Consumer Groups Appeal Database Decision without DOJ/CPSC

The choice by the Department of Justice (DOJ) and CPSC not to pursue an appeal of a decision involving the CPSIA database does not end the matter because consumer groups are continuing their appeal. Scott Michelman, the Public Citizen attorney handling the case, explained to PSL that although the government is not seeking a reversal of the specific decision that supported the plaintiff company’s desire to keep its name and other information out of saferproducts.gov, his group, Consumer Federation of America, and Consumers Union will continue their opposition to details about the case being under seal.

The reason, he said, is that the public does not know the facts that the court looked at or how it applied the law to those facts. He explained that the appeal in the U.S. Fourth Circuit will focus on the First Amendment and on judicial secrecy. He said the groups are “full speed ahead” with questioning whether such cases should be litigated in secret, asserting that the public’s strong interest in being informed in such matters “does not yield just because a company wants to avoid bad publicity.”

Specifically, the consumer groups’ brief, filed December 13, included arguments such as that open judicial proceedings are necessary to ensure public oversight of the courts; that the firm’s interest in protecting its reputation meets neither the First Amendment compelling interest test nor a common law standard for secrecy; and that sealing the case violates the common law right of access. Read the brief at www.citizen.org/documents/Company-Doe-v-Public-Citizen-Opening-Brief-Appellants.pdf.

CPSC spokesman Scott Wolfson declined to comment on the specifics of the choice not to appeal, pointing PSL to DOJ, which took the lead on the case. However he did note that CPSC stands by its original assessment (PSL, 10/29/12, p. 1) that the decision changed neither the agency’s mandate with the database nor the program’s value to the public. He added that CPSC also believes the site allows companies to have a closer relationship with the agency via the business portal. He further explained that CPSC has procedures in place to ensure that it complies with both the decision and its own rules governing the database. DOJ spokesman Charles Miller declined to comment.

The July decision in Company Doe v. Tenenbaum et al. termed CPSC’s actions “arbitrary and capricious.” CPSC sought to publish a report involving the company’s product after getting information saying the report was “materially misleading.” In October, a redacted copy of the decision became public.

Find it and more about the case at www.gpo.gov/fdsys/pkg/USCOURTS-mdd-8_11-cv-02958.