[Federal Register Volume 62, Number 79 (Thursday, April 24, 1997)]
[Notices]
[Pages 20022-20031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10401]
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DEPARTMENT OF JUSTICE
Antitrust Division
Federal Trade Commission
Request for Comments on Proposed Agreement Between the Government
of the United States of America and the Government of Australia on
Mutual Antitrust Enforcement Assistance
AGENCY: Department of Justice and Federal Trade Commission.
ACTION: Notice.
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SUMMARY: Pursuant to Section 7 of the International Antitrust
Enforcement Assistance Act, 15 U.S.C. 6206 (IAEAA), the Attorney
General, with the concurrence of the Federal Trade Commission
(Commission), hereby publishes and requests public comment on the text
of a proposed Agreement between the Government of the Untied States of
America and the Government of Australia on Mutual Antitrust Enforcement
Assistance. The Attorney General and the Commission have concluded that
the proposed agreement satisfies the requirements of the IAEAA. The
proposed agreement, if entered into by the Untied States and Australia,
would be the first mutual antitrust enforcement assistance agreement
entered into pursuant to the IAEAA. Comments on this draft agreement
should be submitted in writing within 45 days of its publication in the
Federal Register.
FOR FURTHER INFORMATION CONTACT:
Persons wishing to comment on the proposed agreement should submit
their views to Mr. A. Douglas Melamed, Deputy Assistant Attorney
General, Antitrust Division, Department of Justice, 950 Pennsylvania
Avenue, N.W., Washington, D.C. 20530, 202-514-4510, with a copy to Ms.
Debra Valentine, Assistant Director, International Antitrust, Bureau of
Competition, Federal Trade Commission, Washington, D.C. 20580, 202-326-
2133.
[[Page 20023]]
Dated: April 17, 1997.
A. Douglas Melamed,
Deputy Assistant Attorney General, Antitrust Division, Department of
Justice.
Dated: April 17, 1997.
Debra A. Valentine,
Assistant Director for International Antitrust, Bureau of Competition,
Federal Trade Commission.
A. Douglas Melamed,
Deputy Assistant Attorney General, Antitrust Division, Department of
Justice.
Agreement Between the Government of the United States of America and
the Government of Australia on Mutual Antitrust Enforcement Assistance
The Government of the United States of America and the Government
of Australia (individually a ``Party'' or collectively the
``Parties''), desiring to improve the effectiveness of the enforcement
of the antitrust laws of both countries through cooperation and mutual
legal assistance on a reciprocal basis, hereby agree as follows:
Article I
Definitions
Antitrust Authority--refers, in the case of the United States, to
the United States Department of Justice or the United States Federal
Trade Commission. In the case of Australia, the term refers to the
Australian Competition and Consumer Commission.
Antitrust Evidence--refers to information, testimony, statements,
documents or copies thereof, or other things that are obtained, in
anticipation of, or during the course of, an investigation or
proceeding under the Parties' respective antitrust laws, or pursuant to
the Parties' Mutual Assistance Legislation.
Antitrust Laws--refers, in the case of the United States, to the
laws enumerated in subsection (a) of the first section of the Clayton
Act, 15 U.S.C. 12(a), and to Section 5 of the Federal Trade Commission
Act, 15 U.S.C. 45, to the extent that such Section 5 applies to unfair
methods of competition. In the case of Australia, the term refers to
Part IV of the Trade Practices Act 1974; other provisions of that Act
except Part X in so far as they relate to Part IV; Regulations made
under that Act in so far as they relate to Part IV, except Regulations
to the extent that they relate to Part X; and the Competition Code of
the Australian States and Territories.
Central Authority--refers, in the case of the United States, to the
Attorney General (or a person designated by the Attorney General), in
consultation with the U.S. Federal Trade Commission. In the case of
Australia, the term refers to the Australian Competition and Consumer
Commission, in consultation with the Attorney General's Department.
Executing Authority--refers, in the case of the United States, to
the Antitrust Authority designated to execute a particular request on
behalf of a Party. In the case of Australia, the term includes the
Australian Competition and Consumer Commission and the Attorney
General's Department.
Mutual Assistance Legislation--refers, in the case of the United
States, to the International Antitrust Enforcement Assistance Act of
1994, 15 U.S.C. 6201-6212, Pub. L. No. 103-438, 108 Stat. 4597. In the
case of Australia, the term refers to the Mutual Assistance in Business
Regulation Act 1992 and the Mutual Assistance in Criminal Matters Act
1987, and Regulations made pursuant to those Acts.
Person or Persons--refers to any natural person or legal entity,
including corporations, unincorporated associations, partnerships, or
bodies corporate existing under or authorized by the laws of either the
United States, its States, or its Territories, the laws of Australia,
its States, or its Territories, or the laws of other sovereign states.
Request--refers to a request for assistance under this Agreement.
Requested Party--refers to the Party from which assistance is
sought under this Agreement, or which has provided such assistance.
Requesting Party--refers to the Party seeking or receiving
assistance under this Agreement.
Article II
Object and Scope of Assistance
A. The Parties intend to assist one another and to cooperate on a
reciprocal basis in providing or obtaining antitrust evidence that may
assist in determining whether a person has violated, or is about to
violate, their respective antitrust laws, or in facilitating the
administration or enforcement of such antitrust laws.
B. Each Party's Antitrust Authorities shall, to the extent
compatible with that Party's laws, enforcement policies, and other
important interests, inform the other Party's Antitrust Authorities
about activities that appear to be anticompetitive and that may be
relevant to, or may warrant, enforcement activity by the other Party's
Antitrust Authorities.
C. Each Party's Antitrust Authorities shall, to the extent
compatible with that Party's laws, enforcement policies, and other
important interests, inform the other Party's Antitrust Authorities
about investigative or enforcement activities taken pursuant to
assistance provided under this Agreement that may affect the important
interests of the other Party.
D. Nothing in this Agreement shall require the Parties or their
respective Antitrust Authorities to take any action inconsistent with
their respective Mutual Assistance Legislation.
