FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/1/2023 | DOCUMENT NO. 607056 | Page 1 of 5 | PUBLIC

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PUBLIC 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of 

Intuit, Inc., 

 a corporation, 

Respondent. 

) 

) 

) Docket No. 9408

) 

) 

) 

__________________________________________) 

ORDER ON RESPONDENT’S MOTION 

FOR IN CAMERA TREATMENT 

I. 

Pursuant to Rule 3.45(b) of the Rules of Practice of the Federal Trade Commission 

(“FTC” or “Commission”) and the Scheduling Order entered in this matter, Respondent Intuit, 

Inc. (“Respondent”) filed a motion for in camera treatment for designated materials that FTC 

Complaint Counsel and Respondent have listed on their exhibit lists as materials that might be 

introduced at trial (“Motion”). Complaint Counsel responded that it does not oppose granting in 

camera treatment as requested in the Motion. 

II. 

Under Rule 3.45(b), the Administrative Law Judge may order that material offered into 

evidence “be placed in camera only [a] 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 [b] after finding that the material constitutes sensitive personal information.” 

16 C.F.R. § 3.45(b). 

A. Clearly defined, serious injury 

“[R]equests for in camera treatment must show ‘that the public disclosure of the 

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., No. 9080, 1984 FTC 

LEXIS 60, at *1 n.1 (F.T.C. May 25, 1984) (quoting In re H. P. Hood & Sons, Inc., No. 7709, 

1961 FTC LEXIS 368 (F.T.C. Mar. 14, 1961)). Applicants 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., No. 9085, 

1980 FTC LEXIS 99, at *10 (F.T.C. Mar. 10, 1980). To determine whether confidential 

information that a party produces in the course of an adjudicative proceeding warrants in camera 

treatment, the potential harm to the party from disclosure is balanced against the substantial 
 

 

 

 

 

 

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public interest in access to key facts and background underlying FTC decisions. In re Polypore, 

Int’l Inc., No. 9327, 2011 FTC LEXIS 23, at *2 (F.T.C. Feb. 11, 2011); In re Orkin 

Exterminating Co., No. 9176, 1986 FTC LEXIS 16, at *1 (F.T.C. Oct. 16, 1986). 

The FTC recognizes the “substantial public interest in holding all aspects of adjudicative 

proceedings, including the evidence adduced therein, open to all interested persons.” Hood, 1961 

FTC LEXIS 368, at *5-6. A full and open record of the adjudicative proceedings promotes 

public understanding of decisions at the Commission. In re Bristol-Myers Co., No. C-8917, 1977 

FTC LEXIS 25, at *6 (F.T.C. Nov. 11, 1977). A full and open record also provides guidance to 

persons affected by the Commission’s actions and helps to deter potential violators of the laws 

that the Commission enforces. Hood, 1961 FTC LEXIS 368, at *6-7. The burden of showing 

good cause for withholding documents from the public record rests with the party requesting that 

documents be given in camera treatment. Id. at *10-11. Moreover, there is a presumption that in 

camera treatment will not be accorded to information that is more than three years old. In re Int’l 

Ass’n of Conference Interpreters, No. 9270, 1996 FTC LEXIS 298, at *15 (F.T.C. June 26, 

1996) (citing General Foods, 1980 FTC LEXIS 99, at *4-5; In re Crown Cork & Seal Co., No. 

8687, 1967 FTC LEXIS 128, at *2-3 (F.T.C. June 26, 1967)). 

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

applicant must submit an affidavit or declaration demonstrating that each document is 

sufficiently secret and sufficiently material to the applicant’s business that disclosure would 

result in serious competitive injury. In re North Texas Specialty Physicians, 2004 FTC LEXIS 

109, at *3-4 (F.T.C. Apr. 23, 2004). To overcome the presumption that in camera treatment will 

not be granted for 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 of the documents for which 

they seek in camera treatment to the Administrative Law Judge for review. Where in camera 

treatment is sought for transcripts of investigational hearings or depositions, the requests shall be 

made only for those specific pages and line numbers of transcripts which contain information 

that meets the in camera standard. In re Union Oil Co. of California, No. 9312, 2004 FTC 

LEXIS 197, at *4-5 (F.T.C. Oct. 7, 2004). 

