Letters Blogatory’s Second FOIA Request

Readers, let’s recap. In August 2011, I submitted a Freedom of Information Act request to the State Department, trying to get a handle on lobbying that Chevron or others may have done on Ecuador issues. The idea was to see whether Chevron was lobbying the State Department as effectively as it was lobbying, say, the U.S. Trade Representative, which was a particularly interesting question because the State Department’s guidance on Ecuador, and specifically on Ecuador’s judiciary, was relevant to the RICO litigation between Chevron and Donziger.

Even though under the FOIA the State Department was required to decide whether to comply with my request within twenty days and to let me know its decision immediately thereafter, I didn’t get a substantive response from the State Department for nearly two years. So in March 2013 I filed a lawsuit in the US District Court here in Boston, seeking to require the Department to provide me with the documents I had requested.

The government was pretty busy, so after some negotiation, we agreed on a schedule for production. The government began producing responsive documents in October 2013, and they have continued to produce documents on a rolling basis. The last production is due to be made in September 2014, just over three years after I made my request.

The documents produced so far show that Chevron was indeed lobbying the State Department at a pretty high level. I covered the best examples so far in my post of Dec. 12, 2013, which referenced communications between David J. O’Reilly, then Chevron’s Chairman and CEO, and Robert Zoellick, then the Deputy Secretary of State (the second highest-ranking official in the Department), and Nicholas Burns, the Under Secretary for Political Affairs (the Department’s fourth highest official). I also noted communications between John Watson, Chevron’s current CEO, and State Department officials.

One item piqued my interest. In each of the productions the government has made, it has noted that certain documents have been withheld pending review by an unnamed third party. Here, for example, is an excerpt from the government’s latest production letter:

The review of additional records retrieved from the Office of the Legal Adviser has been completed. Segment L4 consists of 34 documents responsive to your request. After reviewing these documents, we have determined that 14 may be released in full, 9 may be released with excisions, and 1 must be withheld in full. The remaining 10 documents contain information that was submitted to the Department by a third party and may be exempt from disclosure as privileged or confidential information under FOIA Exemption 4. These documents are being referred to the submitter of that information for review pursuant to Executive Order 12600 and the Department’s implementing regulations, 22 C.F.R. § 171.13.

What’s all that about? Very briefly—and with a caution that I am not a FOIA expert: under FOIA exemption 4, an agency does not need to produce “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”

In 1987, President Reagan, by executive order, required each executive department to

establish procedures to notify submitters of records containing confidential commercial information … when those records are requested under the Freedom of Information Act … if after reviewing the request, the responsive records, and any appeal by the requester, the department or agency determines that it may be required to disclose the records.

“Confidential commercial information” is defined as “records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. § 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.”

The State Department implemented this executive order in a rule that more or less tracks the order (although interestingly, the rule’s definition of “business information,” “information obtained by the Department from a submitter that arguably may be exempt from disclosure as privileged or confidential under Exemption 4 of the FOIA,” is not on its face coextensive with the definition of “confidential commercial information” in the executive order, as it lacks any requirement that the information could be expected to cause “substantial competitive harm”).

In December 2013, I asked the Department to identify the third party submitter. It hasn’t done so to date. The AUSA assigned to my case, who has been very professional in all her dealings with me, has told me:

As to the “third party” that you inquire about, the Department is aware of your query and expects to identify the third party. However, at this time, the Department is still in the process of attempting to secure the permission of the third party for this disclosure. The Department has taken efforts to secure this permission, but it has been unusually complicated.

Now my interest is really piqued! What is so sensitive about all this?

In any case, since I haven’t really been able to get an answer on these questions from the Department, I have submitted a second FOIA request that calls for identification of the third party and for the correspondence between the Department and the third party. I hope to have something to report to you before 2016!

My hope for a speedy production leads to another point in my second FOIA request: I have requested expedited treatment as a “news media requester.” The last time around, the Department denied expedited treatment, and I didn’t bother to appeal. This time, if the Department doesn’t grant expedited treatment, I will want to press the issue. So if you like my Lago Agrio coverage, please be ready to provide me with testimonials about the relevance of my coverage! And if you happen to be a FOIA expert looking for a good pro bono project, start your engines!

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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