second interim response to plaintiffs, in

which 313 pages were withheld in full pursuant to Exemption 1 of the FOIA, 5 U.S.C.

§ 552(b)(1), and 186 email chains, totaling 493 pages, were withheld in full pursuant to

Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5).2 (See McCoy Decl. ¶ 23 & Attach. B.) Finally,

USTR advised that, to the extent the withheld information contained private e-mail addresses,

such information was also protected by Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6). (See

id.)

On January 16, 2009, USTR provided its final response to plaintiffs, in which it disclosed

an additional fourteen pages of documents, four of which were redacted pursuant to Exemptions

5 and 6 of the FOIA, 5 U.S.C. § 552(b)(5), (b)(6). (See McCoy Decl. ¶ 24 & Attach. C.) In

addition, USTR advised plaintiffs that an additional 580 pages were being withheld in full

pursuant to Exemptions 1 and 5 of the FOIA, 5 U.S.C. § 552(b)(1). (See id.)

2
USTR also advised plaintiffs that Exemption 1 might also apply to these e-mails. (See
McCoy Decl. ¶ 23 & Attach. B.) In its final response dated January 16, 2009, USTR advised
plaintiff that it had determined that 486 pages of these records were in fact protected by
Exemption 1, in addition to Exemption 5 of the FOIA. (See id. ¶ 24.)
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 21 of 57

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By e-mail dated January 23, 2009, the undersigned transmitted USTR's draft Vaughn

Index to plaintiffs' counsel.

On January 30, 2009, in light of a development in Executive Branch FOIA policy --

specifically, the issuance to the heads of federal departments and agencies of a January 21, 2009

memorandum on the FOIA from President Obama -- the parties filed a Joint Motion to Stay

Proceedings and Amend Briefing Schedule with the Court. (See Joint Motion, filed Jan. 30,

2009.) On February 3, 2009, the Court approved the parties' motion to stay proceedings until

thirty days after such time as the Attorney General issues guidelines pursuant to the President's

January 21, 2009 memorandum on the FOIA and further ordered defendant, upon issuance of the

Attorney General's guidelines on the FOIA, to review its determinations on the documents at

issue and inform plaintiffs of any changes to its prior determinations. (See id.)

The Attorney General issued his guidelines on the Freedom of Information Act in a

memorandum dated March 19, 2009. See Attorney General Holder's Memorandum for Heads of

Executive Departments and Agencies Concerning the Freedom of Information Act (Mar. 19,

2009) [hereinafter Attorney General Holder's FOIA Guidelines], available at

http://www.usdoj.gov/ag/foia-memo-march2009.pdf.

In accordance with the Court's February 3, 2009 Order, and in light of the Attorney

General's FOIA Guidelines, USTR conducted a "re- review" of the documents which it had

previously withheld in full or in part from plaintiffs, in order to determine whether any material

was appropriate for discretionary release. (See McCoy Decl. ¶¶ 26-27.) In the course of this

review, USTR engaged in extensive internal discussions, discussions with other Executive

Branch officials, and discussions with the ITAC-15 cleared advisors in an effort to assess the
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 22 of 57

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harm in releasing any additional information, and to evaluate whether any records could be

segregated for release. (See id.)

On April 30, 2009, USTR advised plaintiffs that its re-review of the previously withheld

records was completed, and released an additional thirty-six pages to plaintiffs, with excisions

made pursuant to Exemptions 1, 2, and 5 of the FOIA 5 U.S.C. § 552(b)(1), (b)(2), (b)(5). (See

id. ¶ 27 & Attach. D.) This disclosure also included material that, while not strictly responsive to

plaintiff's request, USTR nonetheless disclosed as a matter of courtesy. (See id.)

Subsequent to its April 30, 2009 supplemental disclosure, USTR determined that some of

the withheld records were also protected by Exemption 3 of the FOIA.

In sum, all that remains at issue are USTR's application of Exemptions 1, 2, and 3,

5 U.S.C. § 552(b)(1), (b)(2), (b)(3), and its application of Exemption 5 (attorney-client and

deliberative process privileges), 5 U.S.C. § 552(b)(5), to the 1362 pages of documents identified

in Groups 1-9 of defendant's Vaughn Index.3 (See McCoy Decl. Attach. E.)

Argument

SUMMARY JUDGMENT FOR DEFENDANT IS PROPER INASMUCH AS


NO INFORMATION HAS BEEN IMPROPERLY WITHHELD FROM PLAINTIFFS

Defendant has properly reviewed all 1362 pages of records which remain at issue and has

determined that the withheld information is properly protected under the FOIA. No information

has been improperly withheld from plaintiffs. Defendant's declarations comply with the statutory

requirements of the FOIA, and the requirements of Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.

3
Pursuant to the parties' agreement as reflected in a Joint Motion on January 30, 2009,
plaintiffs have advised that they will not challenge the application of Exemption 6 to the
documents at issue. (See Joint Motion, filed Jan. 30, 2009.)
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 23 of 57

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Cir. 1973), in that they contain a complete description of, and justification for, all the information

the defendant withheld under the FOIA pursuant to Exemptions 1, 2, 3, and 5, 5 U.S.C.

§ 552(b)(1), (b)(2), (b)(3), (b)(5).

Attached to Mr. McCoy's declaration is a Vaughn Index containing a detailed description

of the withheld documents. (See McCoy Decl. ¶ 28 & Attach. E.) Because certain records are

similar to one another, USTR has categorized them into nine distinct groups. (See id.) The

Vaughn Index describes the responsive documents contained in each group, including such

information as the date and the general content of the material, provides the number of pages for

each group, and identifies the FOIA Exemptions and, for documents protected pursuant to

Exemption 5 of the FOIA, the civil discovery privileges, pursuant to which USTR withheld the

records in full or part. (See id.)

USTR has determined that all of the classified information in the records contained in

Groups 1, 3, 5, 7, 8, and 9, and the portions of the documents containing classified information in

Groups 2 and 6, are properly classified and are protected by Exemption 1 of the FOIA. (See id.

¶¶ 32-46.) Additionally, USTR has determined that the contact information of individual USTR

officials contained in these records is properly protected by Exemption 2 of the FOIA in that they

are purely internal, and their disclosure could risk circumvention of the law. (See id. ¶¶ 47-48.)

Moreover, USTR has determined that all of the records in Group 8 are properly protected by

Exemption 3 of the FOIA inasmuch as they are exempted from disclosure by the Trade Act of

1974, 19 U.S.C. § 2155. (See id.) Finally, USTR has determined that all of the records in

Groups 2 and 8, and portions of the records in Groups 3, 4, 6, and 9, are properly protected by

the attorney-client and deliberative process privileges of Exemption 5 of the FOIA in that they
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 24 of 57

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reflect confidential communications between USTR are agency counsel, and/or are predecisional,

deliberative discussions regarding ACTA negotiations. (See id. ¶¶ 49-50.) As is demonstrated

below, the determinations by USTR on each of these bases for nondisclosure of the information

at issue are entirely justified under the law.

I. USTR Properly Withheld National Security Information That is


Classified in Accordance With Executive Order 12,958, as Amended

USTR has withheld from plaintiffs the records in Groups 1, 3, 5, 7, 8, and 9 in full, and in

Groups 2 and 6 in part, pursuant to Exemption 1 of the FOIA.4 Exemption 1 of the FOIA

protects from disclosure information which is "(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) [is] in fact properly classified pursuant to such executive order." 5 U.S.C.

§ 552(b)(1). This exemption protects national security information that has been properly

classified pursuant to the substantive and procedural criteria contained in the relevant executive

order. See Exec. Order No. 13,292, 68 Fed. Reg. 15,315 (Mar. 28, 2003) [hereinafter E.O.

12,958, as amended], reprinted in 50 U.S.C. § 435 note (2006). Thus, the courts have prescribed

a two-fold test to be applied in order to determine whether material has been properly withheld

under Exemption 1: (1) procedurally, the agency must demonstrate that it followed the proper

procedures in classifying the information and, (2) substantively, the agency must show that the

records at issue logically fall within the exemption. See Salisbury v. United States, 690 F.2d

966, 970-72 (D.C. Cir. 1982); Military Audit Project v. Casey, 656 F.2d 724, 737 (D.C. Cir.

4
As discussed below, the documents in Groups 2, 3, 6, 8, and 9 are also being withheld,
in full or in part, pursuant to Exemption 5 of the FOIA, and the documents in Group 8 are further
protected by Exemption 3 of the FOIA.
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 25 of 57

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1981); Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir. 1979);

Schoenman v. FBI, 575 F. Supp. 2d 136, 151-152 (D.D.C. 2008) (holding that agencies asserting

Exemption 1 are required to "show both that the information was classified pursuant to the

proper procedures, and that the withheld information substantively falls within the scope of [the

applicable] Executive Order"). As is discussed in more detail below, because USTR has met the

relevant classification standards, both the procedural and substantive elements of Exemption 1

have been satisfied in this case.

A. USTR Followed Proper Procedures in


Classifying the Information

The declarations of Mr. Maruyama and Mr. McCoy describe the process of determining

whether the USTR records at issue are properly classified pursuant to E.O. 12,958, as amended,

and whether the records were marked appropriately. (See Maruyama Decl. ¶¶ 5, 10; McCoy

Decl. ¶¶ 32-46.) In addition, the declaration of Mr. McCoy describes his supplemental review of

the classified records which had been withheld from plaintiffs pursuant to Exemption 1 of the

FOIA, in accordance with USTR's January 30, 2009 agreement with plaintiffs to consider

whether Attorney General Holder's March 19, 2009 FOIA Guidelines called for USTR to release

any additional records in response to plaintiffs' request. (See McCoy Decl. ¶¶ 39-46.)

As an initial matter, in order for records to be properly classified, they must be classified

by an original classification authority. See E.O. 12,958, as amended, section 1.1(a). All of the

records were classified pursuant to Mr. Maruyama's February 8, 2008 memorandum which, based

on a confidentiality agreement between the United States and its negotiating partners, directed

that all documents exchanged in the course of the ACTA negotiations were to be classified as

"Confidential Foreign Government Information" pursuant to E.O. 12,958, as amended. (See


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Maruyama Decl. ¶ 4 & Attachs. A, B.) As a designated original classification and

declassification authority within USTR, Mr. Maruyama was qualified to review, classify or

declassify information.5 (See id. ¶ 1.) In addition to having original classifying authority, as

General Counsel of USTR Mr. Maruyama was only one level below the United States Trade

Representative, and was the designated "senior agency official" authorized by the Executive

Order to classify or reclassify records once they are subject to a FOIA request. See E.O. 12,958,

as amended, section 1.7(d); id. ¶ 10. Finally, Mr. McCoy, too, is a designated original

classification and declassification authority qualified to review, classify or declassify information

within USTR. (See McCoy Decl. ¶ 1.) Mr. Maruyama and Mr. McCoy reviewed, on a page-by-

page basis, all of the classified records withheld from plaintiffs pursuant to Exemption 1 of the

FOIA and have determined that they are properly classified in accordance with Mr. Maruyama's

February 8, 2008 memorandum ordering classification of all ACTA negotiation documents as

"Confidential Foreign Government Information." (See Maruyama Decl. ¶ 10; McCoy Decl.

¶¶ 32-46.)

Moreover, the Executive Order requires that classified information must be owned by,

produced by or for, and under the control of the United States Government. See E.O. 12,958, as

amended, section 1.1(a). Mr. Maruyama and Mr. McCoy personally determined that the

documents at issue are all USTR negotiation documents falling within this requirement. (See

Maruyama Decl. ¶ 5; McCoy Decl. ¶¶ 32-46.) Furthermore, in order to satisfy the procedural

requirements of Exemption 1 of the FOIA, the withheld information must fall within one of the

5
As noted above, Mr. Maruyama is no longer with USTR but was the agency's General
Counsel at the time his declaration was executed.
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categories of information listed in section 1.4 of the Executive Order. See E.O. 12,958, as

amended, section 1.1(a). In this case, Mr. Maruyama and Mr. McCoy personally determined that

the records contain foreign government information. (See Maruyama Decl. ¶¶ 3, 5, 10; McCoy

Decl. ¶¶ 32-46.) An original classification authority must also determine that the disclosure of

the information reasonably could be expected to result in damage to national security at one of

the three levels outlined in the order. See E.O. 12,958, as amended, 1.1(a). Mr. Maruyama's and

Mr. McCoy's reviews carefully considered the impact that disclosure of the records at issue

would have on the foreign relations and economic security of the United States, and determined

that the disclosure of the information that remained classified at the end of their review, all of

which is marked as "Confidential," could reasonably be expected to cause damage to national

security. (See Maruyama Decl. ¶¶ 8, 9; McCoy ¶¶ 32-46.)

Mr. Maruyama and Mr. McCoy confirm that, pursuant to sections 1.6 and 1.7 of E.O.

12,958, as amended, each document containing classified information was, appropriately marked,

originally by USTR negotiators or by Mr. Maruyama himself, with the proper classification

markings at the "Confidential" level. (See Maruyama Decl. ¶ 5; McCoy ¶¶ 32-46.) Finally, Mr.

