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13033 Australia - Agreement on Mutual Antitrust Enforcement Assistance


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13033

 

 

TRADE

Antitrust

 

 


Agreement Between the
UNITED STATES OF AMERICA
and AUSTRALIA

 


Signed at Washington April 27, 1999

with

Annex

 

 

 


 

NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”

 

AUSTRALIA

Trade: Antitrust

Agreement signed at Washington April 27, 1999;
Entered into force November 5, 1999.
With annex.

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:
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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, Public Law 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
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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,
1982, 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 execution 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.
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J. Nothing in this Agreement affects the right of an Antitrust Authority of 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:
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(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.
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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 to (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 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.
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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 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
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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 significantly 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 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
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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 Requesting 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.
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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 Washington, this twenty-seventh day of April, 1999, in duplicate, in the English
language, each text being equally authentic.
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. §§ 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. § 552, described below.
This statute 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.
15 U.S.C. §§ 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
requests 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.
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This statute 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.
15 U.S.C. §§ 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. § 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. § 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. § 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. § 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.
3
Section 21(f) [15 U.S.C. § 57b-2(f)] provides that any document, tangible thing,
written report or answers to questions, or transcript of 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 exempt from disclosure under FOIA.
Section 10 of the FTC Act [15 U.S.C. § 50] provides for criminal penalties for the
unauthorized disclosure of information obtained by the Commission; see the discussion in part
B, infra.
16 C.F.R. § 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 C.F.R. § 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 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 C.F.R. § 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 camera 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.
4
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. 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 identity 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 properly 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.
5
28 C.F.R. § 16.7, 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. § 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. § 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. § 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.
6
18 U.S.C. § 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 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 C.F.R. § 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 C.F.R. § 5.1 et seq.
15 U.S.C. § 50 (Federal Trade Commission Act) and 16 C.F.R. § 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 authorisation 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
7
be claimed in relation to information so placed before the Commission and thus excluded from
the public register of applications for authorisation. 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 authorisation.
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
8
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."
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.
9
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 authorises 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
10
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 or 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
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 authorised 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
unauthorised 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.
11
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.



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