CAFC Presses ITC Counsel on ITC, CIT Treatment of Confidential Information

The oral argument saw the appellate court consider two cases, one of which is on former CIT Judge Stephen Vaden's refusal to redact certain information from a 2023 decision on an antidumping and countervailing duty injury case on mattresses (see 2401090046). Vaden said all the information alleged to be proprietary either hadn't been properly bracketed by the ITC during the trial or was publicly available. The other case is an appeal of Vaden's decision in a case on an injury proceeding on phosphate fertilizer finding the ITC's practice of automatically redacting questionnaire responses to be unlawful (see 2503270057).

During the argument, Dyk centered on the statute at issue, 19 U.S.C. 1677f, which the judge said "contemplates specifically marking confidentiality markings" and tells the ITC to "disclose information that's not marked confidential." Dyk asked how the ITC could square its position of treating entire questionnaire submissions as confidential with its statutory obligation to disclose information not marked confidential.

In response, McNamara said, considering the statute "as a whole," the ITC is given broad authority to conduct injury investigations and, in Section 1333, has a duty to investigate injury claims. To be able to actually carry out this duty, the commission needs to be able to maintain its broad confidentiality procedures to ensure that businesses actually comply with requests for information, McNamara said. To this, Dyk said he just doesn't "understand how [the ITC] can construe Section 1677f(4) as not requiring the disclosure of information that's not marked confidential."

McNamara responded that while certain information may not be marked confidential by the submitting party, it is marked confidential by the commission itself. "That's not what the statute says, it says designated by the person submitting it," Dyk replied. To this, McNamara said the "questionnaires are designed by the commission" and include information which, under Section 1677f(a)(4)(A), the ITC can't disclose, since it relates to individual company operations.

Dyk then pressed McNamara on whether another statute, 19 U.S.C. 1516a, which concerns the trade court's review of CIT's confidentiality designations, overcomes the "public law right of access" to court records, as claimed by the ITC. The judge said there's "nothing in the legislative history to suggest that," to which McNamara said that's not true, since the legislative history contemplates disclosure to the court under a protective order. The ITC attorney added that there was no common law right of access when Section 1516a was passed, since disclosure to the court was "very limited" at the time.

Taranto shifted the focus to the ITC's subpoena powers, asking if this power alleviates the commission's concern that it couldn't be able to get companies to reply to its questionnaires if it couldn't guarantee the confidentiality of submissions. In response, McNamara said the subpoena power wouldn't allow the ITC to get the information it needs within the statutorily mandated time frames to complete injury investigations.

The judges then asked about CIT's role in the process, including whether the court must issue notice of some kind before revealing information marked as confidential before the court. Taranto and Dyk asked whether providing notice to the ITC is enough or whether notice must be given to all parties in the case or all companies whose information may be implicated but aren't parties to the case, such as U.S. buyers of imported goods. Both judges cited the CAFC's practice of notifying the parties prior to releasing decisions to give them a chance to review the confidential information found in the decision.

To this, McNamara said the ITC has an obligation to let parties withdraw confidential information they have submitted, and any attempt by CIT to publish that information, regardless of whether it's validly doing so under its own authority, would create issues for the commission. Taranto suggested the ITC's mandate to let parties withdraw confidential information "doesn't control what the CIT can do under [Section 1516a]." The judge suggested the commission could add disclosure in its questionnaire requests, notifying parties that the trade court could disclose this information if it sees fit.

In defense of Vaden's decisions, the Federal Circuit appointed two amici who appeared before the court: patent attorneys Andrew Dhuey and Alex Moss.

During his argument, Dhuey claimed that no company was actually harmed by Vaden's disclosure of information marked confidential in the two cases at issue. He noted that the ITC hasn't cited any evidence or declarations from any of the companies whose information was revealed claiming that they were harmed by the disclosure. In fact, one such company, importer CVB, appealed the merits of the injury ruling to the Federal Circuit and "didn't say a word about the redaction issue," Dhuey noted. "I think it’s odd that we don’t have anything from the supposedly aggrieved companies complaining about it."

Dhuey added that assuming the court rejects the ITC's claim that Section 1516a doesn't give CIT any disclosure to review information designated as confidential, the court gets into the act of balancing the "public interest" in transparency and the ITC's concerns about its ability to do its job in the face of such disclosure. The amicus argued that transparency interests are at their highest in this case, since "we're talking about the contents of a judicial decision." He added that "it would take the most compelling showing imaginable to say to an Article Three court, 'you may not put this into your judicial decision, even if it's at the factual center of your case.'"

Moss picked up on Dhuey's point on transparency, arguing that the "real core issue here is who controls what the court tells the public: is it the court, or is it the agency?" Moss said it "has to be the court" and it "has always been the court." If it were up to the agency to decide what's kept secret, "there would be no mechanism for error correction" or "for accountability," she said.

Invoking the legislative history of Section 1516a, Moss argued that Congress explicitly gave the courts the right to ensure public access to the important information found in these cases. She said the "status quo" of limited access cited by McNamara actually existed prior to Congress' enactment of Section 1516a. After Taranto asked Moss to respond to the ITC's concerns about its ability to get companies to provide information, Moss said these same arguments were made when Section 1516a was passed and Congress rejected those claims. Congress emphasized the ITC's subpoena power and rejected the expanded use of protective orders, which put "the entire bar at a constant threat of sanctions," Moss said.

"We have an ITC to do trade policy fairly, and the public has an interest in making sure the agency works," Moss said, adding that the "ITC is trying to dismember" the relationship between the public and the courts.

Also at issue was whether the appellate court had jurisdiction to review Vaden's decision refusing to redact information published in an earlier decision. Taranto noted that the parties had 60 days to appeal the original decision and that the appeal of the decision refusing to redact the information in the original decision came more than 60 days after the original merits decision was reached. While McNamara said she hadn't considered this point but would be amenable to additional briefing, Dhuey argued that the damage flows from Vaden's later decision, since it was the first time the court made an affirmative decision on the confidentiality of the information.