Confidentiality of Information Provided to the Antitrust Division

Pages171-193
171
CHAPTER VII
CONFIDENTIALITY OF INFORMATION PROVIDED
TO THE ANTITRUST DIVISION
Significant volumes of information, data, and documents
(collectively referred to as “information”) typically are provided to the
Antitrust Division during the course of a civil investigation. The degree
of confidentiality afforded to this information by the Division is
determined by a number of factors, including the statute under which the
information is provided, the substance of the information, the context for
its potential use, and whether the party submitting the information has
designated it as confidential.1
A. Information Produced Voluntarily
“During the preliminary investigation stage, staff often relies upon
voluntary requests for information in the form of both interviews and
requests for documents and information from the potential subjects of
the investigation, other companies within the industry, customers, trade
associations, and other sources.”2 To encourage compliance with such
requests, the Division Manual advises that the Division strives to protect
the confidentiality of sensitive information provided by investigatory
sources.3 The Division may seek information voluntarily (as opposed to
1. See, e.g., ABA SECTION OF ANTITRUST LAW, ANTITRUS T LAW
DEVELOPMENTS 408, 689-91 (8th ed. 2017) (discussing the various forms
of protection for information provided to agencies); see also 28 C.F.R.
§ 16.7 (explaining the procedure under the Freedom of Information Act, 5
U.S.C. §552, by which requests for confidential information are handled
at the DOJ).
2. U.S. DEPT OF JUSTIC E, ANTITRUST DIV. MANUAL III-17 (5th ed. rev.
Aug. 2017) [hereinafter Antitrust Div. Manual],
https://www.justice.gov/atr/division-ma nual.
3. See Antitrust Div. Manual, supra note 2, at III-19, incorporating by
reference U.S. Dep’t of Justice, Antitrust Div., Voluntary Production
Letter, at 1 (Feb. 2016), [hereinafter Antitrust Division Voluntary
Production Letter], https://www.justice.gov/atr/voluntary-production-
letter (“It is in the Department’s interest to p rotect the confidentiality of
sensitive information provided by its sources, and to prevent
172 DOJ Civil Antitrust Practice and Procedure Manual
issuing compulsory process), because it believes that “[v]oluntary
requests may be useful to keep communications less formal, avoid the
adversarial tone injected by use of compulsory process, and speed
collection of useful information.”4
Voluntarily-produced confidential information (VPCI) will only be
used by the Division “for a legitimate law enforcement purpose.”5 The
Division’s policy is “not to disclose such [voluntarily-produced
confidential] information unless it is required to by law or necessary to
further a legitimate law enforcement purpose.”6 In the Division’s
experience, such a need to disclose VPCI “occurs rarely.”7 For the
discussion that follows, VPCI refers to confidential or sensitive
information voluntarily provided to the Division and not produced in
response to a civil investigative demand (CID) or pursuant to the
requirements of the Hart-Scott-Rodino Antitrust Improvements Act.8 The
disclosure of VPCI is typically governed by the provisions of the
Freedom of Information Act (FOIA).9
competitively sensitive information from being shared among
competitors.”)
4. Antitrust Div. Manual, supra note 2, at III-17.
5. Antitrust Division Voluntary Production Letter, supra note 3 , at 1. In its
model letter, the Division describes the protection from disclosure it will
afford “sensitive information” that is voluntarily produced in a Division
civil investigation. “Sensitive information includes ‘confidential
commercial information’ which means trade secrets or other commercial
or financial information (a) in which the company has a proprietary
interest or which the company received from another entity under an
obligation to maintain the confidentiality of such information, and (b)
which the company has in good faith designated as confidential.” Id. In
this chapter, we refer to the voluntarily-produced “sensitive information”
defined in the Division’s model letter as VPCI.
6. Id.
7. Id.
8. 15 U.S.C. §18a.
9. 5 U.S.C. §552; see, e.g., Antitrust Division Voluntary Production Letter,
supra note 3, at 1-2 (outlining the Division’s policy for protecting VPCI
from FOIA disclosure); see also 28 C.F.R. §16.7 (DOJ’s FOIA
protection of business information). In addition, the Antitrust Div.
Manual explains that “[i]nformation . . . not produced in response to a
CID or as part of the HSR process (including information revealed in an
interview conducted in lieu of a CID deposition) is not protected by the
statutory provisions of the CID or HSR statutes.” Antitrust Div. Manual,
supra note 2, at III-19.

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