CIT Says ITC's Automatic Redaction of Questionnaires Is 'Unlawful'

The practice leads to treating publicly available information as confidential, inconsistently treating the same information "based solely on how the Commission obtained it" and the impermissible designation of confidential unilaterally by the ITC, Vaden said. The judge also affirmed the court's power to redact information designated as confidential by the commission, finding the court has his power under the "ordinary meaning" of 19 U.S.C. § 1516a(b)(2)(B), which governs the treatment of confidential information in injury cases.

The court found all but one piece of the information designated as confidential in the injury proceeding on phosphate fertilizers from Morocco and Russia to have been illicitly redacted by the commission.

Vaden has previously expressed an issue with the over-redaction of information in injury proceedings, rejecting the ITC's request to redact information from a court decision in a separate case (see 2401090046). Following this saga and a media report that the commission's remand results in the present case were "heavily redacted," the court sua sponte ordered a hearing to discuss the commission's policy regarding the redaction of information (see 2404010066).

The marathon four-and-a-half hour hearing saw Vaden repeatedly press the ITC, namely ITC General Counsel Dominic Bianchi, on its policy. The judge expressed a strong disapproval of instances in which the commission's practice led to the redaction of information that is publicly available.

That disapproval has now manifested in a 48-page opinion decrying the commission's practice and roundly finding it to be a violation of the law and the commission's own regulations. Vaden said that the practice, which the court characterized as "automatically treating questionnaire responses as confidential," violates the laws and regulations "governing access to information from proceedings before the Commission."

Vaden began his discussion by walking through the applicable laws and regulations. First, Section 1677f of the Tariff Act of 1930 says that information submitted to the ITC that is designated as proprietary by the submitter shall "generally be treated as confidential." However, the Act allows the ITC to determine that any designation of information as proprietary is "unwarranted" based on the "nature and extent" of the information and of its public availability. The commission must then notify the submitting party and, unless that party can convince the ITC to keep the proprietary designation, the information is returned to the submitter.

In addition, 19 U.S.C. 1516a governs judicial review of injury determinations and the treatment of confidential information in the determinations. The law says "the court may examine, in camera, the confidential or privileged material, and may disclose such material under such terms and conditions as it may order."

Vaden also noted that the commission's regulations, namely 19 C.F.R. 201.6, define confidential information. Specifically, the regulation says that confidential information is certain business information that, if disclosed, will likely impair the ITC's ability to obtain that information "as is necessary to perform its statutory functions" or cause "substantial harm to the competitive position" of the submitting party.

The judge lastly invoked the rules of the U.S. Court of Appeals for the Federal Circuit, which limit the use of confidential information in briefs and require parties to "justify their claims of confidentiality." CAFC only allows parties to designate information as confidential if it's treated as such under a judicial or administrative protective order and is allowed to be treated as such under a statute, regulation or court rule.

The court held that under this framework, publicly available information "is not entitled to confidential treatment." The Tariff Act provides protection for proprietary information, but "publicly available information is not proprietary," the judge said. CAFC also recognizes that "publicly available information cannot be confidential," the decision said.

Turning to the ITC's regulations, "publicly available information will never meet the regulatory standard for confidential treatment," the judge said. Vaden said that public information "fails to meet either prong" of the ITC's test, which looks at whether the information, if disclosed, would impair the ITC's ability to obtain information or cause substantial harm to the submitter's competitive position. Public information "cannot impede the Commission’s ability to collect information or cause competitive harm," the court said.

If information is public, nothing the ITC does "can make it more or less public," Vaden quipped. "Accordingly, there is no risk of harm -- either to the Commission or to the party submitting the information -- from how the Commission treats public information." Treating public information as confidential "is like trying to put the genie back in the bottle; it is an exercise in futility."

