Tuesday, September 21, 2010

Securities Industry Supports SEC FOIA Exemption in Dodd-Frank Against Legislative Assault

With legislation curtailing the SEC's FOIA exemption in Dodd-Frank being advanced by prominent House and Senate leaders, the securities industry has spoken out in favor of the FOIA exemption in Section 929I of Dodd-Frank. Almost immediately after the passage of Dodd-Frank, a controversy erupted over the scope of the SEC's FOIA exemption in Sec, 929I, The securities industry supports the SEC's position that Sec. 929I addresses serious concerns that had hampered both the regulator and the regulated from openly sharing information that both agree should be accessible to the SEC. Testifying for SIFMA before the House Financial Services Committee, former FINRA enforcement chief Susan Merrill said that Sec, 929I squarely addresses these concerns and fosters a more open and cooperative dialogue between the securities industry and the SEC. With no risk of possible compelled disclosure looming over the production of information, regulated firms will be able to produce information that the SEC should have access to without fear that the SEC will later be compelled to disclose it.

In addition, Sec, 929I resolves concerns about whether information may fall within the embrace of existing FOIA exemptions. For example, the fear that proprietary information may not meet the criteria for a trade secret under FOIA Exemption Four Eis no longer a concern since the SEC may now lawfully withhold such sensitive information if the data was produced in connection with an SEC examination. Even more, Sec. 929I closes the third-party subpoena loophole that had provided a path to compelled disclosure of confidential information even when FOIA exemptions were met.