FOIA experts think the SEC’s interpretation of the passage ought to be challenged, citing other recent attempts by government agencies to get around FOIA compliance which were not ultimately successful.
FOX Business Network’s revelation that the recent financial regulatory reform legislation holds a provision which exempts the Securities and Exchange Commission from complying with the Freedom of Information Act had advocates of FOIA and members of the legal community outraged on Wednesday.
The SEC cited a section of the legislation as exempting it from complying with FOIA requests posed by FOX Business, among others, when the requests are regarding information related to “surveillance, risk assessments, or other regulatory and oversight activities.”
“This is a scandal, a shock,” said Republican Rep. Spencer Bachus of Alabama. “This provision shuts the public out.”
FOIA experts think the SEC’s interpretation of the passage ought to be challenged, citing other recent attempts by government agencies to get around FOIA compliance that were not ultimately successful.
In the years following Sept. 11, after the passage of the Homeland Security Act, Congress debated adding provisions that would exempt private businesses from making FOIA disclosures on critical infrastructure vulnerabilities. Lawmakers hoped the private businesses would report those vulnerabilities to the Department of Homeland Security in an effort to better protect the country from terrorists, and didn’t want them to resist reporting due to FOIA requirements that would make that information public.
In another instance, a new bio-terrorism agency, called the Biomedical Advanced Research and Development Agency, or BARDA, included a provision that would exempt the entire agency from FOIA.
“This is reminiscent of an exemption for a new bio-terrorism agency the drug industry tried to push through Congress after 9/11,” Ken Bunting, executive director for the National Freedom of Information Coalition at the University of Missouri, said in an e-mail. “This exemption for the SEC is almost as sweeping, just as bad an idea.”
Ultimately neither BARDA nor the corporate infrastructure HSA submissions were made explicitly exempt, and both Bunting and Schultz see that as a good thing.
“With all that has gone on in recent years, can anyone think that the regulators who oversee the financial industry should be shielded from public scrutiny?” Bunting said.
Indeed, advocates of FOIA note that the legislation was originally intended to grant the individual the information needed to hold government accountable.
“FOIA creates a presumption that all of the documents held by the government are public documents, and it puts the burden on federal agencies to justify withholding information,” said David Schulz, who is a partner at media-law firm Levine Sullivan Koch & Schulz, and a lecturer on the topic at Columbia University.
FOIA was enacted in 1966 by President Lyndon Johnson, and then strengthened in 1974 in the wake of Watergate, and is designed to shine light on the inner workings of government, requiring federal agencies to provide government documents upon receiving a written request, Schulz said. There have been numerous amendments to the legislation, but the basic fundamental philosophy — that the public has a right to know what government is up to — has held.
Under the law there are nine official exemptions to FOIA requests, including: documents related to matters of national defense or foreign policy, information which would violate an individual’s right to privacy, records compiled for law enforcement purposes and trade secrets, commercial or financial information, among others. The third written exemption to FOIA requests includes information exempted by other statutes, and it is this exemption which the SEC’s recent attempt to avoid disclosure would probably fall under.
But Schulz can’t believe that Congress would have intended it that way.
“The notion that you could construe this new provision and the use of the word ‘regulatory’ as a broad grant of authority to exempt the SEC from disclosure laws — I can’t imagine Congress intended in its wildest dreams to grant that kind of authority without any significant public debate,” Schulz said.
Schulz went on to say that since the United States government’s passage of FOIA, there’s been a widespread trend of other governments and international governing bodies to adopt similar provisions, recognizing access to government information as a fundamental human right.
“It’s vitally important to the functioning of democratic governments,” Schulz said.
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