Court Says USTR Can Continue To Keep The Public From Seeing The Trade Agreements They'll Be Subjected To

from the our-national-security-depends-on-it,-apparently dept

Towards the end of 2013, IP-Watch -- along with the Yale Media Freedom and Access Center -- filed a FOIA lawsuit against the USTR for its refusal to release its TPP draft documents. The USTR spent a year ignoring IP-Watch's William New's request before telling him the release of draft agreements would "harm national security."

What trade agreements have to do with "national security" is anyone's guess (especially since the USTR has cloaked the entire TPP proceedings in opacity), but the conclusion being drawn by this refusal is that the USTR feels the public has no right to know about trade agreements that affect the public.

A ruling has finally come down in the FOIA lawsuit and the court has granted the USTR the right to remain opaque.

As government negotiators dig into perhaps the final round of the Trans-Pacific Partnership trade negotiations this week in Atlanta, they may take comfort in knowing that nothing they are doing has to be shared with the public they represent until years after it is over. That’s because a federal district court in Manhattan decided this week, in a closely watched Freedom of Information Act case brought by Intellectual Property Watch, that draft texts of the trade deal can be kept secret.

The very small upside of this decision is that the court did find some of the USTR's arguments for secrecy suspect. While it did side with the USTR's arguments on the withheld draft agreements, it found the agency did not present credible justification for its use of some FOIA exemptions in regards to requested communications.

First and foremost, USTR’s declarations rely purely on conclusory statements from the agency itself, which simply proclaim that disclosure would complicate USTR’s future efforts. Even the sole piece of evidence meant to represent the views of actual private-sector actors comes from the agency’s declaration, and this too is vague and conclusory…

Critically, none of USTR’s explanations are document-specific, nor even category-specific. They are blanket assertions meant to cover all withholdings made under § 2155(g)(1) and Exemption 4…

[The] USTR’s bare assertions reporting secondhand concerns from the private sector constitute only weak evidence, at best.

The court also noted the USTR's arguments in favor of withholding information under Exemption 4 were undercut by wording in the agency's own policies.

In response to Plaintiffs’ argument that the withheld commercial or financial information is not “confidential” because it has already been shared among all ITAC members, USTR argues only that ITAC members are sworn to secrecy and cannot use information they receive via ITACs outside of those committees. But the obvious reply, absent from USTR’s briefs, is that USTR’s own Operations Manual states that information subject to Exemption 4 withholding will be kept from other ITAC members.

And if the USTR can't keep its own secrecy arguments straight, there's a good chance it has not performed the thorough examination of the contested documents it claimed it had.

As Plaintiffs argue, USTR’s failure to make this simple response raises questions about whether the agency has wrongly withheld information under Exemption 4 that has already been shared with other ITAC members. Finally, although the Court does not question USTR’s good faith in responding to this FOIA request, Plaintiffs are also correct to point out the troubling nature of USTR’s first round of responsive disclosures here, which apparently withheld 149 pages in full and redacted portions of 413 pages improperly, despite sworn declarations attesting to a line-by-line review of all the documents.

That being said, the court still won't be ordering the USTR to release draft TPP documents. The only thing it has done is order the agency to present documents explaining its withholding of certain communications under two FOIA exemptions. The bulk of the trade agreements will remain hidden away from the public -- this time with the court's blessing and thanks to the administration's advocacy on behalf of continued opacity.

Filed Under: foia, secrecy, tpp, transparency, ustr, william new
Companies: ip watch, yale

USTR Sued For Failing To Reveal TPP Details In Response To FOIA Request

from the national-security? dept

William New, the guy who runs the excellent IP Watch website has been trying to find out more about the TPP agreement for quite some time. Working with some students from Yale's Media Freedom and Information Access Clinic, New filed a Freedom of Information Act (FOIA) request for TPP-related documents. The USTR waited nearly a year to respond (well beyond the 20 working days required by the law), and then told New that they weren't providing the documents, saying that the draft text of the TPP is classified as "national security information."

Yeah. A draft of a trade agreement that will impact us all, but is being negotiated in secret by the USTR and a small group of corporate lobbyists, is "national security" information.

In response, New and the MFIA clinic have now filed a lawsuit against the government concerning the failure to provide this information. I have no idea how the lawsuit will turn out, but it seems likely that the TPP text will be revealed as "finalized" before anything really happens with the lawsuit. Still, hopefully they'll be able to argue that they were seeing the draft texts, rather than the final agreement, and set some sort of precedent.

When asked about the lawsuit over the near total lack of transparency, the USTR's spokesperson Carol Guthrie repeated the same completely bogus talking point she sends to everyone (she's sent it to me in the past as well about other TPP issues):

The reality is that TPP negotiations have been more transparent and consultative than any U.S. trade agreement in history while maintaining the confidentiality appropriate for a government-to-government negotiation. Releasing internal deliberative documents would undermine U.S. leverage in negotiations and impair our ability to pursue the strongest possible outcomes on issues ranging from labor and environmental protections to market access for U.S. goods and services.

This statement is as obnoxious as it is misleading. First of all, being "more transparent" is meaningless if the baseline is "totally opaque" and this is a tiny bit more transparent. Second, and more importantly, Guthrie and the USTR continue to use this bogus assertion that listening to lots of people is "transparency." We've explained (and I've told her directly) that transparency is not listening, it's about information flowing in the other direction. Listening is about taking information in. Transparency is about information flowing in the other direction. Claiming that being "consultative" is being "transparent" is simply false. It's not.

Finally, the claim that releasing "deliberative documents would undermine U.S. leverage in negotiations" is equally bogus. As many have pointed out, all sorts of international agreements are negotiated in public, with proposals being released publicly while the negotiations are ongoing. The recently concluded Marrakesh Treaty for the Blind worked that way. It's becoming completely obvious that the USTR has absolutely no interest in even the slightest bit of honest debate over its role in pushing the agenda of a few large companies against the best interests of innovation, jobs and the American public. While it may get them high paying jobs with lobbyists in a couple years, it's a shame they feel the need to sell out the public for their personal benefit, and it's worse that they're doing this with the stamp of approval from the White House.

Filed Under: foia, tpp, trade agreement, transparency, ustr, william new
Companies: ip watch, mfia