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U.S. Code as of:
01/19/04
Section 57b-2. Confidentiality
(a) Definitions
For purposes of this section:
(1) The term "material" means documentary material, tangible
things, written reports or answers to questions, and transcripts
of oral testimony.
(2) The term "Federal agency" has the meaning given it in
section 552(e) (!1) of title 5.
(b) Procedures respecting documents, tangible things, or
transcripts of oral testimony received pursuant to compulsory
process or investigation
(1) With respect to 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, the procedures established in
paragraph (2) through paragraph (7) shall apply.
(2)(A) The Commission shall designate a duly authorized agent to
serve as custodian of documentary material, tangible things, or
written reports or answers to questions, and transcripts of oral
testimony, and such additional duly authorized agents as the
Commission shall determine from time to time to be necessary to
serve as deputies to the custodian.
(B) Any person upon whom any demand for the production of
documentary material has been duly served shall make such material
available for inspection and copying or reproduction to the
custodian designated in such demand at the principal place of
business of such person (or at such other place as such custodian
and such person thereafter may agree or prescribe in writing or as
the court may direct pursuant to section 57b-1(h) of this title) on
the return date specified in such demand (or on such later date as
such custodian may prescribe in writing). Such person may upon
written agreement between such person and the custodian substitute
copies for originals of all or any part of such material.
(3)(A) The custodian to whom any documentary material, tangible
things, written reports or answers to questions, and transcripts of
oral testimony are delivered shall take physical possession of such
material, reports or answers, and transcripts, and shall be
responsible for the use made of such material, reports or answers,
and transcripts, and for the return of material, pursuant to the
requirements of this section.
(B) The custodian may prepare such copies of the documentary
material, written reports or answers to questions, and transcripts
of oral testimony, and may make tangible things available, as may
be required for official use by any duly authorized officer or
employee of the Commission under regulations which shall be
promulgated by the Commission. Notwithstanding subparagraph (C),
such material, things, and transcripts may be used by any such
officer or employee in connection with the taking of oral testimony
under this section.
(C) Except as otherwise provided in this section, while in the
possession of the custodian, no documentary material, tangible
things, reports or answers to questions, and transcripts of oral
testimony shall be available for examination by any individual
other than a duly authorized officer or employee of the Commission
without the consent of the person who produced the material,
things, or transcripts. Nothing in this section is intended to
prevent disclosure to either House of the Congress or to any
committee or subcommittee of the Congress, except that the
Commission immediately shall notify the owner or provider of any
such information of a request for information designated as
confidential by the owner or provider.
(D) While in the possession of the custodian and under such
reasonable terms and conditions as the Commission shall prescribe -
(i) documentary material, tangible things, or written reports
shall be available for examination by the person who produced the
material, or by any duly authorized representative of such
person; and
(ii) answers to questions in writing and transcripts of oral
testimony shall be available for examination by the person who
produced the testimony or by his attorney.
(4) Whenever the Commission has instituted a proceeding against a
person, partnership, or corporation, the custodian may deliver to
any officer or employee of the Commission documentary material,
tangible things, written reports or answers to questions, and
transcripts of oral testimony for official use in connection with
such proceeding. Upon the completion of the proceeding, the officer
or employee shall return to the custodian any such material so
delivered which has not been received into the record of the
proceeding.
(5) If any documentary material, tangible things, written reports
or answers to questions, and transcripts of oral testimony have
been produced in the course of any investigation by any person
pursuant to compulsory process and -
(A) any proceeding arising out of the investigation has been
completed; or
(B) no proceeding in which the material may be used has been
commenced within a reasonable time after completion of the
examination and analysis of all such material and other
information assembled in the course of the investigation;
then the custodian shall, upon written request of the person who
produced the material, return to the person any such material which
has not been received into the record of any such proceeding (other
than copies of such material made by the custodian pursuant to
paragraph (3)(B)).
