USTR Closes Barn Door After Horse Leaves

The Office of the U.S. Trade Representative frequently does impressive work; witness the U.S. WTO victory this week over China.   But when it comes to openness and transparency, USTR’s efforts do not have the same shine; this is an agency notorious for its resistance to traditional inter-agency procedures (e.g., the C-175 procedure), let alone opening up its work to the public eye.  

So, I was not surprised to read Steve Charnovitz‘s recent blog posts (see here and here) over at Eyes on Trade.  There, he details his failed efforts to have USTR release copies of certain November 19, 1996 U.S. agreements with Russia on market access.  Both Steve’s informal requests (e.g., e-mailing the Ambassador, calling USTR) and more formal efforts (e.g., using the Freedom of Information Act (FOIA)) went nowhere.  Here’s Steve’s take on his FOIA request:   

I had written to the USTR FOIA officer, Carmen Suro-Bredie, on November 19, 2008.  The US-Russia agreement was negotiated as part of Russia’s longtime efforts to join the World Trade Organization and I was interested to see the precise terms of this legal arrangement.

Ms. Suro-Bredie denied my request in a letter dated July 28, 2009 which I received on August 3.  She said that the completed trade agreements are considered “foreign government information” that are exempt from disclosure under Exemption 1 of the FOIA [relating to classified defense and foreign relations information].  In addition, she described her turndown letter as a “complete response to your request,” and advised that “I am closing your file in this office.”

Although I was surprised about how long it takes to get a response from USTR (251 days elapsed between November 19 and July 28), I was not surprised by USTR’s position that it will disclose only what it is required to by law. As a veteran USTR watcher, I have observed that USTR is hardwired to keep trade treaties and negotiations as secret as possible from the American public. . . . But I was surprised by the specific reason Ms. Suro-Bredie gave for the denial. Her letter states: “The individual (unimplemented) agreements are protected from public disclosure as Confidential WTO Information under WTO procedures to which the U.S. has agreed.” I was surprised by this because I had not been aware that the WTO had adopted binding obligations which prevent the United States from disclosing its agreement with Russia to the American public. Certainly, Article XII of the WTO Agreement (Accession) says nothing about a secrecy pact, and the webpage on the WTO website for Accession does not contain any information about such a nondisclosure requirement in WTO regulations. . . 

Wow!  It sure looks like no one will see these November 19, 2006 agreements anytime soon, right?  Or, maybe Steve just asked the wrong office.  If one heads over to the State Department, you can see on their website (in .pdf no less!) the texts of eight different USTR agreements with Russia on various issues of market access, dated . . . (wait for it) . . . November 19, 2006 (see here, here, here, here, here, here, here, and here). 

Now, maybe Steve and USTR have been haggling over different November 19, 2006 market access agreements with Russia?  But, I doubt it.  So, how come State made these agreements available, but USTR did not?  The answer lies in the Case-Zablocki Act, 1 U.S.C. 112b(a):   

(a) The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed.

In other words, USTR has to give State any international agreements it concludes within 20 days and State has to transmit them to Congress within 60 days of the agreement’s conclusion.  That transmital effectively publicizes the agreement and its contents (indeed, commercial service providers like LexisNexis used to (and may still) use the State Department’s reporting to Congress as their vehicle for getting texts of U.S. international agreements to incorporate into their own products).  Here, by getting its Russian agreements to State sometime in 2007 (apparently, however, after the 20-day deadline had passed) USTR’s actions sure seem to contradict its claims to Steve that these are confidential instruments somehow protected from disclosure by national security or U.S. foreign affairs interests.  Indeed, as the statutory excerpt above shows, the Case Act has a different set of procedures for State to report classified international agreements that USTR could have used if these were actually confidential agreements.  But nothing in the texts available on State’s website indicates that these Russian agreements were classified, and although I’m certainly no FOIA expert, I’d always thought that the exemption USTR invoked required the information to be properly classified, usually requiring sensitive or classified information to be labeled as such.

I’d love to hear what USTR has to say about this.  How will they justify denying Steve access to instruments they openly conveyed to State two years ago?  Maybe there’s a really good explanation?  If so, in the spirit of openness and transparency, I’d invite USTR to use the comment section below to tell their side of this story.