October 31, 2017
VIA ELECTRONIC MAIL

USTR FOIA Office, GSD/RDF
Attn: Chief FOIA Officer Janice Kaye
Office of the U.S. Trade Representative
Anacostia Naval Annex, Building 410/Door 123,
250 Murray Lane SW
Washington, DC 20509
FOIA@ustr.eop.gov
Re: Freedom of Information Act Request

Dear Ms. Kaye:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the implementing
regulations of the Office of the U.S. Trade Representative (USTR), 15 C.F.R. Part 2004,
American Oversight makes the following request for records.
From the very beginning of his presidential campaign, Donald Trump made his disdain for
NAFTA clear, pledging to “immediately renegotiate” the deal or even withdraw from it if
necessary. Since taking office, President Trump has wavered on the proper approach, ultimately
deciding to attempt to renegotiate the agreement before terminating it. Media reports suggest that
those efforts to renegotiate have been less than smooth, with the U.S. making borderline
unreasonable demands with little chances of success.
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See Vicki Needham, Trump Says He Will Renegotiate or Withdraw from NAFTA, THE HILL
(June 28, 2016, 2:53 PM), http://thehill.com/policy/finance/285189-trump-says-he-will-renegotiateor-withdraw-from-nafta-without-changes; Mark Thoma, Is Donald Trump Right to Call NAFTA a
‘Disaster’?, CBS NEWS (Oct. 5, 2015, 5:30 AM), https://www.cbsnews.com/news/is-donald-trumpright-to-call-nafta-a-disaster/.
See Kevin Liptak & Dan Merica, Trump Agrees ‘Not to Terminate NAFTA at this Time,’ CNN
(Apr. 27, 2017, 6:29 PM), http://www.cnn.com/2017/04/26/politics/trump-nafta/index.html; Kim
Hjelmgaard, Trump Backtracks: U.S. Will Not Withdraw from NAFTA, USA TODAY (Apr. 26,
2017, 11:06 PM), https://www.usatoday.com/story/news/politics/2017/04/26/president-trump-naftamexico-canada/100961526/.
See, e.g., Dave Graham & David Lawder, Grim Reality of NAFTA Talks Sets in After Tough
U.S. Demands, REUTERS (Oct. 14, 2017), https://www.reuters.com/article/us-trade-nafta/grimreality-of-nafta-talks-sets-in-after-tough-u-s-demands-idUSKBN1CJ0TH; Kayla Tausche, Canada,
Mexico to Firmly Reject US NAFTA Proposals but Will Offer to Keep Negotiations Going:
Sources, CNBC (Oct. 17, 2017, 10:42 AM), https://www.cnbc.com/2017/10/17/canada-mexico-tofirmly-reject-us-nafta-proposals-but-will-offer-to-keep-negotiations-going-sources.html; Patrick
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1030 15th Street NW, Suite B255, Washington, DC 20005   AmericanOversight.org

 American Oversight is seeking information to shed light on the Trump administration’s approach
to renegotiating NAFTA.
Requested Records