Maruyama and Mr. McCoy also confirmed that any reasonably segregable portions of the records

at issue that did not meet the standards for classification were declassified and marked for

release. (See Maruyama Decl. ¶ 9; McCoy Decl. ¶¶ 32-46.) In fact, as Mr. Maruyama notes,

USTR obtained the consent of participating governments to release certain ACTA documents

containing their information, such as agendas and the confidentiality agreement itself, and those

documents were released to plaintiffs. (See Maruyama Decl. ¶ 9.) Additionally, Mr. McCoy re-

reviewed all of the classified records in order to assess whether any of the information was
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appropriate for declassification and release in light of Attorney General Holder's March 19, 2009

FOIA guidelines, and he determined that certain classified pages could be declassified and

released as a matter of agency discretion, and this material was then disclosed to plaintiffs.6 (See

McCoy Decl. ¶¶ 32-46.) The remaining foreign government information is not appropriate for

declassification inasmuch as disclosure could reasonably be expected to damage national

security. (See Maruyama ¶¶ 8, 9; id. ¶¶ 32-46.)

The declarations of Mr. Maruyama and Mr. McCoy make clear that USTR fully

conformed to the procedural requirements of E.O. 12,958, as amended, in this case.

B. The Withheld Information Meets the Substantive Requirements of


Exemption 1

Having satisfied the procedural requirements of the Executive Order, Mr. Maruyama and

Mr. McCoy also ensured that all of the classified information withheld from plaintiffs meets the

relevant substantive requirement for classification and protection under E.O. 12,958, as amended.

As noted above, and in accordance with section 1.4 of E.O. 12,958, as amended, USTR withheld

classified "foreign government information" from plaintiffs pursuant to Exemption 1. (See

Maruyama Decl. ¶¶ 3, 5, 10; McCoy Decl. ¶¶ 28-31, 48.) "Foreign government information" is

defined by the Executive Order as follows:7

information provided to the United States Government by a foreign government . . .


with the expectation that the information . . . [is] to be held in confidence; [or]

6
In addition to these disclosures, on April 6, 2009 USTR and its negotiating partners
released an ACTA summary which represents the most comprehensive joint effort to date of all
of the participants in the negotiation to provide information on the ACTA to the public. (See
McCoy Decl. ¶ 44.)
7
E.O. 12,958, as amended, also states that "[t]he unauthorized disclosure of foreign
government information is presumed to cause damage to the national security." See E.O. 12,958,
as amended, 1.1(c).
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 29 of 57

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information produced by the United States Government pursuant to or as a result of


a joint arrangement . . . requiring that the information . . . be held in confidence.

See E.O. 12,958, as amended, 6.1(r). Specifically, the foreign government information USTR

has withheld from plaintiffs consists of: ACTA negotiation documents, including draft and final

negotiating proposals and documents in support of such proposals, associated e-mail messages

that USTR negotiators and attorneys received from or transmitted to officials, including foreign

government officials, in the course of planning for and carrying out the ACTA negotiations, and

portions of inter-agency communications and communications between USTR personnel and

members of a federally chartered private sector advisory committee on trade-related intellectual

property rights, ITAC-15, which contain such information. (See Maruyama Decl. ¶ 3; McCoy

Decl. ¶¶ 32-46 & Attach. E.)

For the reasons set forth below, USTR respectfully suggests that it has fully satisfied the

substantive requirements of Exemption 1 of the FOIA, inasmuch as the declarations of Mr.

Maruyama and Mr. McCoy demonstrate that release of the classified information at issue would

constitute an unwarranted risk to the national security of the United States. See Morley v. CIA,

508 F.3d 1108, 1124 (D.C Cir. 2007) (noting that "the text of Exemption 1 itself suggests that

little proof or explanation is required beyond a plausible assertion that information is properly

classified"); Miller v. DOJ, 562 F. Supp. 2d 82, 101 (D.D.C. 2008) (finding that de novo review

is required even when national security matters are at issue, but noting that courts "generally

defer to agency expertise in national security matters"); Summers v. DOJ, 517 F. Supp. 2d 231,

238 (D.D.C. 2007) (deferring to agency expertise in national security, noting that assessing

potential for harm to intelligence source from disclosure "is the duty of the agency, and not the
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court," and finding that an agency's justification for invoking Exemption 1 is sufficient if it

"appears logical or plausible" (citing Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007))).

Before engaging in a formal exchange of proposals, the United States and the other

governments participating in the ACTA negotiations agreed that "documents relating to the

proposed [ACTA] will be held in confidence." (See Maruyama Decl. ¶ 4 & Attach. A; McCoy

Decl. ¶¶ 32-46.) This confidentiality agreement was designed to enable officials of participating

governments to engage in frank exchanges of views, positions, and specific negotiating

proposals, and to facilitate the resolution of disparate national interests and perspectives to lay

the groundwork for an eventual agreement. (See Maruyama Decl. ¶ 6; McCoy Decl. ¶¶ 32-46.)

In recognition of the importance of maintaining the confidentiality of trade negotiations, USTR

frequently agrees in writing with its partners in major trade negotiations, such as the ACTA, to

keep negotiating records confidential. (See McCoy Decl. ¶ ¶ 32-46.) The ACTA partners'

confidentiality agreement, and Mr. Maruyama's February 8, 2008 corresponding classification

order, unambiguously encompass all of the classified information that USTR has withheld

pursuant to Exemption 1 of the FOIA. (See Maruyama Decl. ¶ 5; id. ¶¶ 32-46.) A unilateral

release of this information by the United States would constitute a breach of that agreement.

(See Maruyama Decl. ¶¶ 5, 9.) In light of the confidentiality agreement, and consistent with the

confidential nature of trade negotiations, including ACTA negotiations, it is plain that all of the

withheld information was either (1) provided to USTR by foreign governments "with the

expectation that the information . . . [was] to be held in confidence," or (2) produced by USTR

and circulated with other Executive Branch agencies and with the ITAC-15 in connection with
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the ACTA negotiations pursuant to a "joint arrangement" requiring that such information "be

held in confidence." See E.O. 12,958, as amended, 6.19(r).

If the United States unilaterally discloses to the public documents that it and other

participants have exchanged in confidence with regard to the ACTA negotiations, it will

discourage further such exchanges, undermine trust in USTR's ACTA negotiators, and make it

difficult or impossible to conclude an agreement on favorable terms to the United States, because

negotiating partners would be more likely to adopt and maintain rigid negotiating positions

unfavorable to United States economic interests. (See Maruyama Decl. ¶¶ 7, 8.) As Mr.

Maruyama explains, foreign governments are typically willing to engage in the give-and-take of

negotiations with the United States necessary to conclude trade agreements only if they can rely

on assurances from the United States that negotiating texts and related documents and

communications exchanged with its negotiating partners will be protected from unilateral public

disclosure. (See id.)

In the event that the United States were to breach its confidentiality agreement with its

negotiating partners, the loss of trust that such a breach would generate would have substantial

consequences not only for the ongoing ACTA negotiations -- impeding United States efforts to

address the harms associated with piracy and counterfeiting -- but would have long ranging

consequences affecting United States credibility as a negotiating partner for future trade

negotiations. (See Maruyama Decl. ¶ 8; McCoy Decl. ¶¶ 32-46.) The potential harm associated

with breaching the ACTA confidentiality agreement makes it fully appropriate for USTR to

withhold the records encompassed by that agreement. See Miller, 562 F. Supp. 2d at 103

(allowing withholding of foreign government information when disclosure could be expected to


Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 32 of 57

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chill relationship between U.S. and foreign officials and make them less likely to cooperate in the

future). Mr. McCoy explains:

Of paramount importance to a successful negotiation is an environment in which


negotiating partners can exchange ideas, draft texts, draft comments on texts, and
other negotiating documents with the understanding that these exchanges will be held
in confidence. When negotiating partners function in an environment of confidence,
they are freer to engage in the give-and-take that is necessary to reach a successful
conclusion [to negotiations] . . . .

[If that confidential information is released] foreign governments would be


reluctant to entrust the handling of [their] information to the discretion of the
United States and it would be reasonably expected to strain relations between
the United States and the foreign governments, and lead to diplomatic,
political, or economic repercussions.

(See McCoy Decl. ¶¶ 13-14.)

A unilateral disclosure by the United States of records reflecting its exchanges with its

ACTA negotiating partners would amount to an unequivocal breach of the reciprocal

confidentiality arrangements that the United States agreed would govern the negotiations. (See

Maruyama Decl. ¶ 7; id..) Given the effects such a disclosure would have on the ACTA

negotiations, on the credibility of the United States in other negotiations, and on the economic and

political interests of the United States, Mr. Maruyama and Mr. McCoy have appropriately

determined that release of the information at issue could reasonably be expected to damage the

national security of the United States, and that all of the withheld information therefore continues

to warrant classification at the "Confidential" level and protection under Exemption 1 of the

FOIA. (See Maruyama Decl. ¶¶ 5, 8, 9; McCoy ¶¶ 32-46.)

It is well established that requiring an agency to release information exchanged with a

foreign government in confidence would undermine future attempts by the United States to

exchange similar information in the future, and that the FOIA allows the withholding of such
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information. See, e.g., Southam News v. INS, 674 F. Supp. 881, 885 (D.D.C. 1987); Republic of

New Afrika v. FBI, 656 F. Supp. 7, 13 (D.D.C. 1985); Shaw v. United States Dep't of State, 559

F. Supp. 1053, 1063 (D.D.C. 1983); see also Am. Jewish Congress v. Dep't of the Treasury, 549

F. Supp. 1270, 1277 (D.D.C. 1982), aff'd, 713 F.2d 864 (D.C. Cir.). Mr. Maruyama and Mr.

McCoy's assessment that disclosure of foreign government information would jeopardize the

national security of the United States makes clear that this information is appropriately withheld

under Exemption 1 of the FOIA.

As noted above, Mr. Maruyama and Mr. McCoy personally examined all of the classified

foreign government information withheld from plaintiffs pursuant to Exemption 1 of the FOIA to

determine if any information could be segregated for release to plaintiffs and, when possible,

USTR made such disclosures. (See Maruyama Decl. ¶ 8, 9; McCoy Decl. ¶¶ 32-46.) Only when

it was determined that the disclosure of this information could reasonably be expected to cause

damage to national security was information withheld. (See McCoy Decl. ¶¶ 32-46.)

Because USTR followed the proper procedures and substantive elements of E.O. 12,958,

as amended, for classifying the information at issue here, and because relevant case law well

supports its applications of Exemption 1, USTR respectfully submits that its use of Exemption 1

of the FOIA to withhold foreign government information was appropriate. See Elec. Privacy Info.

Ctr. v. DOJ, 584 F. Supp. 2d 65, 71 (D.D.C. 2008) (finding that "it is well-established that the

judiciary owes some measure of deference to the executive in cases implicating national security"

(quoting Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 926-27 (D.C. Cir. 2003)), and

determining that court "will not second-guess" agency's harm determination "so long as the
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agency's declarations provide sufficient detail" to show that material fits "' within the domain of

the exemption claimed.'" (quoting Campbell v. DOJ, 164 F.3d 20, 30 (D.C. Cir. 1998))).

II. USTR Properly Withheld Information Related Solely to the


Internal Personnel Rules and Practices of the Agency
Pursuant to Exemption 2 of the FOIA

USTR has withheld certain contact information from plaintiff in the records at issue

pursuant to Exemption 2 of the FOIA. Exemption 2 exempts from mandatory disclosure material

"related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2).

Information is deemed predominantly internal if it establishes "rules and practices for agency

personnel" and involves no "secret law" of the agency. See Schiller v. NLRB, 964 F.2d 1205,

1207 (D.C. Cir. 1992). The courts have interpreted Exemption 2 to encompass two distinct

categories of information: (a) internal matters of a relatively trivial nature, sometimes referred to

as "low 2" information, see Department of the Air Force v. Rose, 425 U.S. 352, 369-70 (1976);

and, (b) more substantial internal matters the disclosure of which would risk circumvention of a

legal requirement, sometimes referred to as "high 2" information, see Crooker v. ATF, 670 F.2d

1051, 1074 (D.C. Cir. 1981).

In this case, USTR withheld the e-mail addresses and direct telephone numbers (including

telephone "participant codes") of USTR employees pursuant to Exemption 2 of the FOIA. (See

McCoy Decl. ¶¶ 47-48 & Attach. E.) This information is protected from disclosure pursuant to

the "high 2" category of Exemption 2. Outlining the standards for withholding information under

"high 2," the United States Court of Appeals for the District of Columbia Circuit in Crooker held

that information must be "predominantly internal" and, if disclosed, could be expected to


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"significantly risk[] circumvention of agency regulations or statutes" to be properly protected.

Crooker, 670 F.2d at 1074.

A. E-mail Addresses

As Mr. McCoy explains, USTR is part of the Executive Office of the President (EOP) and

its e-mail services are managed together with all other offices under the EOP, including the White

House. (See McCoy Decl. ¶¶ 47-48.) Because all EOP offices use the same e-mail format, the

release of e-mail addresses of USTR employees would not only subject USTR employees to a

barrage of unsolicited e-mails, but would also reveal how one could send e-mails to any

employees within the EOP, including White House employees, based only on knowing an

employee's name. (See id.)

B. Telephone Numbers

It is well established that sensitive telephone numbers and related contact information are

purely internal information which is properly withheld pursuant to Exemption 2 of the FOIA.

