Thursday, May 26, 2011

FSOC Proposed Dodd-Frank FOIA Implementation Regulations Would Undermine FOIA Says Market Group

The Financial Stability Oversight Council’s proposed regulations implementing Dodd-Frank provisions making FOIA applicable to the Council would give the Council virtually unfettered and unreviewable discretion to reject FOIA requests on technical grounds, claimed a non-profit market public interest group. In a letter to the Council, the Better Markets group said that the proposal could undermine both the letter and spirit of FOIA by the imposition of technical hurdles. Further, the proposed regulations would give the Council unacceptable authority to delegate its duties under FOIA to other agencies from which the Council originally obtained the records in its possession.

The group urged that the proposed regulations be changed to prevent the Council from simply ignoring FOIA requests and to require the Council to explain the defects that must be corrected when it determines that a request is materially deficient. The regulations should also ensure that any Council determination is subject to appeal.

The Council’s discretion to delegate the responsibility for responding to other agencies should be eliminated, said the group. The proposed referral authority would deprive FOIA requestors of important information that they are entitled to receive under the law. For example, a failure by the Council to address a systemic risk in the financial markets could only be assessed in light of what the Council knew about the surrounding facts and circumstances. In turn, much of this information would only be available by reviewing the information that was available to the Council as reflected in the records it received from the reporting agency.

As a practical matter, the proposed referral authority would also cause delays in responding to FOIA requests. Further, the FOIA statute provides no basis for allowing an agency to delegate its responsibilities to another agency.