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 of the 

material . . . is not likely to decrease over time . . . .” 16 C.F.R. § 3.45(b)(3). “Applicants seeking 

indefinite in camera treatment must further demonstrate ‘at the outset that the need for 

confidentiality of the material is not likely to decrease over time’ 54 Fed. Reg. 49,279 (1989) 

. . . [and] that the circumstances which presently give rise to this injury are likely to be forever 

present so as to warrant the issuance of an indefinite in camera order rather than one of more 

limited duration.” In re E. I. DuPont de Nemours & Co., No. 9108, 1990 FTC LEXIS 134, at *2-

3 (F.T.C. Apr. 25, 1990). In DuPont, the Commission rejected the respondent’s request for 

indefinite in camera treatment. However, based on “the highly unusual level of detailed cost data 

contained in these specific trial exhibit pages, the existence of extrapolation techniques of known 

precision in an environment of relative economic stability, and the limited amount of 

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technological innovation occurring in the . . . industry, . . .” the Commission allowed an extended 

period of in camera treatment of ten years. Id. at *5-6. 

In determining the length of time for which in camera treatment is appropriate, the 

distinction between trade secrets and ordinary business records is important because ordinary 

business records are granted less protection than trade secrets. Hood, 1961 FTC LEXIS 368, at 

*12. Examples of trade secrets meriting indefinite in camera treatment include secret formulas, 

secret processes, other secret technical information, or information that is privileged. Hood, 1961 

FTC LEXIS 368, at *12; General Foods, 1980 FTC LEXIS 99, at *2; In re Textron, Inc., No. 

9226, 1991 FTC LEXIS 135, at *1 (F.T.C. Apr. 26, 1991). 

In contrast to trade secrets, ordinary business records include information such as 

customer names, pricing to customers, and business costs and profits, as well as business plans, 

marketing plans, or sales documents. See Hood, 1961 FTC LEXIS 368, at *13; In re McWane, 

Inc., No. 9351, 2012 FTC LEXIS 143 (F.T.C. Aug. 17, 2012); Int’l Ass’n of Conference 

Interpreters, 1996 FTC LEXIS 298, at *13-14. When in camera treatment is granted for ordinary 

business records, it is typically provided for two to five years. E.g., McWane, 2012 FTC LEXIS 

143; In re ProMedica Health Sys., No. 9346, 2011 FTC LEXIS 101 (F.T.C. May 25, 2011). 

B. Sensitive personal information 

Under Rule 3.45(b) of the FTC Rules of Practice, after finding that material constitutes 

“sensitive personal information,” (“SPI”) the Administrative Law Judge shall order that such 

material be given in camera treatment. 16 C.F.R. § 3.45(b). “[S]ensitive personal information . . . 

shall be accorded permanent in camera treatment unless disclosure or an expiration date is 

required or provided by law.” 16 C.F.R. § 3.45(b)(3). 

“Sensitive personal information” is defined as including, but not limited to, “an 

individual’s Social Security number, taxpayer identification number, financial account number, 

credit card or debit card number, driver’s license number, state-issued identification number, 

passport number, date of birth (other than year), and any sensitive health information identifiable 

by individual, such as an individual’s medical records.” 16 C.F.R. § 3.45(b). In addition to these 

listed categories of information, in some circumstances, individuals’ names and addresses and 

witness telephone numbers have been found to be “sensitive personal information” and accorded 

in camera treatment. In re Illumina, Inc., No. 9401, 2021 WL 3701608, at *3 (F.T.C. Aug. 12, 

2021); In re Altria Group, Inc., No. 9393, 2021 WL 2258803, at *3 (F.T.C. May 19, 2021); In re 

LabMD, Inc., No. 9357, 2014 FTC LEXIS 127 (F.T.C. May 6, 2014). In instances where SPI can 

be redacted from an exhibit, there is no basis for withholding an entire document from the public 

record. Illumina, 2021 WL 3701608, at *5; Altria, 2021 WL 2258803 at *6. See also In re Basic 

Research, LLC, No. 9318, 2006 FTC LEXIS 14, at *5-6 (F.T.C. Jan. 25, 2006) (permitting the 

redaction of information concerning particular consumers’ names or other personal data when it 

was not relevant). 

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III. 

Respondent seeks in camera treatment for 333 potential trial exhibits that it states fall 

into at least one of the following categories: (1) trade secrets and product development; (2) 

financial data; (3) pricing and pricing strategy; (4) sales and marketing strategy; (5) business 

strategy/strategic initiatives; (6) regulatory strategy; (7) arbitration documents; (8) IRS free file 

documents; and (9) sensitive personal information. Respondent supports its Motion with a 

declaration from its Vice President, Marketing, Partnerships & Advertising Operations. The 

declaration provides a general description of each category and asserts that disclosure of the 

documents in each category would cause serious competitive injury. 

