Confidential Treatment Requests (CTRs) provide companies with a vital mechanism to protect sensitive business information from public disclosure. Rules 406 of the Securities Act of 1933 and 24b-2 of the Securities Exchange Act of 1934 outline the procedures for requesting confidential treatment for information that must otherwise be disclosed in filings. Additionally, Rule 83 provides an avenue for requesting confidentiality in contexts like investigations and supplemental disclosures.

CTRs Under Rules 406 and 24b-2

Companies can seek confidential treatment for non-material, competitively sensitive information. Requests under these rules must be submitted in paper format, including:

1. Identification of Information: Specify the details to remain confidential.
2. Justification: Explain why confidentiality is necessary, citing relevant FOIA exemptions.
3. Timeframe: State the duration for which confidentiality is sought.
4. Consent: Provide written consent for sharing the information with government agencies and Congress.

If granted, a CTR order will be posted on EDGAR. Denials can be appealed, or the filing can be withdrawn if permissible.

Extension Applications

For previously approved confidential treatment, companies may file a short-form application to extend confidentiality for up to 10 years. Extensions require a brief justification and must be submitted before the original order expires. The SEC has streamlined this process, allowing submissions via email to a dedicated address.

Material Contract Redactions

Since March 2019, companies may redact competitively sensitive, non-material information from material contracts without a formal CTR. Redacted contracts must indicate omitted sections and comply with specific SEC review procedures. Supplemental unredacted versions may be requested and must be provided promptly.

Rule 83 Requests

Rule 83 applies to confidentiality requests for information submitted during investigations, supplemental disclosures, or inspections. These requests:

1. Mark Confidential Information: Use “Confidential Treatment Requested” on all relevant pages.
2. Legal Basis: Provide an analysis citing FOIA exemptions.
3. Timely Submissions: Ensure contemporaneous or follow-up written requests during oral disclosures.

Rule 83 CTRs are valid for 10 years unless renewed. Appeals against confidentiality denials are reviewed by the SEC’s Office of General Counsel and may escalate to federal court.

Qualifying Information for CTRs

To qualify, information must be non-material to investors and competitively sensitive. Examples include pricing terms, trade secrets, payment structures, and certain intellectual property details. Companies must ensure such information has not been publicly disclosed.

Conclusion

The SEC’s confidential treatment rules offer robust protections for companies seeking to safeguard sensitive information while complying with disclosure obligations. By adhering to established procedures, companies can balance transparency with competitive integrity.