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July 20, 2009

USTR Can Do Better at Fulfilling its FOIA Responsibilities

[Editorial note: This post is written by guest blogger Steve Charnovitz. The views expressed herein are solely those of the individual contributor and do not necessarily reflect those of Public Citizen.]

I want to thank Public Citizen for inviting me to be a guest blogger this week. I believe this invitation is especially noteworthy given that I am a free trader. Many blogs do not welcome a diversity of views, but clearly Public Citizen does.

For my Monday post, I want to address is USTR's handling of Freedom of Information Act (FOIA) requests. Or rather I should say mishandling, since their actions certainly violate the spirit of FOIA if not its letter.

One of the most unfair and least accountable aspects of World Trade Organization policy is accession, that is, the negotiations that occur when countries seek to join the WTO. As I have explained in my paper, “Mapping the Law of WTO Accession," now posted on SSRN, the WTO routlnely demands that applicant countries agree to higher obligations than ordinary members have (i.e., applicant WTO-plus obligations). These discriminatory requirements sometimes arise in bilateral accession negotiations that precede the multilateral negotiations.

Russia has been trying to join the WTO since that organization was established in 1995 and first sought to join the WTO predecessor organization, the GATT, in June 1993. In my view, the WTO cannot truly be a “world” trade organization so long as it keeps out important countries like Russia. A few years ago, Russia was finally able to secure a bilateral accession agreement with the United States, an important step toward WTO membership. The USTR announced this accession pact when it was signed on November 19, 2006. At that time, I sought a copy of the pact, but USTR refused to release it. I was interested in studying the agreement to see what onerous conditions the United States demanded. I tried again in 2007 and once again in early 2008. USTR has consistently refused to make the agreement available to the American public.

Despite reaching an agreement with the United States in 2006, Russia has made only limited progress toward getting the WTO to agree to its membership. In June 2009, it was reported that Russia gave up on trying to join the WTO and decided to seek accession jointly with Belarus and Kazakhstan through a customs union. US Trade Representative Ron Kirk reportedly criticized that move while in Paris. Recently, I have read that Russia has agreed to go back to the original plan of seeking accession on its own. Thus, the content of the Russia-US WTO accession agreement remains highly relevant.

Last November, I formalized my efforts to get a copy of the US-Russia WTO accession agreement. I filed a FOIA request on November 19, 2008. I did not receive any response from the Bush adminstration.

After the Obama administration took office, I decided to revive the request. I had read that the Obama administration was pledging greater transparency and had adopted a presumption in favor of disclosure. I waited until a new USTR was in place.

On March 19, 2009, I wrote Ambassador Kirk renewing the request and sending him a copy of my November 19, 2008 letter. On April 22, 2009, USTR official Jacqueline B. Caldwell sent me an acknowledgement of that request. That is the last I’ve heard of it.

In my view, USTR should disclose any trade agreement that has been signed by the United States as this one was in 2006. I understand that there was a USTR meeting recently with NGOs on the topic of transparency and that the Administration is arguing that it should not have to release negotiating texts in FOIA requests. Whether or not such negotiating texts should be disclosed to the American public is a matter perhaps on which reasonable people can differ. But surely there is no reasonable argument for keeping a trade agreement secret after it has been negotiated and signed by the United States and a trading partner.

I should also note that this US-Russia agreement is not available from the WTO. Alas, the WTO is especially secretive when it comes to accession negotiations. Looking at the WTO website today, I see that the last document posted by the WTO regarding the Russia accession negotiations was on October 25, 2000, over eight years ago.

Seeing that the USTR website has an “Ask the Ambassador” feature (“Ask the Ambassador your questions, and we will answer selected inquiries on the USTR blog.”), I asked Ambassador Kirk a couple of weeks ago for an update on the status of my request. So far, I have not received a response from USTR and my inquiry was not answered on the blog. Indeed, I don’t see a single citizen’s question answered on the blog. Apparently, none have yet been selected.

What I do see on the blog are a lot of photos of Ambassador Kirk. Looking back at the last 30 days, I see photos posted on July 16 (3 pics), July 7 (2 pics), July 1 (1 pic), June 29 (slideshow), June 25 (6 pics), June 24 (5 pics), and June 22 (1 pic). Perhaps USTR imagines that photos of the Ambassador are a sufficient response to members of the public who send him trade policy questions, but I certainly do not.

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