D.C. Circuit Overturns Lower Court Order Compelling Release of USTR Negotiating Position
U.S. Court of Appeals for the D.C. Circuit overturned a lower court ruling June 7 that would have compelled the U.S. Trade Representative to release a white paper describing the U.S. interpretation of the phrase “in like circumstances” for the purposes of national treatment and most favored nation free trade agreement provisions. The document was used in negotiations for the ill-fated Free Trade Agreement of the Americas. The D.C. District Court had said the white paper does not meet a Freedom of Information Act exemption for documents related to national defense foreign policy, because the USTR did give a good enough explanation of why release of the white paper would have created a foreign policy risk. But on appeal, the D.C. Circuit said USTR’s explanation that release of the document would harm future negotiations was plausible, and reversed.
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The phrase “in like circumstances” is used in many trade agreements to define the application of the principles of most favored nation (nondiscrimination between trading partners) and national treatment (nondiscrimination between domestic and foreign goods). The document in question was circulated during FTAA negotiations in the late 1990s and early 2000s. It detailed the U.S. interpretation of the phrase “in like circumstances” for the purposes of that negotiation. The Center for International Environmental Law asked for the document, among many others, through a Freedom of Information Act request made to USTR in July 2000. USTR refused to release the white paper under FOIA “Exemption 1” for foreign policy/national security reasons. According to USTR, arbitrators in trade disputes would be able to use the document to pin down a U.S. position, limiting the ability of the U.S. to defend itself. The district court rejected that reasoning as too speculative.
The appeals court disagreed, and reversed the district court’s judgment. The D.C. Circuit didn’t see why USTR’s argument about arbitrators using the document was “speculative.” It also found persuasive another justification from USTR -- that release of the U.S. position on “in like circumstances” would limit U.S. flexibility to use common negotiating tactics in trade discussions. But most importantly, the question of whether release of the white paper would limit the U.S. in arbitration or trade negotiations was not for the courts to decide, the appeals court said. The question instead should have been whether the agency’s action was reasonable. The D.C. Circuit said it was.
(Center for International Environmental Law v. United States, D.C. Circuit No. 12-5136, dated 06/07/13)