ITC Says Policy of Redacting Questionnaire Responses Is Valid Under the Law
The International Trade Commission defended its bid for mandamus relief at the U.S. Court of Appeals for the Federal Circuit regarding the Court of International Trade's ruling striking down the commission's practice of automatically redacting questionnaire responses in injury proceedings. The ITC said that it has standing to vie for mandamus relief and that the trade court abused its discretion in undercutting the commission's policy regarding the submission of confidential information (In re United States, Fed. Cir. # 25-127).
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In March, CIT Judge Stephen Vaden struck down the ITC's practice, finding that it isn't in line with statute, regulation, precedent or "common sense" (see 2503270057). The judge said the practice unlawfully leads the commission to redact publicly available information, and, in so holding, also upheld the court's ability to redact information designated as confidential by the ITC.
The commission sought mandamus relief from the ruling at the Federal Circuit, arguing that Vaden's release of the information was contrary to the statutory scheme and would greatly harm the commission's ability to collect sensitive information from private parties going forward (see 2504070053). Upon invitation from the appellate court, Vaden replied, claiming that the commission didn't have standing to file for mandamus relief and that his decision should be upheld on the merits.
In response, the commission first said it has standing to file its brief. Citing a 2012 case from the Federal Circuit, the ITC said the CAFC has recognized that when "an agency is statutorily entrusted to collect sensitive information, it can seek mandamus to prevent that information’s disclosure." The commission added that it has constitutional standing to vie for relief, since Vaden's decision "specifically and distinctly injured the Commission’s ability to protect BPI and to carry out its work, which represent a direct injury to the agency for standing purposes."
The ITC said its investigations rest on the cooperation of parties in injury proceedings to submit confidential information. Court-ordered release of that information "will have a chilling effect in the current remand proceedings because parties are likely to be less candid in their briefs and any questionnaire responses" knowing the court may be able to strip those confidentiality protections, the brief said.
While Vaden suggested the commission is trying to "short-circuit" the appellate review process by not waiting for the full case to be resolved before the trade court, the ITC said "going through normal appellate channels is not an option." Vaden released BPI without notice or the parties' input, despite all parties requesting that the judge keep the information redacted, the brief said. While Vaden has released his decision fully resolving the remaining issues in the case under seal at this point, the ITC said he has only done so due to the commission's mandamus petition. The judge said the decision was issued under seal out of respect for the CAFC's review process.
The ITC additionally argued that Vaden abused his discretion in striking down the commission's policy. The brief said information in questionnaires can be used to identify parties and contains trade secrets, processes, operations and more. “The Commission properly treats questionnaire responses as BPI because they contain this information," the brief said.
Automatically treating questionnaire responses as confidential actually promotes transparency, the ITC added, arguing that, when the responses are confidential, the ITC "can discuss more information publicly on an aggregate basis." Piecemeal redaction ups the chances that information would reveal the operations of a single firm, barring disclosure per the terms of the statute, the brief said.
The commission added that its approach isn't inconsistent with "common sense," as Vaden claims. "Given the Commission’s mandate to conduct thorough, fact-intensive investigations on extremely tight statutory deadlines, its approach is reasonable and supported by precedent," the brief said.
The ITC also said that the statute requires the trade court to preserve the commission's BPI designations, arguing that the statute says once the record closes, BPI "shall be preserved" and neither the ITC nor the courts can modify the record. While a common law right of public access to judicial proceedings exists, Congress can supersede this right, "and it has done so here." As a result, Vaden has told the ITC to violate the law by telling it to publicize certain information on the record, since the commission can't comply both with this directive and the statutory scheme, which provides for the protection of submitted data, the brief said.