www.ice.com

 

Intercontinental Exchange

353 North Clark, Suite 3100

Chicago, IL 60654

Olivia Bazor

Staff Attorney

 FOIA CONFIDENTIAL TREATMENT REQUESTED

September 27, 2023

VIA E-MAIL

Mr. Christopher Kirkpatrick

Secretary

Commodity Futures Trading Commission

Three Lafayette Centre

1155 21st Street, NW

Washington, DC 20581

Re: FOIA Confidential Treatment Request and Detailed Written Justification

ICE Clear Credit LLC Advance Notice of Proposed Rule Change Pursuant to Commission 

Regulation 40.10 (the “Submission”)

Dear Mr. Kirkpatrick: 

In conjunction with the notice submitted by ICE Clear Credit LLC (“ICE Clear Credit”) today, September 

27, 2023, to the Secretary of the Commodity Futures Trading Commission (“Commission”), pursuant to 

Commission Regulation 40.10, ICE Clear Credit submits the attached confidential documents. 

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Under the Freedom of Information Act (“FOIA”), 5 USC Section 552, Section 809(g) of the Dodd-Frank 

Wall Street Reform and Consumer Protection Act and pursuant to Commission Regulations 40.8(c) and 

145.9(d), Federal Reserve Board Regulation 261.15 and any other applicable regulations under or 

implementing FOIA, ICE Clear Credit hereby respectfully requests that confidential treatment be 

maintained for the documents which bear Bates numbers 09.27.2023-000001-CFTCFRB1 to 09.27.2023-

000002-CFTCFRB1 (“Confidential Material”) until further notice. In accordance with Commission 

Regulation 145.9(d)(4), every page of the Confidential Material bears the designation “Confidential 

Treatment Requested by ICE Clear Credit LLC.” In accordance with Commission Regulations 40.8(c)(2) 

and (3), the Confidential Material has been segregated from the Submission in an exhibit (“Exhibit 1”) and 

the Submission indicates that the Confidential Material has been segregated from the Submission.

ICE Clear Credit also requests that the Commission or the Board notify the undersigned immediately after 

receiving any FOIA request for such documents or any other court order, subpoena or summons for the 

same. Finally, ICE Clear Credit requests that it be notified in the event the Commission, or the Board 

intends to disclose such documents to Congress or to any other governmental agency or unit pursuant to 

Section 8 of the Commodity Exchange Act, as amended (“CEA”) or other applicable law. ICE Clear Credit 

does not waive its notification rights under Section 8(f) of the CEA or other applicable law with respect to 

any subpoena or summons for such document(s).

The basis for the request is that disclosure of these document(s) would reveal confidential commercial 

and financial information of ICE Clear Credit, the disclosure of which could have a material adverse effect 

on, and cause injury to, the operations and competitive position of ICE Clear Credit. This request is not to 
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be construed as a waiver of any other protection from disclosure or confidential treatment accorded by 

law, and ICE Clear Credit will rely on and invoke any such confidentiality protection.

In accordance with Commission Regulation 40.8(c)(1), ICE Clear Credit hereby submits its detailed 

written justification in support of the confidential treatment of the Confidential Material. The Confidential 

Material is deemed by ICE Clear Credit to be highly confidential in its entirety and confidentiality therefore 

is being requested under the FOIA, 5 U.S.C. 552, Section 809(g) of the Dodd-Frank Wall Street Reform 

and Consumer Protection Act and pursuant to Commission Regulations 40.8(c) and 145.9(d), Federal 

Reserve Board Regulation 261.15, and any other applicable statutes or regulations. Because this 

Confidential Material constitutes commercial or financial information, which is privileged or confidential, it 

is subject to the exemption from mandatory disclosure found in Section 552(b)(4) of FOIA (“FOIA 

Exemption 4”). 

Section 552(b)(4) of the FOIA exempts from the disclosure requirements of the FOIA “trade secrets and 

commercial or financial information obtained from a person and privileged or confidential”. Information 

has generally been deemed “commercial or financial” if it relates to business or trade. See, e.g., Dow 

Jones Co. v. FERC, 219 F.R.D. 167, 176 (C.D. Cal. 2002). The Court of Appeals for the District of 

Columbia Circuit has rejected the argument to confine the term "commercial" to records that "reveal basic 

commercial operations" such as such as sales statistics, profits and losses, and inventories. It has instead 

held that the terms “commercial” or “financial” should be given their "ordinary meanings" and that records 

are commercial so long as the submitter has a "commercial interest" in them. Pub. Citizen Health 

Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983). Further, the FOIA contains no definition 

of “privileged” or “confidential”. In Gulf & Western Industries, Inc. v. U.S., 615 F.2d 527 (D.C. Cir. 1979), 

the Court of Appeals concluded that information is confidential for purposes of the FOIA if (i) it is not of 

the type normally released to the public by the submitter and (ii) the information is of the type that would 

cause substantial competitive harm if released. There is no requirement that “competitive harm" be 

established by a showing of actual competitive harm. Rather, "actual competition and the likelihood of 

substantial competitive injury is all that needs to be shown." Gulf & Western Indus., Inc. v. U.S., 615 F.2d 

at 530. Thus, in National Parks and Conservation Association v. Kleppe, 547 F.2d 673 (D.C. Cir. 1976), 

the Court of Appeals concluded that the disclosure of certain financial information, including costs and 

price-related items, was likely to cause substantial harm to the disclosing party’s competitive position. 

Such disclosure, if required, would provide competitors with valuable information relating to the 

operational strengths and weaknesses of the disclosing company. Such competitive harm may result from 

the use of such information either by direct competitors or by persons with whom one is negotiating. See

American Airlines, Inc. v. National Mediation Board, 588 F.2d 863, 868 n.13 (2d Cir.1978). 

As discussed above, the Confidential Material, which is comprised of commercial or financial information, 

serves a commercial function. ICE Clear Credit has a commercial interest in the information contained 

within Exhibit 1 which sets forth configuration, testing and other technical security details regarding ICE 

Clear Credit’s data centers. Disclosure of such data center information could be used by competitors of 

ICE Clear Credit to gain a competitive advantage and should be protected from public disclosure 

pursuant to this exemption. Disclosure of the Confidential Material could cause significant competitive harm 

since competitors could utilize the Confidential Material to mimic ICE Clear Credit’s business and the 

opportunities identified by ICE Clear Credit. Disclosure of the commercial or financial information would 

provide insight and information related to ICE Clear Credit’s data center location information, test plans/results, 

technical security details, methods, techniques, strategies, policies and procedures, or system designs, which 

competitors could pursue to ICE Clear Credit’s detriment given the level of detail contained within the 

Confidential Material. Further, the information set forth in the Confidential Material is not of a type 

customarily made available by ICE Clear Credit to the public and has not been disclosed to the public. 

Consequently, the disclosure of the Confidential Material holds the potential for significant competitive 

harm to ICE Clear Credit as competitors could utilize the commercial or financial information contained 

therein to construct similar methodologies, systems, and analyses without expending similar efforts on 

development to disadvantage ICE Clear Credit. Last, such Confidential Material is also not disclosed publicly 

for information security reasons in order to protect ICE Clear Credit from bad actors such as cyber hackers. 

For all the foregoing reasons, ICE Clear Credit requests that the Commission determine to protect the 

confidentiality of the Confidential Material and the information contained therein. 
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Please direct any questions or requests for information to the attention of the undersigned at 

olivia.bazor@ice.com or 904-855-5580. 

Sincerely,

Olivia Bazor

Staff Attorney 

Enclosures