IP-Watch/Yale FOIA Case Decided: USTR Can Keep TPP Texts Secret, But Maybe Not Communications With Industry Advisors

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 court did, however, cast doubt on the government’s reasons for also keeping its communications with industry lobbyists from the public eye.

The court’s decision, dated 25 September, is available here [pdf].

After finding that extreme government secrecy was keeping it and other journalists from basic coverage of the trade negotiations, Intellectual Property Watch filed a FOIA case in 2012, hoping to get access to the US government’s proposal and texts, as well as communications with cleared industry advisors. When the FOIA request was all but ignored a year later, IP-Watch brought the case forward with the Yale Media Freedom and Information Access Clinic, a program of the Abrams Institute for Freedom of Expression and the Information Society Project at Yale Law School. The background of the case is described in the decision.

On keeping draft texts secret, the court sided with the Office of the US Trade Representative (USTR) in the argument that disclosing any aspect of the negotiations between governments could cause potential harm to future negotiations. It also said that the text of trade agreements in active negotiation have not previously been ordered to be disclosed in response to FOIA requests. And it said that “disclosure in this case might establish a precedent that all draft text in all future trade negotiations involving the U.S. would be subject to FOIA disclosure.” This might render formal confidentiality agreements – such as the one TPP countries signed stating they would not share any progress with the public – “futile”, it said.

Intellectual Property Watch, however, is only seeking disclosure of the US government’s own negotiating positions and proposals, and is not asking the court to order the government to disclose materials provided by foreign governments in confidence.

Moreover, the court does not, perhaps, consider that governments might simply change tacks to not keep all contents of trade negotiations secret in future, and thereby avoid future problems on this front.

On the communications with industry, the court rejected USTR’s  argument and agreed that “it is unclear how descriptions of meetings or advocacy in favor of language from other trade agreements would qualify as ‘commercial or financial’,” which are criteria under the exemptions USTR claimed.

The court also said it “has difficulty, based on USTR’s submissions, concluding that all of these exemptions are ‘confidential’ by virtue of ‘impairing the government’s ability’ to obtain necessary information in the future.”

Furthermore, the court said there are aspects of the agency’s response that “cast doubt on the care and thoughtfulness with which the redactions were made” to documents that were handed over. During the course of the case, USTR rethought its response and removed some redactions that it had first imposed.

USTR is a small agency that is frequently mentioned as being overworked and facing limited resources. But the court raised questions about its ability to respond to a serious FOIA request.

“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.” And the court slapped USTR for its “equally high-level and vague” explanations of its withholdings.

The court especially took issue with USTR’s claim to protect communications with industry advisors under protections for “intra-agency” communications.

All of this comes under an Obama administration that has sought to stress the importance of transparency and the FOIA law’s presumption of openness.

A full press release, available here on the Yale website, follows:

In IP-Watch FOIA Lawsuit Seeking Transparency on TPP Negotiations, Court Allows Government to Keep the Text of the Agreement Secret, but Is Skeptical of Efforts to Shield Industry Lobbying from Public Scrutiny

FOR IMMEDIATE RELEASE: September 30, 2015

AS TRANS-PACIFIC PARTNERSHIP NEGOTIATIONS RESUME, FEDERAL COURT RULES THAT GOVERNMENT CAN CONTINUE TO PREVENT PUBLIC FROM SEEING THE SUBSTANCE OF THE PROPOSED AGREEMENT

Court Expresses Skepticism that Industry Lobbying on TPP Can Be Shielded From Scrutiny, but Allows Government to Keep Text of the Agreement Secret

NEW HAVEN, CT – A federal district court in Manhattan released an important decision Monday in Intellectual Property Watch’s (IP-Watch) long-running Freedom of Information Act lawsuit against the U.S. Office of the Trade Representative (USTR). IP-Watch’s lawsuit seeks disclosure of key information about the secret negotiations over the Trans-Pacific Partnership Agreement (TPP). That agreement is being negotiated between 12 countries, encompassing over 40 percent of the world’s economy. The latest—and perhaps final—round of negotiations began this week in Atlanta. Members of the public are not permitted to see the text of the agreement or the substance of negotiations. Such access is limited to industry lobbyists and representatives selected to sit on USTR advisory committees. IP-Watch’s lawsuit seeks disclosure of the communications between US trade negotiators and these industry advisors. It also seeks public access to portions of the draft text of the TPP that concern intellectual property rights, and which the U.S. has proposed or adopted and already shared with its foreign negotiating partners.

