September 28, 2023

Assistant Secretary of the Commission for FOIA

Privacy and Sunshine Acts Compliance

Commodity Futures Trading Commission

Three Lafayette Centre

1155 21st Street, NW

Washington, DC 20581

RE: Freedom of Information Act (“FOIA”) Confidential Treatment Request: Exhibits F, G, and the 

Appendix to MGEX Submission No. 23-55

Dear Assistant Secretary,

Pursuant to the requirements set forth in Commodity Futures Trading Commission (“CFTC” or 

“Commission”) Regulations 40.8 and 145.9(d), the Minneapolis Grain Exchange, LLC (“MGEX” or the 

“Exchange”) hereby requests that the Commission afford confidential treatment under FOIA for the 

information listed in Exhibits F, G, and the Appendix. As discussed further in the detailed written justification 

below, the attached Exhibits F, G, and the Appendix (the “Attachments”) contain information therein that 

would reveal the trade secrets or confidential commercial or financial information of MGEX. Therefore, 

MGEX requests it be notified by the Commission after receiving any FOIA request for such documents or 

any other court order, subpoena, or summons for the Attachments. MGEX also requests that it be notified 

if the Commission intends to disclose the Attachments to Congress or any other governmental agency or 

unit pursuant to Section 8 of the Commodity Exchange Act (“CEA”).

Detailed Written Justification

There is a presumption of confidentiality for commercial information that is (1) provided voluntarily and (2) 

is of a kind the provider would not customarily make available to the public. See Critical Mass Energy 

Project v. Nuclear Regulatory Commission, 975 F.2d 871, 878 (D.C. Cir. 1992) (en banc); see also Center 

for Auto Safety v. National Highway Traffic Safety Administration, 244 F.3d 144, 147 (D.C. Cir. 2001) 

(applying the tests described in Critical Mass). 

Notwithstanding this presumption of confidentiality, the information within the Attachments would still be 

considered “confidential” because MGEX would not ordinarily disclose it to the public and disclosure would 

cause substantial harm to the competitive position of the Exchange. In Gulf & Western Industries, Inc. v. 

United States, 615 F.2d 527 (D.C. Cir. 1979), the Court of Appeals held that information is confidential for 

purposes of FOIA if (1) it is not of the type normally released to the public by the submitter and (2) the 

information is of the type that would cause substantial competitive harm if released. Additionally, there is 

no requirement that “competitive harm” be established by a showing of actual competitive harm. Rather, 

only “actual competition and the likelihood of substantial competitive injury is all that needs to be shown.” 

Gulf & Western Industries, Inc. V. United States, 615 F.2d at 530. Accordingly, the D.C. Court of Appeals 

in National Parks and Conservation Association v. Kleppe, 547 F.2d 673 (D.C. Cir. 1976), concluded that 

the disclosure of certain financial information, including costs and price-related items, was likely to cause 

substantial harm to the competitive position of the person whose information was obtained. When applying 
MINNEAPOLIS GRAIN EXCHANGE, LLC

400 South 4th Street | 130 Grain Exchange Building | Minneapolis, MN 55415

612-321-7101

mgex.com

the substantial competitive harm test, courts “[c]onsider how valuable the information will be to the 

requesting competitors and how much this gain will damage the submitter.” Worthington Compressors v. 

Costle, 662 F.2d 51 (D.C. Cir. 1981). However, neither the Commission nor the courts is required to conduct 

a sophisticated economic analysis to determine the likely effects of disclosure, and evidence demonstrating 

the potential for economic harm is sufficient. Utah v. Bahe et al. No. 00-4018, 2001 WL 777034, at 2 (10th 

Cir. July 10, 2001); Public Citizen Health Research Group v. Food & Drug Admin., 704 F.2d 1280, 1291 

(D.C. Cir. 1983). It is clear that the exemption was intended to prevent the fundamental unfairness that can 

result from one side having confidential information about the other in a business context. National Parks 

and Conservation Association v. Kleppe, 547 F.2d at 679.

MGEX provided the confidential information in the Attachments to the Commission voluntarily in order to 

demonstrate its compliance with the CEA and relevant Commission Regulations. The information set forth 

in the Attachments is commercially valuable due to the significant time and substantial cost required to 

develop. MGEX believes that disclosure of this information would provide its competitors with valuable 

insights of the Exchange’s business and the construction of its products. Additionally, this information is not 

of a type customarily made available to the public by the Exchange and disclosure of such generates a 

potential for significant competitive harm to MGEX. Accordingly, the substantial competitive harm test is 

met and confidential treatment should be maintained for the information contained in the Attachments. 

For the foregoing reasons, MGEX respectfully requests that the Commission maintain the confidential 

privilege afforded to this type of information and refrain from disclosing the Attachments as any such action 

may prove harmful to MGEX.

Should you have any questions regarding this letter, please feel free to contact me at (612) 321-7141 or 

cstuhlmann@mgex.com. Thank you for your attention in this matter.

Sincerely, 

Carmen M. Stuhlmann

Associate Counsel