Authored by: Jeremy J. Gustrowsky
The U.S. Court of Appeals for the Federal Circuit has affirmed that the International Trade Commission cannot automatically stamp “confidential” on every questionnaire response it receives during trade investigations. The case arose from a countervailing duty investigation into phosphate fertilizers from Morocco and Russia, where the Court of International Trade noticed that the administrative record contained “heavy redactions.” When the CIT questioned the justification for treating so much information as secret, it sparked a broader challenge to how the Commission handles confidentiality in trade proceedings.
The case centered on a longstanding Commission practice: whenever it sends out questionnaires to gather information for antidumping or countervailing duty investigations, it automatically treats all responses as confidential—regardless of whether the submitting party actually requested confidential treatment and regardless of whether the information truly qualifies for protection under the governing statutes. The Commission argued this blanket approach was necessary to encourage cooperation and protect business information, but the Federal Circuit disagreed, finding the practice directly contradicts the statute’s requirement that the Commission publicly release information not designated as confidential by the submitter.
The Federal Circuit also rejected the Commission’s argument that the statute overrides the well-established common law right of public access to judicial records. Comparing the relevant trade statute to bankruptcy laws that do limit access, the court noted a critical difference: while the Bankruptcy Code uses mandatory “shall protect” language that removes judicial discretion, the trade statute explicitly states that courts “may examine” and “may disclose” confidential material under whatever terms the court deems appropriate. This permissive language preserves rather than eliminates the court’s traditional authority to balance confidentiality against public transparency.
The ruling clarifies what information actually deserves confidential treatment. Publicly available information cannot be designated as proprietary—it simply isn’t proprietary anymore. General characterizations that don’t reveal a specific company’s operations aren’t entitled to protection. And stale, outdated information typically won’t qualify either, since outdated data is unlikely to cause the substantial competitive harm that justifies secrecy. The court emphasized that merely claiming something is confidential doesn’t make it so; only “properly designated” information receives protection.
The decision strikes an important balance for trade litigation. The Commission and affected parties retain the right to object and present evidence before confidential information is released, and the CIT must follow proper procedures before ordering disclosure. But the era of blanket confidentiality is over. As the court noted, public access to judicial proceedings serves the “citizen’s desire to keep a watchful eye on the workings of public agencies”—and that principle applies to trade investigations just as it does elsewhere in the legal system.