Frequently Asked Questions on the Confidential Treatment of Information Submitted to the FTC

You may have questions about how the FTC treats information that it obtains in its investigations, proceedings, and otherwise.  This general guidance responds to confidentiality questions that regularly arise.  It is intended to help anyone who is considering sharing information with the FTC better understand how the FTC maintains that information.

Q. 1.  What protections are available for information that I provide to the Commission if I consider it to be confidential?                                   

A. 1.  The FTC maintains information provided as part of a law enforcement investigation or designated by the submitter as confidential in accordance with applicable statutes and regulations.  Subject to limited nonpublic disclosures either authorized or required by statute,[1] these protections include:

• Protections for trade secrets or confidential commercial or financial information:
  • Section 6(f) of the FTC Act expressly restricts the FTC’s authority to publicly disclose trade secrets or confidential commercial or financial information obtained from a submitter.  15 U.S.C. § 46(f).  This information is also exempt from disclosure under the Freedom of Information Act (“FOIA”) pursuant to FOIA Exemption 3 (by virtue of Section 6(f) of the FTC Act, 15 U.S.C. § 46(f)) and FOIA Exemption 4.  See 5 U.S.C. §§ 552(b)(3) and (b)(4).
  • The FTC will seek to protect trade secrets or confidential commercial or financial information from public disclosure through the use of court protective orders and in camera treatment of the information.
• Protections for information submitted in an investigation pursuant to compulsory process or voluntarily in lieu of compulsory process:
  • Sections 21(b) and 21(f) of the FTC Act, 15 U.S.C. § 57b-2(b) and 2(f), together with Rule 4.10(d), 16 C.F.R. § 4.10(d), limit the disclosure of information submitted to the FTC in a law enforcement investigation if: (1) the information was submitted pursuant to compulsory process, or (2) it was submitted voluntarily in lieu of such process (i.e., in response to a written or oral request by the FTC or staff) and designated confidential by the submitter.  Such information is not required to be disclosed through FOIA.  See 5 U.S.C. § 552(b)(3).  (Note, however, that the FTC has discretion under FOIA to disclose information submitted voluntarily that has not been designated by the submitter as confidential.)
  • In judicial or administrative proceedings, FTC Statutes and Rules allow disclosure of such information only after the submitter is provided with notice and an opportunity to seek an appropriate protective order.
• Protections for information designated by the submitter as confidential:
  • For information other than information obtained pursuant to compulsory process in an FTC investigation (for example, information submitted voluntarily in an investigation, compliance reports, complaints about law violations submitted prior to any FTC investigation, or information submitted for an FTC study), if the information is marked confidential by the submitter, Section 21(c) of the FTC Act requires pre-disclosure notice to the submitter if (1) the FTC determines that such information is not in fact confidential, and (2) the FTC intends to disclose that information publicly. 15 U.S.C. § 57b-2(c)(1)-(3).
• Protections under the HSR Act:
  • Section 7A of the Clayton Act, 15 U.S.C. § 18a, enacted as part of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”), provides that any information or documentary material filed with the FTC or the Assistant Attorney General in charge of the Antitrust Division of the U.S. Department of Justice pursuant to the HSR Act may not be made public except “as may be relevant to any administrative or judicial action or proceeding.”  15 U.S.C. § 18a(h).
  • Questions about HSR confidentiality may be directed to the FTC’s Premerger Notification Office at HSRHelp@ftc.gov.

Q. 2.  I’m preparing to share confidential information with the FTC.  How can I designate the information as confidential?

A. 2. A submitter can designate as confidential any commercial or financial information that is privileged or confidential and thus falls within the scope of Section 6(f) of the FTC Act, 15 U.S.C. § 46(f).  When submitting or providing confidential information to the FTC, clearly identify the information to be treated as confidential at the time of the submission. Confidentiality designations should be made in a format that is clear and appropriate in the circumstances, such as a sentence in written correspondence with the FTC or a prefatory statement in oral communications with the FTC.  For documents, except in the case of filings with the Commission or an ALJ (see Rule 4.2(b)), a notation of “Confidential” on a document suffices to designate it as confidential.  See 15 U.S.C. § 57b-2(c), 16 C.F.R. § 4.10(d).  However, submitters are strongly encouraged to mark or stamp “Confidential” on each portion of a document they wish to designate as confidential.  The practice of clearly identifying, e.g., by Bates labeling, each portion of a document for which the submitter is making a request for confidential treatment will greatly assist the FTC’s ability to protect the confidentiality of submitted information.

