The Korea Fair Trade Commission (the “KFTC”) proposed Guidelines for Accessing and Copying Data (the “Guidelines”) which set out detailed methods and procedures for accessing and copying evidentiary data. Following an administrative pre-announcement from November 2 through November 22, 2020, the Guidelines went into effect on December 3, 2020.
Prior to implementation of the Guidelines, when a company subject to the KFTC’s investigation (the “Examinee”) requested the KFTC examiner in charge (the “Examiner”) for access to and copies of the evidentiary data used in the investigation but not disclosed in the KFTC examiner’s report (the “Examiner’s Report”), the KFTC granted such requests only in limited situations when there was an express consent from the person who submitted the data (the “Data Submitter”) or when there was a need to allow access and copies from a public interest standpoint. However, the Guidelines now provide detailed methods, procedures and restrictions for accessing and copying data in order to guarantee the Examinee’s rights of defense and simultaneously protect the Data Submitter’s confidentiality.
By protecting the Examinee’s defense rights and the Data Submitter’s confidentiality through the Guidelines, the KFTC expects to secure fairness and transparency for its examination procedures.
Key points of the Guidelines are as follows:
1. Guarantee of Examinee’s Right to Request for Access and Copies
The Examinee may make a request to the KFTC for access to or copies of data not disclosed in the Examiner’s Report using the annex forms attached to the Guidelines. Upon receipt of the Examinee’s request, the KFTC ensures that the Data Submitter is given an opportunity to provide its views on disclosing the data and, if the Data Submitter does not consent to such disclosure, reasons for not consenting.
The presiding commissioner of a plenary meeting and the chairman of a small meeting of the KFTC (the “Presiding Commissioner”) is given 30 calendar days from the date of the Examinee’s request to decide whether to grant access to or copies of the data. In principle, the data should be fully and completely disclosed to the Examinee unless it corresponds to: trade secrets; data submitted in a leniency application; or data considered confidential under other laws. In addition, upon consent from the Data Submitter, the data is fully disclosed to the Examinee unless it corresponds to confidential data under other laws.
2. Protection of Trade Secrets Through the Introduction of a Data Room
If it is deemed difficult to fully disclose the data requested by the Examinee on the grounds explained above, the KFTC may permit disclosure through restricted data access procedures, in which the KFTC decides (i) the person who is given restricted data access, (ii) the time of restricted data access and (iii) the place of restricted data access. This is to balance out the protection of the Data Submitter’s confidentiality and the guarantee of the Examinee’s defense rights.
Specifically, an external representative of the Examinee who has been granted restricted data access by the KFTC (the “Representative”) may, within a maximum of two weeks, access the data at the date and time designated by the Presiding Commissioner by entering a restricted data access room. The Representative can confirm and verify the existence of the evidence and its details in the restricted data access room and prepare an access report based on his/her findings (the “Access Report”), which is the only material permitted to be taken out of the restricted data access room. The Access Report should not contain details of trade secrets and is sent to the Examinee within seven days after the Presiding Commissioner confirms that no trade secrets were recorded therein.
If the Representative finds it necessary to dispute whether the data constitutes trade secrets, he/she may prepare a separate confidential access report specifying the trade secrets and submit it to the KFTC. This confidential access report is only disclosed to the KFTC commissioners and subordinate officials and prohibited from disclosure to other parties such as the Examinee. If deemed necessary, the Presiding Commissioner may request the Representative, the Data Submitter and the Examiner to be brought in and state their views.
3. Imposition of Duty of Confidentiality
When making restricted data access, the Representative shall not disclose or divulge any trade secret to anyone, including the Examinee. The Examinee is prohibited from requiring the Representative to provide any trade secrets which the Representative acquired through the restricted data access.
Implications
Prior to implementation of the Guidelines, the Examinee had difficulties in rightfully exercising the rights of defense, because no laws or regulations existed to specifically provide for the methods for the Examinee to access and copy data and the standards for the KFTC to decide whether to grant access in response to the Examinee’s request, and trade secrets were prohibited from being disclosed. However, the Guidelines now allow the Examinee to access and copy evidentiary data used in the KFTC’s investigation and review to guarantee the Examinee’s right of defense.
Further, the Guidelines provide matters on the operation of restricted data access rooms, which have been modeled after the European Commission’s data rooms and drawn increasing attention.
The Guidelines can directly impact not only the Examinee but also third parties who are obligated to submit their data to the KFTC, and we therefore advise continued monitoring of any developments related to implementation of the Guidelines and operation of the data room in practice.