American Oversight requests that USTR produce the following within twenty business days:
All calendar entries for USTR Robert Lighthizer, AUSTR for the Western Hemisphere
John Melle, USTR General Counsel Stephen Vaughn, and USTR Chief of Staff Jamieson
Greer from January 20, 2017, to the date the search is conducted.
For calendar entries created in Outlook or similar programs, the documents should be
produced in “memo” form to include all invitees, any notes, and all attachments. Please do
not limit your search to Outlook calendars—we request the production of any calendar—
paper or electronic, whether on government-issued or personal devices—used to track or
coordinate how these individuals allocate their time on agency business.
In addition to the records requested above, American Oversight also requests records describing
the processing of this request, including records sufficient to identify search terms used and
locations and custodians searched and any tracking sheets used to track the processing of this
request. If USTR uses FOIA questionnaires or certifications completed by individual custodians or
components to determine whether they possess responsive materials or to describe how they
conducted searches, we also request any such records prepared in connection with the processing
of this request.
American Oversight seeks all responsive records regardless of format, medium, or physical
characteristics. In conducting your search, please understand the terms “record,” “document,” and
“information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or
audio material of any kind. We seek records of any kind, including electronic records, audiotapes,
videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail
messages and transcripts, notes, or minutes of any meetings, telephone conversations or
discussions. Our request includes any attachments to these records. No category of material should
be omitted from search, collection, and production.
Please search all records regarding agency business. You may not exclude searches of files or
emails in the personal custody of your officials, such as personal email accounts. Records of official
business conducted using unofficial systems or stored outside of official files is subject to the
Gillespie, Trump’s NAFTA Agenda Has ‘Poison Pill Proposals,’ Says U.S. Chamber of
Commerce, CNN MONEY (Oct. 11, 2017, 12:29 PM),
http://money.cnn.com/2017/10/11/news/economy/nafta-round-4/index.html; Daniel Dale, Top
Trump Official Says U.S. Isn’t Offering ‘Anything’ to Canada in Exchange for NAFTA Demands,
THE TORONTO STAR (Oct. 26, 2017), https://www.thestar.com/news/world/2017/10/26/top-trumpofficial-says-us-isnt-offering-anything-to-canada-in-exchange-for-nafta-demands.html.
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Federal Records Act and FOIA. It is not adequate to rely on policies and procedures that require
officials to move such information to official systems within a certain period of time; American
Oversight has a right to records contained in those files even if material has not yet been moved to
official systems or if officials have, through negligence or willfulness, failed to meet their
obligations.
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In addition, please note that in conducting a “reasonable search” as required by law, you must
employ the most up-to-date technologies and tools available, in addition to searches by individual
custodians likely to have responsive information. Recent technology may have rendered USTR’s
prior FOIA practices unreasonable. In light of the government-wide requirements to manage
information electronically by the end of 2016, it is no longer reasonable to rely exclusively on
custodian-driven searches. Furthermore, agencies that have adopted the National Archives and
Records Agency (NARA) Capstone program, or similar policies, now maintain emails in a form
that is reasonably likely to be more complete than individual custodians’ files. For example, a
custodian may have deleted a responsive email from his or her email program, but USTR’s
archiving tools would capture that email under Capstone. Accordingly, American Oversight insists
that USTR use the most up-to-date technologies to search for responsive information and take
steps to ensure that the most complete repositories of information are searched. American
Oversight is available to work with you to craft appropriate search terms. However, custodian
searches are still required; agencies may not have direct access to files stored in .PST files, outside
of network drives, in paper format, or in personal email accounts.
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Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure,
withholding information “only if . . . disclosure would harm an interest protected by an exemption”
or “disclosure is prohibited by law.” If it is your position that any portion of the requested records
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See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149–50 (D.C. Cir.
2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955–56 (D.C. Cir. 2016).
See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C.
Dec. 12, 2016) (“The Government argues that because the agency had a policy requiring [the
official] to forward all of his emails from his [personal] account to his business email, the
[personal] account only contains duplicate agency records at best. Therefore, the Government
claims that any hypothetical deletion of the [personal account] emails would still leave a copy of
those records intact in [the official’s] work email. However, policies are rarely followed to
perfection by anyone. At this stage of the case, the Court cannot assume that each and every work
related email in the [personal] account was duplicated in [the official’s] work email account.”
(citations omitted)).
Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423 (Nov. 28,
2011), https://obamawhitehouse.archives.gov/the-press-office/2011/11/28/presidentialmemorandum-managing-government-records; Office of Mgmt. & Budget, Exec. Office of the
President, Memorandum for the Heads of Executive Departments & Independent Agencies,
“Managing Government Records Directive,” M-12-18 (Aug. 24, 2012),
https://www.archives.gov/files/records-mgmt/m-12-18.pdf.
FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185).
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 is exempt from disclosure, American Oversight requests that you provide 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.” Moreover, the Vaughn index “must describe each document or
portion thereof withheld, and for each withholding it must discuss the consequences of disclosing
the sought-after information.” 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.’”
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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. 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. 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.
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You should institute a preservation hold on information responsive to this request. American
Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including
litigation if necessary. Accordingly, USTR is on notice that litigation is reasonably foreseeable.