E. Assistance contemplated by this Agreement includes but is not
limited to:
1. disclosing, providing, exchanging, or discussing antitrust
evidence in the possession of an Antitrust Authority;
2. obtaining antitrust evidence at the request of an Antitrust
Authority of the other Party, including
(a) taking the testimony or statements of persons or otherwise
obtaining information from persons,
(b) obtaining documents, records, or other forms of documentary
evidence,
(c) locating or identifying persons or things, and
(d) executing searches and seizures, and disclosing, providing,
exchanging, or discussing such evidence; and
3. providing copies of publicly available records, including
documents or information in any form, in the possession of government
departments and agencies of the national government of the Requested
Party.
F. Assistance may be provided whether or not the conduct underlying
a request would constitute a violation of the antitrust laws of the
Requested Party.
G. Nothing in this Agreement shall prevent a Party from seeking
assistance from or providing assistance to the other pursuant to other
agreements, treaties, arrangements, or practices, including the
Agreement Between the Government of Australia and the Government of the
United States of America Relating to Cooperation on Antitrust Matters
of June 29, 1992, either in place of or in conjunction with assistance
provided pursuant to this Agreement.
H. Except as provided by paragraphs C and D of Article VII, this
Agreement shall be used solely for the purpose of mutual antitrust
enforcement assistance between the Parties. The provisions of this
Agreement shall not give rise to a right on the part of any private
person to obtain, suppress, or exclude any evidence, or to impede the
executive of a request made pursuant to this Agreement.
I. Nothing in this Agreement compels a person to provide antitrust
evidence in violation of any legally applicable right or privilege.
J. Nothing in this Agreement affects the right of an Antitrust
Authority of
[[Page 20024]]
one Party to seek antitrust evidence on a voluntary basis from a person
located in the territory of the other Party, nor does anything in this
Agreement preclude any such person from voluntarily providing antitrust
evidence to an Antitrust Authority.
Article III
Requests for Assistance
A. Requests for assistance under this Agreement shall be made by an
Antitrust Authority of the Requesting Party. Such requests shall be
made in writing and directed to the Central Authority of the Requested
Party. With respect to the United States, the Attorney General, acting
as the Central Authority, will upon receipt forward a copy of each
request to the Federal Trade Commission.
B. Requests shall include, without limitation:
1. A general description of the subject matter and nature of the
investigation or proceeding to which the request relates, including
identification of the persons subject to the investigation or
proceeding and citations to the specific antitrust laws involved giving
rise to the investigation or proceeding; such description shall include
information sufficient to explain how the subject matter of the request
concerns a possible violation of the antitrust laws in question;
2. The purpose for which the antitrust evidence, information, or
other assistance is sought and its relevance to the investigation or
proceeding to which the request relates. A request by the United States
shall state either that the request is not made for the purpose of any
criminal proceedings or that the request is made for a purpose that
includes possible criminal proceedings. In the former case, the request
shall contain a written assurance that antitrust evidence obtained
pursuant to the request shall not be used for the purposes of criminal
proceedings, unless such use is subsequently authorized pursuant to
Article VII. In the latter case, the request shall indicate the
relevant provisions of law under which criminal proceedings may be
brought;
3. A description of the antitrust evidence, information, or other
assistance sought, including, where applicable and to the extent
necessary and possible:
(a) the identity and location of any person from whom evidence is
sought, and a description of that person's relationship to the
investigation or proceeding which is the subject of the request;
(b) a list of questions to be asked of a witness;
(c) a description of documentary evidence requested; and
(d) with respect to searches and seizures, a precise description of
the place or person to be searched and of the antitrust evidence to be
seized, and information justifying such search and seizure under the
laws of the Requested Party;
4. Where applicable, a description of procedural or evidentiary
requirements bearing on the manner in which the Requesting Party
desires the request to be executed, which may include requirements
relating to:
(a) the manner in which any testimony or statement is to be taken
or recorded, including the participation of counsel;
(b) the administration of oaths;
(c) any legal privileges that may be invoked under the law of the
Requesting Party that the Requesting Party wishes the Executing
Authority to respect in executing the request, together with an
explanation of the desired method of taking the testimony or provision
of evidence to which such privileges may apply; and
(d) the authentication of public records;
5. The desired time period for a response to the request;
6. Requirements, if any, for confidential treatment of the request
or its contents; and
7. A statement disclosing whether the Requesting Party holds any
proprietary interest that could benefit or otherwise be affected by
assistance provided in response to the request; and
8. Any other information that may facilitate review or execution of
a request.
C. Requests shall be accompanied by written assurances of the
relevant Antitrust Authority that there have been no significant
modifications to the confidentiality laws and procedures described in
Annex A hereto.
D. An Antitrust Authority may modify or supplement a request prior
to its execution if the Requested Party agrees.
Article IV
Limitations on Assistance
A. The Requested Party may deny assistance in whole or in part if
that Party's Central Authority or Executing Authority, as appropriate,
determine that:
1. a request is not made in accordance with the provisions of this
Agreement;
2. execution of a request would exceed the Executing Authority's
reasonably available resources;
3. execution of a request would not be authorized by the domestic
law of the Requested Party;
4. execution of a request would be contrary to the public interest
of the Requested Party.
B. Before denying a request, the Central Authority or the Executing
Authority of the Requested Party, as appropriate, shall consult with
the Central Authority of the Requesting Party and the Antitrust
Authority that made the request to determine whether assistance may be
given in whole or in part, subject to specified terms and conditions.
C. If a request is denied in whole or in part, the Central
Authority or the Executing Authority of the Requested Party, as
appropriate, shall promptly inform the Central Authority of the
Requesting Party and the Antitrust Authority that made the request and
provide an explanation of the basis for denial.
Article V
Execution of Requests
A. After receiving a request, the Central Authority shall promptly
provide the Requesting Party an initial response that includes, when
applicable, an identification of the Executing Authority (Authorities)
for the Request.
