US Defends Redaction of Info on Informant in UFLPA Entity List Case
The U.S. defended its right not to turn over parts of the administrative record in a case on the decision to add exporter Ninestar Corp. to the Uyghur Forced Labor Prevention Act Entity List, saying that the record is protected by the "informer's privilege" or is "law-enforcement sensitive" (Ninestar Corp. v. U.S., CIT # 23-00182).
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Opposing Ninestar's motion to unseal and unredact the record, the government in a Jan. 8 brief said the release of certain information from the proceeding "would threaten retaliation against the informant." The U.S. said it could share evidence that doesn't concern the informant with Ninestar's counsel but not with the wider public. Ninestar has given "no compelling argument as to why public disclosure" is needed, the brief noted.
The U.S. said certain information, including sources the Chinese government controls and internal agency documents, should remain for "attorneys' eyes only," which balances the government's and Ninestar's interests. The U.S. said broader disclosure "would undermine future investigations by providing a roadmap for evading detection and cause sources to dry up."
Ninestar asked the trade court in December to unseal and unredact the record after the court mandated disclosure solely to Ninestar's lawyers, who argued that they must be able to share the information with their client (see 2312050023). The company also sought to unredact information about an informant in the case, which was kept from Ninestar's counsel.
In response, the government said revealing the informant's identity would cause "significant harm." Ninestar must "defeat" a "strong presumption against lifting the privilege," which it fails to do, the brief said.
The exporter said learning the informant's identity could allow it to challenge the informant's credibility or the information's staleness. But the U.S. said these "generic concerns are present in every case where a confidential informant's identity is withheld as privileged," adding nothing is "unique to this case that would make the redacted information critical to Ninestar's claims."
Even if the exporter made a compelling case to see the information, it would be "outweighed by the Government's competing interests against disclosure." The public interest in shielding informants from retaliation and encouraging future informants also has traditionally been found to outweigh the interest in obtaining the sensitive information, the government argued.
Regarding the information shared only to Ninestar's counsel, the U.S. said the exporter offered insufficient reasons for unredacting the evidence. The company's counsel said it cannot ask Ninestar direct questions about the information, but the U.S. noted that under the Administrative Procedure Act, judicial review is limited to the record and not rebuttal evidence. Even if rebuttal evidence were allowed, "Ninestar knows better than anyone its operations, its workforce, and the conditions on the ground" in China and can provide its counsel with all the necessary information, the brief said.