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.


Reader Comments (rss)

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  1. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Dec 23rd, 2013 @ 8:08pm

    Don't clutter your mind with details. Just assume it's more tyranny.

    This'll be an experiment in tact... From your writing in this piece we at least reach accord on opposing TPP, but I think you're overly interested in details: once you know the broad outlines of an evil, it's only a matter of degree. Yes, with specifics you might rouse more opposition, but if simply knowing this is pushed by globalists -- and corporatists -- isn't enough to reject it out of hand, then those aren't likely allies.

    So as a practical matter, merely the fact that it's secret is enough, IF you have a Populist slant and not academic.

    There. Now isn't that WORSE than my usual? You have to wade through to figure it out. We'll all save time if I just stick to short and simple, as: WHO CARES WHAT ACADEMIC WEENIES LEARN ABOUT IT? BUNCH A DAMNED GLOBALISTS ARE TRYING TO DO AWAY WITH NATIONAL SOVEREIGNTY! KILL THIS CORPORATIZED "TREATY"!

     

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  2.  
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    Anonymous Coward, Dec 23rd, 2013 @ 8:48pm

    The federal Freedom of Information Act (FOIA)is set forth at 5 USC 552. While its intent is to encourage widespread disclosure of information to the public, it does contain 9 specific exemptions from disclosure. These exemptions appear at 5 USC 552(b), which provides:

    "(b) This section does not apply to matters that are—
    (1)
    (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and

    (B) are in fact properly classified pursuant to such Executive order;

    (2) related solely to the internal personnel rules and practices of an agency;

    (3) specifically exempted from disclosure by statute (other than section 552b of this title), if that statute—
    (A)
    (i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or

    (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and

    (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.

    (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

    (5) 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;

    (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

    (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information
    (A) could reasonably be expected to interfere with enforcement proceedings,

    (B) would deprive a person of a right to a fair trial or an impartial adjudication,

    (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy,

    (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,

    (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or

    (F) could reasonably be expected to endanger the life or physical safety of any individual;

    (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

    (9) geological and geophysical information and data, including maps, concerning wells.

    Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made."

    Let me begin by apologizing for replicating an agonizingly long section from a federal statute, but I am doing so for the simple reason that understanding what each exemption comprises is useful in this and other instances where a federal agency decides to withhold information from disclosure. Many, many times withholding is perfectly legitimate (I would like to see all documents identifying the location of our ICBMs.), but then again there are occasions (few fortunately) where an agency attempts to slow roll a requester in the hopes the requester will give up and go away. This appears to be such a case.

    At the outset, let me say that I have views concerning various aspects of the TPP that in several instances diverge from the views and opinions predictably proffered here. Notwithstanding this, FOIA is an area of federal law I have addressed countless times, and one of my pet peeves are requesters who abuse the system and agencies that do likewise. There does not appear to be any evidence of requester abuse in this instance, but the same cannot be said (if the allegation of the exemption being asserted is accurate) of the USTR.

    The article generally describes the reason for non-disclosure being the USTR's reliance upon Exemption 1. Readers are invited to note that the two subparagraphs within Exemption 1 are conjunctive, i.e., both conditions must be met or the claim for exemption must fail. Perhaps there is information within the Office of the USTR to which I am not privy, but I do have to wonder how what must comprise a classified document in order for the exemption to properly be claimed can be provided to an ever changing list of third parties, persons and organizations, that almost certainly do not hold security clearances that are necessary for them to even be able to access such information. The disclosure of classified information to persons lacking a security clearance and a demonstrable need to know is a serious matter carrying serious legal consequences.

    I do not recall at any time during these multi-national discussions any instance in which classified information has even been mentioned, much less asserted. In view of this I am left, based upon information I have learned over the past couple of years, with the firm conviction that the information should be disclosed, and that failure to do so should carry serious consequences for those directing withholding. Oh yes, it helps that I have studied court decisions associated with every FOIA exemption. A claim that Exemption 1 applies easily deserves about 10 Pinocchios. What about the other 8? Read them for yourselves. By no reasonable measure can any of them be asserted with a straight face unless looking like a total fool before a federal judge is one's goal in life.

    Perhaps the USTR will think better of what appears to be a losing argument, and instead try to craft a rationale around Exemption 3. That is always possible, but a tough row to hoe since to my knowledge there is nothing in any federal law associated authorizing the USTR to withhold on this basis.

    Mr. Masnick, I believe it is fair to say that I share the same concerns expressed in the article, so for once we are not at odds on this issue, i.e., the non-disclosure under FOIA. The USTR, to use legal vernacular, is being a "tool" and should be called out for its failure to faithfully follow the requirements of the statute.

     

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  3.  
    identicon
    Anonymous Coward, Dec 23rd, 2013 @ 8:57pm

    Really, the problem with transparency is that the Obama administration thinks that transparency means instead of simply making deals in a back room, the room has screens and speakers wired to cameras and microphones outside so that they can see and hear anyone so interested in stopping by and saying something about the proceedings.

