ITC, Trade Bar Left to Grapple With Redaction Issues at ITC Following CAFC Ruling

Dominic Bianchi, former general counsel at the ITC and current shareholder at Polsinelli, told us he thinks the ITC "will have to implement changes," adding that the commission "has a long history of following courts' orders" given its role as a non-partisan, independent adjudicatory body.

Bianchi said he expects the commission's first step will be to "issue practical guidance to investigation participants with updated questionnaire instructions and bracketing expectations" to aid not just parties to the investigations but also non-party reporters, such as downstream purchasers. He said the commission likely will then "solicit views from the trade bar on how the commission should change its practice" and what the "local standards and process should be."

This could take the form of soliciting comments via a Federal Register notice or holding an open forum with trade bar practitioners.

Finally, Bianchi suggested the ITC will engage in rule making to clarify its responsibilities. However, one of the largest challenges the commission faces at the outset is the lack of its current questionnaire infrastructure to support the practice of bracketing individual pieces of confidential information.

Roop Bhatti, partner at Cassidy Levy Kent and former ITC official, echoed this concern, noting that the questionnaires themselves are currently issued to parties as a Microsoft Word document that doesn't give options for bracketing. Bhatti said the commission will have to grapple with changing the format of the questionnaires to allow for bracketing, though what those changes will ultimately look like are unknown. While one solution to this issue would allow submitting parties to bracket entire pages of questionnaire responses, Bhatti suggested this policy change may not "address the court's concern" with public access to information.

In its decision, the Federal Circuit held that the commission's practice of automatically redacting questionnaire responses isn't permitted under the relevant statute, 19 U.S.C. 1677f, adding that the statute, in fact, requires the public disclosure of any information not designated as confidential by the parties (see 2602020038). The court also held that the Court of International Trade has an independent power to review and publicize information marked as confidential by the commission, though the court acknowledged that the ITC and the parties should be given a chance to propose redactions prior to the court revealing any information.

Bianchi highlighted that the CAFC adopted a "category-based approach" in its decision, in which it highlighted three categories of information that should be released: publicly available information, proprietary information that can't be associated with or used to identify a particular party, and stale information that doesn't pose a threat to the competitive position of the submitting party.

Regardless of how exactly the commission looks to adopt the CAFC's instructions, the onus will likely be on the parties submitting the information, and the attorneys advising them, on "how best to go about this" and select which information to redact, Bhatti said. It "doesn't seem feasible" to have an agency of a few hundred staff and an appropriations shortfall "to be able to handle the level of scrutiny that would be required" to parse through every single bracketed word submitted by the parties in an injury case.

Before the trade court, former Judge Stephen Vaden highlighted that the ITC's policy led to the redaction of a Wall Street Journal article. "Do I believe that the Wall Street Journal article should be confidential? No," said Bianchi, who defended the policy before Vaden when he was at the ITC. However, Bianchi stressed that the real issues arise when the commission has to then parse through more nuanced information.

For instance, in the same case, Vaden questioned Bianchi and other ITC attorneys about information submitted by one of the participating companies concerning its distributors that was marked as confidential but that seemingly appeared on that company's website. However, during the case, the ITC stressed that while the submitting company publicly identified one of its distributors on its website, its site didn't disclose exactly what products were sent to that distributor or what other distributors the company uses.

"There’s a lot of gray, and this is where I think the commission is going to have to put more burden on the trade bar to work with their clients to determine what is confidential or not," Bianchi said. David Forgue, trade attorney at Barnes & Richardson, said a new environment in which importers have to designate what is confidential and prepare to defend their designations will lead to a greater risk of "exposing confidential materials," he said.

Before Vaden and CAFC, the ITC repeatedly stressed the role its current policy plays in getting private parties to submit information without use of the commission's subpoena power. Bianchi stressed that the commission has long relied on private parties to willingly submit information, adding that the ITC's subpoena power has often been used to "nudge" compliance from the parties.

Should the commission have to rely more on this power in light of parties increasingly refusing to voluntarily submit information, Bianchi said there may be issues with the timing of flexing the commission's subpoena muscle. Bianchi said the power "does no good" in the preliminary stage, since "there's no way to go to court in that amount of time," though subpoenas may be available for final investigations or five-year reviews.

Bhatti added that while the commission "has been very hesitant in the past to exercise its subpoena power," it "should be using its subpoena power" in more cases, particularly if it becomes harder to solicit information from private parties.

Going forward, due to the courts' intervention, it's clear that more data from the commission will be publicly available. However, Bhatti suggested that the desire for greater access to ITC questionnaire responses isn't one solely held by the court. She said she has clients that "wish that some of the information was more public than it is," adding that other ITC practitioners also have voiced a desire to see more information, given that they are "trying to glean from these opinions what types of trends the commission was looking at when they went one way or another."

More publicly available information "can only help the trade bar be a better advocate for our clients," Bhatti said. "So I appreciate that that's what the court's ultimately getting at, even though we can have our frustrations with the way that this may change our practice."