B. The Central Authority of the United States, the Attorney General
of Australia, or, once designated, the Executing Authority of either
Party may request additional information concerning the request or may
determine that the request will be executed only subject to specified
terms and conditions. Without limitation, such terms and conditions may
relate (1) The manner or timing of the execution of the request, or (2)
the use or disclosure of any antitrust evidence provided. If the
Requesting Party accepts assistance subject to such terms and
conditions, it shall comply with them.
C. A request shall be executed in accordance with the laws of the
Requested Party. The method of execution specified in the request shall
be followed, unless it is prohibited by the law of the Requested Party
or unless the Executing Authority otherwise concludes, after
consultation with the Authority that made the request, that a different
method of execution is appropriate.
D. The Executing Authority shall, to the extent permitted by the
laws and other important interests of the Requested Party, facilitate
the participation in the execution of a
[[Page 20025]]
request of such officials of the Requesting Party as are specified in
the request.
Article VI
Confidentiality
A. Except as otherwise provided by this paragraph and Article VII,
each Party shall, to the fullest extent possible consistent with that
Party's laws, maintain the confidentiality of any request and of any
information communicated to it in confidence by the other Party under
this Agreement. In particular:
1. The Requesting Party may ask that assistance be provided in a
manner that maintains the confidentiality of a request and/or its
contents. If a request cannot be executed in that manner, the Requested
Party shall so inform the Requesting Party, which shall then determine
the extent to which it wishes the request to be executed; and
2. Antitrust evidence obtained pursuant to this Agreement shall be
kept confidential by both the Requesting Party and the Requested Party,
except as provided in paragraph E of this Article and Article VII.
Each Party shall oppose, to the fullest extent possible consistent
with that Party's laws, any application by a third party for disclosure
of such confidential information.
B. By entering into this Agreement, each Party confirms that:
1. The confidentiality of antitrust evidence obtained under this
Agreement is ensured by its national laws and procedures pertaining to
the confidential treatment of such evidence, and that such laws and
procedures as are set forth in Annex A to this Agreement are sufficient
to provide protection that is adequate to maintain securely the
confidentiality of antitrust evidence provided under this Agreement;
and
2. The Antitrust Authorities designated herein are themselves
subject to the confidentiality restrictions imposed by such laws and
procedures.
C. Unauthorized or illegal disclosure or use of information
communicated in confidence to a Party pursuant to this Agreement shall
be reported immediately to the Central Authority and the Executing
Authority of the Party that provided the information; the Central
Authorities of both Parties, together with the Executing Authority that
provided the information, shall promptly consult on steps to minimize
any harm resulting from the disclosure and to ensure that unauthorized
or illegal disclosure or use of confidential information does not
recur. The Executing Authority that provided the information shall give
notice of such unauthorized or illegal disclosure or use to the person,
if any, that provided such information to the Executing Authority.
D. Unauthorized or illegal disclosure or use of information
communicated in confidence under this Agreement is a ground for
termination of the Agreement by the affected Party, in accordance with
the procedures set out in Article XIII.C.
E. Nothing in this Agreement shall prevent disclosure, in an action
or proceeding brought by an Antitrust Authority of the Requesting Party
for a violation of the antitrust laws of the Requesting Party, of
antitrust evidence provided hereunder to a defendant or respondent in
that action or proceeding, if such disclosure is required by the law of
the Requesting Party. The Requesting Party shall notify the Central
Authority of the Requested Party and the Executing Authority that
provided the information at least ten days in advance of any such
proposed disclosure, or, if such notice cannot be given because of a
court order, then as promptly as possible.
Article VII
Limitations on use
A. Except as provided in paragraphs C and D of this Article,
antitrust evidence obtained pursuant to this Agreement shall be used or
disclosed by the Requesting Party solely for the purpose of
administering or enforcing the antitrust laws of the Requesting Party.
B. Antitrust evidence obtained pursuant to this Agreement may be
used or disclosed by a Requesting Party to administer or enforce its
antitrust laws only (1) In the investigation or proceeding specified in
the request in question and (2) for the purpose stated in the request,
unless the Executing Authority that provided such antitrust evidence
has given its prior written consent to a different use or disclosure;
when the Requested Party is Australia, such consent shall not be given
until the Executing Authority has obtained any necessary approval from
the Attorney General.
C. Antitrust evidence obtained pursuant to this Agreement may be
used or disclosed by a Requesting Party with respect to the
administration or enforcement of laws other than its antitrust laws
only if (1) Such use or disclosure is essential to a significant law
enforcement objective and (2) the Executing Authority that provided
such antitrust evidence has given its prior written consent to the
proposed use or disclosure. In the case of the United States, the
Executing Authority shall provide such consent only after it has made
the determinations required for such consent by its mutual assistance
legislation.
D. Antitrust evidence obtained pursuant to this Agreement that has
been made public consistently with the terms of this Article may
thereafter be used by the Requesting Party for any purpose consistent
with the Parties' mutual assistance legislation.
Article VIII
Changes in Applicable Law
A. The Parties shall provide to each other prompt written notice of
actions within their respective States having the effect of signficant
modifying their antitrust laws or the confidentiality laws and
procedures set out in Annex A to this Agreement.
B. In the event of a significant modification to a Party's
antitrust laws or confidentiality laws and procedures set out in Annex
A to this Agreement, the Parties shall promptly consult to determine
whether this Agreement or Annex A to this Agreement should be amended.
Article IX
Taking of Testimony and Production of Documents
A. A person requested to testify and produce documents, records, or
other articles pursuant to this Agreement may be compelled to appear
and testify and produce such documents, records, and other articles, in
accordance with the requirements of the laws of the Requested Party.
Every person whose attendance is required for the purpose of giving
testimony pursuant to this Agreement is entitled to such fees and
allowances as may be provided for by the law of the Requested Party.
B. Upon request by the Requesting Party, the Executing Authority
shall furnish information in advance about the date and place of the
taking of testimony or the production of evidence pursuant to this
Agreement.
C. The Executing Authority shall, to the extent permitted by the
laws and other important interests of the Requested Party, permit the
presence during the execution of the request of persons specified in
the request, and shall, to the extent permitted by the laws and other
important interests of the Requested Party, allow such persons to
question the person giving the testimony or providing the evidence.
