[Ip-health] [A2k] Tech Dirt: White House Refuses To Be Transparent About Positions On Transparency

Erik Josefsson erik.hjalmar.josefsson at gmail.com
Sat Jan 12 04:13:00 PST 2013

Not a full FOIA, but still a little question about principles (tabled 3


    ACTA - what did the Court ask the Commission?

    Following a statement by the Commission in December 2012[1], the Court of Justice has asked the Commission a question regarding the Commissions referral of ACTA to the Court in May 2012[2].
    - When will the Commission make public the question from the Court of Justice?
    - When will the Commission make public its answer to the question?
    - Is the Commission of the opinion that the Court's question and the Commission's answer should be made public? If yes, based on which rule, law or principle? If no, why?
    [1] http://www.youtube.com/watch?v=VCBTFh3IhQY
    [2] http://trade.ec.europa.eu/doclib/press/index.cfm?id=799


On 01/11/13 02:39, Thirukumaran Balasubramaniam wrote:
> http://www.techdirt.com/articles/20130110/13445621632/white-house-refuses-to-be-transparent-about-positions-transparency.shtml?utm_source=dlvr.it&utm_medium=twitter
> White House Refuses To Be Transparent About Positions On Transparency
> from the not-transparent-about-transparency dept
> As we well know, despite promises from the Obama administration that it would be "the most transparent" in history, it has been anything but that over its first four years. The US Trade Rep (USTR) has been particularly bad on this front, especially when it comes to trade agreements that will have a massive impact on the public, such as ACTA and TPP. No matter how many times they were asked by the public, by Congress and by other countries, the USTR kept insisting that it had to keep things secret because... well... just because. There were some excuses made about how they don't "negotiate in public" or about how "this is how it's always been done," but those don't make any sense when you look at the details. It became especially silly in the ACTA negotiations, late in the process, when many of the countries involved indicated that they wished things were more transparent and many pointed their fingers at the US as being the one country that kept things secret. Also, we know that other international agreements are done in a much more transparent fashion. 
> The folks at KEI filed a Freedom of Information Act request for documents relating to the US's position on transparency regarding a particular ACTA meeting, as well as documents the US had on the positions of other countries. FOIA requests are supposed to be fulfilled within 20 business days from the time they're received. In practice, this time frame is almost never met, though sometimes for good reasons (it takes a while to do some of the searches). However, in this case, it took two and a half years for the White House to finally respond, and when it did, the response was that, while 16 relevant documents were found, it wouldn't release them, because of reasons. 
> More specifically:
> With regard to the second category, we identified sixteen (16) pages of responsive records. We have determined that all 16 pages of responsive records are exempt from disclosure under the deliberative process prong of section of the FOIA. The deliberative process privilege protects the decision making processes of government agencies by encouraging open and frank discussions on policy matters among subordinates and superiors. These records contain predecisional discussions regarding negotiating positions and their implications on future negotiations. Moreover, these documents contain policy recommendations and opinions shared between subordinates and superiors.
> Think about this for a second. This is a request to be transparent about positions ontransparency, and they're being rejected because it may show discussions about transparency. Really. The fact that these discussions "may contain open and frank discussions on policy matters" shouldn't be a huge concern. The ACTA negotiations are done at this point, and it should be easy enough to redact other issues that might impact future policy efforts. It seems ridiculous to suggest that discussions on whether or not the US should be transparent are, themselves, not subject to transparency.

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