§ 1.731   Confidentiality of information produced or exchanged.

   Link to an amendment published at  83 FR 44832 , September 4, 2018.

   Link to an amendment published at  83 FR 44832 , September 4, 2018.

   (a) Any materials generated in the course of a formal complaint
   proceeding 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 contains 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) and 1.735(f)(1) through
   (3);

   (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 prosecuting or defending a party to the complaint
   action, 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
   individuals' 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 identified above in paragraph (b)(1) through (3)
   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)(1) through (3) 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 the formal 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.

   [ 79 FR 73845 , Dec. 12, 2014]

   return arrow Back to Top