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.