See, e.g., Hale v. DOJ, 973 F.2d 894, 902 (10th Cir. 1992) (FBI room numbers, telephone

numbers, and FBI employees' identification numbers; personnel directories containing names and

addresses of FBI employees); Concepcion v. FBI, No. 07-1766, 2009 WL 794484, at *9-10

(D.D.C. Mar. 27, 2009) (telephone numbers of FBI employees, Assistant U.S. Attorneys and

paralegals); James Madison Project v. CIA, No. 07-1382, 2009 WL 780228, at *9-10 (D.D.C.

Mar. 26, 2009) (telephone and fax numbers of CIA employees); Durrani v. DOJ, No. 08-0609,

2009 WL 755219, at *9 (D.D.C. Mar. 24, 2009) (direct telephone numbers of Immigration and

Customs Enforcement agents); Coleman v. Lappin, No. 06-2255, 2009 WL 692161, at *3 (D.D.C.

Mar. 18, 2009) (phone and fax numbers for BOP personnel); Kishore v. DOJ, 575 F. Supp. 2d
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243, 255 (D.D.C. 2008) (internal FBI telephone and facsimile numbers); Singh v. FBI, 574

F. Supp. 2d 32, 44 (D.D.C. 2008) (DEA telephone numbers); Odle v. DOJ, No. 05-2711, 2006

WL 1344813, at *13 (N.D. Cal. May 17, 2006) ("non-public [OPR] fax numbers and telephone

numbers").

If the information USTR has withheld pursuant to Exemption 2 of the FOIA were

released, the EOP's computer and phone systems could be overwhelmed or EOP staff could be

subject to excessive harassment, thus preventing USTR and, by extension, any other EOP office

or even the White House from conducting essential business.8 (See McCoy Decl.¶¶ 47-48.) It is

especially appropriate to withhold agency contact information when, as with EOP employees,

agency officials are uniquely susceptible to harassment. See, e.g., Antonelli v. BOP, 569 F. Supp.

2d 61, 65 (D.D.C. 2008) (allowing withholding of ICE employee telephone numbers because

harassing telephone calls would inhibit ICE's ability to carry out responsibilities); Truesdale v.

DOJ, No. 03-1332, 2005 WL 3294004, at *5 (D.D.C. Dec. 5, 2005) (protecting FBI Special

Agents' telephone and facsimile numbers, because disclosure "would disrupt official business and

could subject the FBI's employees to harassing telephone calls").

Accordingly, USTR respectfully submits that it properly protected purely internal contact

information, inasmuch as disclosure of this information could impede the effectiveness of USTR

and EOP operations.

8
It should be noted that USTR only protected the direct telephone lines and individual e-
mail addresses of its employees. (See McCoy Decl.¶ __ & Attach. E.) USTR's general office
telephone numbers and e-mail addresses are publicly available on its website at www.ustr.gov.
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 37 of 57

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III. USTR Properly Withheld Information


Pursuant to Exemption 3 of the FOIA

USTR has withheld from plaintiffs the records in Group 8 pursuant to Exemption 3 of the

FOIA.9 Exemption 3 allows the withholding of information prohibited from disclosure by another

federal statute if one of two disjunctive requirements are met: the statute either "(A) requires that

the matters be withheld from the public in such a manner as to leave no discretion on the issue, or

(B) establishes particular criteria for withholding or refers to particular types of matters to be

withheld." 5 U.S.C. § 552(b)(3) (emphasis added). Courts have held that a statute falls within the

exemption's coverage if it satisfies either of these requirements. See Long v. IRS, 742 F.2d 1173,

1178 (9th Cir. 1984); Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979); Am. Jewish

Cong. v. Kreps, 574 F.2d 624, 628 (D.C. Cir. 1978). Once it is established that a statute is the

type of nondisclosure statute encompassed by Exemption 3, an agency next must establish that the

records in question fall within the withholding provision of the statute. See, e.g., CIA v. Sims,

471 U.S. 159, 167 (1985) (requiring that, to constitute proper withholding under Exemption 3, the

statute must qualify as a nondisclosure statute by meeting requirements of subpart (A) or subpart

(B) and records in question must fall within statute's scope).

In the instant case, USTR has withheld information from plaintiffs pursuant to a provision

of the Trade Act of 1974, 19 U.S.C. § 2155(g), which provides that information which is

submitted in confidence to the government by certain private sector advisors, may be disclosed

upon request to specified government officials and other advisory committees in connection with

limited matters referred to in the statute. See 19 U.S.C. § 2155(g); McCoy Decl. ¶¶ 49-50.

9
As discussed above, the documents in Group 8 have also been withheld in part pursuant
to Exemption 1 of the FOIA and, as discussed below, pursuant to Exemption 5 of the FOIA.
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Specifically, USTR has withheld under Exemption 3 of the FOIA, in conjunction with this

statutory provision, comments on draft negotiating texts of the ACTA which it received from

private sector advisors pursuant to a consultative mechanism required by the statute but which

have not been "requested" by the specified officials to whom disclosure is permitted under the

statute. (McCoy Decl. ¶¶ 49-50 & Attach. E.)

The Trade Act of 1974 directs the President to establish "such sectoral or functional

advisory committees as may be appropriate" and which are representative of "all industry, labor,

agricultural, or service interests." See 19 U.S.C. § 2155(c)(2). The Trade Act of 1974 further

directs that these Presidential advisory committees meet upon request of the United States Trade

Representative and provide "policy advice, technical advice and information, and advice on other

factors." See 19 U.S.C. § 2155(d). In accordance with the Trade Act of 1974, the President has

established a comprehensive Industry Trade Advisory Committee (ITAC) system, which includes

committees devoted to specific trade-related areas. (See McCoy Decl. ¶¶ 49-50.) The members

of advisory committees receive security clearances from the government and are referred to as

"cleared advisors." (See id.) To solicit views from cleared advisors, USTR posts documents on a

secure website, and individual cleared advisors then access the documents and provide comments

directly to individual USTR officials. (See id.) Cleared advisors' comments may range from

technical comments on wording choices in draft negotiating texts to comments on overall

intellectual property international trade policy. (See id.) The Industry Trade Advisory Committee

15 (ITAC-15) is focused on intellectual property rights and its members include representatives

from the software, recording, movie, and publishing industries, as well as the Global Health

Council. (See id.)


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As Mr. McCoy explains, USTR has implemented, and the ITAC-15 cleared advisors have

participated in, this advisory system with an understanding that communications exchanged would

be held in confidence. (See id. ¶¶ 49-50.) This understanding is based on the statute which, as

noted above, specifies that the information or advice from cleared advisors may be disclosed to

certain government officials, certain Congressional officials, and the advisory committees

themselves. (See id.) Public disclosure, such as would occur in response to a FOIA request, is

not contemplated by the statute. USTR's protection of these communications under the statute in

connection with Exemption 3 is supported by the legislative history. Indeed, USTR specifically

recognizes that the confidentiality of the cleared advisor system is in keeping with the language of

subsection (g) of the Trade Act of 1974, and with the statements of the Senate Finance Committee

upon implementation of the statute, which included the following:

The Committee is aware that this subparagraph would establish a limited statutory
exemption to the Freedom of Information Act, as amended. It is the view of the
Committee, however, that this exception is necessary due to the nature of the
information involved and the adverse impact which such information could have on
the ability of the United States effectively to carry out the multilateral trade
negotiations.

See Senate Report No. 93-1298, reprinted in 93 U.S.C.C.A.N. 7186, 7251; McCoy Decl. ¶ 13.

In considering whether information is properly withheld under Exemption 3, Courts first

look to the language of the statute, see, e.g., Reporters Comm. for Freedom of the Press v. DOJ,

816 F.2d 730, 735 (D.C. Cir. 1987), modified on other grounds, 831 F.2d 1124 (D.C. Cir. 1987),

rev'd on other grounds, 489 U.S. 749 (1989); see also Pub. Citizen, Inc. v. Rubber Mfrs. Ass'n,

533 F.3d 810, 813-14 (D.C. Cir. 2008), but may also look beyond the face of the statute in

considering whether Congress intended to exempt information from disclosure. See Sims v. CIA,

471 U.S. 159, 170 (1985) (noting congressional intent in the National Security Act of 1947 to
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"give the Director of Central Intelligence broad power to protect the secrecy and integrity of the

intelligence process"); Wis. Project on Nuclear Arms Control v. U.S. Dep't of Commerce, 317

F.3d 275, 282-84 (D.C. Cir. 2003) (looking to legislative history of section 12(c) of Export

Administration Act of 1979, 50 U.S.C. app. § 2411(c) (2006), and finding that section 12(c)

qualified under Exemption 3 where Congress made plain its intent to prevent disclosure of export-

application information).

The Trade Act of 1974 not only specifically limits the available channels for disclosure of

information submitted under the advisory committee system, but in recognition of the need for

U.S. negotiators to have access to this confidential information, Congress clearly anticipated that

it would create an exemption to the FOIA. See Senate Report No. 93-1298, reprinted in 93

U.S.C.C.A.N. at 7251; McCoy Decl. ¶¶ 49-50. Moreover, there can be no question that the

information USTR withheld -- confidential advice from cleared advisors of the ITAC-15

regarding draft negotiating texts USTR submitted through the secured advisor system pursuant to

the requirements of 19 U.S.C. § 2155(c)(2), see McCoy Decl. ¶ 49 -- is precisely the information

encompassed by the disclosure limitations of 19 U.S.C. § 2155(g).

Once an agency has established that the information at issue falls within the coverage of a

nondisclosure statute, invocation of Exemption 3 is appropriate. See, e.g., Fitzgibbon v. CIA, 911

F.2d 755, 762 (D.C. Cir. 1990); Goland, 607 F.2d at 350; Nat'l Sec. Archive Fund, Inc. v. CIA,

402 F. Supp. 2d 211, 219-20 (D.D.C. 2005). Accordingly, defendant respectfully suggest that its

withholding of the information described in Group 8 of its Vaughn Index pursuant to Exemption 3

of the FOIA is appropriate.


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IV. USTR Properly Withheld Information


Pursuant to Exemption 5 of the FOIA

USTR has withheld from plaintiffs the records in Groups 2,10 6, and 8 in full, and Groups

3, 4, and 9 in part, pursuant to Exemption 5 of the FOIA.11 Exemption 5 of the FOIA protects

from disclosure "inter-agency or intra-agency memorandums or letters that would not be available

by law to a party . . . in litigation with the agency." 5 U.S.C. § 552(b)(5). This exemption

authorizes the withholding of documents "normally privileged in the civil discovery context."

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see also Burka v. HHS, 87 F.3d 508,

516 (D.C. Cir. 1996). As such, Exemption 5 encompasses records covered by the attorney-client

privilege, see, e.g., Sears, 421 U.S. at 154; Mead Data Central, Inc. v. U.S. Dep't of the Air Force,

566 F.2d 242, 253 (D.C. Cir. 1977), and the deliberative process privilege, see, e.g., Wolfe v.

HHS, 839 F.2d 768, 773 (D.C. Cir. 1988) (en banc). With respect to the records in Groups 2, 3, 4,

6, 8, and 9 which have been withheld pursuant to Exemption 5, the records in Group 6 are

protected in full by the attorney-client privilege, and all of the records are protected, in full or in

part, by the deliberative process privilege. (See Attach. E.)

A. The Withheld Information Meets the Threshold


Test for Exemption 5

The records USTR has withheld pursuant to Exemption 5 of the FOIA fall into two broad

categories: (1) communications exchanged between USTR and officials at the Department of

Commerce, the Department of Homeland Security, the Department of Justice, the Department of

10
Twelve of the pages in Group 2 have only been protected in part pursuant to Exemption
5 of the FOIA. (See McCoy Decl. Attach. E.)
11
As discussed above, the documents in Groups 2, 3, 6, 8, and 9 have also been
wiithheld, in full or in part, pursuant to Exemption 1 of the FOIA, and the documents in Group 8
are further protected by Exemption 3 of the FOIA..
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State, the National Security Council, and the Library of Congress, and included in Groups 2, 3, 4,

8, and 9, of defendant's Vaughn Index; and (2) communications exchanged between USTR and

cleared advisors of the ITAC-15,12 and included in Group 6 of defendant's Vaughn Index. (See

McCoy Decl. ¶¶ 51-68 & Attach. E.)

The threshold issue under Exemption 5 is whether the records in question qualify as "inter-

agency or intra-agency memorandums." Records created by a government agency and circulated

within that agency or between that agency and other agencies -- as were the inter-agency

communications protected in Groups 2, 3, 4, 8, and 9 -- clearly meet the threshold requirement.

See Ryan v. DOJ, 617 F.2d 781, 790 (D.C. Cir. 1980). The communications with the ITAC-15 --

whose cleared advisors served as consultants to USTR -- contained in Group 6 of defendant's

Vaughn Index, also fall within the threshold for protection under Exemption 5. See Ryan at 790

(protecting records involving members of the Senate whom DOJ consulted with on judicial

nominations and finding it "entirely reasonable" that a record submitted by an outside consultant

may fall within Exemption 5's threshold.) The Court of Appeals for the District of Columbia has

held that "inter-agency or intra-agency" are not meant to be "rigidly exclusive terms," and that

agencies often need "to rely on the opinions and recommendations of temporary consultants" who

are "an integral part of [the agency's] deliberative process." See Dow Jones & Co. v. DOJ, 917

F.2d 571, 574-75 (D.C. Cir. 1990) (quoting Ryan, 617 F.2d at 789); see also Public Citizen, Inc.

v. DOJ, 111 F.3d 168 (D.C. Cir. 1997) (upholding application of Exemption 5 to communications

12
The ITAC-15 and the advisory committee system is described in more detail in the
Exemption 3 discussion, above.
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between a former President and the National Archives and Records Administration regarding

consultations under the Presidential Records Act).

