What type of leverage has the Obama Administration used to pressure Thailand to prevent the granting of compulsory licenses on drug patents? The US Department of Commerce has just released a FOIA request with 298 pages of documents on this topic. 136 pages of the FOIA are for a Fall 2010 masters theses by Stephanie Tranchevent Rosenberg (pages 36 to 171 of the FOIA). The others pages (attached below) are various documents that are aggressively redacted under FOIA exception 4 and FOIA exception 5. The Obama administration is doing its best to make the FOIA useless as regards this dispute. This compares very unfavorably to the more extensive information released by the government under FOIA during the first term of the Bush Administration. Attached are the mostly useless files released by the Obama Administration today. You might want to start with this one, and try to count the pages that appear black.
This request was processed by Justin Guz, the FOIA Officer for the International Trade Administration at the US Department of Commerce.
From the 2004 US Department of Justice FOIA Guide:
Exemption 4 of the FOIA protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” (1) This exemption is intended to protect the interests of both the government and submitters of information. Its very existence encourages submitters to voluntarily furnish useful commercial or financial information to the government and it correspondingly provides the government with an assurance that such information will be reliable. The exemption also affords protection to those submitters who are required to furnish commercial or financial information to the government by safeguarding them from the competitive disadvantages that could result from disclosure. (2) The exemption covers two broad categories of information in federal agency records: (1) trade secrets; and (2) information that is (a) commercial or financial, and (b) obtained from a person, and (c) privileged or confidential.
Exemption 5 of the FOIA protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” (1) The courts have construed this somewhat opaque language, with its sometimes confusing threshold requirement, (2) to “exempt those documents, and only those documents that are normally privileged in the civil discovery context.” (3)
Although originally it was “not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery,” (4) the Supreme Court subsequently made it clear that the coverage of Exemption 5 is quite broad, encompassing both statutory privileges and those commonly recognized by case law, and that it is not limited to those privileges explicitly mentioned in its legislative history. (5) Accordingly, the Court of Appeals for the District of Columbia Circuit has stated that the statutory language “unequivocally” incorporates “all civil discovery rules into FOIA [Exemption 5].” (6) However, this incorporation of discovery privileges requires that a privilege be applied in the FOIA context exactly as it exists in the discovery context. (7) Thus, the precise contours of a privilege, with regard to applicable parties or the types of information that are protectible, are also incorporated into the FOIA. (8)
Additionally, it is not the “hypothetical litigation” between particular parties (in which relevance or need are appropriate factors) that governs Exemption 5’s applicability; (9) rather, it is the circumstances in civil litigation in which memoranda would “routinely be disclosed.” (10) Therefore, whether the privilege invoked is absolute or qualified is of no significance. (11) Accordingly, no requester is entitled to greater rights of access under Exemption 5 by virtue of whatever special interests might influence the outcome of actual civil discovery to which he is a party. (12) Indeed, such an approach, combined with a careful application of Exemption 5’s threshold language, is the only means by which the Supreme Court’s firm admonition against use of the FOIA to circumvent discovery privileges can be given full effect. (13) Nevertheless, the fact that information is not generally discoverable does not necessarily mean that it is not discoverable by a specific class of parties in civil litigation, so just as the FOIA’s privacy exemptions are not used against a first-party requester, (14) a privilege that is designed to protect a certain class of persons cannot be invoked against those persons as FOIA requesters. (15)
The three primary, most frequently invoked privileges that have been held to be incorporated into Exemption 5 are the deliberative process privilege (referred to by some courts as “executive privilege”), the attorney work-product privilege, and the attorney-client privilege. (16) First, however, Exemption 5’s threshold requirement must be considered.