CAFC-Appointed Amicus Defends Court's Ability to Un-redact Info Dubbed Confidential by ITC
Andrew Dhuey, a patent attorney and court-appointed amicus, defended Court of International Trade Judge Stephen Vaden's decision not to redact information deemed confidential by the International Trade Commission in one of his decisions before the U.S. Court of Appeals for the Federal Circuit. In an April 28 brief, Dhuey argued that 19 U.S.C. 1516a(b)(2)(B) explicitly gave Vaden discretion to disclose the contested materials (In Re United States, Fed. Cir. # 24-1566).
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Vaden refused to redact certain business proprietary information (BPI) in his 2023 decision on an antidumping duty and countervailing duty injury case. The judge said all the information alleged to be proprietary either hadn't been properly bracketed by the ITC during the trial or was publicly available (see 2401090046). CAFC appointed Dhuey as an amicus to defend Vaden's decision, per Dhuey's request, seeing as no other party was going to defend the trade court's decision (see 2502200017).
In his brief, Dhuey said CIT correctly read Section 1516a(b)(2)(B) to acknowledge its discretion to "independently determine the confidentiality of the information in the administrative record and the terms and conditions of disclosing" the information. The statute says the court "may examine, in camera, the confidential or privileged material" accorded to any documents, and "may disclose such material under such terms and conditions as it may order."
Dhuey argued that Congress recognized that "there should be two starkly different statutory provisions concerning the same material designated by its submitter as confidential/proprietary." A federal court may review and disclose this material, while the ITC "shall not make an unconsented disclosure of this material to any person," the brief said.
The amicus added that the ITC's interpretation of the statute ignores the differences in language Congress used with regard to the ITC's and the court's treatment of BPI, imposes an "atextual limitation on unambiguous statutory text via legislative history" and would render the statute "constitutionally infirm."
Aside from the explicit guidance of the statute, Dhuey said the ITC's interpretation of the statute would render it "unconstitutional both as an encroachment upon the Judicial Branch’s core decision-making authority and per a First Amendment right of access." Hiding the "key facts that inform a judicial decision" from the public would "disrupt the Judicial Branch's core role in the administration of justice," the said. The "vital" guidance provided by precedent would be undermined were the over-redaction of information to go unchecked, the brief said.
Dhuey added that construing the law to include a "conclusive presumption that courts may never disclose confidential materials in publicly-available judicial opinions cannot be squared with a presumptive First Amendment right of public access to judicial records."