Court Orders USTR To Justify Industry Advisor Confidentiality In TPP

The Office of the United States Trade Representative (USTR) next week is expected to provide justification for withholding from a Freedom of Information Act request the communications with its industry advisors as confidential commercial or financial information. The case involves communications in the lead-up to completion of the Trans-Pacific Partnership (TPP) agreement, and could set a precedent for exemptions of communications with lobbyists.

The lawsuit brought by Intellectual Property Watch has been seeking communications between officials at USTR and industry representatives and lobbyists on the Industry Trade Advisory Committees (ITACs) that are organised by sector.

In a 25 September decision [pdf], Judge Ramos of the federal district court in Manhattan held that USTR failed to justify its withholding of those communications, which were heavily redacted, blacking out the vast majority of the communications (IPW, US Policy, 30 September 2015).

Judge Ramos rejected the government’s argument that USTR communications with industry representatives were like internal government deliberations.

“He also expressed great scepticism that the government could withhold so much information under Exemptions 3 and 4, which protect confidential commercial or financial information,” explained Rebecca Wexler and Lulu Pantin, law student interns with the Media Freedom and Information Access Clinic at Yale Law School, which brought the FOIA lawsuit on behalf of Intellectual Property Watch.

The judge gave USTR an opportunity to further justify these withholdings (Intellectual Property Watch v. USTR, 13 Civ. 8955(ER), at 25.).

On 6 November, they said, USTR is ordered to submit supplemental declarations, and/or indices justifying in more detail its withholdings of ITAC Communications as confidential commercial or financial information under Exemption 3 and Exemption 4.

Then on 13 November, the parties are directed to appear in Court for a status conference at which the Judge will consider how the case should proceed and may address the merits of the government’s supplemental submissions, they said.

Calling USTR’s Bluff?

The court was doubtful that policy opinions, or “descriptions of meetings or advocacy in favor of language from other trade agreements would qualify as ‘commercial or financial’” information (Id. at 27),” the students said.

The court also questioned whether these communications could qualify as “confidential” because USTR’s evidence to that effect amounted merely to conclusory assertions by private actors, they said.

“Judge Ramos found that the evidence failed to establish, as USTR must, that disclosing the communications would impede the government’s ability to obtain similar advice and information from ITAC members in the future (Id),” said the students.

The court has ordered USTR to provide supplemental submissions on a more granular level of justification, so that it can “make itemized findings, ideally with respect to specific documents or redactions . . . .” (Id. at 31), they said.

The 6 November deadline could be notable for several reasons.

USTR may provide more specific descriptions of the documents it withheld, which could reveal more about the kinds of advice and information exchanged with industry.

In addition, it may clarify “how broadly the government interprets which categories of confidential commercial and financial information may be withheld from the public,” the students said, adding, “The Court noted that the meaning of these terms in the case law has not been well defined to this point (Id. at 25).

“The government’s submissions may set the stage for an important ruling regarding policy advice and proposals by industry representatives,” Wexler and Pantin said. “Namely, can such discussions qualify as ‘confidential commercial or financial information’ that may be kept secret from the public?”

A favorable ruling would set important precedent on the scope of these exemptions, they said, which are intended to protect trade secrets and other highly sensitive, proprietary information.