D. The Executing Authority shall, to the extent permitted by the
laws of the Requested Party, comply with any
[[Page 20026]]
instructions of the Requesting Party with respect to any claims of
legal privilege, immunity, or incapacity under the laws of the
Requesting Party.
E. The Executing Authority shall, to the extent permitted by the
laws of the Requested Party, permit a person whose testimony is to be
taken pursuant to this Article to have counsel present during the
testimony.
F. A Requesting Party may ask the Requested Party to facilitate the
appearance in the Requesting Party's territory of a person located in
the territory of the Requested Party, for the purpose of being
interviewed or giving testimony. The Requesting Party shall indicate
the extent to which the person's expenses will be paid. Upon receiving
such a request, the Executing Authority shall invite the person to
appear before the appropriate authority in the territory of the
Requesting Party. The Executing Authority shall promptly inform the
Requesting Party of the person's response.
G. Antitrust evidence consisting of testimony or documentary
evidence provided by the Requested Party pursuant to this Agreement
shall be authenticated in accordance with the requirements of the law
of the Requested Party, in so far as such requirements would not
violate the laws of the Requested Party.
Article X
Search and Seizure
A. Where a request is to be executed by means of the search and
seizure of antitrust evidence, the request shall include such
information as is necessary to justify such action under the laws of
the Requested Party. The Central Authorities shall confer, as needed,
on alternative, equally effective procedures for compelling or
obtaining the antitrust evidence that is the subject of a request.
B. Upon request, every official of a Requested Party who has
custody of antitrust evidence seized pursuant to this Agreement shall
certify the continuity of custody, the identity of the antitrust
evidence, and the integrity of its condition; the Requested Party shall
furnish such certifications in the form specified by the Requesting
Party.
Article XI
Return of Antitrust Evidence
At the conclusion of the investigation or proceeding specified in a
request, the Central Authority or the Antitrust Authority of the
Requesting Party shall return to the Central Authority or the Antitrust
Authority of the Requested Party from which it obtained antitrust
evidence all such evidence obtained pursuant to the execution of a
request under this Agreement, along with all copies thereof, in the
possession or control of the Central Authority or Antitrust Authority
of the Requesting Party; provided, however, that antitrust evidence
that has become evidence in the course of judicial or administrative
proceedings or that has properly entered the public domain is not
subject to this requirement.
Article XII
Costs
Unless otherwise agreed, the Requested Party shall pay all costs of
executing a request, except for the fees of expert witnesses, the costs
of translation, interpretation, and transcription, and the allowances
and expenses related to travel to the territory of the Requested Party,
pursuant to Articles IX and X, by officials of the Requesting Party.
Article XIII
Entry into Force and Termination
A. This Agreement shall enter into force upon notification by each
Party to the other through diplomatic channels that it has completed
its necessary internal procedures.
B. Assistance under this Agreement shall be available in
investigations or proceedings under the Parties' antitrust laws
concerning conduct or transactions occurring before as well as after
this Agreement enters into force.
C. As stated in Article VI.D of this Agreement, a Party may
unilaterally elect to terminate this Agreement upon the unauthorized or
illegal disclosure or use of confidential antitrust evidence provided
hereunder; provided, however, that neither Party shall make such an
election until after it has consulted with the other Party, pursuant to
Article VI.C, regarding steps to minimize any harm resulting from the
unauthorized or illegal disclosure or use of information communicated
in confidence under this Agreement, and steps to ensure that such
disclosure or use does not recur. Termination shall take effect
immediately upon notice or at such future date as may be determined by
the terminating Party.
D. On termination of this Agreement, the Parties agree, subject to
Article VI.E and Article VII, to maintain the confidentiality of any
request and information communicated to them in confidence by the other
Party under this Agreement prior to its termination; and to return, in
accordance with the terms of Article XI, any antitrust evidence
obtained from the other Party under this Agreement; provided, however,
that any such request or information that has become public in the
course of public judicial or administrative proceedings is not subject
to this requirement.
E. In addition to the procedure set forth in paragraph C of this
Article, either Party may terminate this Agreement by means of written
notice through diplomatic channels. Termination shall take effect 30
days after the date of receipt of such notification.
In witness whereof, the undersigned, being duly authorized by their
respective Governments, have signed this Agreement.
Done at ________ this ____ day of ________ 1997, in duplicate,
in the English language.
For the Government of The United States of America:
For the Government of Australia:
Annex A
This Annex cites and briefly describes the confidentiality laws and
procedures that would protect the confidentiality of antitrust evidence
that may be provided under this Agreement. Also included are laws and
procedures that provide sanctions for breaches of the confidentiality
provisions described herein.
I. United States of America
A. Confidentiality Laws and Procedures
15 U.S.C. Secs. 6201-6212, International Antitrust Enforcement
Assistance Act This statute authorizes the Department of Justice (DOJ)
and the Federal Trade Commission (FTC or, as used in this Part I,
Commission) to enter into bilateral agreements with other countries
permitting mutual assistance in the enforcement of the antitrust laws.
Specifically, it permits DOJ and FTC to exchange certain otherwise
confidential investigative information with foreign antitrust
authorities, where this will be in the public interest of the United
States and where it satisfies the important confidentiality and other
safeguards outlined in the statute.
Section 6207(b) of the statute prohibits DOJ and FTC from
disclosing, in violation of an antitrust mutual assistance agreement,
any antitrust evidence received under such agreement, except to the
extent such disclosure is required by law to be made to a defendant or
respondent in an action brought by DOJ or FTC. Such antitrust evidence
is exempt from other provisions of law that might otherwise be
construed to require disclosure, including the Freedom of Information
Act, 5 U.S.C. Sec. 552, described below.
This statute does not provide specific enforcement mechanisms for
the
[[Page 20027]]
confidentiality provision, or penalties for its breach. Other laws and
regulations, however, prohibit the improper use of non-public
information. See discussion in Part B, infra.
