ITC Responds to CAFC-Appointed Amicus on Validity of BPI Redaction Policy
The International Trade Commission responded last week to arguments made by an amicus appointed by the U.S. Court of Appeals for the Federal Circuit criticizing the commission's policy regarding the redaction of business proprietary information. The ITC said the amicus, Alex Moss, executive director of the Public Interest Patent Law Institute, ignored the "statutory requirement to preserve the confidentiality of information designated as BPI" and the "reasonable expectations of firms that supply BPI essential to" the ITC's AD/CVD determinations (In re United States, Fed. Cir. #s 24-1566, 25-127).
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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, arguing that the Tariff Act of 1930 doesn't preempt the common law right to inspect and copy public records.
In response, the ITC said that while there's ordinarily a common law right of access to judicial proceedings, "Congress may supersede this common law right by statute and has done so here."
The commission added that Moss misinterpreted the statute. The statute requires courts to preserve the confidential status of materials designated as BPI before the commission, the brief said. Moss "incorrectly" argues that the statute's "requirement that confidential status be preserved in the administrative record does not constrain the court’s authority over access to court records," the ITC said. The statute's first sentence, which says the confidential status accorded to any documents "shall be preserved in any action under this section," undercuts the amicus' claim, the ITC said.
While the provision's second sentence lets a court disclose information designated as BPI "under such terms and conditions as it may order," this principle doesn't require "such an adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure," the brief said.
The commission added that the statute and its legislative history make clear that courts can only disclose information designated as BPI under a protective order. Moss said this restriction is only gleaned from one sentence in the "Senate Report accompanying the Trade Agreements Act of 1979." In response, the ITC said Moss "ignores the statute itself." The provision regarding the court's ability to reveal BPI must be read "in conjunction" with the statute's first sentence mandating the preservation of information's confidential status, the brief said.
The ITC argued that the statute doesn't empower the trade court to challenge the ITC's BPI designations. The "absence of such statutory authorization" letting courts question the commission's BPI designations doesn't mean the ITC "operates in a shroud of secrecy" as alleged by Moss. The commission noted that no party, including the trade court, "contends that the Commission’s underlying public determinations, which redact designated BPI in accordance with the law, are rendered unintelligible by those redactions or that the Commission’s reasoning and decision-making is not readily understood from its publications."
Even if the ITC had to balance the presumption that the common law right of public access applies, Moss failed to "articulate a public interest that justifies upending Congress’s carefully crafted, comprehensive statutory framework," the brief said. The trade court and amicus' read of the statute would "irreparably harm[] the Commission’s ability to perform its statutorily mandated duties, and disregard[] the reasonable expectations of the firms that provide BPI with the understanding that it will be afforded robust protection before the Commission and the courts," the brief said.