Competitive Enterprise Institute v. U.S. Department of State

In a Freedom of Information Act lawsuit pending since 2017, the federal district court for the District of Columbia found that the U.S. Department of State properly withheld 34 records regarding communications about how to engage with the public about the legal form of the Paris Agreement. The decision concerned three categories of documents: records involving interactions with the public through the media (including emails about how to respond to a reporter’s questions), records involving interactions with the public through elected representatives (including documents reflecting discussion of how to respond to questions from members of Congress), and drafts of press guidance, talking points, and other similar materials.

In a FOIA lawsuit brought by Competitive Enterprise Institute, a federal district court in the District of Columbia ruled that the U.S. Department of State properly withheld a legal memorandum that accompanied an “action memorandum” seeking authorization from the Secretary of State to join the Paris Agreement. The court found that the legal memorandum met the criteria for the deliberative process privilege because it was predecisional and deliberative and did not constitute the “working law” of the State Department. The court rejected CEI’s argument that because a document appearing to be the legal memorandum had been posted on the internet, the memorandum fell outside the FOIA exemption under the “public domain doctrine.”

Competitive Enterprise Instituted (CEI) filed a Freedom of Information Act (FOIA) lawsuit in the federal district court for the District of Columbia seeking to compel the U.S. Department of State to produce correspondence of two officials related to climate change, the December 2016 Paris Agreement, the “legal form” of the Paris Agreement’s provisions, the Kyoto Protocol, and the United Nations Framework Convention on Climate Change. The two officials were Todd Stern, the former Special Envoy for Climate Change, and Susan Biniaz, formerly the State Department’s lead climate lawyer. CEI also sought email correspondence between the two officials and people at the Natural Resources Defense Council or World Wildlife Fund.