Q. 3.  Some of the information I’m preparing to share with the FTC is especially sensitive.  What can I do to ensure that my production is protected appropriately?

A. 3.  Identify protected information as precisely as possible, based on the particular content and context of the submission.  Separately identify the specific information that you customarily treat as trade secrets or confidential commercial or financial information.  Submitters may consider one of the following notations, or some variations or permutations of them as appropriate, along with Bates labeling on any material provided to the FTC:

• “Contains trade secrets and/or confidential information protected under 15 U.S.C. § 46(f)”
• “Submitted as confidential in an investigation under 15 U.S.C. § 57b-2(b)”
• “Nonpublic HSR filing under 15 U.S.C. § 18a(h)”

Q. 4.  A company I do business with may be doing something anticompetitive, but I’m afraid of retaliation if I complain to the FTC or cooperate with an investigation.  What can the FTC do to keep my identity confidential?

A. 4.  The FTC’s practice is to protect the identity of any complainant or cooperating witness who credibly fears retaliation from a party involved in an investigation or enforcement action.

During the investigatory phase of a matter, the FTC, unless legally required to do so, will normally not disclose the identities of complaining or cooperating witnesses to the target of the investigation, other parties involved in the investigation, or any member of the public.  Information that could reasonably be expected to disclose the identity of any witness who confidentially complains to or cooperates with the FTC is exempt from mandatory disclosure under FOIA.

In the event that the investigation results in an enforcement action, such as litigation in federal court or an administrative adjudication, the FTC typically complies with its mandatory disclosure obligations by identifying persons likely to have discoverable information in a manner that would not reveal which (if any) of those persons complained or cooperated during the FTC investigation.  Additionally, where the FTC receives discovery requests specifically seeking the identity of complaining or cooperating witnesses, the FTC considers whether it may appropriately assert the informant’s privilege, which may allow the government “to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.”  Roviaro v. United States, 353 U.S. 53, 59 (1957).  While the court ultimately determines the privilege’s applicability, the FTC may urge that any disclosure ordered by the court be limited to outside counsel.

Q. 5.  FTC staff have asked me to participate in an interview in connection with an actual or potential law enforcement investigation.  How will the FTC protect the information I provide?

A. 5.  Information shared during a voluntary interview is protected as discussed above.  (See A.1. Protections for information submitted in an investigation …voluntarily in lieu of compulsory process).  If the information is flagged as a trade secret or confidential commercial or financial information, the FTC will seek to protect the information, and provide notice, as discussed above in A.1. (See Protections for trade secrets or confidential commercial or financial information).

Q. 6.  I received a letter from FTC staff asking me to share information voluntarily in connection with an actual or potential law enforcement investigation.  Will the confidentiality protections be any more robust if I wait until I’m compelled by a CID or subpoena?

A. 6. No, as long as you designate the material submitted in lieu of process as confidential when submitting it to the FTC, the FTC’s Rules afford you the same protections as for compelled submissions.  See 16 C.F.R. §§ 4.10(b) and (d).

Q. 7.  My company is preparing to submit an initial premerger filing under the HSR Act.  If the FTC seeks information from my competitors, customers, and others about the merger, what is the FTC allowed to disclose to them?

A. 7.  The FTC will not disclose whether anyone has made an HSR filing, nor will the FTC disclose the contents of any HSR filing during an investigation.  FTC staff may reach out to market participants, inform them that the Commission is conducting a nonpublic investigation of a proposed merger, and identify the parties to the proposed merger.  However, consistent with the confidentiality requirements of the HSR Act, staff will not reveal or confirm whether any party to the proposed merger has made an HSR filing.

Q. 8.  My company is subject to an FTC order and is required to submit compliance reports. How can I assure that confidential information submitted in or with a compliance report will be protected from public disclosure?

A. 8.  With the exception of reports of compliance with divestiture requirements, which are confidential until the Commission approves the divestiture, compliance reports and all materials submitted with the reports are generally made available to the public.  See 16 C.F.R. §§ 4.9(b)(7).  However, as described above, you can designate as confidential any commercial or financial information that is privileged or confidential and thus falls within the scope of Section 6(f) of the FTC Act, 15 U.S.C. § 46(f).