Both the Supreme Court and the Court of Appeals for the District of Columbia Circuit

have approved this principal (commonly referred to as the "consultant corollary to Exemption 5")

and, in particular, have recognized that the President must be able to inform his decisionmaking

by obtaining reliable and informed advice from experts in confidence. In EPA v. Mink, for

instance, the Supreme Court deemed it "beyond question that [agency documents prepared for a

presidentially created committee organized to advise him on matters involving underground

nuclear testing] are 'inter-agency or intra-agency' memoranda or 'letters' that were used in the

decisionmaking processes of the Executive Branch." 410 U.S. 73, 85 (1973). More recently, in

Judicial Watch, Inc. v. DOE, the Court of Appeals for the District of Columbia Circuit considered

the withholding of agency records under the deliberative process privilege of Exemption 5,

related to the National Energy Policy Development Group (NEPDG), which former President

George W. Bush established for the purpose of developing a "national energy policy designed to

help the private sector, and government at all levels, promote dependable, affordable, and

environmentally sound production and distribution of energy for the future." 412 F.3d 125, 127

(D.C. Cir. 2005). In upholding the agency's protection of NEPDG deliberations under Exemption

5, the Court acknowledged that the records at issue were not typically "inter-agency" but that the

President and his White House advisors "surely must be briefed fully and frequently" on

policymaking matters. Id. at 130. Significantly, the Court first recognized that records submitted

by outside consultants upon solicitation by agencies, as part of the deliberative process, are

encompassed by Exemption 5, and then found that to compel disclosure of documents shared with
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or received from "a body established by the President solely to advise him, would be anomalous

indeed" with that precedent. Id. at 130-131. This ruling echoed the Supreme Court's finding in

EPA v. Mink that, where an advisory body was created specifically to advise the President on

policy issues, it would be "inconceivable" for Congress to have intended for Exemption 5 to apply

to decisionmaking processes where the decisionmaker was an agency official subject to

presidential oversight but not to decisionmaking processes where the decisionmaker is the

President himself. 410 U.S. at 130.

It is likewise inconceivable that Congress would have required the President to seek

advice from the private sector in order to inform his decisionmaking, and to share government

information in doing so, with the intent that such consultations would be disclosed under the

FOIA. In fact, the legislative record demonstrates that Congress considered this very scenario

with respect to the Trade Act of 1974, 19 U.S.C. § 2155, recognizing in the statute itself the need

for confidentiality in advisory committee consultations, and explicitly recognizing that these

confidential communications should not be disclosed under the FOIA. In the words of the Senate

Committee on Finance:

The Committee is aware that [the subparagraph limiting disclosure of advice


submitted in confidence by the private sector] would establish a limited statutory
exemption to the Freedom of Information Act, as amended. It is the view of the
Committee, however, that this exception is necessary due to the nature of the
information involved and the adverse impact which such information could have on
the ability of the United States effectively to carry out the multilateral trade
negotiations.

Senate Report No. 93-1298, reprinted in 93 U.S.C.C.A.N. at 7251; McCoy Decl. ¶¶ 51-68.

The "consultant corollary" to Exemption 5 was considered by the Supreme Court in

Department of Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 11 (2001). In
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Klamath, the Court implicitly recognized that communications with outside consultants may be

deemed part of an agency's deliberative process where those communications "played essentially

the same part in the agency's process of deliberation as documents prepared by agency personnel

might have done," id. at 10, but held that Exemption 5 did not encompass communications

between the Department of the Interior and several Indian tribes that, in making their views

known to the agency on certain matters of administrative decisionmaking, had "their own, albeit

entirely legitimate, interests in mind." Id. at 3. In so ruling, the Court emphasized the fact that the

Indian tribes were "seeking a Government benefit at the expense of other applicants." Id. at 12 &

n.4. Thus, the Court concluded that the Indian tribes, who were communicating with the

government as "self-advocates" for water rights at the expense of other applicants who were

seeking those same benefits, failed to qualify as government consultants and, therefore, failed to

satisfy Exemption 5's "intra-agency" or "inter-agency" requirement. Id. at 12. As such, records

submitted to the agency by the tribes as "outside consultants" did not qualify for deliberative

process privilege protection. Id. at 16.

There are two fundamental and telling distinctions between the facts in Klamath and those

relating to the communications between USTR and the cleared advisors of the ITAC-15 in the

instant case. First, unlike in Klamath, the ITAC-15 members are not competing for a government

benefit in their communications with USTR. The ITAC-15's discussions with USTR are in

furtherance of ongoing trade negotiations between the Government of the United States and the

Governments of Australia, Canada, the European Union and its Member States, Japan, Korea,

Mexico, Morocco, New Zealand, Singapore, and Switzerland. (See McCoy Decl. ¶¶ 51-68.) In

Klamath, Indian tribes sent information to the government agency in an effort to obtain a
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government benefit -- water resources -- to the detriment of other parties who were also

petitioning the government for the same benefit. 532 U.S. at 13. Collaborating with the Office of

the United States Trade Representative in its pursuit of an international trade agreement to combat

global piracy and counterfeiting does not involve "seeking a government benefit at the expense of

others." Id. at 12 & n.4. Second, unlike the Indian tribes in Klamath, the ITAC-15 is not simply

"self-advocating" on a matter of agency decisionmaking. Rather, the cleared advisors of the

ITAC-15 are acting, by statute, as advisors to USTR in representation of the very domestic trade

interests that negotiations of this nature are meant to promote. As Mr. McCoy explains:

USTR also consults with [ITAC-15] advisors, as required by statute. The President
is required to seek information and advice from representative elements of the private
sector with respect to, among other things, the development, implementation, and
administration of U.S. trade policy, including from advisory committees.

(See McCoy Decl. ¶¶ 51-68.) In implementing the Trade Act of 1974, Congress explicitly

recognized that the President must be able to "consult closely" with those affected most by trade

negotiations: the private sector of the U.S. economy. Senate Report No. 93-1298, reprinted in

1974 U.S.C.C.A.N. 7186, 7251. In turn, U.S. negotiators must obtain "vital information" to

inform their negotiations, or risk the success of their negotiations and even the future of the U.S.

trade negotiation program. See id. The U.S. Trade Representative is the President's principal

trade advisor and negotiator, and thus it is USTR which oversees international trade negotiations

on behalf of the President, forming issues for Presidential decisionmaking, see __, and it is USTR

negotiators who engage in the advisory committee consultations Congress required of the

President. (See McCoy Decl. ¶¶ 51-68.) Mr. McCoy, not only USTR's chief policy advisor on

intellectual property and trade issues, but an experienced negotiator himself, see McCoy Decl. ¶¶
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1-3, explains the critical nature of the advice USTR receives from the intellectual property

advisory group, the ITAC-15:13

Intellectual property is a highly technical and complex area of the law and an
important part of the U.S. trade agenda. The ITAC-15 provides valuable information
and technical expertise that allows USTR to more effectively address intellectual
property concerns around the world.

(See id. ¶¶ 51-68.) In its communications with USTR, the ITAC-15 is not angling for an

exhaustible government resource but, quite to the contrary, it is providing much-needed

"policy advice, technical advice and information, and advice on other factors," see 19

U.S.C. § 2155(c)(2), to the President's trade negotiating arm, USTR, in development of

the United States' position on the ACTA negotiations.

In a particularly instructive case, the United States District Court for the District

of Columbia, in Public Citizen, Inc. v. Dep't of Justice, considered a provision of the

Presidential Records Act which requires the Archivist of the United States to consult with

a former President on certain Presidential records and upheld the application of

Exemption 5 of the FOIA to communications extending beyond the Executive Branch,

where the need for such consultations is "not only explicit . . . but is mandated by statute."

111 F.3d at 170. The Court found that consultations under the Presidential Records Act

are precisely the type of communications that Exemption 5 was designed to protect

because, if an agency is to effectively deliberate, it should be able "enlist the help of

[skilled] outside experts." Id. at 171. USTR's communications with the ITAC-15 cleared

advisors fall squarely within the Court's analysis and, here too, the agency should be able

13
As stated above, advisors of the ITAC-15 include representatives from the software,
recording, movie, and publishing industries, as well as the Global Health Council, all of whom
receive security clearances from the government. (See McCoy Decl. ¶¶ 49-50.)
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to enlist the expertise of these industry representatives -- as they are mandated to do by

statute -- to effectively negotiate on behalf of United States interests.14 (See McCoy Decl.

¶¶ 51-68.)

For the foregoing reasons, the cleared advisors are acting "as agency personnel

would have done," see Klamath, 532 U.S. at 10, and defendant therefore respectfully

suggests that all of the withheld records in Groups 2, 3, 4, 6, 8, and 9 of its Vaughn Index

meet the threshold requirement of Exemption 5 of the FOIA.

B. USTR Properly Invoked the Attorney-Client and


Deliberative Process Privileges

Once the threshold requirement has been met, the inquiry turns to the application

of the appropriate discovery privileges by an agency withholding the records. In this

case, USTR withheld the records in Groups 2, 6, and 8 in full and in Groups 3, 4, and 9 in

part pursuant to two of the discovery privileges incorporated by Exemption 5: the

attorney-client privilege and the deliberative process privilege. (See Attach. E.)

Specifically, the records in Group 6 were withheld in full under the attorney-client

privilege,15 and the records in Groups 2, 3, 4, 6, 8, and 9 were withheld in full or in part

pursuant to the deliberative process privilege. (See id.)

14
It is important to note that the fact that the ITAC-15 members are expressing their
views on the ACTA does not mean that they are self-advocates in violation of Klamath. In a
recent decision, the United States Court of Appeals for the Tenth Circuit recognized that even
consultants with "deep-seated views" on the subject in question can meet the Exemption 5
threshold. See Stewart v. U.S. Dep't of the Interior, 554 F.3d 1236, 1245 (10th Cir. 2009); see
also Public Citizen, 111 F.3d at 171 (holding that the existence of independent interests does not
preclude withholding an outside consultant's communications under Exemption 5).
15
The records in Group 6 which were withheld in full under the attorney-client privilige
were also withheld, in part, under the deliberative process privilege.
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The courts have interpreted Exemption 5 as covering all records that would

normally be privileged in civil discovery, see, e.g., Sears, 421 U.S. at 149, including those

covered by the deliberative process privilege, see, e.g., Wolfe, 839 F.2d at 773, and the

attorney-client privilege, see, e.g., Sears, 421 U.S. at 154. The records USTR has

withheld from plaintiffs pursuant to Exemption 5 consist of: e-mails, in which authors

attach and discuss drafts of the as-yet unadopted ACTA text, and suggest, comment,

analyze, and advise on proposed language and specific provisions of the draft texts and

goals of the ACTA; the draft negotiating texts of the ACTA itself, which incorporates

back-and-forth proposals, comments, and analyses among agency staff made in the

process of creating and revising the drafts; e-mails in which USTR seeks, and receives,

the advice of agency counsel on proposed ACTA provisions; and other documents

regarding the ACTA negotiating process, including discussion papers, talking points,

draft "Questions and Answers," draft press releases, issue papers, charts detailing the

negotiating process, draft language, meeting details, draft ACTA proposals with

commentary and observations, and drafts presenting recommendations and options on the

ACTA process, many of which contain considerable handwritten notes made by USTR

staff. (See McCoy Decl. ¶¶ 51-68 & Attach. E.)

1. The Attorney-Client Privilege

As noted above, USTR has withheld the sixty pages contained in Group 6 of

defendant's Vaughn Index in full pursuant to the attorney-client privilege of Exemption 5

of the FOIA. (See id. ¶¶ 51-68 & Attach. E.)


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By incorporating the attorney-client privilege, Exemption 5 protects from

disclosure under the FOIA "confidential communications between an attorney and his

client relating to a legal matter for which the client has sought professional advice."

Mead Data, 566 F.2d at 252. This privilege exists because "sound legal advice or

advocacy serves public ends and . . . such advice or advocacy depends upon the lawyer's

being fully informed by the client." Upjohn Co. v. United States, 449 U.S. 383, 389

(1981). The privilege extends not only to facts supplied by the client to an attorney, but

the attorney's advice to the client that is reflective of those facts. See, e.g., id. at 390

(explaining that privilege protects information supplied to attorney in order for attorney to

provide "sound and informed advice"); Schlefer v. United States, 702 F.2d 233, 244 n.26

(D.C. Cir. 1983) (noting that privilege protects attorney's advice in order to protect

secrecy of underlying facts); Hollar v. IRS, No. 95-1882, 1997 WL 732542, at *3 (D.D.C.

Aug. 7, 1997) ("The attorney-client privilege encompasses information from a client to

his or her attorney and advice from an attorney to a client which reflects that

information").16

This privilege is not limited to "communications made in the context of litigation

or even a specific dispute, but extends to all situations in which an attorney's counsel is

sought on a legal matter." Coastal States Gas Corp. v. U.S. Dep't of Energy, 617 F.2d

854, 862 (D.C. Cir. 1980). Although the privilege "usually applies to facts divulged by a

16
When the client is an agency, as is frequently the case in the FOIA context, the
attorney-client privilege extends to communications between attorneys and all employees of the
organization who are involved in the process of providing information to agency counsel and
seeking advice based upon that information. See Upjohn, 449 U.S. at 392-97 (outlining contours
of privilege); Mead Data, 566 F.2d at 253 n.24; Alexander v. FBI, 198 F.R.D. 306, 314 (D.D.C.
2000) (citing Upjohn).
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client to his attorney, it also encompasses any opinions given by an attorney to his client

based upon those facts, as well as communications between attorneys which reflect client-

supplied information." Hunt v. United States Marine Corps, 935 F. Supp. 46, 53 (D.D.C.