15 U.S.C. Secs. 1311-1314, Antitrust Civil Process Act (applies
only to DOJ) This statute authorizes the DOJ Antitrust Division to
issue compulsory process for documents or testimony in furtherance of
civil investigations. Section 1313(c) of this statute provides that,
other than for use in oral depositions in furtherance of such
investigations, no documents or transcripts produced pursuant to such
compulsory process shall be made publicly available without the consent
of the party that produced the materials. Such materials may, however,
be used when necessary before any court, grand jury or federal
administrative or regulatory agency in any case or proceeding,
including an investigation or proceeding conducted by the FTC. Such
materials may also be disclosed to Congress or to any authorized
committee or subcommittee thereof.
Section 1313(e) also provides for the return, at the completion of
an investigation, of original materials produced pursuant to this
statute during the course of the investigation. Any request for the
return of such materials must be in writing. The Division is permitted,
however, in certain circumstances, to keep copies of materials
produced.
Section 1314(g) exempts documents and testimony submitted in
response to compulsory process authorized by this statute from
disclosure under FOIA.
This statute does not provide specific enforcement mechanisms for
the confidentiality provisions, or penalties for its breach. Other laws
and regulations, however, prohibit the improper use of non-public
information. See discussion in part B, infra.
15 U.S.C. Secs. 41-68, the Federal Trade Commission Act (Applies Only
to FTC)
The confidentiality provisions of the Federal Trade Commission Act
are as follows:
Section 6(f) [15 U.S.C. Sec. 46(f)] states that the Commission
shall not have any authority to make public any trade secret or any
commercial or financial information which is obtained from any person
and which is privileged or confidential, except that the Commission may
disclose such information to officers and employees of appropriate
Federal law enforcement agencies or to any officer or employee of any
State law enforcement agency upon the prior certification of an officer
of any such Federal or State law enforcement agency that such
information will be maintained in confidence and will be used only for
official law enforcement purposes.
Section 21(b) [15 U.S.C. Sec. 57b-2(b)] provides that any document,
tangible thing, or transcript of oral testimony received by the
Commission pursuant to compulsory process in an investigation, a
purpose of which is to determine whether any person may have violated
any provision of the laws administered by the Commission, may not be
made available for examination by any individual other than a duly
authorized officer or employee of the Commission (including contractors
and consultants) without the consent of the person who produced the
document, thing, or transcript. Such materials may be used in
Commission proceedings and in judicial proceedings in which the
Commission is a party. Such materials may also be made available to
other Federal and State law enforcement agencies upon the certification
of an officer of such an agency that such information will be
maintained in confidence and will be used only for official law
enforcement purposes. This section does not prevent disclosure to
Congress, but the Commission is required to notify immediately the
owner or provider of any such information of a request from Congress
for information designated as confidential by the owner or provider.
Section 21(c) [15 U.S.C. Sec. 57b-2(c)] provides that all
information reported to or otherwise obtained by the Commission which
is not subject to the requirements of Section 21(b) shall be considered
confidential when so marked by the person supplying the information. If
the FTC determines that information may be disclosed because it is not
protected by Section 6(f), it must notify the submitter of the
information that the Commission intends to disclose the information
(i.e., place it on the public record, pursuant to Commission Rule 4.9)
not less than 10 days after receipt of the notification. Upon receipt
of such notification, the submitter may bring an action in United
States District Court seeking to restrain disclosure, including an
application for a stay of disclosure. The Commission shall not disclose
the information until the court has ruled on the application for a
stay.
Section 21(d) [15 U.S.C. Sec. 57b-2(d)] provides that the
provisions of 21(c) shall not be construed to prohibit disclosures: (A)
To Congress (with notice to the owner or provider of the information);
(B) of the results of investigations or studies (without identifying
information or disclosing trade secrets or any commercial or financial
information obtained from any person which is privileged or
confidential); (C) of relevant and material information in FTC
adjudicative proceedings or judicial proceedings in which the FTC is a
party, according to the FTC's rules for adjudicative proceedings or by
court rules or orders; (D) to Federal agencies of disaggregated
information for economic, statistical, or policymaking purposes only.
Section 21(f) [15 U.S.C. Sec. 57b-2(f)] provides that any document,
tangible thing, written report or answers to questions, or transcript
or oral testimony received by the Commission in any investigation, a
purpose of which is to determine whether any person may have violated
any provision of the laws administered by the Commission, and which is
provided pursuant to any compulsory process or which is provided
voluntarily in place of such compulsory process, shall be except from
disclosure under FOIA. Section 10 of the FTC Act [15 U.S.C. Sec. 50]
provides for criminal penalties for the unauthorized disclosure of
information obtained by the Commission; see the discussion in part B,
infra.
16 CFR 3.1. et seq., FTC Rules of Practice for Adjudicative Proceedings
(Applies Only to FTC)
Adjudicative proceedings are formal proceedings conducted under the
statutes administered by the Commission which are required by statute
to be determined on the record after an opportunity for an agency
hearing. An adjudicative proceeding is commenced when an affirmative
vote is taken by the Commission to issue a complaint. The rules provide
for the respondent to answer the complaint within a specified time, for
discovery, and for a hearing held before an Administrative Law Judge
(ALJ) for the purpose of receiving evidence relevant and material to
the Commission's complaint and the respondent's answer. The hearings
are open to the public, except to the extent that an in camera order is
entered by the ALJ or the Commission. See Rule 3.41(a).
Rule 3.45 [16 CFR 3.45] provides for in camera treatment of
documents and testimony which keeps such documents and testimony
confidential and not part of the public record of the hearing. Rule
3.45(b) provides that the ALJ may order documents, testimony, or
portions thereof offered into evidence, whether admitted or rejected,
to be placed in camera upon a finding that their public disclosure will
likely result in a clearly defined, serious injury to the person,
partnership or corporation requesting
[[Page 20028]]
their in camera treatment; only respondents, their counsel, authorized
Commission personnel, and court personnel concerned with judicial
review shall have access thereto. The order shall provide the date on
which in camera treatment will expire.
