Confidentiality of Information Provided to the Antitrust Division

• Pages: 163-184

163

CHAPTER VII

CONFIDENTIALITY OF INFORMATION PROVIDED

TO THE ANTITRUST DIVISION

Significant volumes of information, data, and documents

(collectively referred to herein as “information”) are typically provided

to the Antitrust Division in the course of a civil investigation. The

confidentiality afforded this information by the Division is determined

by the statute pursuant to 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,ANTITRUST LAW

DEVELOPMENTS 677 (6th ed. 2007); 28 C.F.R. § 16.8(c).

2. U.S. DEP’T OF JUSTICE,ANTITRUST DIV.MANUAL III-17 (Dec. 2008)

[hereinafter ANTITRUST DIV.MANUAL], available at http://www.justice.

gov/atr/public/divisionmanual/atrdivman.pdf.

3. See ANTITRUST DIV.MANUAL,supra note 2, at III-19, incorporating by

reference the Division’s Model Voluntary Production Confidentiality

Letter, at 1 [hereinafter Antitrust Division Model Voluntary Production

Confidentiality Letter] (“It is in the Department’s interest to protect the

confidentiality of sensitive information provided by its sources, and to

prevent competitively sensitive information from being shared among

164 DOJ Civil Antitrust Practice and Procedure Manual

issuing compulsory process, because it believes “[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

Division 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 Division experience is

that the 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   

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competitors.”), available at http://www.justice.gov/atr/public/division

manual/supporting_documents/206430.pdf.

4. ANTITRUST DIV.MANUAL,supra note 2, at III-17.

5. Antitrust Division Model Voluntary Production Confidentiality 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 business 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. ,$$$),,+$See, e.g., Antitrust Division Model Voluntary Production

Confidentiality Letter, supra note 3, at 1; 28 C.F.R. § 16.8. The Antitrust

Division Manual further notes that “[i]. . .   

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 $&ANTITRUST DIV.MANUAL,supra note 2, at%*-$