Parties involved in health care transactions subject to the reporting requirements of the Hart-Scott-Rodino Antitrust Improvements Act (“HSR” or “Act”) frequently ask whether submission of the HSR Notification and Report Form, and the contents of that form, can be kept from public disclosure. This issue can be particularly sensitive for parties that seek to tightly control how and when notice of the transaction is made public.
Fortunately, the Act specifically provides that “[a]ny information or documentary material filed with the [Department of Justice] or the Federal Trade Commission [(“FTC”)] pursuant to [the Act] shall be exempt from disclosure … and no such information or documentary material may be made public . . . .” This exemption from disclosure includes requests made under the Freedom of Information Act.
However, there are certain exceptions. In particular, the FTC publishes an online notification of early terminations of the waiting period (when early termination has been requested), which is updated almost daily. Relatedly, last summer, the FTC launched a web application programming interface to make access to early termination notices even easier. In addition, the Act expressly allows the federal antitrust enforcement agencies to use confidential information produced by parties and third parties in any administrative or judicial action or proceeding.