The Ninth Circuit Court of Appeals has reversed a district court decision and ruled that the Office of the U.S. Trade Representative (USTR ) failed to conduct an adequate search for documents in response to a Freedom of Information Act (FOI A) request by environmental interests relating to the U.S.-Canada softwood lumber agreement. Ctr. for Biological Diversity v. USTR, No. 10-35102 (9th Cir. 9/16/11) (unpublished).

The United States signed the agreement with Canada in 2006, resolving litigation in the United States and elsewhere and ending anti-dumping and countervailing duty orders on softwood lumber from Canada. In 2007, the Center for Biological Diversity sought information from USTR on the disbursement of $450 million in duty deposits slated for distribution to promote “meritorious initiatives” as part of the agreement. Alleging that the agency had failed to turn over documents in its possession under FOI A, the center sued in December 2007. The district court held that USTR had conducted an adequate search and properly withheld certain documents under FOI A exemptions and dismissed the complaint. Plaintiffs appealed.  

The appellate court held that USTR had improperly limited its search to documents from June 2006 on, even though the settlement that established the meritorious initiatives program was reached in April 2006. The court also found that USTR improperly withheld some documents under exemptions designed to protect sensitive personnel records and privileged documents. On remand, the court ordered the agency to present the district court with more information on how it conducted its searches and why additional searches were not possible.