Due to the substantial public interest in maintaining open adjudicative proceedings, 

Respondent bears the “heavy burden of showing good cause for withholding documents from the 

public record . . . .” In re North Texas Specialty Physicians, No. 9312, 2004 FTC LEXIS 109, at 

*3 (F.T.C. April 23, 2004). 

A cursory review of the documents indicates that many do not meet the standards for in 

camera treatment. For example, GX 431 is a spreadsheet which appears to list various dates, 

networks and times in which Intuit aired TurboTax television advertisements between January 

and February of 2022. GX 646 is a PowerPoint presentation which appears to have been 

distributed throughout the company and contains general conclusions. RX 308 appears to be an 

“earnings script” from 2019. General or publicly available information and information that is 

widely disseminated within a company does not merit in camera treatment. Moreover, 

documents that merely reference or contain general statements derived from confidential 

documents or that do not reveal information that is sufficiently secret and sufficiently material to 

Intuit’s business that disclosure would result in serious competitive injury will not be accorded in 

camera treatment. 

Respondent’s Motion also seeks in camera treatment for numerous documents that are 

over three years old, such as RX 36, which appears to contain Intuit’s financial and revenue 

projections and figures for 2012 to2018. There is a presumption that in camera treatment will not 

be accorded to information that is more than three years old unless the movant’s supporting 

declaration shows that such material remains competitively sensitive. Altria, 2021 WL 2258803 

at *2. Respondent’s supporting declaration asserts that these materials remain competitively 

sensitive but does not explain how these materials remain competitively sensitive or why in 

camera treatment is necessary. 

With respect to transcripts from investigational hearings and depositions, Intuit seeks in 

camera treatment for vast portions of the transcripts. Intuit’s proposed designations are 

overbroad and include testimony that does not meet the criteria for in camera treatment. For 

example, in GX 146, what Intuit seeks to shield from disclosure is very general, such as a 

definition of “brand advertising,” and whether Intuit employs such method of advertising, and 

whether Intuit uses marketing directed to millennial taxpayers. Granting in camera treatment to 

general statements in depositions or investigational hearing transcripts would prevent inquiry on 

these topics at trial on the public record, which would thwart public understanding of decisions at 

the Commission. See Bristol-Myers Co., 1977 FTC LEXIS 25, at *6. 

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Respondent seeks permanent in camera treatment for the tax history of TurboTax 

consumers who submitted complaints relied upon by the FTC. These spreadsheets contain 

consumer names and taxpayer information and thus constitute sensitive personal information. 

Permanent in camera treatment is GRANTED to: RX 121, 137, 146, 153, 157, 207, 223, 232, 

and 239. 

Respondent also seeks in camera treatment for arbitration decisions, settlement 

agreements relating to consumer arbitrations, and consumer releases related to those settlements. 

The arbitration documents, including the releases, contain consumers’ sensitive personal 

information, including consumers’ date of birth and citizenship status. Therefore, permanent in 

camera treatment is GRANTED to: RX 67, 68, 69, 383, 384, 385, 386, and 392. 

IV. 

The burden rests on the movant to demonstrate that the evidence sought to be withheld 

from the public record is sufficiently secret and sufficiently material to its business that 

disclosure would result in serious competitive injury. For many of the documents for which 

Respondent seeks in camera treatment, Respondent has failed to sustain its burden. Pursuant to 

FTC Rule 3.42(c)(11), except as set forth above, Respondent’s Motion is DENIED WITHOUT 

PREJUDICE. 

Respondent may, by March 15, 2023, refile a motion for in camera treatment. Prior to 

filing such motion, Respondent shall carefully and thoroughly review all documents for which it 

seeks in camera treatment, and strictly narrow its requests to only those documents that comply 

with the Commission’s strict standards for in camera treatment. Respondent’s refiled motion 

shall include a sworn statement containing sufficient detail regarding the documents to identify 

the bases for the requests for in camera treatment and demonstrate that such documents are 

1 entitled to in camera treatment.0F

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: March 1, 2023 

1 Complaint Counsel did not oppose Respondent’s initial motion and will not be permitted to oppose Respondent’s 

revised motion. 

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