ORIGINAL 


UNITED STATES OF AMERICA 


FEDERAL TRADE COMMISSION 


OFFICE OF ADMINISTRATIVE LAW JUDGES 


) 

In the Matter of ) 

) 

McWANE, INC., ) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

a limited partnership, ) 

Respondents. ) 

) 

ORDER ON NON-PARTY METALFIT, INC.'S 

MOTION FOR IN CAMERA TREATMENT 

I. 

On July 24,2012, pursuant to Rule 3.45(b) ofthe Commission's Rules of Practice and the 

Scheduling Order entered in this matter, non-party Metalfit, Inc. ("Metalfit") filed a motion for 

in camera treatment. Metalfit seeks in camera treatment for two exhibits, CX 1776 and CX 

1777. For the reasons set forth below, Metalfit's motion is DENIED WITHOUT PREJUDICE. 

II. 

Under Rule 3.45(b) ofthe Federal Trade Commission's Rules ofPractice, the 

Administrative Law Judge may order that material offered into evidence "be placed in camera 

only after finding that its public disclosure will likely result in a clearly defined, serious injury to 

the person, partnership or corporation requesting in camera treatment or after finding that the 

material constitutes sensitive personal information." 16 C.F.R. § 3.45(b). Applicants for in 

camera treatment must "make a clear showing that the information concerned is sufficiently 

secret and sufficiently material to their business that disclosure would result in serious 

competitive injury." In re General Foods Corp., 95 F.T.C. 352, 355 (1980). "[R]equests for in 

camera treatment must show 'that the public disclosure ofthe documentary evidence will result 

in a clearly defined, serious injury to the person or corporation whose records are involved. '" In 

re Kaiser Aluminum & Chem. Corp., 103 F.T.C. 500, 500 (1984), quoting In re H P. Hood & 

Sons, Inc., 58 F.T.C. 1184, 1188 (1961). Ifthe applicants for in'camera treatment make this 

showing, the importance ofthe information in explaining the rationale ofdecisions at the 

Commission is "the principal countervailing consideration weighing in favor of disclosure." In 

re General Foods Corp., 95 F.T.C. at 355. 
The Federal Trade Commission recognizes the "substantial public interest in holding all 

aspects of adjudicative proceedings, including the evidence adduced therein, open to all 

interested persons." Hood, 58 F.T.C. at 1186. A full and open record ofthe adjudicative 

proceedings promotes public understanding ofdecisions at the Commission. In re Bristol-Myers 

Co., 90 F.T.C. 455, 458 (1977). A full and open record also provides guidance to persons 

affected by its actions and helps to deter potential violators ofthe laws the Commission enforces. 

Hood, 58 F.T.C. at 1186. The burden ofshowing good cause for withholding documents from 

the public record rests with the party requesting that documents be placed in camera. Id. at 

1188. Moreover, there is a presumption that in camera treatment will not be accorded to 

information that is more than three years old. Conference Interpreters, 1996 FTC LEXIS 298, at 

*15 (citing General Foods, 95 F.T.C. at 353; Crown Cork, 71 F.T.C. at 1715). However, a 

request for in camera treatment by a non-party warrants "special solicitude." In re Crown Cork 

& Seal Co., 71 F.T.C. 1714, 1715 (1967). 

Under Commission Rule 3.45(b)(3), indefinite in camera treatment is warranted only "in 

unusual circumstances," including circumstances in which "the need for confidentiality ofthe 

material ... is not likely to decrease over time." 16 C.F.R. § 3.45(b)(3). The Commission has 

nonetheless recognized that "in some unusual cases 'the competitive sensitivity or the proprietary 

value ofthe information for which in camera treatment is requested will not necessarily 

diminish, and may actually increase, with the passage oftime. ", In re Coca-Cola Co., 1990 FTC 

LEXIS 364, at *7 (Oct. 17, 1990) (quoting Commission comments on amendments to the Rule). 

The Commission has recognized that it may be appropriate to provide in camera 

treatment for certain business records. In re Champion Spark Plug Co., 1982 FTCLEXIS 85, at 

*2 (April 5, 1982); see Hood, 58 F.T.C. at 1188-89; Kaiser Aluminum, 103 F.T.C. at 500. Where 

in camera treatment is granted for business records, such as business strategies, marketing plans, 

pricing policies, or sales documents, it is typically provided for two to five years. E.g., In re 

Union Oil Co. ofCal. , 2004 FTC LEXIS 223, at *2 (Nov. 22, 2004); In re Int'l Ass 'n of 

Conference Interpreters, 1996 FTC LEXIS 298, at *13-14 (June 26, 1996); Champion Spark 

Plug, 1982 FTC LEXIS 85 at *2 and 1982 FTC LEXIS 92, at *2 (March 4, 1982). 

In order to sustain the burden for withholding documents from the public record, an 

affidavit or declaration is required demonstrating that a document is sufficiently secret and 

sufficiently material to the applicant's business that disclosure would result in serious 

competitive injury. See In re North Texas Specialty Physicians, 2004 FTC LEXIS 109, at *2-3 

(Apr. 23,2004). To overcome the presumption that in camera treatment will not be accordedto 

information that is more than three years old, applicants seeking in camera treatment for such 

documents must also demonstrate, by affidavit or declaration, that such material remains 

competitively sensitive. In addition, to properly evaluate requests for in camera treatment, 

applicants for in camera treatment must provide a copy ofthe documents for which they seek in 

camera treatment to the Administrative Law Judge for review. 

III. 

The Motion for In Camera Treatment filed by non-party Metalfit failed to comply with 

the requirements for material to be withheld from the public record, as set forth above. 

2 

Accordingly, the motion is DENIED WITHOUT PREJUDICE. Metalfit may refile a motion for 

in camera treatment no later than August 3,2012. The parties' opposition to such motion, if any, 

shall be filed no later than August 9, 2012. 

ORDERED: 

D. Michael Chapp 1 

Chief Administrative Law Judge 

Date: July 24,2012 

3