Appeals Court Backs Govt. Refusal to Turn Over Document in FOIA Case

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A unanimous three-member panel of the United States Court of Appeals for the District of Columbia Circuit last Friday in Center for International Environmental Law v. Office of the U.S. Trade Representative et al (Case No. 12-5136) reversed a trial court ruling, and sided with the government invoking Exemption 1 of the Freedom of Information Act to withhold releasing a one-page document.

The Center for International Environmental Law ("CIEL") sought documents relevant to unsuccessful trade treaty negotiations involving the U.S. and other nations concerning the Free Trade Agreement of the Americas during the '90s and early 2000s. The defendant agency refused to produce a document addressing how the U.S. in the treaty would interpret the phrase in like circumstances, citing Exemption 1 to the FOIA [5 U.S.C. sec. 552(b)(1)], which says the Act is inapplicable to matters that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest ofnational defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order."

In ruling against CIEL, the appellate court said it was reasonable for the government to withhold a document that could hinder future treaty negotiations. Judge A. Raymond Randolph chided the trial judge, writing that courts generally are "in an extremely poor position to second guess" government agencies who argue national security and foreign policy goals are compromised when classified information is disclosed.

The appeals panel looked back to President George Washington's refusal to share with Congress documents regarding treaty negotiations with Great Britain to support its decision. The Reporters Committee for Freedom of the Press and 32 media organizations submitted a brief supporting CIEL.

No word on whether the petitioner plans to appeal the ruling to the full DC Circuit Court of Appeals.