    What they refuse to accept is that transparency means not only that, but that they have cameras and microphones inside the room wired to speakers and screens outside it as well, so that anyone so interested can stop by and see and hear everything they are doing in the room.

     

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  4.  
    identicon
    Anonymous Coward, Dec 23rd, 2013 @ 10:10pm

    Re:

    But then we'd be able to tell that they keep the mute button on when we give our input

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Dec 23rd, 2013 @ 10:26pm

    "Releasing...[blank]...undermine U.S. leverage in negotiations..."

    So they aren't trying to get the best outcome for the public and any SOPA/ACTA/etc outcry from the public would weaken the US getting what it wants. Gotcha.

    Except that the negotiations should be done in the best interest for the public and the public at large should be (mostly) in agreement on it. If it isn't beneficial for the majority of the public on both sides, then in this day and age the governments shouldn't be negotiating it. I mean "democracy" reigns right now right? Or at least when it's convenient....

     

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  6.  
    identicon
    David, Dec 23rd, 2013 @ 11:14pm

    Re:

    "Democracy reigns" does not make a whole lot of sense for a country publishing a seriously diverging "popular vote" after each election. And that's just the official way to make sure the votes of the common hicks don't actually count for much. There is also voting machine fraud and Jimmy Crow laws for tampering with registration and voting itself on top.

     

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  7.  
    identicon
    Anonymous Coward, Dec 24th, 2013 @ 2:24am

    ...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 bit is particularly at odds with the released position papers. I will give them that they may be trying to protect some form of market access (preferential/relative advantageous market access?), but claiming to protect labor and environment seems like a stretch ("1 of 11 other countries has a slightly more lax opinions on some environmental and labor issues. Therefore we are the arbiters of protection!"?).

    More importantly the interest of the public is not mentioned at all. Guess the common man is a dirtfarmer.

     

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  8.  
    identicon
    Anonymous Coward, Dec 24th, 2013 @ 2:30am

    Re:

    As far as I can see, the US Government definition of transparency is a one way mirror, they can look at everything you do, but you are not allowed to look at anything they do unless they are telling you how it's going to be.

     

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  9.  
    identicon
    Anonymous Coward, Dec 24th, 2013 @ 3:45am

    "I have no idea how the lawsuit will turn out"

    Liar.

    Of course you know how it will turn out. As does everyone else: it'll be laughed out of court.

     

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  10.  
    identicon
    Anonymous Coward, Dec 24th, 2013 @ 3:46am

    tell me how many people in any government job, from the politicians whose outright job is to represent the people of their town, state whatever, to the president him/herself, are not more interested in lining their own nest than anything else?

     

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  11.  
    identicon
    Androgynous Cowherd, Dec 24th, 2013 @ 4:51am

    Don't forget that when they talk about "market access" in these matters what they really mean is "market exclusivity", i.e. the denial of market access to their competitors (generic drugs, for example, or parallel imports).

    Also, when they negotiate something and are saying "I want X" while thinking "(but I might be haggled down as far as Y)", the only part that properly ought to be allowed to be kept secret is the latter part. That's the part where they lose negotiating advantage if it's revealed to the other negotiating parties. The "I want X" part is already known to the other negotiating parties, and so no "negotiating advantage" justification exists for keeping it secret. It's the "I want X" positions that have been in the leaks, and I believe that's also what the FOIA requests have been seeking.

     

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  12.  
    identicon
    Anonymous Coward, Dec 24th, 2013 @ 5:27am

    Re:

    Which leaves only quasi=legal methods of fighting this stupidity.

     

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  13.  
    icon
    Hephaestus (profile), Dec 24th, 2013 @ 5:29am

    Since this is a national security issue, wouldn't the people doing the negotiating, on behalf of the US, require at least a secret level clearance? I somehow doubt that the rep from Disney has one.

     

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  14.  
    identicon
    ring ring, Dec 24th, 2013 @ 6:19am

    Voting

    The only way to change this country is one person one vote. We need to as a people make it that way and make it stick.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Dec 24th, 2013 @ 6:53am

    Does anyone else feel like the Klingon's cloaking tool is working too well ..

     

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  16.  
    identicon
    DogBreath, Dec 24th, 2013 @ 10:34am

    Re:

    Not so far fetched as it might seem:

    Be Mickey Mouse’s Spy

    by noahmax on February 27, 2006

    Some of you may have felt a little underqualified to become a manhunter for Special Operations Command. Never fear. An anonymous pal has found a job almost as good: “Intelligence Analyst” for the Walt Disney Company. Yeah, you read that right: a spook for the Mouse… “highly developed Internet skills” and “US Government security clearance (at least Secret-level) desirable.“

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    slick8086, Dec 24th, 2013 @ 1:18pm

    What do you mean they aren't being transparent? It seems like they are completely INVISIBLE as in "nothing to see here, move along, tut tut"

     

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  18.  
    identicon
    Anonymous Coward, Dec 24th, 2013 @ 7:10pm

    There's that word, "National Security" bitches!

     

    reply to this | link to this | view in thread ]


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