1996). To prevail under the attorney-client privilege, the agency must establish that the

attorney-client communication was confidential and not disclosed publicly. See id.

"[C]onfidentiality may be inferred when the communications suggest that the government

is dealing with its attorneys as would any private party seeking advice to protect personal

interests." Coastal States, 617 F.2d at 863.

The documents withheld here under the attorney-client privilege, which are also

withheld in part under the deliberative process privilege, consist of e-mails, and

attachments thereto, exchanged between USTR employees and agency counsel. (See

McCoy Decl. ¶¶ 51-68.) In these communications, USTR attorneys are seeking advice

from agency counsel on draft negotiating texts in order to ensure the legality of certain

proposed actions regarding the ACTA. (See id.) The e-mails and their attachments

reflect the nature and substance of the advice USTR received from agency counsel, and

the confidential facts upon which this advice was based. (See id.)

These documents clearly meet the standards of the attorney-client privilege

because they reflect the confidential exchange of information regarding pending ACTA

negotiations between USTR negotiators and agency counsel, as well as agency counsel

advice on the ACTA proposals in light of this confidential information. (See id.) Where

such exchanges of confidential information and advice based upon this information
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between the agency-client and its counsel occurred, defendant appropriately withheld

these documents pursuant to the attorney-client privilege for two reasons.

First, they contain, or are based on and reflect, information that the client

organization -- USTR -- initially communicated as it sought legal advice. Second, as Mr.

McCoy amply demonstrates, the communications are confidential, and have remained so

at all times because they concern sensitive matters associated with the ACTA

negotiations. (See id.) Indeed, much of this material is also protected by Exemptions 1

and 3 of the FOIA. (See id. Attach. E.)

In light of the above, USTR respectfully submits that its invocation of the

attorney-client privilege, as incorporated into Exemption 5, was fully warranted in this

case.

2. The Deliberative Process Privilege

In addition to the attorney-client privilege, USTR has protected all of the

documents in Groups 2, 3, 4, 6, 8, and 9 pursuant to the deliberative process privilege.

(See id. ¶¶ 51-68 & Attach. E.)

The Supreme Court has held that Exemption 5 of the FOIA also incorporates the

deliberative process privilege, the ultimate purpose of which is to prevent injury to the

quality of agency decision-making. See Sears, 421 U.S. at 150-51. This privilege ensures

"that persons in an advisory role [are] able to express their opinions freely to agency

decision-makers without fear of publicity [that might] . . . inhibit frank discussion of

policy matters and impair the quality of decisions." Ryan, 617 F.2d at 789-90. For this

reason, the deliberative process privilege protects the consultative functions of the
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government by preserving the confidentiality of opinions, recommendations, and

deliberations that comprise part of the process by which government decisions are made

and government policies are formulated, and by protecting government agencies from

being "forced to operate in a fishbowl." Wolfe, 839 F.2d at 773; see also Mapother v.

DOJ, 3 F.3d 1533, 1537 (D.C. Cir. 1993).

To invoke the deliberative process privilege, an agency must first show that the

protected information is predecisional, i.e., that it preceded any final agency policy on the

matter it addresses. Coastal States, 617 F.2d at 866. The agency need not identify a

specific final agency decision; rather, it is sufficient to establish "what deliberative

process is involved, and the role played by the documents in the course of that process."

Id. at 868. Second, an agency must demonstrate that the withheld information is

deliberative, i.e., that it makes recommendations or expresses opinions on matters facing

the agency. See id. at 866; see also Mapother, 3 F.3d at 1537. This privilege "covers

recommendations, draft documents, proposals, suggestions, discussions, and other

subjective documents" that reflect "the give-and-take of the consultative process."

Coastal States, 617 F.2d at 866.

The documents withheld by USTR meet both of these requirements. As noted

previously, these documents reflect the collaboration between USTR and other Executive

Branch agencies, and between USTR and the cleared advisors, in the course of

negotiating and drafting the ACTA. (See McCoy Decl. ¶¶ 51-68.) The withheld

information contains drafts and edits, commentary on drafts, and e-mail discussions about

drafts, discussion papers, talking points, draft "Questions and Answers," draft press
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releases, issue papers, charts detailing the negotiating process, draft language, and

meeting details, many of which contain considerable handwritten notes made by USTR

staff, as well as extensive back-and-forth consultation on contemplated positions and

their effects on U.S. interests. (See id. ¶¶ 51-68 & Attach. E.) It is essential to the

successful negotiation of trade agreements that USTR have the ability to engage in fully

candid, in-depth, predecisional exchanges with other agencies and with cleared advisors

in order to obtain the full benefit of their legal and policy expertise. (See id. ¶¶ 51-68.)

Documents that contain recommendations and predecisional deliberations

regarding an ongoing drafting and negotiating process are clearly protected by the

deliberative process privilege, as they reflect the "give-and-take" of the decisionmaking

process and readily qualify for Exemption 5 protection as predecisional and deliberative.

See Coastal States, 617 F.2d at 866. Furthermore, a key consideration, in applying the

deliberative process privilege, is the need to protect the integrity of the deliberative

process itself. See Bureau of Nat'l Affairs, Inc., 742 F.2d at 1497. Disclosure of the type

of information withheld by USTR, especially inasmuch as it relates to the drafting and

development of an as-yet unadopted negotiating text, could reasonably be expected to

inhibit an agency's decisionmaking process, as agency officials and cleared advisors

would be less inclined to provide their frank written recommendations to their colleagues

if they had to be concerned about public disclosure. See Marzen v. HHS, 825 F.2d 1148,

1155 (7th Cir. 1987) (finding that Exemption 5 "protects not only the opinions, comments

and recommendations in the draft, but also the process itself"); Gerstein v. CIA, No. 06-

4643, 2008 WL 4415080, at *16 (N.D. Cal. Sept. 26, 2008) (protecting draft letters);
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Donham v. U.S. Forest Service, No. 07-111, 2008 WL 2157167, at *5 (S.D. Ill. May 21,

2008) (finding draft documents to be "precisely the kind of documents that Exemption 5

and the deliberative process privilege seek to protect from disclosure").

In sum, all of the information in Groups 2, 3, 4, 6, 8, and 9 withheld by USTR

pursuant to the attorney-client and deliberative process privileges, as incorporated by

Exemption 5, are clearly the type of information intended to be covered by these

privileges and this exemption. Therefore, USTR respectfully submits that its use of

Exemption 5 to withhold these records was appropriate.

V. USTR Provided Plaintiffs with All Reasonably Segregable


Portions of the Responsive Records

The FOIA imposes an obligation on agencies to release any reasonably segregable

portions of records. See 5 U.S.C. § 552(b); see also Billington v. DOJ, 233 F.3d 581, 586

(D.C. Cir. 2000) (explaining that "[t]his segregability requirement limits claims of

exemption to discrete units of information; to withhold an entire document, all units of

information in that document must fall within a statutory exemption"); Trans-Pacific

Policing Agreement v. U.S. Customs Serv., 117 F.3d 1022, 1027 (D.C. Cir. 1999) (stating

that "[i]t has long been a rule in this Circuit that nonexempt portions of a document must

be disclosed unless they are inextricably intertwined with exempt portions"). Agency

affidavits are sufficient for segregability purposes where they "'show with reasonable

specificity why the documents fall within the exemption.'" Quinon v. FBI, 86 F.3d 1222,

1227 (D.C. Cir. 1996) (quoting Hayden v. NSA, 608 F.2d 1381, 1387 (D.C. Cir. 1979)).

USTR fulfilled these requirements by conducting a review of each page of the

responsive records at issue, and has determined that all reasonably segregable information
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-42-

has been disclosed to plaintiffs. (See Maruyama ¶ 9; McCoy ¶¶ 39-46,51-68.) In fact,

USTR has obtained the consent of participating governments to release certain ACTA

documents, such as agendas and the confidentiality agreement itself, to the public, and

consulted extensively with other agencies in order to release any non-exempt information

to plaintiffs. (See Maruyama ¶ 9; McCoy ¶¶ 39-46,51-68.) USTR has also made a

discretionary release of thirty-six pages pursuant to its April 30, 2009 supplemental

response to plaintiffs.17 (See McCoy ¶¶ 39-46; 51-68.)

17
This supplemental disclosure included a document prepared by USTR for the TPSC to
launch the ACTA negotiations, the first time a "TPSC paper" has been released. (See McCoy
Decl. ¶ 27.)
Case 1:08-cv-01599-RMC Document 13 Filed 05/29/2009 Page 57 of 57

-43-

Conclusion

For the foregoing reasons, and based upon the entire record herein, defendant

respectfully submits that its motion for summary judgment should be granted.

Respectfully submitted,

JEFFREY A. TAYLOR
(DC Bar #498610)
United States Attorney

RUDOLPH CONTRERAS
(DC Bar #434122)
Assistant United States Attorney

/s/
Dated: May 28, 2009 Vanessa R. Brinkmann
Attorney-Advisor
Office of Information Policy
United States Department of Justice
1425 New York Ave., N.W., Suite 11050
Washington, D.C. 20530-0001
(202) 616-5462
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ATTACHMENT A
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ATTACHMENT B
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UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER )
FOUNDATION, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-1599 (RMC)
)
OFFICE OF THE UNITED STATES )
TRADE REPRESENTATIVE, )
)
Defendant. )
____________________________________)

I, Stanford McCoy, declare and state as follows:

1. I am the Assistant United States Trade Representative ("AUSTR") for Intellectual

Property and Innovation. USTR is responsible for developing and coordinating U.S.

international trade, commodity, and direct investment policy, and overseeing negotiations with

other countries. The head of USTR, the U.S. Trade Representative, serves as the President’s

principal trade advisor, negotiator, and spokesperson on trade issues. USTR is part of the

Executive Office of the President. Through an interagency structure, USTR coordinates trade

policy, resolves disagreements, and frames issues for presidential decision.

2. I have been the AUSTR for Intellectual Property and Innovation since March 2, 2008. In

my current position, I am the chief policy advisor to the USTR and the Administration agencies

on intellectual property and trade issues and am responsible for developing and implementing

United States trade policy on intellectual property rights (“IPR”). From 2006-2008, I served as

Chief Negotiator and Deputy Assistant U.S. Trade Representative for Intellectual Property
Case 1:08-cv-01599-RMC Document 13-3 Filed 05/29/2009 Page 2 of 48

Enforcement in the Office of Intellectual Property and Innovation at USTR. I personally headed

the U.S. delegation at the first four rounds of the Anti-Counterfeiting Trade Agreement

(“ACTA”) negotiations, and at several preliminary meetings before the negotiations started. I

am now responsible for supervising all trade negotiations on intellectual property matters,

including the ACTA negotiations. My experience as a negotiator and, more specifically, as the

chief ACTA negotiator for the United States places me in a position to determine the potential

harm of releasing records related to the negotiation.

3. I am an Original Classification Authority, as designated by the USTR pursuant to an

assignment of authority from the President under Executive Order 12,958, as amended by

Executive Order 13,292 ("the E.O."). I make the following statements based on my personal

knowledge, which in turn is based on a personal review of the records in the case file that USTR

established to process the FOIA request in this case, and on information furnished to me in the

course of my official duties.

4. USTR provided 159 pages of records to Electronic Frontier Foundation (“EFF”) in

response to its FOIA request on November 14, 2008, and January 16, 2009. USTR withheld

1,362 pages of records. USTR subsequently reexamined all of the records withheld in light of a

memorandum issued by the Attorney General on March 19, 2009, to heads of executive

departments and agencies regarding the evaluation of records for potential release to the public

(“Attorney General Holder’s FOIA Guidelines”). The reexamination was conducted after

consultations between my office, the USTR FOIA Office, and the Office of the General Counsel

("OGC"). My declaration also addresses the reexamination of the records in question and

2
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supplements, and incorporates by reference, the January 16, 2009, declaration of former General

Counsel Warren Maruyama (“Maruyama Declaration”) regarding the classification of documents.

After a comprehensive review, I found no reason to retract or revise any of the conclusions or

statements by former General Counsel Maruyama. However, in light of Attorney General

Holder's FOIA Guidelines, USTR did release some additional records to EFF. Upon further

review, we also now assert an additional exemption for certain records previously withheld. In

an effort to respond to requests for increased transparency regarding the ACTA negotiations,

USTR and its negotiating partners released to the public a summary of issues under consideration

in the ACTA negotiations.

5. I determined that the records reviewed and addressed in the Maruyama Declaration must

continue to be protected as classified under the E.O. as they contain Foreign Government

Information and would damage national security if released, for the reasons discussed in this

Declaration. I also have determined that releasing records reflecting interagency communications

and communications with members of a federally chartered private sector advisory committee

would be harmful. Finally, I have determined that contact information for employees of the

Executive Office of the President should also continue to be withheld.

