Mexican Social Security Deal Files Face Release

(CN) - A group deserves more information from government agencies on a treaty that could provide Mexican nationals with U.S. Social Security benefits, a federal judge ruled.

At issue is a "totalization agreement" Mexico and the United States reached in 2004 on the payment of Social Security benefits. After nearly 10 years, Congress still has never ratified the agreement.

The Social Security Administration says the U.S. has comparable agreements with other countries, and in this specific case, enactment of the treaty would save U.S. workers and their employers about $140 million in Mexican social security and health insurance taxes over the first five years of the agreement.

In July 2008, TREA Senior Citizens League filed a request under the Freedom of Information Act for 19 specific categories of records on the agreement created since 2001.

The nonprofit takes its name from The Retired Enlisted Association and represents the interests of senior citizens.

Ultimately, the State Department identified 124 united, responsive documents. It released 44 of those papers in full, but withheld 43 in part and 21 in full.

The remaining 16 documents were referred to other government agencies for their review and direct resolution.

TREA Senior Citizens League sued, and the federal government moved for summary judgment. In its opposition to this motion, the plaintiff challenged the withholding, in whole or in part, of 19 documents.

U.S. District Judge Beryl Howell largely sided with the senior citizen's group last year, ruling that the State Department must explain the secrecy surrounding its plan to give Mexican nationals Social Security benefits.

At the same time Judge Howell found the government adequately explained its decision to withhold three of the disputed documents.

As proceedings resumed, the government filed a second amended motion for summary judgment. The plaintiff meanwhile cross-moved for partial summary judgment, and it sought in camera review of the documents.

Judge Howell noted the current challenge concerned six responsive records - three from the State Department and three from the Social Security Administration.

All of the documents in question were withheld in whole or in part under Exemption 5 of the FOIA, which bestows "deliberative process privilege" on certain records.

Because TREA Senior Citizens League did not challenge the withholding of the 10 other documents initially in dispute, Judge Howell granted the government summary judgment with regard to those documents Wednesday.

Judge Howell then undertook a lengthy evaluation of the propriety of withholding the remaining six documents under Exemption 5.

In offering guidance, the high court has said an agency's recommendation does not lose its "pre-decisional" status merely because it has been communicated to another agency or the Executive Branch, according to the ruling.

"This appears to be the principle most closely analogous to the defendant's position here, namely, that the disputed documents related to the agreement simply relay advice to the president, since the agreement itself is not yet final," Howell wrote. "The Supreme Court has been equally clear, however, that when such advice is incorporated into a final agency decision, records of that advice are no longer exempt under Exemption 5."

Howell added that "the key to determining whether a document is pre-decisional is not necessarily in what stage of implementation, or on whose desk, the policy currently rests - because a final policy may never be acted upon - but instead is more simply focused on whether the document 'was generated before the adoption of an agency policy.' ... Despite the defendant's contention that the agreement 'remains a matter of continuing concern,' there can be little doubt that the agreement was formally adopted as agency policy when representatives of the United States and Mexico bound their respective nations to the terms of the agreement, even if further implementation requires additional steps, including transmittal to and final acceptance by the United States Congress. The Department of State is the authority through which the United States negotiates international agreements and the SSA will ultimately be responsible for executing the agreement. There is perhaps no more final expression of agency policy than signing a major international agreement on behalf of the United States of America. Therefore, the Agreement is an expression of final agency policy for the purposes of the FOIA."

As such, it is clear that all of the information in at least two documents should be released to the plaintiffs, and at least some of the information in the other arguments in contention should be released, according to the ruling

With regard to the latter, Judge Howell said the government must conduct another segregability review of these items and produce "the reasonably segregable, non-exempt material in the document to the plaintiff."

As a result of these findings, the judge rejected the plaintiff's request for an in camera review of the documents without prejudice.

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