CAFC Affirms CIT's Rejection of ITC's Automatic Questionnaire Redaction Policy

Dyk, writing for the court, clarified that the order "merely recognizes the affirmative disclosure obligations that the statute places on the Commission and requires that the Commission comply with the statute in the remand proceedings and in any other CIT review proceedings in this case."

The appeal was filed by the ITC, originally as a writ of mandamus, after former CIT Judge Stephen Vaden found that the ITC's practice of automatically redacting questionnaire responses is unlawful, regardless of whether the information was designated confidential by the submitting party or entitled to confidential treatment under the governing statutes, 19 U.S.C. Sections 1516a and 1677f (see 2503270057). The commission also appealed a second decision from Vaden in which the judge refused to redact certain information from a 2023 decision on an antidumping duty and countervailing duty injury case on mattresses (see 2401090046).

CAFC heard both cases together and ultimately affirmed Vaden's decision regarding the ITC's automatic redaction policy, though it dismissed the case on the judge's refusal to redact certain information from the 2023 decision. The Federal Circuit said this second suit is moot given that the "claimed confidential information was released over two years ago" and deals with the same issues settled by the court in the lead case.

On the merits, CAFC first held that Section 1516a(b)(2)(B), which says notwithstanding the ITC's "affording of confidential treatment," the CIT may examine and disclose confidential material "under such terms and conditions as it may order," doesn't abrogate the "common-law right of public access to judicial records." Dyk wrote that there's a "strong presumption in favor of a common law right of access to documents filed in court proceedings," and that the plain language of the statute in question doesn't supplant this right.

While the ITC said this provision requires the trade court to maintain the confidential status the commission affords to documents and bars disclosure save for under a protective order, the court held that this isn't an "accurate description of the statute." The provision clearly says that the trade court isn't bound by the ITC's confidentiality designations, the Federal Circuit noted.

Dyk also rejected the commission's claim that Section 1677f's restrictions should apply equally to the trade court as they do to the ITC. Under the statute, submitting parties must specifically designate information they seek to be protected as confidential. The statute also lays out categories of information that aren't entitled to protected status and requires the ITC to "publicly release information not properly designated as confidential." It also lets the courts decide what information "should be treated as confidential on appeal applying the common law right of access."

The Federal Circuit held that not only does this statute not apply to the trade court, "but the Commission is simply mistaken as to the scope of the statutory restrictions even as applied to the Commission itself." Dyk said that the ITC's practice of automatically designating all questionnaire responses confidential isn't authorized by the statute, and, in fact, the statute requires the public disclosure of any information not designated as confidential by the parties. The commission violates the statute by treating the "entirety of questionnaire responses as confidential (without a request by the party submitting it," the court held.

In defense of its practice, the ITC said its automatic redaction policy is crucial to its ability to obtain information from the parties and is essential to its ability to carry out its "statutory functions." Dyk rejected this rationale, finding that the ITC "has mechanisms to force parties to respond to its questionnaires," including subpoena power.

In addition, the court held that the statute is clear: only information properly designated as confidential may be kept confidential. Any designation of information that's publicly available or stale is "improper," unless "disclosure of the information would cause substantial competitive harm," the court said.

Turning to the question of remedies, the court agreed with the ITC that in rejecting the "blanket confidentiality rule," the ITC and the parties should be given a chance to "propose redactions and to appeal before the information is released." However, Vaden gave the parties such an opportunity to do just that in the present case, CAFC said.

Lastly, as a procedural matter, the court held that it had jurisdiction to decide the cases. The ITC filed the cases seeking writs of mandamus, which aren't available if an "adequate remedy by appeal" exists and are orders to government officials, including lower courts, to perform a specific legal duty they have either neglected or refused to do. While the court said it wasn't able to extend mandamus relief, given that Vaden's decision was appealable, the court said the commission's case could be properly heard as an appeal.

Interlocutory appeals are allowed only if the order being appealed "conclusively" determined the disputed question, resolved an "important issue completely separate from the merits of the action" and is "effectively unreviewable on appeal from a final judgment." The Federal Circuit said all three elements were met in the present case.

Andrew Dhuey, court-appointed amicus who defended Vaden's decision, said he hopes the court's decision "will lead to much greater transparency in antidumping and countervailing duty cases once they move from the Commission to the CIT. There will be instances where the Commission’s questionnaire respondents’ information should be kept confidential, but today’s decision reaffirms that public access is the default, and secrecy requires a showing of competitive harm to an importer, purchaser, or domestic producer if that information were disclosed."

(In Re United States, Fed. Cir. # 25-127, dated 02/02/26, Judges: Timothy Dyk, Richard Taranto and Raymond Chen; Attorneys: Courtney McNamara for the International Trade Commission; Alexandra Moss of Public Interest Patent Law Institute as amicus curiae)

(In Re United States, Fed. Cir. # 24-1566, dated 02/02/26, Judges: Timothy Dyk, Richard Taranto and Raymond Chen; Attorneys: Courtney McNamara for the International Trade Commission; Andrew Dhuey as pro se amicus curiae; Alexandra Moss of Public Interest Patent Law Institute as amicus curiae)