I. BACKGROUND

A. ACTA

6. In order to understand the elements and response to the FOIA request at issue, a brief

summary of the ACTA is appropriate. Global counterfeiting and piracy has been a growing trade

3
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policy concern for the United States and many of our trading partners. In order to address this

concern, USTR has made it a priority to work closely with U.S. trading partners to ensure that

they provide strong intellectual property enforcement regimes. For example, USTR was among

the leaders in the effort to include enforcement provisions in the World Trade Organization’s

Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”)

during the Uruguay Round of global trade negotiations, the results of which entered into force in

the United States in 1995. At the direction of Congress, USTR also has reported annually for the

past 20 years on the adequacy and effectiveness of IPR protection and enforcement by U.S.

trading partners.

7. While the TRIPS Agreement sets basic requirements for WTO members to enforce their

IPR laws, governments and rightholders face many new challenges, such as the speed and ease of

digital reproduction, and the growing sophistication and resources of international counterfeiters.

In the view of the United States and a number of its trading partners, these challenges call for a

level of international cooperation and commitment that goes beyond the minimum standards of

the TRIPS Agreement.

8. The United States has pursued a number of trade policy initiatives aimed at addressing

the problems of counterfeiting and piracy. For example, the United States has concluded

multiple free trade agreements (“FTAs”) that include strong IPR enforcement provisions similar

to U.S. law. Also, in October 2004, the United States began the Strategy Targeting Organized

Piracy (“STOP”) Initiative, which called for efforts by multiple agencies to fight counterfeiting

and piracy. In the area of trade policy, STOP called for reaching out to trading partners and

4
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building international support to block bogus goods. As part of that effort, in 2005 USTR led

interagency teams to meet with key trading partners to advocate closer cooperation in fighting

piracy and counterfeiting, and to advocate sharing of “best practices” for strong legal

frameworks.

9. Building on these efforts, USTR in May 2006 encouraged the interagency Trade Policy

Staff Committee (“TPSC”), a committee representing the interests of twenty U.S. government

agencies, to endorse the concept of a multi-party, "TRIPS-plus" ACTA. In particular, USTR

proposed that a group of leading IPR-protecting nations could work together to set a new

standard for IPR enforcement that was better suited to contemporary challenges, both in terms of

strengthening the relevant laws and in terms of strengthening various frameworks for enforcing

those laws. The interagency TPSC concurred with USTR's recommendation that USTR begin

contacting trading partners to join a plurilateral ACTA.

10. USTR began by approaching the Government of Japan, which had expressed interest. By

2007, discussions were underway among an initial group of interested parties, including Canada,

the European Union, and Switzerland, Japan and the United States, regarding areas that might be

addressed in an eventual agreement. Over time, the group grew to include Australia, the

Republic of Korea, Mexico, Morocco, New Zealand, and Singapore. To date, the group has held

four rounds of negotiations. On April 6, 2009, the ACTA parties released a summary of the

issues currently under consideration.

B. CONFIDENTIALITY AGREEMENT

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11. In order to promote the most productive negotiating environment amongst the ACTA

trading partners, the ACTA parties decided to conclude a confidentiality agreement applicable to

the negotiations was needed. Therefore, in my review of the records I took that agreement into

consideration with respect to § 6.1 (r)(2) of the E.O. as well as Attorney General Holder's FOIA

Guidelines. This agreement was explicit in its direction and intent. It states:

First, we agree that documents relating to the proposed Anti-Counterfeiting Trade


Agreement (ACTA) will be held in confidence. This means that the documents
may be given only to government officials or persons outside government who
participate in the party's domestic consultation process and 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. The United States plans to hold ACTA documents in
confidence for a fixed period of time after negotiations conclude . . . .

12. Based on my personal knowledge of the records that USTR has withheld in this case and

how they were received and handled, I can confirm that e-mails and shared negotiating records

were provided to USTR by the governments of our trading partners as a result of a mutually

agreed confidentiality agreement and were treated as Confidential Foreign Government

Information. As a result, I concluded the records withheld would cause harm to national security

if released, for the reasons discussed in this Declaration.

C. FORMULATION OF DRAFT TEXTS

13. After adopting the confidentiality agreement, the ACTA trading partners began creating a

working text of the agreement. In my experience, of paramount importance to a successful

negotiation is an environment in which negotiating partners can exchange ideas, draft texts, draft

comments on texts, and other negotiating records, with the understanding that these exchanges

6
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will be held in confidence. When negotiating partners function in an environment of confidence,

they are freer to engage in the give-and-take that is necessary to reach a successful conclusion. As

explained in the Maruyama Delcaration, successful negotiations are grounded in trust among the

negotiators, and any breach of that trust can lead to a situation in which negotiating partners are

more likely to adopt and maintain rigid negotiating positions that are unfavorable to U.S.

economic interests.

14. In order to develop the U.S. positions in trade negotiations, USTR engages in an extensive

consultative process with other relevant federal agencies. Based on its experience negotiating free

trade agreements and conducting multilateral intellectual property negotiations, USTR has

identified those agencies that have key interests in each major issue area under negotiation.

USTR consults with those agencies to prepare a draft text that is then circulated to the interagency

TPSC. In response, agencies may offer comments on the draft text, leading to an additional round

of drafting within USTR. It is essential for USTR to have the ability to engage in candid, in-

depth, predecisional exchanges with these agencies in order to obtain the full benefit of their legal

and policy expertise.

15. USTR also consults with an additional set of advisors, as required by statute. By law, the

President is required to seek information and advice from representative elements of the private

sector with respect to, among other things, the development, implementation, and administration

of U.S. trade policy, including from advisory committees. By statute, this information and advice

may be held in confidence, to be disclosed upon request to specified government officials and

other advisory committees. (19 U.S.C. 2155(g)). The relevant legislative history for this statute

7
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reflects the view that this advice is exempt from disclosure under FOIA. (Senate Report No. 93-

1298, reprinted in 93 USCCAN at 7251).

16. To implement Section 2155(g), the President established a comprehensive industry trade

advisory committee (ITAC) system, with subcommittees devoted to specific areas. One

committee, ITAC-15 addresses IPR. Intellectual property is a highly technical and complex area

of the law and an important part of the U.S. trade agenda. ITAC-15 provides valuable information

and technical expertise to USTR that allows USTR to more effectively address intellectual

property concerns around the world. ITAC members have security clearances. (We therefore

refer to them as our “cleared advisors”.) Members of ITAC-15 include representatives from the

software, recording, movie, and publishing industries, as well as the Global Health Council. To

solicit views from ITAC members, USTR posts documents on a secure website, and individual

members can access the documents and provide comments directly to individual USTR officials.

ITAC comments may range from technical comments on wording choices in draft negotiating

texts to overall U.S policy on trade-related IPR issues.

17. In the case of ACTA, the President, through USTR, solicited views from the ITAC-15

advisors, including by posting draft ACTA negotiating texts on the secure website and inviting the

advisors to provide comments on the texts. Advisors from other advisory committees, including

representatives from public interest groups such as Consumers Union, also have access to these

texts, and some members of the advisory committees have provided comments.

18. Section 2155(g) specifies that “[p]rivate organizations or groups, including those whose

interests may not be fully represented by any of the formally constituted advisory committees”

8
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have the “opportunity to submit pertinent information and recommendations on an informal basis

to U.S. negotiators.” (19 U.S.C. 2155(j)). To ensure that these groups have an opportunity to

submit their views on the ACTA, USTR issued a Federal Register notice on February 15, 2008,

inviting public comment on the ACTA, and numerous organizations, including Plaintiffs,

submitted comments. USTR posted these comments on its website. In addition, USTR has held

meetings with interested groups at their request. USTR has met with a wide range of companies,

trade associations, and non-governmental organizations (including both EFF and Public

Knowledge). USTR also held a public meeting on ACTA on September 22, 2008. USTR

announced that meeting through a Federal Register notice published on September 5, 2008.

USTR again solicited public comments in the September 5 notice, and again posted the comments

received on the USTR web site. USTR has considered the diverse points of view of these various

stakeholders in formulating policy relating to ACTA.

II. ADMINISTRATIVE HISTORY OF THE FOIA REQUEST

19. A chronology and the history of the FOIA request, our search, and our response is

provided to put this matter in context.

20. On June 11, 2008, Plaintiffs submitted a FOIA request to USTR. On July 24, 2008, after a

conversation with USTR staff, Plaintiffs filed a modified request that narrowed the scope of the

records sought.

21. On September 17, 2008, Plaintiffs filed a complaint with this Court under FOIA,

requesting injunctive, declaratory, and other relief.

9
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22. On November 14, 2008, we filed our response. We disclosed 54 records. Some of these

records disclosed were protected by the confidentiality agreement we reached with the other

ACTA negotiating partners. However, after reviewing the documents carefully, we considered

that, from the U.S. point of view, release of some of the documents would not harm the

negotiations. In light of the confidentiality agreement, we consulted with our partners and asked

them to agree to release the records in question, and they agreed. We stated that we were awaiting

third party responses to determine whether additional documents could be released. We also

advised that we would prepare a final response and indicate any records we were withholding and

the reason for doing so. (See Attachment (A)).

23. On December 22, 2008, we filed an interim response. Based on a review of 806 pages of

records. We withheld 313 pages of records in full based on Exemption 1 of the FOIA

regulations1. We also withheld 186 e-mail chains, totaling 493 pages, in full based on Exemption

5, noting that Exemption 1 might also apply to these pages. Finally, we noted that to the extent

the withheld records contained private e-mail addresses, such information was also protected by

Exemption 6. We advised Plaintiffs that we would be filing a final response. (See Attachment

(B)).

24. On January 16, 2009, we filed our “final response.” We disclosed an additional 14 pages

of records, four of which were redacted pursuant to Exemptions 5 and 6. In addition, we noted

that 580 pages were withheld in full pursuant to Exemption 1, as well as Exemption 5. We did

1
5 U.S.C. § 552 (2000 & Supp. IV 2004) (citing Exemptions 1, 2, 3, and 5 throughout the
Declaration that allow for the protection of material from disclosure to the public).

10
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not include in these totals any pages of records that were non-responsive. (See Attachment (C)).

25. On January 30, 2009, at the request of plaintiffs, we asked that these proceedings be stayed

until we received further guidance from the Justice Department on President Obama’s FOIA

memorandum of January 21, 2009. On February 3, 2009, the Court agreed.

26. On March 19, 2009, Attorney General Holder’s FOIA Guidelines were released to heads

of executive departments and agencies providing guidance as to how such departments and

agencies should evaluate releasing records under FOIA. In particular, the memorandum specified

that the Department of Justice would defend withholding records under FOIA only if the agency

“reasonably foresees” that disclosure would harm an interest protected by one of the statutory

exemptions, or that disclosure is contrary to law. After Attorney General Holder’s FOIA

Guidelines were issued, we conducted a de novo review of all of the records, including e-mails,

that we had withheld or withheld in part. In the course of this review, we had extensive

discussions within USTR (including three meetings at the senior staff level), with our interagency

colleagues, and with our cleared advisors with a view toward assessing the harm of releasing

certain records that had previously been withheld. Where an objection was raised to releasing a

particular record, we evaluated whether the harm in releasing the record was speculative or

foreseeable and whether the record could be redacted in such a manner as to mitigate the harm.

27. As a result of that review, on April 30, we released an additional 36 pages of records as a

matter of agency discretion. As part of that release package, we released certain types of records

that the agency had previously considered inappropriate for release. For example, we released,

with redactions, a paper that USTR had prepared for the interagency TPSC to launch the ACTA

11
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negotiations. Although much, if not all, of the information released was interagency discussion

prior to the finalization of draft text, we concluded that releasing the unredacted portions of the

TPSC paper would not hamper the negotiations or the impair future interagency deliberations.

(See Attachment (D)).

28. The records we continue to withhold are described in the attached Vaughn index. (See

Attachedment (E)).

III. THE SEARCH FOR RESPONSIVE RECORDS

29. In order to respond fully to the FOIA request, USTR took into account the formulation of

draft texts and how they were communicated, negotiated, and compiled. After a comprehensive

search, USTR located hard copies of records responsive to the request. With respect to the

electronic search for e-mails, USTR initially searched for all records containing the term “ACTA”

and that search yielded some 30,000 records. Through counsel, we advised Plaintiffs on

November 7, 2008 of the size of the search. We proposed refining the search by using the terms

“text”, “civil”, “criminal”, “internet”, and “border” in the subject lines of the e-mails and further

proposed that, once the search was complete, USTR would review the results for responsiveness

and the application of FOIA exemptions. Plaintiffs generally agreed with this approach, but asked

that the terms “statutory damages” and “anti-circumvention” be included in the search. USTR

also included the terms “TPM” and “damages.” Using all of these terms, USTR's search yielded

1,368 records.

30. To identify those records containing Foreign Government Information, my staff and I

12
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searched the located records for e-mail addresses that ended with foreign government e-mail

extensions (e.g. ".jp") and initiated several electronic and manual scans to search for references to

individual foreign government participants in the ACTA negotiations. These procedures yielded

65 records that we identified as being received from, and exchanged with, foreign participants in

the ACTA negotiations. In addition to the 65 e-mail records, my staff and I, working with the

USTR FOIA Office and USTR’s OGC, reviewed 106 paper records. We then reviewed each of

the records to determine whether the records contained Foreign Government Information and

whether the records contained any segreable information that could be released.

31. USTR also reviewed the records to identify any interagency communications and

communications with industry, including industry representatives on our advisory committees.

