In an important victory for transparency and corporate accountability, a federal appeals court in Washington, D.C., has ruled that the U.S. Securities and Exchange Commission (SEC) should release to the National Security Archive some 9,257 pages of records produced by Chiquita Brands International to the SEC as part of an investigation of the company's illegal payments to a Colombian terrorist organization, the United Self-Defense Forces of Colombia (AUC), a group responsible for egregious acts of violence during Colombia's civil war.
The National Security Archive is a non-governmental, pro-transparency organization and leading nonprofit user of the Freedom of Information Act (FOIA) located at The George Washington University in Washington, D.C.
Chiquita had argued that release of the records under FOIA would deny it a fair trial in a Florida case brought on behalf of the AUC's victims. Today, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously rejected Chiquita's argument, writing that, "Neither the [Securities and Exchange] Commission nor the district court hearing this reverse-FOIA action thought release would deprive Chiquita of a fair trial. We agree with them."
"The court of appeals' decision is an important victory for FOIA requesters and the public," said Adina Rosenbaum, the Public Citizen attorney who represented the National Security Archive in the appeal. "The decision confirms that the government cannot withhold documents from the public just because they might be of interest to someone involved in litigation. A ruling for Chiquita would have created a huge exemption to the FOIA law, with far-reaching implications. The court did the right thing by rejecting Chiquita's argument that these records are exempt from disclosure."
The case began in November 2008, when the Archive filed a pair of FOIA requests with the SEC asking for records relating to SEC and Justice Department investigations of Chiquita's Colombian subsidiary, Banadex, for violations including the illegal AUC payments. In 2007, Chiquita had pled guilty to charges of "engaging in unauthorized transactions" with the AUC, which was designated a global terrorist organization by the U.S. State Department in 2001.
The D.C. Circuit decision in the FOIA case clears the way for the release of 9,257 pages that Chiquita identified as the most sensitive records that it turned over to the SEC during the course of the investigations.
In April 2011, the Archive published some 5,500 pages of Chiquita's records released by the Department of Justice in response to similar FOIA requests. Those records revealed that Chiquita benefitted from its transactions with both AUC "paramilitary" groups and insurgents from the FARC and ELN guerrilla groups. The records call into question the Justice Department's determination, spelled out in the 2007 plea deal, that there was no evidence of a quid pro quo with the illegal groups.
"More than eight years ago, Chiquita became the first U.S. company to be convicted for engaging in transactions with a global terrorist organization," said Michael Evans, senior analyst at the National Security Archive. "Finally the victims of AUC violence and the general public will get a look at what might be the most important document collection ever assembled on corporate ties to terrorism."