Court Denies USTR Claim that U.S. FTAA Doc is Exempt from FOIA
On April 12, 2011, the Federal District Court of the District of Columbia ruled against the Office of the U.S. Trade Representative, stating that a document submitted during negotiating sessions of the Free Trade Agreement of the America's (FTAA) is not exempt from disclosure under the Freedom of Information Act (FOIA) as it would not harm U.S. national security interests.
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CIEL Filed FOIA Request for USTR Docs Given to FTAA Negotiators
The Center for International Environmental Law (CIEL) filed a FOIA request with USTR seeking documents provided to negotiators during sessions of the Negotiating Group on Investment for the Free Trade Agreement of the Americas (FTAA). Three of the four documents submitted to the group were derestricted and released to CIEL. The only document remaining in dispute explains the U.S.' initial proposed position on the meaning of the phrase “in like circumstances,” which appears in rules requiring each party to provide investors from the other party national treatment and most-favored-nation treatment (NTR/MFN).
USTR Says Document is Exempted from Disclosure for Nat'l Security Reasons
USTR argues that the document is a classified national security document protected from disclosures under Exemption 1 of the nine exemptions to FOIA disclosure.1 USTR is withholding the document based on the classification criteria of Executive Order 12958, which permits classification of information if the original classification authority (i) determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security and (ii) is able to identify or describe the damage.
Argues Disclosure Would Undermine U.S.' Ability to Negotiate Favorable Trade
The FTAA participating nations had an understanding that any negotiating document produced or received in confidence during the negotiations would not be released to the public unless all nations agreed. USTR argues that releasing the document would constitute a breach of this non-disclosure agreement with FTAA participating nations, which are entitled to pursue arbitration against the U.S. to enforce established investment protections.
USTR contends that disclosure of its own trade positions would create the perception among foreign nations that the U.S. is attempting to strengthen its bargaining position through public pressure. USTR claims that if foreign nations expect that their trade positions will be publicly disclosed, their trust in the U.S. could be damaged, making them more likely to adopt rigid negotiating positions. Therefore, disclosure could undermine the ability of the U.S. to negotiate and conclude the FTAA and other trade and investment agreements on terms favorable to U.S. interests.
Court Rules Doc Only Discloses U.S. Position, Would Not Cause Harm to Security
The Court rules that USTR has insufficiently shown that releasing the document would result in harm to national security or that an exemption to FOIA applies. The Court reasons that USTR would be releasing the document to comply with the FOIA, and it is implausible that negotiating partners would view disclosure under such circumstances as an unfair effort to entrench USTR’s positions.
The Court additionally states that while disclosure of the document would breach the agreement with other FTAA participating governments, the claim that such a breach would harm national security is not compelling since the U.S. would be revealing its own position only and not that of any other country. Therefore, the Court states that foreign officials would have no basis for concluding that the U.S. would dishonor its commitments to keep foreign information confidential. Accordingly, the Court has denied USTR’s motion for summary judgment and has ordered parties to propose a schedule on which that the case should proceed.
1Exemption 1 of FOIA (5 USC 552(b)(1)) protects from disclosure matters that are: (i) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (ii) are in fact properly classified pursuant to such Executive order.