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U.S. Department of the Treasury

Committee on Foreign Investment in the United States

Secure Investment. Strong America.

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Confidentiality

Confidentiality is essential to the effective operation of CFIUS and, therefore, CFIUS’s ability to fulfill its national security mandate. Confidentiality is important to U.S. companies and their foreign investors, as public disclosure of information associated with CFIUS’s review of a particular transaction could have a significant commercial impact on the companies involved. The promise of strict confidentiality helps to encourage parties to make timely CFIUS filings, which is important because CFIUS relies heavily upon parties making voluntary filings to the Committee prior to closing their transactions.

Statutory Confidentiality Protections

CFIUS operates pursuant to Section 721 of the Defense Production Act of 1950, as amended, codified at 50 U.S.C. 4565 (Section 721). Section 721(c) prohibits the disclosure to the public of any information or documentary material filed with CFIUS and explicitly provides that such information and documentary material is exempt from disclosure under the Freedom of Information Act, as amended, codified at 5 U.S.C. 552(b) (FOIA), subject to certain limited exceptions. This includes any such information or documentary material related to concluded cases, withdrawn cases, rejected cases, and cases where CFIUS has determined that the transaction is not covered. CFIUS considers the following types of information filed with the Committee to be subject to the confidentiality requirements under Section 721(c), among others:

  • The Fact of a Filing: This information would not otherwise be known by CFIUS but for the declaration or notice “filed with” CFIUS by the parties under Section 721. Therefore, CFIUS will not publicly confirm whether a declaration or notice has or has not been filed with CFIUS by a particular party or with respect to a particular transaction.
  • Contents of Filings: Any information provided by the parties as part of a declaration or notice, including responses to follow-up questions from the Committee.
  • Non-Notified Inquiries and Pre-Filing Consultations: Any information submitted to CFIUS by the parties in connection with responding to a non-notified inquiry, engaging in a pre-filing consultation, or submitting a draft filing.
  • Mitigation Agreements: Any information provided by the parties in connection with the negotiation, implementation, monitoring, and enforcement of mitigation agreements, conditions, and orders. Mitigation agreements and related information are derivative of the filing and often contain sensitive business information provided by the parties.
  • CFIUS Memos and Documents: Memoranda and other internal CFIUS documents discussing a transaction for which the parties filed information or documentary material with CFIUS. These documents are derivative of the filing and may also contain classified and other sensitive or deliberative government information.
  • Status and Outcomes: Information about the status of CFIUS’s review of a transaction or the outcome of such review, including the fact that the review has concluded and the fact that a review resulted in mitigation, if any. This information reveals the fact of a filing.
  • Reports to the President: CFIUS’s reports to the President may not be disclosed publicly and are also subject to executive privilege.

The confidentiality requirements under Section 721(c) do not prohibit parties to a transaction from publicly disclosing any information or documentary material filed with CFIUS. If the parties themselves publicly disclose information or documentary material filed with CFIUS, such as the fact of a filing, such information or documentary material may subsequently be reflected in the public statements of the CFIUS Chairperson or the Chairperson’s designee.

FOIA and Disclosure Limits

Information and documentary material filed with CFIUS is exempt from disclosure under FOIA and may not be made public, subject to the limited exceptions in Section 721(c).

Handling Sensitive Information

Parties must ensure that all information and documentary material in a declaration or notice filed with CFIUS is accurate and complete in all material respects. Parties should clearly communicate to the Committee if any such information or documentary material filed with CFIUS is confidential to one party to the transaction (i.e., it should not be disclosed to another party to the transaction) and mark documents accordingly.

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