On 19 December 2019, the SEC's Division of Corporation Finance published an update to its guidance with respect to the SEC's procedures for confidential treatment applications. In April 2019, the SEC adopted new rules amending Regulation S-K to allow filers to redact confidential information from most exhibits to their filings without submitting a request for confidential treatment, provided that the redacted information is not material and that public disclosure would likely cause competitive harm. Although most filers now rely on those new provisions, the Division of Corporation Finance has updated its guidance regarding the "classic" procedure involving confidential treatment applications. Indeed, for certain filings, such as Schedule 13D or filings whose exhibit requirements are set out in Item 1016 of Regulation M-A, the confidential treatment application remains the only available method to protect private information in filed exhibits.
Under the updated guidance, companies must file the required exhibit and omit confidential information, and then separately provide the SEC with an unredacted copy of the document identifying the confidential information. They must also identify the Freedom of Information Act (FOIA) exemption on which they are relying to object to public disclosure of the redacted information, explain why the information is not necessary to protect investors and justify the time period of the confidential treatment. According to the guidance, the SEC staff may request an amendment with more circumscribed omissions and an amended application if the applicant omits information beyond what it customarily and actually treats as private or confidential, and may also request additional information, in particular to assess the impact of the proposed omissions.
The guidance specifically refers to the U.S. Supreme Court's recent decision in Food Marketing Institute v Argus Leader Media, which addresses the definition of "confidential" in the context of the FOIA exemption for "commercial or financial information obtained from a person and privileged or confidential."
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