2011: Judge rejects USTR claim that negotiating position in FTAA investment chapter is exempt from FOIA

In a somewhat unexpected and encouraging ruling, on April 12, 2011, the District Court for the District of Columbia rejected USTR claims that the release of certain documents relating to a trade negotiations can be shielded from the FOIA.

The case involves a FOIA dispute between the Center for International Environmental Law (CIEL) and the the United States Trade Representative’s (USTR) over documents revealing the US negotiating position on the Investment Chapter in the proposed Free Trade Agreement of the Americas (FTAA).

Judge Richard W. Roberts of the United States District Court for the District of Columbia rejected the United States Trade Representative’s (USTR) motion for summary judgement. USTR claimed that the documents could not be released under a FOIA request due to national security concerns. Judge Roberts found the USTR arguments unpersuasive and rejected the USTR’s motion for summary judgment. The full opinion is available here: http://www.fas.org/sgp/jud/ciel041211.pdf

CIEL sought documents USTR provided to negotiators that contained US positions on the trade and investment sections of the agreement. USTR had claimed that disclosure of one document would breach a non-disclosure agreement, harm US national security interests and damage foreign relations. US Courts tend to defer to agency determinations, particular with regard to FOIA litigation and claims that national security interest necessitates secrecy and classification of particular documents. However, Judge Roberts noted, “[d]eference . . . does not mean acquiescence.” Citing Larson v. Dep’t of State, Civil Action No. 02-1937 (PLF), 2005 WL 3276303, at *9 (D.D.C. Aug. 10, 2005)

Citing Vaugh v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973), Judge Robert’s opinion noted that although nine exemptions to disclosure under FOIA exist, the exemptions must be construed narrowly to maximize public access to agency information.

  • USTR argued that the release of the contested document would breach its agreement with the other 34 nations participating in the FTAA negotiations “not [to] release to the public any negotiating documents they produce or receive in the course of the negotiations unless there is a consensus among the 34 governments to do so.”
  • USTR further asserted that foreign relations would be harmed because if foreign governments expect their trade positions to be subject to public disclosure, their room for negotiation would be reduced, and that negotiators would be less likely to provide information in the future.
  • USTR also argued that disclosure would undermine the US to negotiate the FTAA and other trade agreements in the future because the release of the document (in particular, its definition of the phrase “in like circumstances”) would somehow damage trust the negotiating partners have in the United States and impact economic and security interests.
  • Finally, the USTR suggested that disclosure of negotiating positions would be seen as a negotiating tactic and ultimately result in other governments attempting to strengthen public support for their own positions, making compromise among nations.

The District Court found all of the USTR’s arguments unpersuasive.

Roberts noted that the disclosure of the document would reveal only the position of the United States and not that of any other country. The USTR did not provide any evidence that disclosing the US negotiating position would discourage foreign governments from sharing information with the US in the future because disclosure of the US’ own documents has no bearing on the US’ commitments to keep foreign information classified and confidential.

One of the issues in dispute concerns text regarding a USTR definition of “in like circumstances” in the document about the FTAA investment chapter that CIEL is seeking to obtain under FOIA. The District Court found the argument that secrecy builds trust incongruous with the argument that the US wanted to maintain the flexibility to change its official position on what this text meant.

USTR claimed, on the one hand, that secrecy was necessary to maintain trust of the other trading partners, but on the other that disclosure would harm national security interests by revealing the US interpretation of “in like circumstances” thereby preventing the US from “adjusting that definition to suit its needs in other situations–a tactic that would presumably undermine the trust of foreign governments in the United States.”

One interesting part of the opinion was the discussion of USTR’s argument that a disclosure of the USTR document would motivate other countries to use similiar disclosures strategicially. In footnote 4, Roberts notes:

In addition to noting the pressure on foreign governments and the possible resistance to the U.S.’ proposals, USTR also explains more specifically that the negotiations would stall because negotiating partners would “adopt similar tactics,” that release of information would be perceived by a foreign country as “an unfair effort [by the U.S.] to entrench its positions[,]” and that foreign governments are under pressure “to protect vested local economic interests from U.S. firms that seek investment protections under U.S.-negotiated trade and investment agreements from arbitrary or unfair [foreign] government conduct.” (Defs.’ Suppl. Br., Bliss Decl. ¶¶ 10-11.) Cf. Ctr. for Int’l Envtl. Law, 505 F. Supp. 2d at 157.

Roberts found the USTR’s argument that disclosure by USTR would lead to similar disclosures by foreign trading parties lacked a “logical nexus” and that there was no evidence that any of the negotiating partners would deem the disclosure of a document to comply with a FOIA request a negotiating tactic by the US.

Finding none of the USTR’s arguments persuasive, the District Court rejected the motion for summary judgment and the FOIA case will proceed on the merits.

The District Court’s rejection of the USTR’s arguments for an national exemption from compliance with a FOIA may impact similar cases involving documents relating to US positions in trade negotiations, such as the TPP negotiation.

Additional commentary:

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