To ensure that this request is properly construed, that searches are conducted in an adequate but
efficient manner, and that extraneous costs are not incurred, American Oversight welcomes an
opportunity to discuss its request with you before you undertake your search or incur search or
duplication costs. By working together at the outset, American Oversight and USTR can decrease
the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in electronic format by email or in PDF or
TIF format on a USB drive. Please send any responsive material being sent by mail to American
Oversight, 1030 15 Street NW, Suite B255, Washington, DC 20005. If it will accelerate release of
responsive records to American Oversight, please also provide responsive material on a rolling
basis.
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Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).
King v. U.S. Dep’t of Justice, 830 F.2d 210, 223–24 (D.C. Cir. 1987) (emphasis in original).
Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251
(D.C. Cir. 1977)).
Mead Data Central, 566 F.2d at 261.
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USTR-17-0441

 Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 15 C.F.R. § 2004.9(h), American Oversight
requests a waiver of fees associated with processing this request for records. The subject of this
request concerns the operations of the federal government, and the disclosures will likely
contribute to public understanding of those operations. Moreover, the request is primarily and
fundamentally for non-commercial purposes.
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American Oversight requests a waiver of fees because disclosure of the requested information is in
the public interest because it is likely to contribute significantly to public understanding of
government operations. The disclosure of the information sought under this request will
document and reveal the operations of the federal government, including how officials conduct the
public’s business.
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The renegotiation of NAFTA (or even withdrawal from it) would dramatically alter the functioning
of large swaths of the U.S. economy. There can be no doubt that the Trump administration’s
potential renegotiation of one of our largest trade agreements is an “operation or activity” of the
federal government. The requested records would shed significant light on how the Trump
administration is approaching its obligation to oversee our most important trade relationship,
including which outside groups are being consulted and what discussions the administration has
had with other interested parties. Transparency into such an important undertaking is crucial to
ensuring the public’s understanding of how the government is conducting the people’s business.
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This request is primarily and fundamentally for non-commercial purposes. As a 501(c)(3)
nonprofit, American Oversight does not have a commercial purpose and the release of the
information requested is not in American Oversight’s financial interest. American Oversight’s
mission is to promote transparency in government, to educate the public about government
activities, and to ensure the accountability of government officials. American Oversight uses the
information gathered, and its analysis of it, to educate the public through reports, press releases, or
other media. American Oversight also makes materials it gathers available on its public website and
promotes their availability on social media platforms, such as Facebook and Twitter. American
Oversight has demonstrated its commitment to the public disclosure of documents and creation of
editorial content. For example, after receiving records regarding an ethics waiver received by a
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15 C.F.R. § 2004.9(h)(1).
Id.
15 C.F.R. § 2004.9(h)(1)(i)-(ii).
15 C.F.R. § 2004.9(h)(1)(iv).
American Oversight currently has approximately 11,500 page likes on Facebook and 35,300
followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight/
(last visited Oct. 31, 2017); American Oversight (@weareoversight), TWITTER,
https://twitter.com/weareoversight (last visited Oct. 31, 2017).
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senior DOJ attorney, American Oversight promptly posted the records to its website and
published an analysis of what the records reflected about DOJ’s process for ethics waivers. As
another example, American Oversight has a project called “Audit the Wall,” where the
organization is gathering and analyzing information and commenting on public releases of
information related to the administration’s proposed construction of a barrier along the U.S.Mexico border.
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Accordingly, American Oversight qualifies for a fee waiver.
Conclusion

We share a common mission to promote transparency in government. American Oversight looks
forward to working with USTR on this request. If you do not understand any part of this request,
have any questions, or foresee any problems in fully releasing the requested records, please contact
Sara Creighton at foia@americanoversight.org or (202) 869-5246. Also, if American Oversight’s
request for a fee waiver is not granted in full, please contact us immediately upon making such a
determination.
Sincerely,

Austin R. Evers
Executive Director
American Oversight

DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT,
https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance.
Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN
OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learned-from-thedoj-documents.
Audit the Wall, AMERICAN OVERSIGHT, www.auditthewall.org.
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