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Law360: "USTR Mishandled Green Groups' FOIA Request"

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By Abigail Rubenstein

The Ninth Circuit on Friday overturned a lower court's judgment that the Office of the U.S. Trade Representative had adequately complied with a Freedom of Information Act request lodged by environmental groups seeking information on the U.S.-Canada softwood lumber agreement.

The appeals court said the USTR had not conducted an adequate search for documents in response to the Center for Biological Diversity and Conservation Northwest's request for details about how funds were handed out to so-called meritorious initiatives under the trade deal. In a nonprecedential memorandum disposition, the Ninth Circuit vacated a Washington district court's grant of summary judgment to the agency in a lawsuit over the request.

The U.S. inked the trade deal with Canada in 2006, resolving litigation in the U.S. and abroad and bringing an end to anti-dumping and countervailing duty orders on softwood lumber from Canada. In 2007, the environmental groups asked the USTR for information on the disbursement of $450 million in duty deposits slated to be given out to promote “meritorious initiatives” as part of the deal.

“This ruling is the first real opening in what has been a very closed-door, secretive process,” Bill Snape, senior counsel for the Center for Biological Diversity, told Law360. “Now, finally, the public might get some real information about exactly what deals the U.S. government cut with the timber industry to secure a trade agreement with Canada.”

The trade deal called for the funds to be put toward low-income housing and disaster relief projects and educational and public interest projects addressing forest management or wildlife habitats, according to the green groups' complaint.

The USTR opted to give the money to the U.S. Endowment for Forestry and Communities Inc., the American Forest Foundation and Habitat For Humanity International, the complaint said.

The FOIA request sought information about the USTR's implementation of the trade agreements allotment for “meritorious initiatives” and its selection of the three recipients.

The environmental groups launched their suit in December 2007, saying that the USTR had failed to turn over all the documents responsive to the request.

U.S. District Judge Richard A. Jones granted summary judgment to the USTR, holding that the agency had conducted an adequate search for documents and that it properly withheld certain documents under exemptions to FOIA.

But the Ninth Circuit found that the USTR had improperly limited its search to documents from June 2006 and later, even though the settlement that established the meritorious initiatives program was reached in April 2006.

The appeals court said that on remand the agency must present the district court with more information on how it conducted its searches and why additional searches were not possible, if it wants the court to deem the search adequate.

The Ninth Circuit also found that it appeared the USTR had improperly withheld some documents under exemptions designed to protect sensitive personnel records and documents entitled to attorney-client privilege.

The Ninth Circuit therefore vacated the district court's judgment and remanded the case.

Circuit Judges Betty Binns Fletcher, Ferdinand F. Fernandez and Jay S. Bybee sat on the panel for the Ninth Circuit.

The environmental groups are represented by Bill Snape and by Peter R. Goldman of the Washington Forest Law Center.

The case is Center for Biological Diversity et al. v. Office of the United States Trade Representative, case number 10-35102, in the U.S. Court of Appeals for the Ninth Circuit.