USTR - Clinton correspondence

David Sirota filed this request with the U.S. Trade Representative of the United States of America.
Status
Rejected

Communications

From: David Sirota

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

All correspondence between the United States Trade Representative's Office and the Office of the Secretary of State that references the Trans Pacific Partnership, or "TPP." I request such correspondence from the dates 1/20/09 to 3/1/13.

Please search for responsive records regardless of format. I request the information in a machine-processable format, such as a spreadsheet (CSV or XLS) or word processor (TXT, DOC, DOCX) format. It can be provided by email, thumb drive, or CD. If it is unavailable in any other format, an OCRed PDF (i.e. searchable) will do.

If it is your position that any portion of the requested records is exempt from disclosure, I request that you provide it with an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1972). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). Moreover, the Vaughn index must “describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of supplying the sought-after information.” King v. U.S. Dep’t of Justice, 830 F.2d 210, 223-24 (D.C. Cir. 1987) (emphasis added). Further, “the withholding agency must supply ‘a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’” Id.at 224 (citing Mead Data Central v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).

In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable non-exempt portions of the requested records. See 5 U.S.C. § 552(b). If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Mead Data Central, 566 F.2d at 261. Claims of nonsegregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release.

I request a waiver of fees associated with processing this request for records. International Business Times is a news media organization. Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government. The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

David Sirota
Senior Editor
International Business Times
(646) 867-7100

From: Caldwell, Jacqui B. EOP/USTR

Mr. Sirota,

We have started to search for responsive records. We will be in contact with you when our search is completed.

From: Caldwell, Jacqui B. EOP/USTR

Mr. Sirota,

Are you available on Tuesday, August 8th to discuss the FOIA request below? If you are please list your available times.

Looking forward to speaking with you.

Jacqueline B. Caldwell

Executive Office of the President

Office of the U.S. Trade Representative

(202) 395-9454

From: David Sirota

Yes, I am. I am available to talk on 8/8 anytime from 11:30am ET to 6pm ET. Let me know when works for you.

David Sirota

From: Caldwell, Jacqui B. EOP/USTR

Mr. Sirota,

I apologize, I intended to ask for your availability on Tuesday, August 9th not 8th. Will you still be available during the 11:30-6:00 hours?

From: David Sirota

Yes, that works. Just let me know an exact time.

From: Caldwell, Jacqui B. EOP/USTR

Yes, I will.

Thank you.

From: Keppel, Melissa J. EOP/USTR

Hi Mr. Sirota,

We would like to speak with you at 1pm today. Please confirm that you are still available at this time.

Thank you,

Melissa Keppel
Office of the United States Trade Representative
Office of General Counsel
(202) 456-7073

From: David Sirota

That works for me. You can call me at 646-867-7155.

From: Keppel, Melissa J. EOP/USTR

Thank you. We look forward to speaking with you at 1pm.

Mel Keppel
USTR FOIA

From: Ricker, Monique T. EOP/USTR

Mr. Sirota,

It was a pleasure speaking with you today. Per our conversation, we will narrow the scope of the search to correspondence between the relevant employees of the USTR and Office of the Secretary of State, from January 1, 2012 to December 31, 2012, on the Investor-State dispute settlement (ISDS) mechanism in the TPP.

Please confirm our understanding of the narrowed scope. Upon receipt of your confirmation, we will consider this a perfected response and will initiate the search. If you have any questions or would like to discuss further, please let me know.

We look forward to working with you.

Sincerely,
Monique

Monique T. Ricker
FOIA Attorney
EOP/USTR
(o) 202-359-4990
(c) 202-881-7849
mricker@ustr.eop.gov

From: David Sirota

Thank you for speaking with me today. I appreciate your help perfecting the request.

David Sirota

From: Ricker, Monique T. EOP/USTR

Mr. Sirota,

We are targeting the end of November for an initial response.

Thank you for your patience as we process your FOIA request.

Sincerely,
Monique

Monique T. Ricker
FOIA Program Manager/Attorney

EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
WASHINGTON DC 20508

From: Ricker, Monique T. EOP/USTR

Mr. Sirota,

Happy Holidays!

As the end of 2016 approaches, the Office of the United States Trade Representative (USTR) is reviewing our open FOIA requests. Given the status of the Trans-Pacific Partnership (TPP) and the change of administration, are you still interested in receiving “all correspondence between the USTR and the Office of the Secretary of State that reference the TPP from 1/20/09 to 3/1/13?" Your request was dated June 6, 2016 and perfected via email on August 9, 2016.

