Goto Section: 1.730 | 1.732 | Table of Contents
Revised as of September 1, 2021
Goto Year:2020 |
§ 1.731 Confidentiality of information produced or exchanged.
(a) Any information produced in the course of a formal complaint
proceeding may be designated as confidential 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), and
under § 0.459 of this chapter. Any party asserting confidentiality for
such materials must:
(1) Clearly mark each page, or portion thereof, for which a
confidential designation is claimed. The party claiming confidentiality
should restrict its designations to encompass only the specific
information that it asserts is confidential. If a confidential
designation is challenged, the party claiming confidentiality shall
have the burden of demonstrating, by a preponderance of the evidence,
that the materials designated as confidential fall under the standards
for nondisclosure enunciated in the FOIA and that the designation is
narrowly tailored to encompass only confidential information.
(2) File with the Commission, using the Commission's Electronic Comment
Filing System, a public version of the materials that redacts any
confidential 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 confidential 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 1.734(f).
(b) An attorney of record for a party or a party that receives
unredacted materials marked as confidential may disclose such materials
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) Support personnel for counsel of record representing the parties in
the complaint action;
(2) Officers or employees of the receiving party who are directly
involved in the prosecution or defense of the case;
(3) Consultants or expert witnesses retained by the parties; and
(4) Court reporters and stenographers in accordance with the terms and
conditions of this section.
(c) The individuals identified in paragraph (b) of this section shall
not disclose information designated as confidential 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 such
individual who is provided access to the information shall sign a
declaration or affidavit stating that the individual has personally
reviewed the Commission's rules and understands the limitations they
impose on the signing party.
(d) Parties may make copies of materials marked confidential solely for
use by the Commission or persons designated in paragraph (b) of this
section. Each party shall maintain a log recording the number of copies
made of all confidential material and the persons to whom the copies
have been provided.
(e) The Commission may adopt a protective order with further
restrictions as appropriate.
(f) Upon termination of a formal complaint proceeding, including all
appeals and petitions, the parties shall ensure that all originals and
reproductions of any confidential 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 confidential materials of an opposing or third party
shall be destroyed.
[ 83 FR 44832 , Sept. 4, 2018]
Goto Section: 1.730 | 1.732
Goto Year: 2020 |
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