Energy Policy Advocates v. U.S. Department of State

In a Freedom of Information Act (FOIA) lawsuit seeking documents related to the Paris Climate Agreement, the federal district court for the District of Columbia held that the U.S. Department of State adequately demonstrated that it had properly redacted information in three documents based on the deliberative process and attorney client privileges. The three documents were (1) an action memo from subordinate State Department employees to the Secretary of State seeking written authorization to enter the Paris Climate Agreement; (2) a background document attached to the action memo; and (3) a set of draft talking points prepared for the National Security Council by a State Department attorney. The court found that the State Department established that the redacted content was both pre-decisional and deliberative and would cause foreseeable harm to the agency’s processes by impairing future internal deliberations. The court also found that the State Department properly justified the withholding of information based on attorney-client privilege, satisfied its burden to show that disclosure of this information would result in foreseeable harm, and demonstrated that it had released reasonable segregable information.

A non-profit organization filed a Freedom of Information Act lawsuit against the U.S. Department of State seeking a response to requests for documents, memoranda, and emails related to the State Department’s “Circular 175” analysis for determining whether an international agreement is a treaty. The plaintiff alleged that the records it sought would “inform the public of the Department’s ‘working law’ leading it to declare that the 2015 ‘Paris climate agreement’ … was, for U.S. purposes, not a treaty, but a mere ‘agreement’, despite Paris requiring ever-tightening constraints every five years in perpetuity or until the U.S. withdraws, and despite Paris otherwise being a treaty according to its duration, its lineage, international practice and U.S. custom and practice.” The plaintiff said it had in its possession a document that purported to be the Circular 175 memorandum of law for the Paris Agreement. The plaintiff alleged that, if authentic, this document “represents a significant legal and political scandal” because it misstated the history of agreements that supported its conclusion that the Paris Agreement was not a treaty. The plaintiff asserted that documents it sought from the State Department were the “only means” that would allow the public to evaluate the propriety of entering and withdrawing from the Paris Agreement.