U.S. Judge Orders Release of FTAA Trade Talks Document

13 March 2012

A U.S. district court judge has ordered the Office of the U.S. Trade Representative to release a “classified” one-page document concerning a U.S. position on an issue in the failed negotiations aimed at creating a Free Trade Area of the Americas.

The judge rejected a third round of government arguments that disclosure would damage relations with other countries and undermine future negotiations.

The position paper in question had been circulated among the parties, a fact that “limited drastically” the rationale for keeping it from the public, according to Carroll Muffett, the president of the Center for International Environmental Law, which filed the Freedom of Information Act request.

The U.S. District Court for the District of Columbia Feb. 29 said USTR could not show that disclosure of the position paper regarding the FTAA Negotiating Group on Investment could damage U.S. national security and foreign relations, as the government alleged. The document describes ht U.S. stance on the circumstances in when a country must treat foreign investors as favorably as local or other foreign investors.”

As he has in a prior opinion, Judge Richard Roberts disagreed that the document is protected from disclosure by a confidentiality agreement among the nations that were party to the negotiations in the 1990s and 2000s to create a free trade in the Western Hemisphere.

He also rejected refined government contentions that that violation of the confidentiality agreement would cause countries to be more rigid and lack trust in the United States in current or future negotiations.

“Defendants have presented no `logical or plausible’ reason …why future negotiating partners would have so firm an expectation that the current or future United States administration would or should adhere to the same interpretation of  `in like circumstances’ presented in the FTAA context such that the United States will be impeded in presenting a different interpretation,” the judge wrote.

Judge Roberts drew a distinction between disclosure of other countries’ documents and disclosure of the U.S. position paper, and said the USTR’s arguments on loss of trust “are at a high level of generality.” The confidentiality agreement among the parties is not controlling, he said.

CIEL has received other documents about the talks pursuant to FOIA, but not this position paper, which defined the U.S. stand on a key definition on a provision that would have governed what treatment foreign investors would receive under the proposed treaty.

The government has 60 days in which to appeal, and has indicated that it might do so, Muffett told FreedomInfo.org.

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