IV. RECORDS WITHHELD UNDER 5 U.S.C. § 552 (b)(1) (Exemption 1)

32. USTR has withheld certain records because they contain classified "Foreign Government

Information." These records consist of negotiating documents, including draft negotiating

proposals and records in support of such proposals, and associated e-mail messages that USTR

negotiators and attorneys received from or transmitted to officials, including foreign government

officials, in the course of planning for and carrying out negotiations to conclude the ACTA.

33. Before circulating formal textual proposals in the ACTA negotiations, the United States

and the other governments participating in the negotiations concluded a written agreement based

on a U.S. proposal of December 2007 ". . . that documents relating to the proposed

Anti-Counterfeiting Trade Agreement (ACTA) will be held in confidence." The U.S. proposal

13
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was prepared by USTR's Office of the General Counsel, at my request, based on my

understanding of the confidentiality expectations of our ACTA trading partners as conveyed in

preliminary discussions with them as well as similar U.S. expectations. I personally negotiated

the confidentiality agreement.

34. Then-USTR General Counsel Warren Maruyama classified the ACTA negotiating texts

that USTR produced and received based on this agreement. Mr. Maruyama issued a

memorandum to U.S. ACTA negotiators on February 8, 2008, noting that the governments

participating in the ACTA negotiations had agreed to hold records exchanged in the course of

those negotiations in confidence. In the memorandum, Mr. Maruyama determined that all such

records were to be classified as Confidential Foreign Government Information.

35. The records that USTR has withheld on the basis that they contain Foreign Government

Information reflect information that USTR negotiators and attorneys sent to or received from

other governments in the course of the ACTA negotiations. USTR negotiators marked as

“Confidential” all textual proposals sent to other ACTA participants at the time they were

prepared. After a reexamination, I confirm that these records continue to warrant classification at

the “Confidential” level, in as much they contain Foreign Government Information and could be

expected to cause harm to national security if released, for reasons discussed in this Declaration.

36. USTR's analysis of the classified information contained in the withheld records is based on

the standards articulated in the FOIA statute, 5 U.S.C. § 552 (b)(1), and the E.O. USTR's OGC

provided legal guidance in connection with this review and for purposes of ensuring that the

records containing classified information were all properly marked in accordance with the E.O.

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procedures.

A. REEXAMINATION OF STATUS OF “FOREIGN GOVERNMENT INFORMATION ”

37. Furthermore, in reviewing these ACTA records, I personally verified that OGC determined

that the records were properly classified. I reexamined these classified records and assessed

whether any were appropriate for declassification and/or release and confirmed they contained

Foreign Government Information. I verified that OGC had determined that the requirements of

the E.O. were met and that any reasonably segregable portion of these classified records, which

did not meet the standards for classification, was declassified and marked for release, unless

withholding was otherwise warranted under applicable law.

38. After a reexamination, I have determined that all of the records withheld from the

Plaintiffs should remain classified as "Foreign Government Information" under category 6.1(r)(1)-

(2) of the E.O. “Foreign government information” means:

(1) information provided to the United States Government by a foreign government or

governments, an international organization of governments, or any element thereof, with the

expectation that the information, the source of the information, or both, are to be held in

confidence;
(2) information produced by the United States Government pursuant to or as a result of a

joint arrangement with a foreign government or governments, or an international

organization of governments, or any element thereof, requiring that the information, the

arrangement, or both, are to be held in confidence;...

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B. REEXAMINATION IN LIGHT OF THE HOLDER GUIDELINES

39. In addition, considering whether particular records contained classified Foreign

Government Information, my own review also carefully considered the impact that disclosure of

particular records containing Foreign Government Information would have on the foreign

relations of the United States. I determined the records should remain classified due to the

potential harm if released for reasons discussed in this Declaration.

40. Based on longstanding practice, foreign governments expect that we will hold in

confidence the negotiating texts - including requests, offers, position papers, and analyses that we

exchange with them. Foreign governments are not likely to engage in the give-and-take necessary

to conclude agreements with us if we do not keep these records confidential.

41. Specifically, as a trade negotiator, I considered the potential harm to U.S. objectives in the

ACTA negotiations. The objective of the ACTA negotiations is to negotiate a new, state-of-the

art agreement to combat counterfeiting and piracy. As noted, the United States has been working

with several trading partners, including Australia, Canada, the European Union and its 27 member

states, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, and Switzerland, to

negotiate the agreement. When it is finalized, the ACTA is intended to assist in the efforts of

governments around the world to more effectively combat the proliferation of counterfeit and

pirated goods, which undermine legitimate trade and the sustainable development of the world

economy, and in some cases contribute to organized crime and expose American families to

dangerous fake products.

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42. The aforementioned confidentiality arrangement with our ACTA partners prohibits us

from unilaterally disclosing ACTA negotiating records including proposals we have submitted to

them. Based on my personal knowledge of trade negotiations, in general, and the ACTA

negotiations, in particular, I am confident that a unilateral disclosure would have several

consequences that would be harmful to U.S. interests.

43. I also am confident that a unilateral disclosure would undermine trust in our reliability as a

negotiating partner in the ACTA negotiations, and raise questions about the willingness or ability

of the United States in other negotiations to keep sensitive U.S. or foreign negotiating positions

confidential. In the absence of mutual trust, I expect that our negotiating partners will be more

likely to adopt and maintain rigid negotiating positions unfavorable to U.S. economic and security

interests, significantly reducing the prospects for compromise and eventual agreement on terms

favorable to the United States. Even if we limit the records we release to our own proposals, I

expect that our negotiating partners may well view such a disclosure as an unfair effort to entrench

our positions by generating domestic pressure to resist giving ground. That, in turn, could cause

U.S. negotiating partners to adopt similar tactics, dimming prospects for compromise and eventual

agreement.

44. On the other hand, we can reinforce mutual trust, and potentially advance U.S. goals in

the negotiations, by working cooperatively with our partners to release information on a consensus

basis. Our mutual release of the ACTA summary on April 6 reflects such a cooperative approach.

The summary represented the most comprehensive joint effort to date of all of the participants in

the negotiation to provide information on the ACTA to the public. In connection with the release

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of the summary, USTR issued a public statement noting that the release reflected the Obama

Administration's commitment to transparency.

45. Further, the agreement that governments reached to preserve the confidentiality of records

exchanged in the course of the ACTA negotiations is designed to enable officials of participating

governments to engage in frank exchanges of views, positions, and specific negotiating proposals.

The confidential nature of those exchanges will facilitate the resolution of differing national

interests and perspectives and will lay the groundwork for an eventual agreement.

46. A unilateral release with redactions would still cause foreseeable harm to national security,

for reasons discussed in this Declaration. Even if documents were to be released, without

identifying the originating government, the danger remains that if the information were to be

made public, the originating government would likely recognize the information as material it

supplied in confidence, and view its unilateral release as a breach of trust. Thereafter, foreign

governments would be reluctant to entrust the handling of their information to the discretion of

the United States. One could reasonably expect strained relations between the United States and

the foreign governments, leading to diplomatic, political, or economic repercussions. A breach of

the relationship of trust between the U.S. and foreign governments could be expected to have a

chilling effect at the least on the free flow of vital information.

V. RECORDS WITHHELD UNDER 5 U.S.C. SECTION 552(b)(2) (“Exemption 2")

47. We are withholding e-mail addresses and other contact information for individual USTR

staff members, as well as the telephone bridge line for the agency and applicable conference call

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participant code, pursuant to Exemption 2, which exempts from mandatory disclosure records that

are related to solely to the internal personnel rules and practices of an agency. USTR is part of the

Executive Office of the President (“EOP”) and its e-mail services are provided by the Office of

Administration of the EOP. All EOP offices use the same e-mail format. The release of e-mail

addresses of USTR employees would not only cause harm by subjecting USTR employees to a

barrage of unsolicited e-mails, but would also reveal how one could send e-mails to any

employees within the EOP, including White House employees, based on only knowing an

employee’s name. Further, release of telephone information could lead to the EOP's

computer/phone systems being overwhelmed, or harassment which would prevent USTR staff

from carrying out essential business, all of which would be harmful.

48. The EOP is uniquely susceptible to these harms, and therefore the EOP protects contact

information.

VI. DOCUMENTS WITHHELD UNDER 5 U.S.C. SECTION 552(b)(3) (“Exemption 3")

49. The communications we have received from our cleared advisors are being withheld

pursuant to Exemption 3. The Trade Act of 1974, which establishes the advisory system, provides

for information or advice regarding trade policy or negotiations to be submitted in confidence to

the U.S. government or to an advisory committee and specifies the circumstances under which

that information or advice can be disclosed. (19 U.S.C. 2155(g)). Section 2155(g) provides that

the information or advice may be disclosed to certain government officials, certain Congressional

officials, and the advisory committees themselves. In its report on the 1974 Trade Act, the Senate

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Finance Committee stated that this limitation on disclosure establishes an exemption from FOIA,

expressing the view that the exception was necessary, given the nature of the information and its

importance to the ability of the United States to negotiate in an effective manner. In light of the

statutory and legislative background, USTR has implemented, and the cleared advisors have

participated in, this advisory system with an understanding that communications exchanged would

be held in confidence.

50. The records in question were communications from advisors on ITAC-15 sent to USTR

based on a number of ACTA negotiating documents that USTR posted on the secure cleared

advisor website. After reviewing the documents, a number of the cleared advisors provided

USTR with comments on those documents, and in some cases, on the negotiations more broadly.

These comments assisted us in revising text and considering alternative policy choices as the

negotiations moved forward. We value the technical and policy expertise of our cleared advisors

on ITAC-15, many of whom represent industries severely affected by IPR violations. It should be

noted that our cleared advisors may also respond in a public fashion to USTR’s Federal Register

notice seeking public comments on ACTA negotiations. Therefore, they have already shared with

the public the views they considered appropriate to so share. To release the communications they

sent to USTR in confidence would discourage them from providing candid advice through the

cleared advisor system, contrary to Congress’ express view that such advice is a necessary

component of having trade negotiations that achieve U.S. objectives.

VII. RECORDS WITHHELD UNDER 5 U.S.C. SECTION 552(b)(5) (“Exemption 5")

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51. The records we are withholding under Exemption 5 are of two types. The first type is

communications with other agencies. These agencies are: the Department of Commerce, the

Department of Homeland Security, the Department of Justice, the Department of State, the

National Security Council, and the Library of Congress.

52. The second type involves communications with our cleared advisors pursuant to the

Congressionally-mandated industry advisory committee. As described above, Congress requires

the President to seek policy, technical, and other advice from, among others, our industry advisory

committee. Congress requires USTR to do so to “the maximum extent feasible . . . before the

commencement of negotiations.” Accordingly, during the ACTA negotiations, we have submitted

draft negotiating texts for consideration by members of an advisory committee, and they have

provided us confidential advice in response.

53. My staff, and OGC and I reviewed all records carefully to determine whether any could be

released, including release in part. Where we identified such records, we consulted with the

author on the release of the record.

54. The records being withheld fall into nine categories, as reflected in the Vaughn Index.

Attached to this declaration is the Vaughn Index containing a detailed description of the withheld

documents. Because certain records are similar to one another, we have categorized them into

nine distinct groups. The Vaughn Index describes the responsive documents contained in each

group, including such information as the date and the general content of the material, provides the

number of pages for each group, and identifies the Exemptions and/or privileges – Exemptions 1,

2, 3, and 5 (deliberative process and attorney-client privileges) – which protect each group from

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full or partial disclosure under the FOIA. For six of these categories, we are claiming Exemption

5, in full or in part.

Group 2

55. This category includes e-mail chains among interagency colleagues involved in the ACTA

negotiations. The authors attach and discuss drafts of the as-yet unadopted ACTA text. The

authors also suggest and comment on proposed language and discuss their analyses of specific

provisions of the draft texts. These records are deliberative because they discuss the appropriate

language to be used in draft text. These comments explore proposed text, including providing

advice on what text should be included, what text should be deleted, or whether different phrasing

should be used. For example, such material can reveal the existence of questions or divergent

viewpoints that were appropriately considered internally before reaching a consensus U.S.

Government position, but the existence of which could undermine that U.S. consensus position, if

disclosed to trading partners who disagree with the U.S. position

56. For the most part, however, these communications are limited to discussions of proposed

text. These discussions occurred prior to deciding what text the United States would agree to

propose in connection with a particular negotiation, and in some cases involve text that the United

States decided not to propose. Releasing records would weaken the ability of USTR to speak with

one voice on behalf of the U.S. Government, for example by exposing divergent preliminary

views among and within agencies over the optimal phrasing of particular obligations, or

preliminary differences about how to handle a particular issue. Releasing these records would

also harm USTR’s ability to obtain candid and complete legal advice, strategic advice, and other

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written guidance from officials of federal agencies, who have subject matter expertise on which

USTR relies in formulating negotiating positions and drafting text.

Group 3

57. This category includes draft negotiating texts of the ACTA, attached to the interagency e-

mails in Group 2. They contain agency mark-ups and commentary on draft ACTA text. As such,

the comments do not contain factual information. As with Group 2, the comments were made

prior to the finalization of any ACTA text. The comments were made prior to proposing draft

ACTA text, and in some cases address text that the United States ultimately decided not to

propose. As with Group 2, releasing these records would expose divergent viewpoints and debate

among agencies prior to the development of a consensus U.S. position. Releasing these records

would harm USTR’s ability to obtain written guidance from officilas of other federal agencies,

who have subject matter expertise upon which USTR relies in formulating negotiating positions

and drafting text.