The court’s decision expressed skepticism of the secrecy surrounding U.S. trade negotiators’ discussions with industry advisors, and it may ultimately result in greater public insight into the role that those advisors have played in shaping the negotiations. Regrettably, the court refused to order the government to disclose the text of the TPP itself or USTR’s negotiating positions. The court endorsed the government view that the substance of the agreement should remain a classified secret.

The government has refused to disclose much of the policy input provided by industry advisory committees on the theory that such discussions are akin to internal policy deliberations within government. The Court flatly rejected that argument, noting that even “USTR recognizes that ITACs are by definition interested parties who are expressly meant to advocate their own interests.” The government also argued that the recommendations of these industry representatives amount to “confidential commercial or financial information.” The court viewed that claim with great skepticism: “The  court agrees that it is unclear how descriptions of meetings [with industry advisors] or [their] advocacy in favor of language from other trade agreements would qualify as ‘commercial or financial.’”

Nevertheless, the court’s decision will not result in the immediate release of more communications between USTR and industry advisors. Instead, the court has given USTR an opportunity to attempt to submit more detailed justifications for these secrecy claims.

“At best, the court’s decision gives the public half a loaf,” said Jonathan Manes, Abrams Clinical Fellow at Yale Law School and supervising attorney in the litigation. “From the start, we have been troubled by the notion that industry representatives could secretly lobby the government in order to shape an agreement that the broader public could not see,” Manes said. “The court rejected many of the broadest secrecy claims the government made on behalf of industry advisers, including USTR’s startling assertion that its discussions with industry representatives and lobbyists should be regarded as internal government policy deliberations,” Manes continued. “Ultimately, however, the public can hardly have meaningful oversight and involvement in this lawmaking process without knowing what the text of the agreement actually says or what the government has proposed,” he concluded.

William New, editor-in-chief of IP-Watch, commented on the continued secrecy of the text of the TPP, “While the court adopted the government’s strained arguments, it still seems illogical in the court of common sense that our government can share secrets and proposals with other governments but stamp them ‘classified’ and keep them from its own people.” IP-Watch is represented in the case by the Media Freedom and Information Access Clinic, a program of the Abrams Institute for Freedom of Expression and the Information Society Project at Yale Law School.

IP-Watch’s FOIA lawsuit has already resulted in disclosures of hundreds of pages of email communications with industry representatives that offer an unprecedented look at the close industry involvement in the United States’ negotiation of the agreement. Mr. New described the purpose of the lawsuit: “Intellectual Property Watch is trying to do its job as a traditional journalistic organization to report on this interesting and news-worthy trade negotiation.” IP-Watch filed its FOIA request in March 2012 and the case has been in court since December 2013. “Without greater transparency about the substance of the negotiation, it’s impossible for the public, journalists, and other stakeholders in our democracy to have a meaningful understanding of the agreement before it is finalized,” observed New. “The American people have been left to resort instead to leaks, hearsay or guesses about what their government is negotiating on their behalf.”

The TPP promises to change and standardize laws across a whole range of intellectual property issues. The details of the agreement could have a major impact on the balance between the rights of producers, consumers, and others when it comes to copyrighted or patented works, including medicines, books, music, software, and online content.

“Public access to the text of the agreement would break the industry advisors’ effective monopoly on policy input and would help ensure that journalists are able to report meaningfully on the content of the agreement while it is still under negotiation,” said Ben Picozzi, a law student who represented IP-Watch in the lawsuit. “The decision today means that the public will likely not be able to review the agreement before it is finalized,” Picozzi continued. Once an agreement is reached, the entire deal will be sent to Congress for approval or disapproval; it will not be subject to amendment.

IP-Watch is an independent non-profit news service that reports on the behind-the-scenes dynamics that influence international intellectual property policies. Yale law students Rebecca Wexler and Lulu Pantin represent IP-Watch and William New under the supervision of attorneys Jonathan Manes and David A. Schulz, the clinic’s co-director. Current and former law students Ben Picozzi, Brianna van Kan, Cory Adkins, and Dayo Olopade contributed to IP-Watch’s legal submissions on the motion that the court decided this week.