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Tuesday, March 20, 2012

Australia makes news at US National Freedom of Information Day Conference

But it wasn't for any great freedom of information accomplishment. On the contrary we together with other countries involved in negotiating the Trans-Pacific Partnership copped quite a serve over the lack of transparency.

Last Friday at the Sunshine Week conference I attended in Washington, Lori Wallach of Public Citizen Trade Watch, recently returned from observing the 11th round of negotiations in Melbourne on the TPP trade agreement spoke to her just published article  in the March edition of American Prospect. Wallach said "unprecedented secrecy" surrounds the draft texts under discussion, quoting former US trade official Gary Horlick as saying it "is the least transparent trade negotiation I have ever seen" in his 40 years in the game. Wallach contends the negotiation has been misbranded as "trade": the 26 proposed TPP chapters
 "include domestic policy on financial, health-care, energy, telecommunications, and other service-sector regulation; patents and copyrights; food and product standards; land use and natural resources; professional licensing and immigration; and government procurement."
Wallach said decisions are being taken without public access to any documents or details or, in the US case, input from members of Congress serving on key committees whose jurisdiction is directly implicated. And that the governments involved have ignored a global “release the texts” campaign led by unions and civil-society groups. However more than 600 business representatives serving as official U.S. trade advisers have full access to an array of draft texts and an inside role in the process. "The strategy is to squelch informed debate until a deal is signed and any alterations become difficult."

Wallach's talk prompted a look at other materials. The Department of Foreign Affairs and Trade website confirms that it is no secret that the TPP will involve more than trade (emphasis added):
The Australian Government will pursue a TPP outcome that eliminates or at least substantially reduces barriers to trade and investment. The TPP is more than a traditional trade agreement; it will also deal with behind-the-border impediments to trade and investment.
This report from another observer at the Melbourne negotiations puts Australia up there leading on the confidentiality issue-and avoiding rather than answering questions:
The Australian chief negotiator opened the briefing with a statement of the chapters which had made progress during the round. Intellectual Property was not mentioned as one of these chapters, though market access, services, rules of origin and capacity building were amongst those specifically mentioned. He stated that there were more than 20 negotiating groups.
As usual, very few substantive questions were answered. Some procedural questions also went unanswered.
The first question came in the form of request for greater transparency, including the release of the text, in order to permit the general public to be part of the process. The Australian chief negotiator stated that the stakeholder forum provides the primary way for stakeholders to participate and it is common practice not to release texts during negotiations of free trade agreements. He suggested that releasing the text would not be feasible because "nothing is agreed until it is agreed."
A later question regarding the release of the text came when one stakeholder asked if the TPPA negotiating parties would consider a release after a composite text had been reached as is done at the WTO. The Australian chief negotiator repeated that in his view, the answer had already been clearly stated, that this is not the WTO and they would not release the text.
When asked whether all countries had finished tabling their IP text and whether the US specifically had tabled its text (marked as "placeholder" text in the prior leaks) on biologics, the length of the access window, internet retransmission and copyright limitations and exceptions, the Australian negotiator immediately responded that they would not release text. When pressed to answer simply whether specific text had been tabled or not, Barbara Weisel, US chief negotiator, did not clearly answer the question but seemed to indicate that such text had not been tabled yet. She noted that USTR is still consulting with stakeholders regarding some provisions, presumably on biologics and the length of the access window.

I don't know what relevant FOI activity has been undertaken. Participants have sought to head things off at the pass with this agreement on confidentiality to apply for four years, with NZ  acting as the organiser in chief:
First, all participants agree that the negotiating texts, proposals of each Government, accompanying explanatory material, emails related to the substance of the negotiations, and other information exchanged in the context of the negotiations, is provided and will be held in confidence, unless each participant involved in a communication subsequently agrees to its release. This means that the documents may be provided only to (1) government officials or (2) persons outside government who participate in that government’s domestic consultation process and who have a need to review or be advised of the information in these documents. Anyone given access to the documents will be alerted that they cannot share the documents with people not authorized to see them. All participants plan to hold these documents in confidence for four years after entry into force of the Trans Pacific Partnership Agreement, or if no agreement enters into force, for four years after the last round of negotiations. Second, while the negotiating documents are confidential, each participant may mail, e-mail, fax, or discuss these documents over unsecured lines with the groups of people mentioned above (i.e., government officials and persons who participate in the domestic consultation process). The participants may also store these documents in a locked file cabinet or within a secured building; that is, the documents do not need to be stored in safes. Each participant can also create and store these documents on unclassified computer systems. Lastly, the participants will mark the documents they create in a manner that makes clear that the documents will be held in confidence.The policy underlying this approach is to maintain the confidentiality of documents, while at the same time allowing the participants to develop their negotiating positions and communicate internally and with each other. We look forward to your confirmation that you agree with this approach.
In answer to a question, Wallach said Peru's FOI law offers the best chance of some access to TPP documents and a court case there is underway.

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