Judge Shields TPP from Freedom of Information Act

Judge Shields TPP from Freedom of Information Act

By ADAM KLASFELD, Tuesday, September 29, 2015
Originally posted here.

MANHATTAN (CN) – Drafts of the “vast, sweeping” trade agreement that the United States is secretly negotiating with 11 other world powers are not subject to the Freedom of Information Act, a federal judge ruled.
The Trans-Pacific Partnership is a proposed trade agreement between 12 countries bordering the Pacific Rim setting international standards over labor, the environment, agriculture, medicine, labor, the Internet, human rights, intellectual property rights and many other issues.

Though first announced to Congress in 2009, a confidentiality agreement that the participating countries reached protects their proposals from public disclosure until there is a final agreement.
Most information about the deal has come to light through leaks to the press. WikiLeaks, which has already disclosed multiple chapters, offered a $100,000 bounty this past summer for the full text of the draft chapters.

Intellectual Property Watch, a nonprofit news outlet better known as IP Watch, and its editor-in-chief William New took a more traditional path to wresting out the information. In 2012, the group sent the U.S. Trade Representative a wide-ranging FOIA request that sought draft chapters of the U.S. positions, plus the trade representative’s communications with the so-called Industry Trade Advisory Committees. President Barack Obama appointed these ITACs to consul on U.S. interests. The Washington-based advocacy group Public Citizen estimates that more than 500 corporate “trade advisors” have special access to such information in this role>

Though the U.S. Trade Representative refused to release the drafts under an exemption protecting national-security information, the agency did disclose roughly 400 pages of the emails of discussions with the ITACs.IP Watch then sued the agency in Manhattan to acquire the withheld documents.

Earlier this year, the website’s attorney Jonathan Manes noted in a brief that the disclosure of the records would not violate the confidentiality agreement because the website sought only the positions of the United States, not those of other countries. Manes, who works with Yale University’s Media Freedom and Information Access Clinic, added that the trade representative never “described actual harm” from the disclosure.

Barbara Weisel, an assistant U.S. Trade Representative for Southeast Asia and the Pacific, told the court that the documents contain “summaries about the work and progress” in TPP negotiations and “candid assessments” about reaching consensus with other countries. U.S. District Judge Edgardo Ramos nevertheless called the threat of harm “at the very least, plausible,” at least with regards to “foreign relations.” “As plaintiffs fail to recognize, disclosure may very well reduce the U.S.’s flexibility and complicate information exchanges and bargaining with other countries not involved in TPP negotiations, regardless of the fact that the other 11 countries participating in the TPP are already privy to U.S. positions and proposals,” the 35-page opinion released Friday states.

Since corporate advisers are consultants, not federal agencies, however, the judge question the U.S. Trade Representative’s use of an exemption concerning interagency communications to withhold some of its emails with the ITACs. The parties will continue to spar over whether other emails are protected under exemptions protecting trade secrets or nondisclosure provisions of other statutes.

In pushing this part of the litigation forward, Ramos ripped the U.S. Trade Representative for making “conclusory” declarations in support of withholding information that “cast doubt on the care and thoughtfulness with which the redactions were made.” The U.S. Trade Representative’s office did not immediately respond to a request for comment.

In a phone interview, IP Watch’s attorney Manes said that “upshot” of the judge’s national-security finding is that “these kind of trade negotiations will continue to be negotiated in secret” until a final deal has been reached.

Since Congress can decide only whether to approve – but not amend – an agreement, this arrangement leaves the public with “no meaningful input in these lawmaking processes,” Manes lamented.

As the TPP negotiators kicked off another round of talks this week in Atlanta, Ga., multiple news outlets are speculating that a deal may be imminent. Politico quoted U.S. Trade Representative Michael Froman dispelling the rumors of a rush toward an agreement, but Canada’s Macleans magazine reported that its country’s conservative government is pushing for consensus before the weekend in a “final sprint toward election day.”

The TPP is also shaping up to be an electoral issue in the United States, with presidential candidates from both parties expressing skepticism of the opaque treaty with potentially massive implications on a variety of issues in their platforms.

Manes believes that the information his clients may still receive can inform the public debate by illuminating who advocated for what positions, and whose interest the deal serves. “We hope that those disclosures can happen before the agreement’s finalized, but even afterward, I think there’s historical interest and lessons to be learned for future negotiations,” he said.