Ceramica Regiomontana, S.A. v. United States

4 Ct. Int'l Trade 168
CourtUnited States Court of International Trade
DecidedOctober 26, 1982
DocketCourt No. 82-6-00857
StatusPublished

This text of 4 Ct. Int'l Trade 168 (Ceramica Regiomontana, S.A. v. United States) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ceramica Regiomontana, S.A. v. United States, 4 Ct. Int'l Trade 168 (cit 1982).

Opinion

Bernard Newman, Judge:

Plaintiff challenges the final countervailing duty determination and order issued by the United States Department of Commerce on May 10, 1982 respecting importations of ceramic tile from Mexico (47 FR 20012). Defendants have moved under Rule 26(c) of the rules of this Court for a protective order covering certain classified documents included in the administrative record, which record was transmitted to the Court in connection with this action. Asserting the state secrets privilege, defendants seek to preclude disclosure of the classified material in question 1 predicated upon a declaration of Lionel H. Olmer, Under Secretary for International Trade for the United States Department of Commerce (ITA).

Summarizing, Mr. Olmer’s declaration avers:

During the course of the countervailing duty investigation, the Mexican government submitted several documents to the ITA for which Mexico requested, and was granted by the ITA, “confidential” status in accordance with Executive Order No. 12,065 (E.O. 12,065), dated June 28, 1978. These “confidential” documents are part of the administrative record in this case. Although E.O. 12,065 does not require non-confidential summaries, the government of [169]*169Mexico provided such summaries for the majority of the documents. However, in the non-confidential summaries, Mexico expurgated all material for which confidential treatment was requested.

Continuing, Mr. Olmer opines that disclosure of the confidential foreign government information in these documents is likely to have a serious adverse effect on our bilateral foreign relations with Mexico, thereby causing identifiable damage to the national security of the United States; and further, that if any of the documents in question were ever disseminated, the ITA would be seriously impeded from obtaining confidential foreign government information in future countervailing duty and antidumping investigations.

Plaintiff did not respond to defendants’ motion, but the interve-nor, has filed an opposition. For the reasons indicated hereinafter, defendants’ motion is granted.

The privilege covering state secrets, encompassing matters whose disclosure would harm our national security or the international relations of the United States, is, of course, well established. See United States v. Reynolds, 345 U.S. 1 (1953); 8 Wigmore Evidence, § 2378, p. 794 (1961). However, in the Court of International Trade such privilege may not be regarded as “absolute”, as urged by defendants, in light of 28 U.S.C. § 2641(b), which in pertinent part provides:

The Court of International Trade may order that * * * any information provided to the United States by any foreign government * * * may be disclosed to a party, its counsel, or any other person under such terms and conditions as the court may order.

Although under the foregoing statute this Court is explicitly empowered and was granted discretion to order the disclosure of any information provided to the United States by any foreign government, I have concluded that under the particular facts and circumstances presented here, defendants’ assertion of the state secrets privilege should be sustained.

In determining whether disclosure of particular documents should be ordered, due regard will be given to their “confidential” classification as “foreign government information” pursuant to the substantive and procedural criteria of E.O. 12,065, under which the President “in order to balance the public’s interest in access to Government information with the need to protect certain national security information from disclosure” (43 FR 28949) provided for the classification of information, including information concerning foreign governments and foreign relations of the United States (section 1-301), 43 FR 28951.2 According to Section 1-302 of the Ex[170]*170ecutive Order, “[e]ven though information is determined to concern one or more of the [seven categories, including “foreign government information”] in Section 1-303, it may not be classified unless an original classification authority also determines that its unauthorized disclosure reasonably could be expected to cause at least identifiable damage to the national security.” Carlisle Tire & Rubber Co. v. United States Customs Service, 663 F.2d 210, 216 (D.C. Cir. 1980). Significantly, E.O. 12,065’s definition of “national security” embraces the “foreign relations of the United States”. E.O. 12, 065, Section 6-104, 3 CFR 190, 204 (1981).

Thus, we are faced here with the following significant factors in determining whether disclosure is appropriate: (1) The party submitting the countervailing duty information to the ITA was a foreign government (Mexico); (2) the Mexican government requested, understood and expected that its submissions would remain confidential; (3) the materials in question were classified by the United States Government as confidential “foreign government information” pursuant to E.O. 12,065; and (4) based upon the Government’s classification of the documents as “foreign government information” under E.O. 12,065, disclosure of the documents is presumed to cause at least identifiable damage to the national security (which latter term includes the foreign relations of the United States). E.O. 12,065, § 1-303. Moreover, the uncontradicted declaration of Under Secretary Olmer supports that presumption and advises the Court that the disclosure of the confidential information contained in the documents in question would have a serious adverse effect on our bilateral relations with Mexico. Substantial weight must be accorded to the considered judgment of the Under Secretary that the disclosure of the confidential material in contravention of assurances of confidentiality would be prejudicial to our relations with Mexico. Carlisle Tire & Rubber Co. v. United States Customs Service, supra, at 216.

Under the present facts and circumstances where the disputed documents were properly classified in conformance with the substantive and procedural requirements of E.O. 12,065 following the explicit request of the Mexican government for confidential treatment, and in light of the E.O.’s section 1-303 presumption of identifiable damage to our international relations with Mexico (which has not been rebutted), the defendants have properly asserted the state secrets privilege. Unlike the circumstances in Republic Steel Corp. v. United States, 3 CIT 117, 538 F. Supp. 422 (1982) wherein the Government’s conclusory assertions were held insufficient to show the applicability of the state secrets privilege, that privilege has been established in the instant case to the satisfaction of the Court.

The short answer to the intervenor’s argument, that the expurgated matters should not have been accorded the status of confidential foreign government information because of their business [171]*171data content, is the following comment of the District Court in Carlisle Tire & Rubber Co. v. United States Customs Service, 1 ITRD 1891, 1897 (D.D.C. 1979):

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Related

United States v. Reynolds
345 U.S. 1 (Supreme Court, 1953)
Republic Steel Corp. v. United States
538 F. Supp. 422 (Court of International Trade, 1982)

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4 Ct. Int'l Trade 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ceramica-regiomontana-sa-v-united-states-cit-1982.