Group 4

58. This category consists of an e-mail chain presenting the views of a federal agency official

in a blog entry. The author presented her views, and the blog entry, by replying to an unrelated e-

mail chain that is otherwise being withheld under Group 2. Releasing the redacted portions of the

e-mail exchanges would be harmful for several reasons. First, some of the discussion that is

redacted reveals certain U.S. negotiating sensitivities. Second, the redacted discussion relates to

whether a particular agency has comments on the draft text, which is clearly identified as

addressing “border measures.” Whether an agency has comments on the underlying text is itself

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part of the process of deciding what the ultimate text should be; revealing that an agency has

comments on a particular text exposes the nature of the deliberative process and transmits to our

negotiating partners which agencies are sufficiently concerned about a particular proposal to offer

commentary on it. United States interests are best advanced when the U.S. government presents a

unified front to our trading partners, rather than providing those partners with incentives to

circumvent normal channels of communication to identify areas of vulnerability. The unredacted

portion of this chain was released after the draft Vaughn Index was prepared.

Group 6

59. This category includes e-mails and attachments thereto among USTR staff and attorneys

from the Department of Justice, the Department of Homeland Security, and the Library of

Congress, and U.S. Patent and Trademark Office, in which USTR and agency counsel were

providing legal advice. In these e-mails, USTR attorneys sought advice from colleagues in other

agencies on draft ACTA text, including the relationship of draft text with various provisions of

U.S. law for which the agencies in question have particular legal expertise. In addition, lawyers

from USTR and NSC “scrubbed” existing draft texts for textual precision. The attachments

reflect the nature and substance of this advice, and the confidential facts upon which this advice

was based. The comments were also made before the United States proposed draft ACTA text,

and in some cases involve text that ultimately was not proposed. Releasing these records would

reveal highly sensitive discussions within the U.S. government about the amount of flexibility we

have in the negotiations. In some cases, the United States has limited room to maneuver in light

of agency views, and revealing the metes and bounds of those sensitivities, or even the fact of

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their existence, would preclude us from achieving certain goals in the negotiation.

Group 8

60. This category includes communications from cleared advisors on ITAC-15. The

communications comment on the goals of the ACTA and also on specific textual proposals. As

provided by the statute, this advice was provided to USTR in confidence. The comments were

provided to USTR before the United States proposed draft text. Releasing communications of

this kind would severely undermine USTR’s ability to obtain written advice from cleared advisors

on trade negotiations. Undermining the advisors ability to communicate in writring on

confidential texts would be contrary to Congress’ express view, reflected in the 1974 Trade Act,

that such advice is necessary in order for the President to advance U.S. trade interests. ITAC-15

members with whom we consulted about the possible release of communications advised that

releasing the e-mails would complicate USTR’s ability to solicit this information and advice in

the future, thus undermining the very purpose of the advisory system. In addition, the

communications from the cleared advisors primarily contain classified Foreign Government

Information and thus would be significantly redacted anyway.

Group 9

61. This category includes records produced by a number of the negotiating partners regarding

the ACTA negotiating process, including discussion papers, talking points, draft questions and

answers, draft press releases, issue papers, charts detailing the negotiating process, draft language,

meeting details, draft ACTA proposals with commentary and observations, and drafts presenting

recommendations and options on ACTA. Many of these documents were distributed

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confidentially at ACTA negotiations, and they contain handwritten comments of U.S. government

officials reflecting the official’s views on a particular aspect of a document.

62. For all the aforementioned groups, we made efforts to segregate deliberative, predecisional

material from material that we believed we could release. Further, after the release of the

Attorney General Holder’s FOIA Guidelines providing further guidance on disclosures under

FOIA, we reexamined all exchanges under Exemption 5 to ascertain whether we could release

additional records without causing foreseeable harm. We engaged in a new round of discussions

with the authors of the e-mails to evaluate whether additional records could be released. This

examination led us to release an additional 36 pages of records, including the TPSC paper seeking

consensus to launch the ACTA negotiations. Indeed, in the course of examining the records, we

noted that e-mails circulating draft negotiating texts to the TPSC were not within the scope of the

FOIA request, which pertains only to the substance of the ACTA. However, we recognized that

Plaintiffs might benefit from seeing which records were circulated to the TPSC.

VIII. CONCLUSION

63. The withheld records that contain classified Foreign Government Information should

continue to be protected as confidential; their release would be harmful to national security if

released for the reasons discussed in this Declaration, and there is no basis to declassify the

records. Furthermore, if the United States unilaterally discloses to the public records that it and

other participants have exchanged in confidence with regard to the ACTA negotiations, it will

discourage further such exchanges, undermine trust in U.S. ACTA negotiators, and make it

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difficult or impossible to conclude an agreement.

64. In my experience, foreign governments are typically willing to engage in the give-and-take

of negotiations with the United States necessary to conclude trade agreements only if they can rely

on assurances from the United States that negotiating texts - including proposals, position papers,

analyses - and other nonpublic communications that it provides to or receives from its negotiating

partners in the course of the negotiations will be protected from unilateral public disclosure. A

unilateral disclosure by the United States of its exchanges with its ACTA negotiating partners

would be a breach of the reciprocal confidentiality arrangements that the United States agreed

would govern the negotiations and breach the mutual trust amongst our trading partners.

65. Disclosure could damage the future economic security of the United States by making it

more difficult to achieve the goals of the ACTA negotiations, which include better protecting

Americans against the harm associated with pirated and counterfeit products. More broadly,

unilateral abandonment of the understandings that existed in the ACTA negotiations could

damage the future economic security of the United States by undermining our trading partners'

confidence in our credibility and reliability as a negotiating partner.

66. In short, in my capacity as the Assistant United States Trade Representative, I have

reviewed the withheld records that I have described above and have determined that they continue

to be classified, contain Foreign Government Information, and would cause harm if released. It

also is my conclusion that there are no segregable portions of any other of the withheld classified

records that can be released.

67. In addition, my staff and I have carefully reviewed all of the interagency communications

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and all communications with our cleared advisors. We have determined that all communications

withheld are predecisional, deliberative, and/or would cause harm to the national security of the

United States if released, for the reasons discussed in this Declaration. Where it was possible to

disclose a record in part, we did so. However, the very nature of the communications – discussing

negotiating strategy and textual proposals – was such that the vast majority of factual discussions

were intertwined with discussions of strategy and Foreign Government Information. In addition,

the statute and legislative history confirm that these communications are to be held in confidence.

68. Finally, some of these records contain e-mail addresses and other contact information for

staff of the EOP. Release of these records would be harmful because the EOP’s computer and

phone systems could be overwhelmed or EOP staff could be subject to harassment, thus

preventing the EOP from conducting essential business.

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I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge.

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ATTACHMENT A
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ATTACHMENT B
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ATTACHMENT C
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ATTACHMENT D
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ATTACHMENT E
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Electronic Frontier Foundation et al. v. United States Trade Representative

Civil Action No. 08-1599 (RMC)


U.S. District Court
District of Columbia

Vaughn Index

Group Date Description Exemption/Privilege Pages


Number
1 May 2008 Draft negotiating texts of Exemption 1 in full 313
to the ACTA, incorporating
September joint proposals with and
2008 comments from foreign
governments. The draft
texts contain foreign
government information as
designated by section
1.4(b) of Executive Order
12,958, as amended, and
are marked as
“confidential” in
accordance with the
procedural requirements of
the Executive Order.
2 November 186 inter-agency e-mail Exemption 5 503
2007; chains. The agencies (deliberative process
include USTR, DHS, DOJ, privilege) in full for
April 2008 to LOC, USPTO, and NSC. 491 pages
August 2008 The e-mail authors attach
and discuss drafts (which Exemption 5
are described below in (deliberative process
Group 3) of the as yet privilege) in part for 12
unadopted ACTA text. pages
The authors also suggest
and comment on proposed
language and discuss their Exemption 1 in part
analyses of specific
provisions of the draft
texts. The protected e-
mails do not contain any
substantive information
which can be segregated as
non-deliberative.
Case 1:08-cv-01599-RMC Document 13-3 Filed 05/29/2009 Page 44 of 48

In addition, some of the


inter-agency e-mail chains
described above forward,
for discussion among
agency staff, e-mail
communications with
representatives of foreign
governments regarding the
draft ACTA texts. Other e-
mails incorporate language
from the draft ACTA
negotiating texts. E-mails
with foreign governments,
and information reflecting
the ACTA negotiations,
contain foreign
government information as
designated by section
1.4(b) of Executive Order
12,958, as amended, and
are marked as
“confidential” in
accordance with the
procedural requirements of
the Executive Order.

3 April 2008 Draft negotiating texts of Exemption 1 in full 317


to the ACTA, attached to the
August 2008 inter-agency e-mails in Exemption 5
Group 2, which incorporate (deliberative process
back-and-forth proposals, privilege) in part
comments, and analyses
among agency staff
pursuant to the process of
creating and revising the
draft negotiating texts. The
agency mark-ups and
commentary reflected in
these drafts reveal the
decisionmaking processes
of agency staff, and the
draft texts contain foreign
government information as
designated by section
1.4(b) of Executive Order
12,958, as amended, and
Case 1:08-cv-01599-RMC Document 13-3 Filed 05/29/2009 Page 45 of 48

are marked as
“confidential” in
accordance with the
procedural requirements of
the Executive Order.
4 November Portion of one inter-agency Exemption 5 1
15, 2007 e-mail chain which (deliberative process
presents the views of the privilege) in part
authors on an ACTA draft;
with some back-and-forth
on comments made by
other agencies. The
agency authors are
USPTO, DHS, and USTR.
5 May 2008 E-mails communications – Exemption 1 in full 45
to both inter-agency (USTR,
October 2008 USPTO, AND DHS) and
with representatives of
foreign governments –
which discuss and attach
draft negotiating texts of
the ACTA. The draft
negotiating texts, the e-
mails with foreign
governments, and the inter-
agency e-mails reflecting
ACTA negotiations contain
foreign government
information as designated
by section 1.4(b) of
Executive Order 12,958, as
amended, and are marked
as “confidential” in
accordance with the
procedural requirements of
the Executive Order.
6 April 2008 E-mails, and attachments Exemption 5 (attorney- 60
to thereto, among USTR staff client privilege) in full
August 2008 and agency counsel. In
these e-mails, USTR seeks, Exemption 5
and counsel from DOJ, (deliberative process
PTO, LOC, and DHS privilege) in part
provides, advice on
proposed ACTA Exemption 1 in part
provisions. Emails and
attachments also contain
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“scrubbing” from USTR


and NSC lawyers. The
attached texts reflect the
nature and substance of
this advice, and the
confidential facts this
advice was based upon.

Some of the e-mails attach


or incorporate language
from the draft ACTA
negotiating texts, and/or
reflect the ACTA
negotiations. Such e-mails
contain foreign
government information as
designated by section
1.4(b) of Executive Order
12,958, as amended, and
are marked as
“confidential” in
accordance with the
procedural requirements of
the Executive Order.
7 Undated DOJ-created PowerPoint Exemption 1 in full 5
presentation entitled
“Counterfeit Trademarks
and Counterfeit Labels.”
This PowerPoint was
presented to foreign
government officials from
ACTA partners as part of
the negotiating process,
with the purpose of guiding
the deliberations with
foreign governments on
whether certain issues
should be addressed in the
ACTA text. As such the
presentation directly
reflects a subject of the
ongoing ACTA
negotiations and contains
foreign government
information as designated
by section 1.4(b) of
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Executive Order 12,958, as


amended, and are marked
as “confidential” in
accordance with the
procedural requirements of
the Executive Order.
8 April 2008 Communications with Exemption 1 in full 25
to Industry Trade Advisory
August 2008 Committee (ITAC) Exemption 3 in full
advisors. The ITAC
advisors provide input and Exemption 5
advice with respect to U.S. (deliberative process
negotiating objectives and privilege) in full
bargaining positions on
various provisions of the
ACTA and, as such, reveal
the preliminary exchange
of ideas between advisors
and agency staff with
respect to the ACTA
provisions under agency
consideration. Inasmuch
as these communications
reflect the ACTA
negotiations and
incorporate language from
the draft negotiating texts,
they contain foreign
government information as
designated by section
1.4(b) of Executive Order
12,958, as amended, and
are marked as
“confidential” in
accordance with the
procedural requirements of
the Executive Order.
9 Various documents Exemption 1 in full 118
regarding the ACTA
negotiating process, Exemption 5
including discussion (deliberative process
papers, talking points, draft privilege) in part
Q&A’s, draft press
releases, issue papers,
charts detailing the
negotiating process, draft
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language, meeting details,


draft ACTA proposals with
commentary and
observations, and drafts
presenting
recommendations and
options on ACTA. Many
of these documents contain
considerable handwritten
mark-ups and marginalia
made by agency staff. The
deliberations reflected in
these drafts reveal the
decisionmaking processes
of agency staff, reflect
many aspects of the
ongoing ACTA
negotiations, and reflect
draft ACTA language and
foreign government
proposals. They contain
foreign government
information as designated
by section 1.4(b) of
Executive Order 12,958, as
amended, and are marked
as “confidential” in
accordance with the
procedural requirements of
the Executive Order.

*** Contact information for USTR officials has also been withheld pursuant to
FOIA Exemption 2.***
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