Industry’s Proposed Changes To Draft TPP Were Not Protected Under National Security Exemption, US Judge Says

Changes to the draft text of the Trans-Pacific Partnership agreement (TPP) suggested during negotiation of the treaty are not protected under the national security clause of the US Freedom of Information Act (FOIA), a judge ruled yesterday in a rare rejection. But he also defended USTR’s actions in withholding various documents about the negotiations on the basis that other countries in TPP might accuse the US of “steamrolling” them if US textual proposals from the negotiations were revealed.

The Office of the US Trade Representative (USTR) had claimed a national security exemption in a FOIA request by Intellectual Property Watch, which is the subject of a lawsuit brought by IP-Watch. In yesterday’s opinion, the judge called for further briefing by both sides by the end of October.

“USTR has not made a logical or plausible case that disclosure of text suggested by the private sector could harm foreign relations,” the judge said.

The 31 August opinion and order is available here [pdf].

IP-Watch is represented by the Yale Law School Media Freedom & Information Access (MFIA) Clinic.

Several years ago, IP-Watch sought access to decision memoranda, communications with Industry Advisory Trade Committees (ITACs), and draft chapters of the TPP text relating to intellectual property rights, e-commerce and trade remedies. Most were withheld by USTR for national security reasons (FOIA Exemption 1) or under the Trade Act of 1974 (FOIA Exemption 3). The judge last year upheld most of the exemptions but questioned protection of some communications from industry advisors.

IP-Watch more recently asked for reconsideration of the judge’s decision to uphold the national security exemption since the TPP negotiations were concluded and the text made public.

Yesterday, the judge signalled backing for the USTR withholding under Exemption 3, saying the test is “whether the submitter ‘provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.’”

But he decided that it would be unfair to apply the test without allowing the parties to provide briefs on the issue, so has ordered USTR to deliver a brief by 30 September and IP-Watch/Yale to deliver its brief by 31 October, with an optional response from USTR by 14 November, according to John Langford, Abrams Clinical Fellow at the Yale MFIA clinic.

The 31 August opinion and order notes that the confidentiality agreement signed by the 12 countries of the TPP states that would stand until the agreement had entered into force. Since it is still facing ratifications in the countries and has not entered into force (even though they have all signed the text), the confidentiality still applies.

Meanwhile, the judge mostly denied a motion to reconsider Exemption 1 (national security) withholdings.

But the judge rejected USTR’s use of the national security exemption to protect six documents containing ITAC communications.

USTR had withheld those documents under Exemption 1 because “they contained ‘suggested changes or additions to draft text that ITAC members themselves drafted,’” Langford explained. The judge disagreed, and ordered USTR to produce the documents or justify the withholdings under Exemption 3.

“The court issued a thoughtful decision that took a rare step in rejecting an agency’s claim that national security required the withholding of certain documents,” said Langford. “In light of the court’s request for further briefing, we remain optimistic that the public ultimately will be granted access to additional communications that will shed light on the manner in which the United States’ TPP positions were formulated and reveal the private actors who shaped those positions.”

Background

IP-Watch first filed the FOIA request in 2012 and received what it deemed an extremely insufficient response, leading it to file the lawsuit in district court in New York on 18 December 2013.

The two sides then agreed that USTR would produce a sample set of documents on subjects chosen by IP-Watch in three categories. These included: two decision memoranda (one on trade remedies, one on copyright parallel imports); communications with Industry Trade Advisory Committees (ITACs); and draft chapters of the TPP text.

USTR did the searches and then withheld the decision memoranda, draft chapters, and the full text of some of the ITAC communications. For the rest of the communications, it redacted (blacked out) the majority of the text. USTR based its withholdings and redactions on exemptions 1 (national or foreign security) and 3 (statutory exemptions from disclosure) under FOIA.

In September 2015, the judge upheld USTR’s actions for the decision memoranda, draft chapters and ITAC communications under Exemption 1, finding it logical that unilateral disclosure of the materials would be in violation of the confidentiality agreement and therefore harm foreign relations.

It was not, however, considered illogical that the US would not share materials with its own people that it had already shared with foreign governments out of national security concerns.

Meanwhile, the judge said the remaining communications with USTR from industry advisors might be subject to a FOIA exemption, but USTR had not sufficiently demonstrated that they were, so more briefings were ordered.

Meanwhile, the TPP was signed and made public on 4 February 2016, leading the Yale legal team to ask the judge to reconsider the decision to uphold USTR’s claim of national security.

Yesterday’s opinion was the next step.

It might fairly be suggested that not allowing the public to see the communications between the US government negotiators and their industry advisors might serve to help the Obama administration continue to seek passage of the TPP in Congress this fall. It has been targeted for the narrow fall window before a new president takes over who might not be as supportive of the agreement.