FOIA CONFIDENTIAL TREATMENT REQUESTED by KalshiEX LLC – Pursuant to 17 C.F.R. §§ 40.8 

and 145.9

Assistant Secretary of the Commission 

for FOI, Privacy and Sunshine Acts Compliance

U.S. Commodity Futures Trading Commission

Three Lafayette Centre

1155 21st Street, NW

Washington, DC 20581

Re: FOIA Confidential Treatment Request (Detailed Written Justification of FOIA Confidential 

Treatment Request)

Dear Sir or Madam: 

KalshiEX LLC (“Kalshi”) hereby respectfully requests that the Commodity Futures Trading 

Commission (the “CFTC”) accord confidential treatment under 17 C.F.R. §§ 40.8 and 145.9 to 

the confidential material transmitted today with this letter that are marked confidential, and all 

information derived therefrom (collectively, the “Confidential Information”). Pursuant to 

Commission Regulation 145.9(d)(4), please consider that this cover sheet has been clearly 

marked “FOIA Confidential Treatment Requested by KalshiEX LLC” and is securely attached to 

the group of records submitted for which confidential treatment is requested. 

This request for confidential treatment is made pursuant to 17 C.F.R. §145.9(d)(1) because 

Kalshi believes that the Confidential Information is covered by one or more exemptions in the 

Freedom of Information Act (the “FOIA”) (5 U.S.C. §552(b)) and is therefore exempt from the 

CFTC’s public disclosure requirements pursuant to 17 C.F.R. §145.5. In particular, 5 U.S.C. 

§552(b)(4) (“Exemption 4”) and 17 C.F.R. §145.9(d)(1)(ii) exempts disclosure that would reveal 

the Kalshi’s trade secrets or confidential commercial or financial information. Kalshi believes 

that the Confidential Information contains confidential commercial and financial information as 

well as proprietary information regarding its legal and business analyses and research that 
2

should be protected from public disclosure pursuant to this exemption. Confidential treatment 

is requested for a period of five years. 

Judicial analysis of Exemption 4 has found that 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 

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

(applying the tests detailed in Critical Mass). Kalshi provided the Confidential Information to the 

Commission voluntarily in order to demonstrate to the Commission the Program’s compliance 

with the CEA and the Commission Regulations. Notwithstanding the presumption of 

confidentiality, the confidential information would still be considered “confidential” because 

Kalshi would not disclose it to the public and its disclosure would cause substantial harm to 

Kalshi’s competitive position. The information set out in the confidential appendices was 

developed by Kalshi at significant cost and over a substantial period of time. Further, the 

Confidential Information is purely internal analyses that Kalshi would not customarily make 

available to the public. Additionally, the Confidential Information would give Kalshi’s 

competitors insights into Kalshi’s processes and proprietary reserach, which would have the 

effect of placing Kalshi at a significant competitive disadvantage in light of the time, effort, and 

capital that Kalshi expended developing that material. Publication of this material would have 

the deleterious effect of stifling innovation; after all, if registrants are stripped of the benefits of 

innovation there is no incentive to innovate. 

FOIA was enacted to facilitate the disclosure of information to the public, but was clearly not 

intended to allow business competitors to avail themselves of valuable confidential 

information, especially when “competition in business turns on the relative costs and 

opportunities faced by members of the same industry.” Worthington Compressors v. Costle, 662 

F.2d 45, 51 (D.C. Cir. 1981). In Gulf & Western Industries, Inc. v. United States, 615 F.2d 527 

(D.C. Cir. 1979), the Court of Appeals concluded that information is confidential for purposes of 

FOIA if (1) it is not of the type normally released to the public by the Kalshi and (2) 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, 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. When applying 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, 662 F.2d at 51. It is clear that the FOIA exemption was intended to prevent the 

fundamental unfairness that can result from one side having confidential information about the 

other in a business context. Cf. National Parks, 547 F.2d at 678 n.18. The confidential 

information is valuable commercially because it took significant time and at substantial cost to 

develop. 
3

If the Commission or its staff transmits any of the Confidential Submission to another federal 

agency, Kalshi requests that you forward a copy of this letter to any such agency with the 

Submission and further requests that you advise any such agency that Kalshi has requested that 

this material be accorded confidential treatment.

The requests set forth in the preceding paragraphs also apply to any memoranda, notes, 

transcripts or other writings of any sort whatsoever that are made by, or at the request of, any 

employee of the Commission (or any other federal agency) and which (1) incorporate, include 

or relate to any aspect of the Confidential Submission; or (2) refer to any conference, meeting, 

or telephone conversation between Kalshi, its current or former employees, representatives, 

agents, auditors or counsel on the one hand and employees of the Commission (or any other 

government agency) on the other, relating to the Confidential Submission.

This request is not to be construed as a waiver of any other protection from disclosure or 

confidential treatment accorded by law, and Kalshi will rely on and invoke any such 

confidentiality protection. Kalshi requests that the CFTC advise the undersigned, pursuant to 17 

C.F.R. §145.9(e)(1), in advance of any disclosure of the Confidential Information pursuant to the 

FOIA, so that this request for confidential treatment may be substantiated. 

If you should have any questions or comments or require further information, please do not 

hesitate to contact the undersigned at emishory@kalshi.com or (443) 839-3192. 

Yours,

Elie Mishory 

Chief Regulatory Officer 

KalshiEX LLC 

emishory@kalshi.com