§ 8.16   Confidentiality of proprietary information.

   (a) Any materials generated in the course of a proceeding under this
   part may be designated as proprietary by either party to the proceeding
   or a third party if the party believes in good faith that the materials
   fall within an exemption to disclosure contained in the Freedom of
   Information Act (FOIA), 5 U.S.C. 552(b) (1) through (9). Any party
   asserting confidentiality for such materials must:

   (1) Clearly mark each page, or portion thereof, for which a proprietary
   designation is claimed. If a proprietary designation is challenged, the
   party claiming confidentiality shall have the burden of demonstrating,
   by a preponderance of the evidence, that the materials designated as
   proprietary fall under the standards for nondisclosure enunciated in
   the FOIA.

   (2) File with the Commission, using the Commission's Electronic Comment
   Filing System, a public version of the materials that redacts any
   proprietary information and clearly marks each page of the redacted
   public version with a header stating “Public Version.” The redacted
   document shall be machine-readable whenever technically possible. Where
   the document to be filed electronically contains metadata that is
   confidential or protected from disclosure by a legal privilege
   (including, for example, the attorney-client privilege), the filer may
   remove such metadata from the document before filing it electronically.

   (3) File with the Secretary's Office an unredacted hard copy version of
   the materials that contain the proprietary information and clearly
   marks each page of the unredacted confidential version with a header
   stating “Confidential Version.” The unredacted version must be filed on
   the same day as the redacted version.

   (4) Serve one hard copy of the filed unredacted materials and one hard
   copy of the filed redacted materials on the attorney of record for each
   party to the proceeding, or where a party is not represented by an
   attorney, each party to the proceeding either by hand delivery,
   overnight delivery, or email, together with a proof of such service in
   accordance with the requirements of § 1.47(g) of this chapter and
   § 8.13(c)(1)(a) through (c).

   (b) Except as provided in paragraph (c) of this section, materials
   marked as proprietary may be disclosed solely to the following persons,
   only for use in the proceeding, and only to the extent necessary to
   assist in the prosecution or defense of the case:

   (1) Counsel of record representing the parties in the complaint action
   and any support personnel employed by such attorneys;

   (2) Officers or employees of the opposing party who are named by the
   opposing party as being directly involved in the prosecution or defense
   of the case;

   (3) Consultants or expert witnesses retained by the parties;

   (4) The Commission and its staff; and

   (5) Court reporters and stenographers in accordance with the terms and
   conditions of this section.

   (c) The Commission will entertain, subject to a proper showing under
   § 0.459 of this chapter, a party's request to further restrict access to
   proprietary information. Pursuant to § 0.459 of this chapter, the other
   parties will have an opportunity to respond to such requests. Requests
   and responses to requests may not be submitted by means of the
   Commission's Electronic Comment Filing System but instead must be filed
   under seal with the Office of the Secretary.

   (d) The individuals designated in paragraphs (b)(1) through (3) of this
   section shall not disclose information designated as proprietary to any
   person who is not authorized under this section to receive such
   information, and shall not use the information in any activity or
   function other than the prosecution or defense in the case before the
   Commission. Each individual who is provided access to the information
   shall sign a notarized statement affirmatively stating that the
   individual has personally reviewed the Commission's rules and
   understands the limitations they impose on the signing party.

   (e) No copies of materials marked proprietary may be made except copies
   to be used by persons designated in paragraphs (b) and (c) of this
   section. Each party shall maintain a log recording the number of copies
   made of all proprietary material and the persons to whom the copies
   have been provided.

   (f) Upon termination of a complaint proceeding, including all appeals
   and petitions, all originals and reproductions of any proprietary
   materials, along with the log recording persons who received copies of
   such materials, shall be provided to the producing party. In addition,
   upon final termination of the proceeding, any notes or other work
   product derived in whole or in part from the proprietary materials of
   an opposing or third party shall be destroyed.

   [ 80 FR 19848 , Apr. 13, 2015]

   return arrow Back to Top