16 CFR 4.10(g), et seq., FTC Rules of Practice for Adjudicative
Proceedings (APPLIES ONLY to FTC)
Rule 4.10(g) provides that the following categories of materials
obtained by the FTC may be disclosed in FTC administrative or court
proceedings subject to FTC or court protective or in camera orders as
appropriate: (1) Material obtained through compulsory process or
voluntarily in lieu thereof, and protected by sections 21(b) and (f) of
the FTC Act; (2) material designated by the submitter as confidential,
and protected by section 21(c) of the FTC Act; or, (3) material that is
confidential commercial or financial information protected by section
6(f) of the FTC Act. Prior to disclosure of such material in a
proceeding, the submitter will be afforded an opportunity to seek a
protective or in cameria order. All other material obtained by the FTC
may be disclosed in FTC administrative or court proceedings at the
FTC's discretion except where prohibited by law.
Rule 26(c) of the Federal Rules of Civil Procedure
This rule provides that a court may grant, in civil litigation in
federal court, a protective order concerning discovery, including,
inter alia, that certain matters not be inquired into, or that the
scope of discovery be limited to certain matters; and that a trade
secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a certain way.
A court may impose sanctions for violations of protective orders
entered pursuant to this rule.
Rule 6 of the Federal Rules of Criminal Procedure
This rule governs the conduct of grand jury proceedings. Subsection
(e) of this rule prohibits, without the permission of a court, public
disclosure of matters occurring before the grand jury by any person
having knowledge of such proceedings, except witnesses, who are free to
disclose their testimony.
Knowing violations of this rule are punishable as a contempt of
court.
5 U.S.C. Sec. 552. Freedom of Information Act
FOIA is a statute that provides that any person has a right of
access to federal agency records, except to the extent that FOIA
authorizes the agencies to withhold certain records from disclosure. Of
the categories of records which may be withheld under FOIA, those of
primary relevance to the antitrust enforcement agencies are:
Trade secrets and commercial or financial information, obtained
from a person, that is privileged or confidential (subsection
552(b)(4));
Records or information compiled for law enforcement purposes to the
extent that disclosure thereof could reasonably be expected, inter
alia, to interfere with enforcement proceedings or to disclose the
identify of a confidential source (subsection 552(b)(7)(A) and (D));
Intra-agency and inter-agency memoranda or letters that would be
routinely privileged in civil discovery, e.g., attorney work-product or
attorney-client information (subsection 552(b)(5));
National defense or foreign policy information that is property
classified (subsection 552(b)(1));
Information that may be withheld on the basis of other specific
statutory authority (subsection 552(b)(3)).
FOIA does not authorize withholding information from Congress.
28 CFR 167.7, Procedure for Processing Requests for Disclosure of
Information Subject to the Business Information Exemption to FOIA
(Applies Only to DOJ)
This regulation specifies the procedures DOJ must follow before it
can disclose, in response to a request under FOIA, any materials that
may qualify for exemption from disclosure as confidential business
information. The section requires that before any such disclosure can
be made, DOJ provide notice to submitters of information that either:
(i) Has been designated as confidential business information by the
submitter; or (ii) DOJ has reason to believe may constitute
confidential business information. This notice is intended to enable
the submitter to object to the planned disclosure and, if the submitter
chooses, seek a protective order. DOJ is not required to provide notice
to any submitter whose information DOJ has determined not to disclose.
This regulation does not provide specific enforcement mechanisms
for the confidentiality provision, or penalties for its breach. Other
laws and regulations, however, prohibit the improper use of non-public
information. See discussion in part B, infra.
5 U.S.C. Sec. 552a, Privacy Act
The Privacy Act permits Federal agencies to maintain ``systems of
records,'' i.e., records that are retrievable by the name, social
security number or other personal identifier of an individual U.S.
citizen (or permanent resident alien), subject to requirements that the
agencies disclose the existence of such records systems and that
individuals have access to records concerning themselves. The Privacy
Act, however, sets forth several exceptions to this general
restriction, including one that permits, under specified circumstances,
agencies to exempt investigatory material compiled for law enforcement
purposes from such ``systems of records'' and, thereby, to deny access
to such material.
B. Laws and Procedures Providing Sanctions for Breaches of the
Confidentiality Laws and Procedures
18 U.S.C. Sec. 1905, Trade Secrets Act
This statute provides criminal penalties for unauthorized
disclosure of trade secrets or confidential business information by any
government employee or agent of DOJ within the meaning of the Antitrust
Civil Process Act, who comes into possession or gains knowledge of such
information during the course of his or her employment or official
duties. Said penalties include a fine of not more than $1,000, one
year's imprisonment or both, and removal from employment.
18 U.S.C. Sec. 641, Theft of Government Property, Records
This statute provides criminal penalties for the theft,
embezzlement, knowing conversion, or unauthorized conveyance of any
record, voucher, money, or ``thing of value'' (which, according to
judicial interpretation, includes information) possessed by the United
States Government. Said penalties include a fine or imprisonment of not
more than 10 years, or both.
18 U.S.C. Sec. 1831 et seq., Economic Espionage Act
This statute provides criminal penalties for theft of trade
secrets, as that act is defined in the statute. It also provides
criminal penalties for economic espionage, which the statute, in
essence, defines as the theft of trade secrets to benefit a foreign
power. The penalty for individuals convicted of theft of trade secrets
under the statute includes a fine of not more than $500,000, or
imprisonment of not more
[[Page 20029]]
than ten years, or both, and for an organization includes a fine of not
more than $5 million. The penalty for individuals convicted of economic
espionage under the statute includes a fine of not more than $500,000,
or imprisonment of not more than 15 years, or both, and for
organizations includes a fine of not more than $10 million. Penalties
also include forfeiture of property used in or derived from trade
secret theft or economic espionage.
The statute specifically does not prohibit any otherwise lawful
activity conducted by a governmental entity of the United States, a
State, or a political subdivision of a State, nor shall it be construed
to affect the otherwise lawful disclosure of information by any
government employee under FOIA. The statute also preserves the
confidentiality of trade secrets in court proceedings brought
thereunder.
