Wednesday, September 30, 2015


MFIA Clinic Continues to Push for Transparency in TPP Case

A federal district court in Manhattan released an important decision on Tuesday in Intellectual Property Watch’s (IP-Watch) long-running Freedom of Information Act lawsuit against the U.S. Office of the Trade Representative (USTR).

IP-Watch, represented by Yale Law School’s Media Freedom and Information Access Clinic (MFIA), filed a lawsuit in 2013 seeking disclosure of key information about the secret negotiations over the Trans-Pacific Partnership Agreement (TPP). That agreement is being negotiated between 12 countries, encompassing over 40 percent of the world’s economy, according to the clinic. The latest—and perhaps final—round of negotiations began yesterday in Atlanta. Members of the public are not permitted to see the text of the agreement or the substance of negotiations. Such access is limited to industry lobbyists and representatives selected to sit on USTR advisory committees, according to the lawsuit. IP-Watch’s lawsuit seeks disclosure of the communications between U.S. trade negotiators and these industry advisors. It also seeks public access to portions of the draft text of the TPP that concern intellectual property rights, and which the U.S. has proposed or adopted and already shared with its foreign negotiating partners.

“Public access to the text of the agreement would break the industry advisors’ effective monopoly on policy input and would help ensure that journalists are able to report meaningfully on the content of the agreement while it is still under negotiation.” —Ben Picozzi ’16

The court’s decision expressed skepticism of the secrecy surrounding U.S. trade negotiators’ discussions with industry advisors, and it may ultimately result in greater public insight into the role that those advisors have played in shaping the negotiations, according to the clinic. But the court refused to order the government to disclose the text of the TPP itself or USTR’s negotiating positions. The court endorsed the government view that the substance of the agreement should remain a classified secret.

The government has refused to disclose much of the policy input provided by industry advisory committees on the theory that such discussions are akin to internal policy deliberations within government, according to the lawsuit. The Court flatly rejected that argument, noting that even “USTR recognizes that ITACs are by definition interested parties who are expressly meant to advocate their own interests.” The government also argued that the recommendations of these industry representatives amount to “confidential commercial or financial information.” The court viewed that claim with great skepticism with the opinion stating, “The court agrees that it is unclear how descriptions of meetings [with industry advisors] or [their] advocacy in favor of language from other trade agreements would qualify as ‘commercial or financial.’”

Nevertheless, the court’s decision will not result in the immediate release of more communications between USTR and industry advisors. Instead, the court has given USTR an opportunity to attempt to submit more detailed justifications for these secrecy claims.

“At best, the court’s decision gives the public half a loaf,” said Jonathan Manes, Abrams Clinical Fellow at Yale Law School and supervising attorney in the litigation. “From the start, we have been troubled by the notion that industry representatives could secretly lobby the government in order to shape an agreement that the broader public could not see,” Manes said. “The court rejected many of the broadest secrecy claims the government made on behalf of industry advisers, including USTR’s startling assertion that its discussions with industry representatives and lobbyists should be regarded as internal government policy deliberations,” Manes continued. “Ultimately, however, the public can hardly have meaningful oversight and involvement in this lawmaking process without knowing what the text of the agreement actually says or what the government has proposed,” he concluded.

William New, editor-in-chief of IP-Watch, commented on the continued secrecy of the text of the TPP, “While the court adopted the government’s strained arguments, it still seems illogical in the court of common sense that our government can share secrets and proposals with other governments but stamp them ‘classified’ and keep them completely secret from its own people.”

IP-Watch’s FOIA lawsuit has already resulted in disclosures of hundreds of pages of email communications with industry representatives that offer an unprecedented look at the close industry involvement in the United States’ negotiation of the agreement, according to the clinic.

Describing the purpose of the lawsuit, New said, “Intellectual Property Watch is trying to do its job as a traditional journalistic organization to report on this interesting and news-worthy trade negotiation.” IP-Watch filed its FOIA request in March 2012 and the case has been in court since December 2013. “Without greater transparency about the substance of the negotiation, it’s impossible for the public, journalists, and other stakeholders in our democracy to have a meaningful understanding of the agreement before it is finalized,” observed New. “The American people have been left to resort instead to leaks, hearsay or guesses about what their government is negotiating on their behalf.”

The TPP promises to change and standardize laws across a whole range of intellectual property issues, according to the clinic. The details of the agreement could have a major impact on the balance between the rights of producers, consumers, and others when it comes to copyrighted or patented works, including medicines, books, music, software, and online content.

“Public access to the text of the agreement would break the industry advisors’ effective monopoly on policy input and would help ensure that journalists are able to report meaningfully on the content of the agreement while it is still under negotiation,” said Ben Picozzi ’16, a Yale Law student who represented IP-Watch in the lawsuit. “The decision today means that the public will likely not be able to review the agreement before it is finalized,” Picozzi continued. Once an agreement is reached, the entire deal will be sent to Congress for approval or disapproval; it will not be subject to amendment, according to the clinic.

IP-Watch is an independent non-profit news service that reports on the behind-the-scenes dynamics that influence international intellectual property policies. Yale law students Rebecca Wexler ’16 and Lulu Pantin ’16 represent IP-Watch and William New under the supervision of attorneys Jonathan Manes and David A. Schulz, the clinic’s co-director. Current and former law students Ben Picozzi, Brianna van Kan ’15, Cory Adkins ’16, and Dayo Olopade ’14 contributed to IP-Watch’s legal submissions on the motion that the court decided on Tuesday.

The Media Freedom and Information Access Clinic (MFIA) is a law school clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work.