December 22, 2003
Ms. Sybia Harrison
Freedom of Information Act Officer
United States Trade Representative
600 17th Street, N.W.
Washington, D.C. 20508
Dear Ms. Harrison:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, Friends of the Earth – U.S., on behalf of itself, the Center for International Environmental Law, Natural Resources Defense Council, and Defenders of Wildlife, hereby requests copies of the following materials:
- The texts of any investment chapters and provisions related to investment, including any negotiating proposals and any consolidated draft texts for such chapters or provisions, that the United States has received, provided or negotiated with negotiating partners in any bilateral or regional free trade agreements since the beginning of 2003, including but not limited to the United States-Central America, United States-Morocco, United States-Australia, and United States-Southern African Customs Union Free Trade Agreements, and any free trade agreements with Andean countries, including Colombia and Peru.
- Any attachments and appendices thereto, including but not limited to side letters, clarifications, memoranda of understanding, annexes, reservations, schedules, and any other texts that are meant to be an integral part of the agreement’s provisions related to investment or that are meant to complement provisions of the agreement related to investment.
There is no basis for claiming that the records requested herein are exempt from immediate disclosure under the FOIA. Each of these records is described by 5 U.S.C. § 552(a)(2) as information an agency is required to make available to the public. If, however, it is your position that any portion of the requested records is exempt from disclosure, we request that you provide us 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 (1974). 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. Dept. of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).
In the event that some portions of the requested documents are properly exempt from disclosure, please disclose any reasonably segregable nonexempt portions of the requested documents. See 5 U.S.C. § 552(b) (“Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt . . . .”); see also Schiller v. National Labor Relations Board, 964 F.2d 1205, 1209 (D.C. Cir. 1992); 32 C.F.R. §518.22. 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.
We respectfully request that you waive all fees in connection with this request as provided by 5 U.S.C. § 552(a)(4)(A)(iii). Disclosure of the environmental chapters and associated documents relating to bilateral and regional free trade agreements is likely to contribute significantly to the public’s understanding of these agreements and their public policy implications. The information requested directly relates to the public interest missions of the organizations described below, and is not intended for commercial use in any way. In the event you reject this fee waiver request, we are willing to pay up to $100.00 to process this request.
Friends of the Earth – U.S. is a public interest, not-for-profit advocacy organization. The organization works to protect the planet from environmental degradation, and to preserve biological, cultural and ethnic diversity. The organization’s International Program protects the global environment and local communities by raising awareness of activities and standards that threaten the planet’s future, and by promoting environmentally sound alternatives. In particular, the Trade, Investment and the Environment Program is working to ensure that international trade rules protect the environment and public health. At the forefront of international trade issues, and as an affiliate to the world’s largest environmental federation, Friends of the Earth – U.S. has the knowledge and the resources to disseminate the information contained in the records requested.
Center for International Environmental Law (CIEL) is a public interest, not-for-profit environmental law firm founded in 1989 to strengthen international and comparative environmental law and policy around the world. CIEL provides a full range of environmental legal services in both international and comparative national law, including: policy research and publication; advice and advocacy; education and training; and institution building. CIEL has focused on the impact of trade policy on the environment for many years and many staff at CIEL possess unique and advanced skills relating to the environmental and social implications of international trade law and policy, which allow the assimilation and dissemination of data of the kind contained in the records requested.
The Natural Resources Defense Council (NRDC) is a public interest, not-for-profit advocacy organization with over thirty years of experience in environmental issues and over 550,000
individual members across the United States. NRDC works on a wide range of pollution prevention and conservation issues in the U.S. and internationally. NRDC’s international program works to protect the global environment by improving global environmental governance, including trade systems and by defense of globally important wildlands threatened by development. NRDC has a proven ability to digest and disseminate information effectively. In addition to its web site (www.nrdc.org) which is updated daily, NRDC has numerous other means to widely disseminate information to the public including numerous and varied publications, educational programs, media initiatives, and public interest litigation. For example, Nature’s Voice is published and distributed five times a year by NRDC to its approximately 450,000 active members. NRDC also publishes a magazine, OnEarth, which is distributed to 140,000 subscribers and is also distributed for sale to newsstands and bookstores. NRDC also regularly distributes information and alerts to its 490,000 online activists.
Defenders of Wildlife (Defenders) is a non-profit, environmental organization with over 480,000 members and seeks legal, economic and scientific solutions to threats to biological diversity. Defenders has been particularly active in assessing the environmental impacts arising from free trade agreements in the areas of invasive species and forest resources. Additionally, Defenders maintains an interest in dispute settlement processes and the use of precaution in decision-making relating to trade and the environment. Defenders is capable of widely disseminating the information in the records requested, including to its membership.
Please respond to this request in writing within twenty (20) days as required under 5 U.S.C. § 552(a)(6)(A)(i). If all of the requested documents are not available within that time period, we request that you provide all requested documents or portions of documents which are available within that time period. If you have any questions about this request or foresee problems in fully releasing the requested records within the twenty day period, please contact David Waskow at (202) 222-0716 within that time period. To facilitate delivery, please send the requested records to David Waskow, Friends of the Earth – U.S., 1717 Massachusetts Ave. NW, 6th Floor, Washington, DC, 20036.
Sincerely,
David Waskow
Trade Policy Coordinator
Friends of the Earth
cc: Martin Wagner, Director of International Programs
Earthjustice