5 CFR 2635.703, Office of Government Ethics--Standards of Ethical
Conduct for Employees of the Executive Branch
This section prohibits the improper use of non-public information
by an Executive Branch employee to further his or her own private
interest or that of another person. Non-public information is
information that the employee gains by reason of Federal employment and
that he or she knows or reasonably should know has not been made
available to the general public. Section 2635.106 provides that any
violation may be cause for appropriate corrective or disciplinary
action pursuant to Government wide regulations or agency procedures,
which action may be in addition to any action or penalty prescribed by
law.
These sections have been incorporated by reference in the FTC's
Rules. See 16 CFR 5.1 et seq.
15 U.S.C. Sec. 50 (Federal Trade Commission Act) and 16 CFR 4.10(c)
(Applies Only to FTC)
This section of the FTC Act (and the above-referenced Rule)
provides that any officer or employee of the Commission who shall make
public any information obtained by the Commission without its
authority, unless directed by a court, shall be deemed guilty of a
misdemeanor, and, upon conviction thereof, shall be punished by a fine
not exceeding $5,000, or by imprisonment not exceeding one year, or by
fine and imprisonment, in the discretion of the court.
II. Australia
A. Confidentiality Laws and Procedures
The Trade Practices Act 1974
Section 89 outlines the procedure for seeking an authorization from
the Australian Competition and Consumer Commission (as used in this
Part II, Commission) in relation to certain anti-competitive conduct,
and in doing so it outlines the circumstances in which confidentiality
may be claimed in relation to information so placed before the
Commission and thus excluded from the public register of applications
for authorization. If the information contains particulars of a secret
formula or process, cash consideration offered for shares or assets, or
the current costs of manufacturing, producing or marketing goods or
services, then it will be excluded from the public register. Further,
if the information relates to anything else the Commission in its
discretion considers to be confidential, it may exclude the information
from the public register.
Where the Commission refuses a request to exclude such information
from the public register on the basis of its confidential nature, the
person who submitted the information may withdraw it, in which case
that submission will not form part of the application for
authorization.
Section 95 requires that the Commission keep a public register of
notifications, particularly in relation to conduct which amounts to
exclusive dealing. (Once notification is lodged, the corporation is
permitted to engage in such conduct until otherwise notified by the
Commission.) The section outlines the circumstances in which
confidentiality may be claimed in relation to information so placed
before the Commission and thus excluded from the public register of
notification. If the information contains particulars of a secret
formula or process, cash consideration offered for shares or assets, or
the current costs of manufacturing, producing or marketing goods or
services, then it will be excluded from the public register. Further,
if the information relates to anything else the Commission in its
discretion considers to be confidential, it may exclude the information
from the public register.
Where the Commission refuses a request to exclude such information
from the public register on the basis of its confidential nature, the
person who submitted the information may withdraw it, in which case
that submission will not form part of the notification.
The procedures for requesting that a document be excluded from the
public register on the basis of its confidential nature under sections
89(5) and 95(2) can be found in regulation 24(1) of the Trade Practices
Regulations.
Section 106 of the Trade Practices Act 1974 grants the Australian
Competition Tribunal, where it is satisfied that it is desirable to do
so by reason of the confidential nature of any evidence or matter or
for any other reason, the power to prohibit or restrict the publication
of evidence given before it, whether in public or private, or of
matters contained in documents filed or lodged with the Registrar,
received in evidence by the Tribunal or placed in the records of the
Tribunal.
Section 155AA of the Act provides that Commission officials must
not disclose any protected Part IV information to any person except as
part of the official's functions as a Commission official or when he/
she is required by law to disclose the information. ``Protected Part IV
information'' is defined as information relating to a matter under Part
IV and which has been obtained by the Commission under section 155.
Section 155 enables the Commission to require a person to answer
questions, provide information or produce documents, if the Commission,
the Chairperson or Deputy Chairperson has reason to believe that a
person is capable of furnishing information relating to a matter that
may constitute a contravention of the Trade Practices Act.
Section 157 of the Act, amongst other things, provides that: (a)
Where a corporation makes an application for authorization; or (b)
where the Commission has instituted proceedings or made an application
for an order against a corporation or other person, the Commission
shall provide, at the request of the corporation or other person, a
copy of every document furnished to or obtained by the Commission in
connexion with the matter that tends to establish the case of the
corporation or other person, other than documents obtained from the
corporation or other person or prepared by an officer or professional
adviser of the Commission. However, subsections (2) and (3) provide
that, when the Commission declines to comply with such a request, a
Court that is asked to order the Commission to comply may refuse to do
so ``if the Court considers it inappropriate to make the order by
reason that the disclosure of the contents of the document or part of
the document would prejudice any person or for any other reason.''
[[Page 20030]]
The Freedom of Information Act of 1982
The Freedom of Information Act 1982 gives members of the public
rights of access to official documents of Commonwealth Government
Ministers and agencies, limited only by exceptions and exemptions
necessary for the protection of the essential public interests and the
private and business affairs of persons in respect of whom information
is collected and held by agencies. Of the categories of documents that
are exempt from disclosure under FOI, those of relevance to antitrust
authorities are:
Section 33(1) operates to exempt documents, the disclosure of which
would or could be reasonably expected to cause damage to the security,
defence or international relations of the Commonwealth or would divulge
any information or matter communicated in confidence by or on behalf of
a foreign government, an authority of a foreign government or an
international organisation.
Section 36 operates to exempt documents where disclosure would
disclose opinion, advice or recommendation, or consultation or
deliberation relating to the deliberative processes involved in the
functions of the Commission, and such disclosure would be contrary to
the public interest.
Section 37 exempts documents if disclosure would, or could
reasonably be expected to, prejudice the conduct of an investigation,
or the enforcement or proper administration of the law. Documents are
also exempt if their disclosure under this Act would, or could
reasonably be expected to, endanger the life or physical safety of any
person.
