Charnovitz: USTR Refuses Public Disclosure of US-Russia Trade Agreement

One final Steve Charnovitz Eyes on Trade cross-post:

by Steve Charnovitz

This is a follow-up to my blog post of July 20, 2009 about my efforts to use the Freedom of Information Act (FOIA) to get the Office of the U.S. Trade Representative (USTR) to release the text of the US-Russia Bilateral Market Access agreements signed on November 19, 2006.  After several unsuccessful efforts by email and phone to get the text, 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.  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.Bureaucracies are highly resistant to change, even when a new Administration comes to office promising “Change We Can Believe In” and specifically pledging that it wanted a presumption for FOIA disclosure and greater transparency and accountability in government. So I was not surprised by the turndown of my request for transparency.

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. Of course, it is possible that the United States has surrendered some of its sovereignty to the WTO regarding transparency. As I have noted in my trade law scholarship, the WTO accession process is one of the most unaccountable and secretive of all of the WTO negotiations. 

In summary, USTR will not publicly disclose the text of the US-Russia trade deal signed by the Bush Administration. That’s a sad outcome in my view because it undermines the legitimacy of US trade policy, and also the legitimacy of the WTO, if what Ms. Suro-Bredie says is true. I would urge an enterprising reporter to investigate this matter with the WTO to see whether such a binding rule is in place and, if so, when it was adopted. It would also be interesting to know whether this purported act of WTO rulemaking has been reported to the Congress pursuant to the reporting requirements in Section 122(c) of the Uruguay Round Agreements Act.

It’s also clear to me that Congress needs to amend the organic act establishing USTR to require the public disclosure of any trade agreement signed by the United States. Reasonable people may differ on how much secrecy is needed for ongoing trade negotiations. But I have never heard any argument to justify why a trade agreement signed by the United States should remain a secret from the American people. If new trade negotiating authority is enacted, it should also contain much tougher public disclosure requirements. It’s time to begin a new era of responsibility in Washington.

by Steve Charnovitz

This is a follow-up to my blog post of July 20, 2009 about my efforts to use the Freedom of Information Act (FOIA) to get the Office of the U.S. Trade Representative (USTR) to release the text of the US-Russia Bilateral Market Access agreements signed on November 19, 2006.  After several unsuccessful efforts by email and phone to get the text, 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.  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.Bureaucracies are highly resistant to change, even when a new Administration comes to office promising “Change We Can Believe In” and specifically pledging that it wanted a presumption for FOIA disclosure and greater transparency and accountability in government. So I was not surprised by the turndown of my request for transparency.

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. Of course, it is possible that the United States has surrendered some of its sovereignty to the WTO regarding transparency. As I have noted in my trade law scholarship, the WTO accession process is one of the most unaccountable and secretive of all of the WTO negotiations. 

In summary, USTR will not publicly disclose the text of the US-Russia trade deal signed by the Bush Administration. That’s a sad outcome in my view because it undermines the legitimacy of US trade policy, and also the legitimacy of the WTO, if what Ms. Suro-Bredie says is true. I would urge an enterprising reporter to investigate this matter with the WTO to see whether such a binding rule is in place and, if so, when it was adopted. It would also be interesting to know whether this purported act of WTO rulemaking has been reported to the Congress pursuant to the reporting requirements in Section 122(c) of the Uruguay Round Agreements Act.

It’s also clear to me that Congress needs to amend the organic act establishing USTR to require the public disclosure of any trade agreement signed by the United States. Reasonable people may differ on how much secrecy is needed for ongoing trade negotiations. But I have never heard any argument to justify why a trade agreement signed by the United States should remain a secret from the American people. If new trade negotiating authority is enacted, it should also contain much tougher public disclosure requirements. It’s time to begin a new era of responsibility in Washington.