Electronic Frontier Foundation Vs Us Trade Representative

Case 1:08-cv-01599-RMC

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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 ) ) Plaintiffs, ) ) v. ) ) OFFICE OF THE UNITED STATES ) TRADE REPRESENTATIVE ) 600 17TH STREET, NW ) WASHINGTON, DC 20508 ) ) Defendant. ) ______________________________)

Civil Action No. 08-1599 (RMC)

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.

Dated:

October 14, 2008

/s/ 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

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELECTRONIC FRONTIER FOUNDATION, ET AL.,

) ) ) Plaintiffs, ) ) v. ) ) OFFICE OF THE UNITED STATES ) TRADE REPRESENTATIVE, ) ) Defendant. ) ______________________________)

Civil Action No. 08-1599 (RMC)

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.

Dated:

October 28, 2008

/s/ 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

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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. ) ____________________________________) 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.

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-25. 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.

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-314. 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.

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-428. 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.

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-5WHEREFORE, 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

Dated: October 30, 2008

/s/ 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

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Document 7

Filed 11/14/2008

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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. ) ____________________________________) 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

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-2a 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.

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-3Conclusion 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

Dated: November 14, 2008

/s/ 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

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Filed 11/14/2008

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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. ) ____________________________________) 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 Marcia Hoffman Electronic Frontier Foundation 1875 Connecticut Ave., N.W. Suite 650 Washington, D.C. 20009

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

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Document 9

Filed 01/30/2009

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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. ) ____________________________________) 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

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-2to 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.

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-3departments 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.

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Filed 01/30/2009

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-4Conclusion 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 (D.C. Bar #360418) Electronic Frontier Foundation 1875 Connecticut Ave., N.W. Suite 650 Washington, D.C. 20009 (202) 797-9009 Counsel for Plaintiffs

Dated: January 30, 2009

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

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

/s/ 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

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Document 9-2

Filed 01/30/2009

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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. ) ____________________________________) 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

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-2status report as to the remaining issues to be resolved and proposed amendments to the briefing schedule.

UNITED STATES DISTRICT JUDGE Copies to: David Sobel Marcia Hoffman Electronic Frontier Foundation 1875 Connecticut Ave., N.W. Suite 650 Washington, D.C. 20009

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

Case 1:08-cv-01599-RMC

Document 13

Filed 05/29/2009

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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. ) ____________________________________) 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.

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-2Rule 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

Dated: May 28, 2009

/s/ 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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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

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-2Mexico, 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

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-3negotiators, 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.)

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-4directs 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 traderelated 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

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-5disclosed 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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-6Federal 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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-7USTR 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 "anticircumvention"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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-8had 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.)

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-9the 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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-10excisions 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.)

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-1132. 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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-12thirty-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

Dated: May 28, 2009

/s/ 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.)

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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. ) ____________________________________) 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 AntiCounterfeiting 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.

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-2the 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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-3Maruyama 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

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-4confidentiality 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 traderelated 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.)

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-5The 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

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-6fifty-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.)

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-7By 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

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-8harm 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.)

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-9Cir. 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

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-10reflect 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.

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-111981); 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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-12Maruyama 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-bypage 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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-13categories 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 rereviewed all of the classified records in order to assess whether any of the information was

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-14appropriate 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).

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-15information 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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-16court," 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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-17the 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

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-18chill 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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-19information. 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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-20agency'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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-21"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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-22243, 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 email 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.

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-23III.

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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-24Specifically, 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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-25As 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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-26"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 exportapplication 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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-27IV.

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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-28State, 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 "interagency 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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-29between 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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-30or 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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-31Klamath, 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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-32government 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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-331-3, 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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-34to 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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-35The 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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-36By 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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-37client 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 clientsupplied 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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-38between 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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-39government 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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-40releases, 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. 064643, 2008 WL 4415080, at *16 (N.D. Cal. Sept. 26, 2008) (protecting draft letters);

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-41Donham 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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-42has 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.)

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-43Conclusion 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

Dated: May 28, 2009

/s/ 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

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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.

6.

ACTA

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

5

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11.

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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, indepth, 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

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reflects the view that this advice is exempt from disclosure under FOIA. (Senate Report No. 931298, 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”

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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.

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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

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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

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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

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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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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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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 email 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 D

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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 Number 1

2

Date

Description

Exemption/Privilege

Pages

May 2008 to September 2008

Draft negotiating texts of the ACTA, incorporating joint proposals with and 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. 186 inter-agency e-mail chains. The agencies include USTR, DHS, DOJ, LOC, USPTO, and NSC. The e-mail authors attach and discuss drafts (which are described below in Group 3) 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. The protected emails do not contain any substantive information which can be segregated as non-deliberative.

Exemption 1 in full

313

Exemption 5 (deliberative process privilege) in full for 491 pages

503

November 2007; April 2008 to August 2008

Exemption 5 (deliberative process privilege) in part for 12 pages

Exemption 1 in part

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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 emails 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 to August 2008

Draft negotiating texts of the ACTA, attached to the inter-agency e-mails in Group 2, which incorporate back-and-forth proposals, 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

Exemption 1 in full Exemption 5 (deliberative process privilege) in part

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5

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are marked as “confidential” in accordance with the procedural requirements of the Executive Order. November Portion of one inter-agency 15, 2007 e-mail chain which presents the views of the authors on an ACTA draft; with some back-and-forth on comments made by other agencies. The agency authors are USPTO, DHS, and USTR. May 2008 E-mails communications – 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 emails with foreign governments, and the interagency 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. April 2008 E-mails, and attachments to thereto, among USTR staff August 2008 and agency counsel. In these e-mails, USTR seeks, and counsel from DOJ, PTO, LOC, and DHS provides, advice on proposed ACTA provisions. Emails and attachments also contain

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Exemption 5 (deliberative process privilege) in part

1

Exemption 1 in full

45

Exemption 5 (attorneyclient privilege) in full

60

Exemption 5 (deliberative process privilege) in part Exemption 1 in part

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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.

7

Undated

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. DOJ-created PowerPoint 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

Exemption 1 in full

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April 2008 to August 2008

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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. Communications with Industry Trade Advisory Committee (ITAC) advisors. The ITAC advisors provide input and advice with respect to U.S. negotiating objectives and 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. Various documents regarding the ACTA negotiating process, including discussion papers, talking points, draft Q&A’s, draft press releases, issue papers, charts detailing the negotiating process, draft

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Exemption 1 in full

25

Exemption 3 in full Exemption 5 (deliberative process privilege) in full

Exemption 1 in full Exemption 5 (deliberative process privilege) in part

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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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