Section 40(1)(d) exempts documents where disclosure would, or could
reasonably be expected to, have a substantial adverse effect on the
proper and efficient conduct of the operations of the Commission.
Section 43(1)(a) exempts documents containing trade secrets.
Section 43(1)(b) exempts documents containing information having a
commercial value that would, or could reasonably be expected to, be
destroyed or diminished if the information were disclosed.
Section 43(1)(c)(i) exempts documents where disclosure could be
reasonably expected to unreasonably adversely affect a company in
respect of its business affairs.
Section 43(1)(c)(ii) exempts documents where there is a reasonable
expectation that disclosure would prejudice future supply of
information to the Commission.
Section 45 exempts documents the disclosure of which would
constitute a breach of confidence. This exemption relates to
information communicated to the Commission in a relationship of
confidence as indicated on its face or in circumstances imparting an
obligation of confidentiality.
The Federal Court Act and the Federal Court Rules
Pursuant to Section 23 of the Federal Court Act and Order 15 of the
Federal Court Rules, courts may, in proceedings before them, issue
orders that information may not be disclosed or may be disclosed only
in a certain way. In addition, Order 15 of the Federal Court Rules
empowers persons seeking to avoid the production of documents subject
to discovery, to rely on the claim that they are privileged from
production, e.g., the documents are subject to legal professional
privilege, or to Crown privilege. (Order 15(17) preserves the right of
parties to rely on any rule of law which authorizes or requires the
withholding of any document on the grounds that its disclosure would be
harmful to the public interest.)
The Privacy Act 1988
The Privacy Act 1988 establishes a scheme to govern the collection,
storage, security, access, use and disclosure of personal information
by Commonwealth agencies through a set of rules called Information
Privacy Principles. This scheme is subject to prescribed exceptions
which limit an agency's use or disclosure of personal information
(Information Privacy Principles 10 and 11).
The Administrative Appeals Tribunal Act 1975
Section 36 of the Administrative Appeals Tribunal Act 1975 provides
that, in proceedings before it, the Attorney General may certify that
disclosure of a document would be contrary to the public interest, and
the Tribunal must do everything to ensure that the information in the
document is not disclosed other than to a member of the Tribunal.
The Administrative Decisions (Judicial Review) Act 1977
Under section 13 of the Administrative Decisions (Judicial Review)
Act 1977 an application may be made to the Commission for a statement
in respect of a decision setting forth, inter alia, the reasons for the
decision, the findings on material questions of fact, and a reference
to the evidence on which the findings were based. Section 13A sets out
information not required to be disclosed in response to such an
application, including, information as to a person's business affairs
which is supplied in confidence, or if published, would reveal a trade
secret.
Under section 14, the Attorney General can certify that the
disclosure of information would be contrary to the public interest.
The Public Service Regulations
Regulation 35 of the Public Service Regulations prohibits an
officer from disclosing information obtained in the course of official
duties unless authorised to do so.
The Evidence Act 1995
Section 130 of the Evidence Act 1995 provides that a court (whether
or not on the application of a person) may direct that a document
relating to matters of state not be adduced as evidence on the grounds
of public interest in preserving secrecy or confidentiality.
Information will be taken to relate to matters of state if adducing it
as evidence would, inter alia, prejudice the prevention, investigation
or prosecution of an offence; prejudice the prevention or investigation
of, or the conduct of proceedings for recovery of civil penalties
brought with respect to, other contraventions of the law; or disclose
the identity of existence of a confidential source of information
relating to the enforcement or administration of the law.
Section 131 provides (subject to certain exceptions) that evidence
is not to be adduced of communications made or documents prepared in
the context of attempts to negotiate the settlement of a dispute.
The Mutual Assistance in Criminal Matters Act 1987
Section 43B of the Mutual Assistance in Criminal Matters Act 1987
outlines restrictions on use of information sent to Australia in
response to a request made by the Attorney General under the Act in
relation to a criminal matter. It provides that such material is not
used or disclosed intentionally for any purpose other than that for
which it was requested unless the Attorney General has approved
otherwise.
The restriction on unauthorised use of the material is extended to
inadmissibility in evidence in any proceedings other than those for
which it was obtained without the Attorney General's approval. In
addition, any information, document, article or thing which has itself
been obtained directly or indirectly from a person as a result of
unapproved use of the material
[[Page 20031]]
received from the other country is also inadmissible in evidence in any
proceedings other than those for which it was requested (or used for
the purposes of any other investigation) without the Attorney General's
approval.
Section 43B(4) provides a penalty of two years imprisonment for
contravention of subsection (1).
Section 43C provides a penalty of two years imprisonment for
intentional disclosure of the contents of a request for assistance, of
the fact that a request has been made or of the fact that assistance
has been granted or refused where the person has such knowledge as a
result of his or her employment, unless such disclosure is necessary in
the performance of his or her duties or the Attorney General has
authorized such disclosure.
B. Laws and Procedures Providing Sanctions for Breaches of the
Confidentiality Laws and Procedures
The Crimes Act 1914
Section 70 of the Crimes Act 1914 provides a penalty of two years
imprisonment for unauthorized disclosure by a Commonwealth officer of
information which the officer has a duty not to disclose.
The Privacy Act 1988
Under section 93 of the Privacy Act 1988, a confider may recover
damages from a confidant in respect of a breach of confidence with
respect to personal information.
The Freedom of Information Act 1982
Section 59 of the Freedom of Information Act 1982 provides that
where an agency makes a decision that documents relating to the
business, commercial or financial affairs of a company are not exempt
documents under section 43 , the company may apply to the
Administrative Appeals Tribunal for a review of that decision.
Section 57 of the Freedom of Information Act 1982 provides that a
person may complain to the Ombudsman concerning any action taken by an
agency in the exercise of its powers and the performance of its
functions under the Act. The Ombudsman cannot overturn the decision of
an agency, although recommendations can be made to that agency or the
responsible minister.
[FR Doc. 97-10401 Filed 4-23-97; 8:45 am]
BILLING CODE 4410-11-M
