CAFC-Appointed Amicus Says ITC Advances Unlawful Redaction Policy for Proprietary Information
The International Trade Commission urges an approach to the redaction of business proprietary information that "the law forbids," Alex Moss, executive director of the Public Interest Patent Law Institute, said in an Aug. 13 amicus brief at the U.S. Court of Appeals for the Federal Circuit in a case on the commission's redaction policy. Moss said the ITC unlawfully asks the court to "redact judicial records at its request without requiring any justification" (In Re United States, Fed. Cir. #s 24-1566, 25-127).
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The amicus brief said this approach "would compel courts to violate the law, abdicate their responsibility, and deny the public access to which it is entitled." Moss called the ITC's position "flawed and dangerous," claiming that it would "strip courts of their authority over public access to court records" and "block public oversight and erode public trust."
At issue are a pair of cases in which former Court of International Trade Judge Stephen Vaden objected to the ITC's redaction policy. In one, CVB v. U.S., Vaden decided not to redact information deemed confidential by the ITC in his merits ruling in an injury case (see 2401090046). In the other, OCP v. U.S., Vaden declared unlawful the ITC's "practice of automatically redacting questionnaire responses" (see 2503270057).
The Federal Circuit designated the suits "companion cases" to be heard by the same merits panel and appointed Moss to serve as amicus counsel to defend the trade court's rulings (see 2506110050).
Issuing her amicus brief, Moss said in both cases, Vaden followed the law. He "reviewed requests to redact portions of its opinion, granted those supported by compelling justification, and upheld the strong presumption of access to the rest."
Moss argued that common law imposes a "general right to inspect and copy public records and documents" that carries a "strong presumption in favor of access." The Tariff Act of 1930 doesn't preempt this common law access to public documents as the ITC claims, Moss continued. "When a statute does not explicitly abrogate the presumption of access, courts do not infer otherwise," the brief said, noting the lack of a "clear and unambiguous" abrogation of common law in the Tariff Act.
"Congress did the opposite here: it clearly and unambiguously confirmed the court’s authority to disclose court records," the brief said.
The amicus brief added that Vaden correctly upheld this presumption of public access. Overcoming the presumption requires a "compelling showing of harm from disclosure," the brief said, arguing that the ITC has failed to establish any "compelling reasons for secrecy." Most of the information at issue is "publicly available" in some form or other, there's no dispute the trade court's characterizations of the information are "non-confidential," there's no showing of harm from disclosure of the information, and the ITC's concerns aren't compelling, the brief said.
Regarding the harm allegedly suffered by the disclosure of the documents, Moss said "the passage of time reduces the likelihood of harm from the disclosure of business information" and that "courts routinely deny requests to seal business information which is three to nine years old, as the CIT did here." Vaden's decision "is a sound exercise of discretion," the brief said.
While the ITC says the trade court's rulings will harm its ability to collect information from respondents in future investigations, Moss said these concerns can't overcome the presumption of access, since "the information at issue is business information." Both the Federal Circuit and the Supreme Court have said that “sealing business information in judicial records requires ‘some threatened harm to “a litigant’s competitive standing,”’” the brief said.