Appeals court rules administration can keep trade document secret

The Center for International Environmental Law sought to make public a document from the negotiating sessions that described the USTR's thinking on how to interpret the phrase "in like circumstances." The government uses the phrase to define provisions on how to treat other nations in trade talks. 

The USTR has classified that document as confidential, meaning that it "reasonably could be expected to cause damage to the national security." The government argued that if it were made public, the document could impact its negotiating position in future trade agreements.

A lower court ruled against the USTR, arguing that the government had "insufficiently substantiated" the risk to current and future trade deals posed by releasing the document.

The three-judge panel of the appeals court, however, overruled that decision.

In the court's ruling, Judge A. Raymond Randolph writes that the "disclosure of the white paper would reveal a position taken by the United States in the past. It seems perfectly reasonable to think that could limit the flexibility of U.S. negotiators." 

The court's ruling also quotes a 1796 message from George Washington to the House, in which he declares, "The nature of foreign negotiations requires caution, and their success must often depend on secrecy … for this might have a pernicious influence on future negotiations, or produce immediate inconveniences."

Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy, was dismayed that the ruling overturned the lower court's decision declassifying the document.

"It's a missed opportunity for the classification system to get some external review," he said.