Please let me know if you are still interested as soon as possible. If we do not hear back from you by January 21, 2017, we will administratively close your request.

Thank you,
Monique

Monique T. Ricker
Attorney-Advisor
EOP/USTR
(o) 202-395-4990
(c) 202-881-7849
mricker@ustr.eop.gov

From: David Sirota

Yes, I am still very interested in receiving these documents. Thank you.

From: Ricker, Monique T. EOP/USTR

Mr. Sirota,

Thank you for following up with our office. Processing your search has been placed temporarily on hold as the Executive Office of the President transitions to a new electronic document review system. USTR is projected to have access by the end of this month. I apologize for this delay and will contact you as soon as we are able to restart processing your request. I will prioritize completing your FOIA and will provide any responsive releasable documents on a rolling basis.

Thank you for your patience,
Monique

Monique T. Ricker
Attorney-Advisor
EOP/USTR
(o) 202-395-4990
(c) 202-881-7849
mricker@ustr.eop.gov

From: Ricker, Monique T. EOP/USTR

Mr. Sirota,

This email is the final response of the Office of the United States Trade Representative (USTR) to Freedom of Information Act (FOIA) No. FY16-82 submitted on June 6, 2016 and perfected via email on August 9, 2016 requesting all correspondence exchanged between “relevant employees of the USTR and Office of the Secretary of State, from January 1, 2012 to December 31, 2012, on the Investor-State dispute settlement (ISDS) mechanism in the TPP.”

After a search of our files, we did not locate records responsive to your request.

We proactively decided to broaden our search to include State Department employees outside of the Office of the Secretary. As a result of this search, we located 28 responsive records totaling 411 pages which we are withholding in full.

We reasonably foresee that disclosure would harm an interest protected by FOIA Exemption 5, which protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Specifically, we are withholding emails transmitting drafts of the Investment and Dispute Settlement chapters and Non-Conforming Measures annexes. The materials are exempt under the deliberative process privilege, which protects the decision making processes of the executive branch in order to safeguard the quality and integrity of governmental decisions. The deliberative process privilege protects materials that are both pre-decisional and deliberative. The privilege covers records that reflect the give-and-take of the consultative process and may include recommendations, draft documents, proposals, suggestions and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency. The materials that have been withheld do not contain or represent formal or informal agency policies or decisions. The release of these drafts would have a chilling effect on the USTR’s deliberative processes and expose the USTR’s decision-making process in such a way as to discourage candid discussion within the agency, and thereby undermine its ability to perform its mandated functions.

Disclosure of the information you requested would also harm a United States government interest protected by FOIA Exemption 1, which authorizes an agency to withhold properly classified documents from public disclosure. The United States, Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam agreed that the information exchanged in the context of the Trans-Pacific Partnership (TPP) negotiations, such as the negotiating text, proposals of each Government, accompanying explanatory material, and emails related to the substance of the negotiations, constitutes foreign government information that all twelve parties must hold confidential. Pursuant to this agreement, USTR has classified this TPP information. This means that the information you requested is not available under the Freedom of Information Act. USTR has set a declassification date of four years after entry into force of the agreement. If no agreement enters into force, the declassification date will be four years from the last round of negotiations.

This constitutes a complete response to your request. You may contact me or my colleague Melissa Keppel by email at FOIA@ustr.eop.gov or 202-395-3419 for any further assistance and to discuss any aspect of your request. Additionally, you may contact the Office of Government Information Services (OGIS) at the National Archives and Records Administration to inquire about the FOIA mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769.

If you are not satisfied with the response to this request, you may also administratively appeal by writing to: FOIA Office, GSD/RDF; ATTN: Janice Kaye, Anacostia Naval Annex, Bldg. 410/Door 123, 250 Murray Lane, S.W., Washington, D.C. 20509.

Your appeal must be postmarked or electronically transmitted within 90 days of the date of the response to your request. Both the letter and the envelope should be clearly marked: “Freedom of Information Act Appeal" and should include a reference to the FOIA Case File number listed above. Heightened security in force may delay mail delivery; therefore we suggest that you also email any such appeal to foia@ustr.eop.gov.

In the event you are dissatisfied with the results of any such appeal, judicial review will thereafter be available to you in the United States District Court for the judicial district in which you reside or have your principal place of business, or in the District of Columbia, where we searched for the records you requested.

Sincerely,
Monique

Monique T. Ricker
FOIA Program Manager/Attorney

EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
WASHINGTON DC 20508

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