Another Company Supports Heavier Redaction of Confidential Records Against CIT Pushback

Another petitioner spoke up in favor of the International Trade Commission's redaction of confidential business information after the commission was taken to task for allegedly going too far by Court of International Trade Judge Stephen Vaden (see 2404010066). (OCP v. U.S., CIT Consol. # 21-00219).

The petitioner raised a more general argument about the differences in public disclosure between the trade remedy context and other situations.

Vaden came down hard on the ITC for heavy redaction -- up to entire pages at points -- of a petitioner’s business information that he pointed out could be accessed in different forms online by the general public. He sought briefing from the parties of that case, and the petitioner, The Mosaic Company, responded by arguing the information that had been redacted was more comprehensive than what could be found online and that requiring less redaction could make the ITC’s investigations more difficult (see 2405230053).

Another petitioner and defendant-intervenor in the case, The J. R. Simplot Company, filed its own brief May 23.

The statute governing ITC redaction of proprietary information doesn’t require the commission to assess whether or not a party’s redaction requests are reasonable, the petitioner said. It said the law only acknowledges that the confidential designation may be challenged.

It also said the court must respect such designations when confidential records reach the bench.

“The statute mandates that the Court treat as confidential information on appeal all information that was treated as confidential in the proceeding below, providing that such information may be shared under appropriate terms and conditions, i.e., an administrative protection order,” it said.

The petitioner argued that the law “limits the applicability of precedents addressing judicially-created protective orders.” Trade remedy proceedings differ “significantly” from “the common law right of public access to judicial records” in such cases that don't have specific regulations about the treatment of confidential information, it said. In other words, Congress has displaced that common law right of public access in trade remedy situations, it said.

“Here, … a statutory purpose contrary to the common-law right of public access to judicial records is plainly evident in the statutory provision governing judicial review in this action,” it said.

It also argued that the trade remedy context differs significantly from the disclosure regime for Securities and Exchange Commission cases.

Simplot said that it had submitted its information to ITC “under the reasonable expectation that its internal confidential information would be protected as business proprietary information.”

In particular, it discussed information issuing from two confidential declarations by high-level company officials. One, it said, provided the numbers for specific types of company facilities in the Midwest. Another “addressed specific facilities in specific locations relative to a particular potential transaction” in rebuttal of allegations made against Simplot.

Although there is public information about Simplot’s facilities available “for a given moment in time,” usually for marketing, the confidential information provided in those declarations “was operational in nature” and would cause Simplot competitive harm if disclosed, the petitioner said.

Also redacted was information that came from a paid subscription service, which is considered “other information of commercial value” and defined as redactable under the governing statute, Simplot said.

It also discussed information from several questionnaire responses, but said it would defer to the ITC to determine whether or not the commission had properly redacted those records for most of the contested items.