Vaden then held that the ITC's practice leads to "inconsistent treatment of the same information," since information is redacted if submitted in a questionnaire but not necessarily redacted if obtained by the commission in a "brief, orally at a hearing, or through some other source." Applying the commission's own regulation does not depend on how the information is obtained, the court held.

The judge added that the ITC's practice "bypasses the procedural requirements imposed by Congress and the Commission’s own regulations." Both the statute and the regulation "dictate that the party submitting the information -- not the Commission -- is responsible for designating information as confidential.” While the ITC says parties won't cooperate with the commission "unless promised complete secrecy for all questionnaire response," Vaden said that it "strains credutily" to think that parties would stop cooperating if the ITC "began following its own rules."

The court then affirmed its power to reject the ITC's practice, bucking the commission's claim that it's the "sole arbiter" of what qualifies as confidential, leaving courts "powerless to manage their own dockets." Vaden said that 19 U.S.C. §1516a(b)(2)(B) plainly says that courts can examine confidential information and "may disclose such material" under terms "as it may order." The judge said the use of the word "may" is "noteworthy because it 'customarily connotes discretion." The court added that this statute was drafted "against the background of federal courts’ inherent power to control their own dockets," which includes the "ability to seal and unseal information filed with the Court."

Vaden also invoked CAFC's rules to back the trade court's power in this instance. He said the appellate court's rules recognize federal courts' power to control their own dockets, including by limiting what parties may file under seal. The judge said this isn't the first time the ITC has "declared that it is a law unto itself," noting a 1990 CAFC case in which the court rejected the ITC's claim that it couldn't be ordered to make a redetermination by the trade court.

The court then turned to the confidential information at issue in the injury proceeding, generally grouping the information that the court believes was wrongly redacted into three camps: publicly available information, general characterizations and stale information.

The judge first said that various information, including data on the domestic producers' "expansive distribution and storage networks," is "publicly available," since it appears on the companies' own websites and securities filings, and thus was wrongly redacted by the ITC. And while some of the producers and the ITC say some of the information regarding the domestic producers' production figures must be redacted to bar readers from inferring nearby confidential information, Vaden said this claim is "unconvincing." The ITC "could easily structure its discussion" of this data in a way that "protects any confidential information" without redacting public information, the court said.

Turning to information deemed to be "general characterizations," Vaden said the ITC wrongly redacted this information, since it's publicly available and "too general to qualify for confidential treatment." The information includes broad discussion of "domestic producers’ distribution and storage networks" and nonnumerical characterizations of market prices. Also included in this category is information from "subscription-based trade publications."

Lastly, Vaden said certain information was stale and thus "not entitled to confidential treatment." To keep this information confidential, "companies must show specific harm beyond 'vague and speculative allegations of injury,'" the court said. Here, information from domestic producers that is either six or between three and nine years old won't cause the producers "specific competitive harm," the judge said.

"It is difficult to see the competitive harm these companies would suffer if competitors learn about years-old activities, especially when that same information is publicly available in their annual reports and Form 10-K filings," the decision said. Ultimately, only one piece of information -- "specific numbers that identify how many customer-owned warehouses and other space arrangements" petitioner Mosaic Co. has with customers -- was kept confidential.

(OCP v. United States, Slip Op. 25-32, CIT Consol. # 21-00219, dated 03/27/25; Judge: Stephen Vaden; Attorneys: Shara Aranoff of Covington & Burling for plaintiff OCP; Jeremy Dutra of Squire Patton for plaintiff EuroChem North America Corp.; Michael Jacobson of Hogan Lovells for plaintiff-intervenor PhosAgro; Melissa Brewer of Kelley Drye for plaintiff-intervenor International Raw Materials Ltd.; Ken Weigel of Alston & Bird for plaintiff-intervenor Koch Fertilizer; Dominic Bianchi for defendant U.S. government; Jeffrey Kessler of Wilmer Cutler for defendant-intervenor Mosaic Company; Jamieson Greer of King & Spalding for defendant-intervenor J.R. Simplot Co.)