(6) The custodian of any documentary material, written reports or
answers to questions, and transcripts of oral testimony may deliver
to any officers or employees of appropriate Federal law enforcement
agencies, in response to a written request, copies of such material
for use in connection with an investigation or proceeding under the
jurisdiction of any such agency. The custodian of any tangible
things may make such things available for inspection to such
persons on the same basis. Such materials shall not be made
available to any such agency until the custodian received
certification of any officer of such agency that such information
will be maintained in confidence and will be used only for official
law enforcement purposes. Such documentary material, results of
inspections of tangible things, written reports or answers to
questions, and transcripts of oral testimony may be used by any
officer or employee of such agency only in such manner and subject
to such conditions as apply to the Commission under this section.
The custodian may make such materials available to any State law
enforcement agency upon the prior certification of any officer of
such agency that such information will be maintained in confidence
and will be used only for official law enforcement purposes.
(7) In the event of the death, disability, or separation from
service in the Commission of the custodian of any documentary
material, tangible things, written reports or answers to questions,
and transcripts of oral testimony produced under any demand issued
under this subchapter, or the official relief of the custodian from
responsibility for the custody and control of such material, the
Commission promptly shall -
(A) designate under paragraph (2)(A) another duly authorized
agent to serve as custodian of such material; and
(B) transmit in writing to the person who produced the material
or testimony notice as to the identity and address of the
successor so designated.
Any successor designated under paragraph (2)(A) as a result of the
requirements of this paragraph shall have (with regard to the
material involved) all duties and responsibilities imposed by this
section upon his predecessor in office with regard to such
material, except that he shall not be held responsible for any
default or dereliction which occurred before his designation.
(c) Information considered confidential
(1) All information reported to or otherwise obtained by the
Commission which is not subject to the requirements of subsection
(b) of this section shall be considered confidential when so marked
by the person supplying the information and shall not be disclosed,
except in accordance with the procedures established in paragraph
(2) and paragraph (3).
(2) If the Commission determines that a document marked
confidential by the person supplying it may be disclosed because it
is not a trade secret or commercial or financial information which
is obtained from any person and which is privileged or
confidential, within the meaning of section 46(f) of this title,
then the Commission shall notify such person in writing that the
Commission intends to disclose the document at a date not less than
10 days after the date of receipt of notification.
(3) Any person receiving such notification may, if he believes
disclosure of the document would cause disclosure of a trade
secret, or commercial or financial information which is obtained
from any person and which is privileged or confidential, within the
meaning of section 46(f) of this title, before the date set for
release of the document, bring an action in the district court of
the United States for the district within which the documents are
located or in the United States District Court for the District of
Columbia to restrain disclosure of the document. Any person
receiving such notification may file with the appropriate district
court or court of appeals of the United States, as appropriate, an
application for a stay of disclosure. The documents shall not be
disclosed until the court has ruled on the application for a stay.
(d) Particular disclosures allowed
(1) The provisions of subsection (c) of this section shall not be
construed to prohibit -
(A) the disclosure of information to either House of the
Congress or to any committee or subcommittee of the Congress,
except that the Commission immediately shall notify the owner or
provider of any such information of a request for information
designated as confidential by the owner or provider;
(B) the disclosure of the results of any investigation or study
carried out or prepared by the Commission, except that no
information shall be identified nor shall information be
disclosed in such a manner as to disclose a trade secret of any
person supplying the trade secret, or to disclose any commercial
or financial information which is obtained from any person and
which is privileged or confidential;
(C) the disclosure of relevant and material information in
Commission adjudicative proceedings or in judicial proceedings to
which the Commission is a party; or
(D) the disclosure to a Federal agency of disaggregated
information obtained in accordance with section 3512 (!1) of
title 44, except that the recipient agency shall use such
disaggregated information for economic, statistical, or
policymaking purposes only, and shall not disclose such
information in an individually identifiable form.
(2) Any disclosure of relevant and material information in
Commission adjudicative proceedings or in judicial proceedings to
which the Commission is a party shall be governed by the rules of
the Commission for adjudicative proceedings or by court rules or
orders, except that the rules of the Commission shall not be
amended in a manner inconsistent with the purposes of this section.
(e) Effect on other statutory provisions limiting disclosure
Nothing in this section shall supersede any statutory provision
which expressly prohibits or limits particular disclosures by the
Commission, or which authorizes disclosures to any other Federal
agency.
(f) Exemption from disclosure
Any material which is 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 under this subchapter or which is provided voluntarily in
place of such compulsory process shall be exempt from disclosure
under section 552 of title 5.
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