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PUBLIC CITIZEN v. OFFICE OF THE UNITED STATES TRAD

November 6, 1992

PUBLIC CITIZEN, Plaintiff,
v.
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, Defendant.



The opinion of the court was delivered by: GERHARD A. GESELL

 This is a Freedom of Information action that comes before the Court on cross-motions for summary judgment. Defendant United States Trade Representative ("USTR") regularly submits to panels convened pursuant to the General Agreement on Tariffs and Trade ("GATT") proposals to resolve specific trade disputes between the United States and other GATT member countries. USTR also receives decisions of those panels prior to the time when the panel decisions are adopted by the membership of the GATT Council. Plaintiff seeks immediate access on a regular basis to the panel submissions and panel decisions. The motions for summary judgment have been fully briefed, including papers relating to a proposed final judgment submitted by plaintiff Public Citizen. There are no material facts in dispute.

 I. Procedural Background

 GATT is an international agreement governing trade between countries that, like the United States, have agreed to submit to its jurisdiction. When contracting countries are unable to resolve a trade dispute among themselves, they may refer the dispute to a panel established by the GATT Council. The panel accepts briefs and hears argument, and eventually issues a final report. That report is then submitted to the GATT Council for approval after the parties have had a chance to review the panel decision and attempt to resolve their dispute.

 Beginning in August 1991, plaintiff submitted a series of requests under the Freedom of Information Act ("FOIA") to the USTR, the United States' representative before GATT panels, requesting submissions and panel decisions relating to the United States' involvement in four controversies being resolved by GATT panels. When USTR did not comply, plaintiffs brought this action, originally seeking enforcement of its FOIA requests and a ruling that defendant's failure to release what it had submitted to the panels in a timely manner was arbitrary and capricious. Plaintiff later moved to amend its complaint to demand as well that defendant release, on a regular basis, the panel decisions prior to their consideration by the GATT Council and the material submitted by USTR to the panels.

 II. Count One

 Subsequent to plaintiff's filing of its motion for summary judgment, defendant released all information responsive to plaintiff's FOIA requests. Both parties agree that Count One of the amended complaint, which relates to these FOIA requests, is now moot. The Court so holds.

 III. Future Submissions and Panel Decisions

 So long as an agency's refusal to supply information evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency officials, a party's challenge to the policy or practice cannot be mooted by the release of the specific documents that prompted the suit.

 Payne Enterprises, Inc. v. United States, 267 U.S. App. D.C. 63, 837 F.2d 486, 491 (D.C. Cir. 1988). It is undisputed here that USTR has withheld and will in the future deliberately withhold, at least temporarily, certain records from plaintiff. Plaintiff argues that this practice is impermissible under FOIA. This Court has jurisdiction over plaintiff's claim under 5 U.S.C. § 552(a)(4)(B), which allows a Court to "enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant."

 A. Panel Submissions

 The first set of documents that defendant is withholding is the submissions it makes to the GATT panels. Plaintiff argues that those submissions must be made available for "inspection and copying" according to published rules, because they are "statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register." 5 U.S.C. § 552(a)(2)(B).

 Plaintiffs have made an adequate showing, by providing examples of submissions that clearly contain interpretive statements, that these submissions contain statements of policy and interpretations adopted by USTR. The submissions constitute the agency's interpretation of the United States' international legal obligations, even if not personally approved by the Trade Representative herself. As such, they inevitably will have been subject to review by agency personnel in accordance with government policies. *fn1" Although the submissions may provide descriptive information on trade and industry practices in addition to statements of policy or interpretations, FOIA's affirmative disclosure provisions require the release of documents that contain such statements only in part. Bristol-Myers Co. v. Federal Trade Comm'n, 194 U.S. App. D.C. 99, 598 F.2d 18, 28 (D.C. Cir. 1978). USTR has not carried its burden, in light of plaintiff's ...


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