Federal court upholds classification of treaty materials sought under FOIA

A federal appeals court ruled Friday that the government could withhold a document under the Freedom of Information Act on national security grounds, saying that a lower court improperly second-guessed an agency’s decision when it ordered the document’s release.

The three-judge panel of the U.S. Court of Appeals in Washington, D.C., unanimously agreed that the U.S. Office of the Trade Representative had properly withheld a one-page document under FOIA’s Exemption 1, which allows agencies to withhold classified documents.

The case, Center for International Environmental Law v. U.S. Office of the Trade Representative, involved a FOIA request for records related to failed trade treaty negotiations between the United States and dozens of other nations as part of the Free Trade Agreement of the Americas during the 1990s and early 2000s.

Judge A. Raymond Randolph wrote for the court that the agency’s decision to classify the document, which detailed how the government would interpret the term "in like circumstances" in the treaty, was reasonable given that disclosing the document could potentially harm future trade negotiations.

“Whether—or to what extent—this reduced flexibility might affect the ability of the United States to negotiate future trade agreements is not for us to speculate,” Randolph wrote.

The ruling also says that courts are “in an extremely poor position to second-guess” agencies who claim the disclosure of classified information would harm national security or foreign policy. But, Randolph wrote, “that is just what the district court did in rejecting the agency’s justification for withholding the white paper.”

The court also invoked some history in ruling that the document should be withheld, recounting how President George Washington refused to provide Congress with materials related to treaty negotiations with Great Britain.

Martin Wagner, an attorney for the plaintiff, said that although he was not surprised by the decision, he did not think that the court gave adequate attention to FOIA’s call for increased government transparency.

“What I found most disappointing was that the court really gave not time or attention to the importance of FOIA and the fundamental democratic principles that underlie the statute,” he said.

Transparency advocates frequently argue that the judicial branch is too deferential to government claims of classification under FOIA and are required under the law to thoroughly review agency classification decisions.

Wagner said he is not sure whether his client would seek additional review of the decision by asking the appellate court to rehear the case, but he did rule out petitioning the U.S. Supreme Court.

The Reporters Committee for Freedom of the Press, along with 32 other media organizations, filed a friend-of-the-court brief in the case in support of the Center for International Environmental Law.

Related Reporters Committee resources:

· Federal FOIA Appeals Guide: Exemption 1