Enforcement Bureau Takes Harder Line on Overbroad Confidentiality
The FCC Enforcement Bureau is cracking down on what it calls overly broad confidentiality requests that ask for confidential treatment of material that needn't be secret, bureau Chief Rosemary Harold said at an FCBA event Friday. She said the bureau started addressing confidentiality requests in an earlier stage of investigations than in the past.
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The problem comes in the form of both blanket requests and casual requests, said bureau lawyer Raphael Sznajder. The former often meet confidentiality rules criteria but try to apply it to the whole submission rather than particular parts that warrant confidential treatment, he said. Casual requests just stamp each page as confidential or summarily request the entire submission be treated as confidential, he said. “We are not going to accept any longer” a lengthy filing that doesn't specify what’s to be treated as confidential, said Office of General Counsel lawyer Joel Rabinovitz.
Overly broad requests are "not going to work going forward," Harold said. Blanket requests undermine credibility, and casual requests "look lazy ... like you haven't given it a lot of thought," and will be rejected out of hand, she said.
Harold said it had been customary for the EB to get back to investigatory targets about their confidentiality requests later in the investigation process. The result is sometimes "last-minute hubbub," so the bureau has begun dealing with confidentiality requests earlier, she noted. In longer investigations, the bureau is open to having confidentiality discussions later on additional material, she said.
Rabinovitz said confidential information is usually kept that way, but the FCC has the power to release it if it's in the public interest. “We don't undertake this lightly,” he said. The agency also can share information with other federal or state agencies, Congress and some private parties under a protective order.
The type of information that could be publicly released might include facts in a USF fraud case that illustrate the harm seeking to be addressed, such as financial information, Harold said. Release of confidential information would be rare, Deputy bureau Chief Keith Morgan added.
Sznajder said "existential" requests for confidentiality covering the existence of an EB investigation and all submissions about it won't be granted. Harold said most investigations are kept confidential anyway because it's often in the agency's interests to do so until an end is reached.
To identify legitimately confidential information, use physical separation such as putting it in different files or using brackets and highlighting around potential information, Sznajder advised. Rabinovitz said the agency recognizes it’s not possible to mark every document when submitting terabytes of data, and the agency has an informal process for bulk confidentiality that makes clear the confidentiality request attached to the hard drive doesn’t extend to materials that already are public.
A process to allow confidential filings submitted via the FCC’s electronic comment filing system “is on our wish list" for the next ECFS update, Rabinovitz said.