Yesterday, the SEC posted final amendments to its rules related to FOIA, the Freedom of Information Act, to conform to the FOIA Improvement Act of 2016 and to otherwise update and streamline the regulations. The changes will become effective 30 days after publication in the Federal Register. Due to the scope of the amendments, these final FOIA rules replace the SEC’s existing FOIA rules in their entirety, revamping the organization of the rules. What does that mean? It means that your standard form FOIA SEC rule references are probably soon to be out of date.
Most of the rules describe the procedures and fees for requesting documents. For those seeking to protect the confidentiality of documents, Section 200.80(c) of the new rules provides that a “request for records may be denied to the extent the exemptions in 5 U.S.C. 552(b) apply to the requested records”—that would include Exemption 4 contained in 5 U.S.C. 552(b)(4) for “[t]rade secrets and commercial or financial information obtained from a person and privileged or confidential,” on which Confidential Treatment Requests commonly rely—and the “(A) Commission staff reasonably foresees that disclosure would harm an interest protected by the applicable exemption; or (B) The disclosure of the requested records is prohibited by law or is exempt from disclosure under 5 U.S.C. 552(b)(3)” As a technical matter, note that the revisions eliminate certain provisions in the SEC’s current FOIA regs that were considered unnecessary because they simply repeated information contained in the FOIA statute. Among the provisions eliminated were the nine categories, previously set forth in Section 200.80(b) of the superseded regs, that are exempt from disclosure under 5 U.S.C. 552(b). One of these eliminated categories is the oft-cited 200.80(b)(4), which repeated the statutory Exemption 4. (The statute remains—it’s only the repetitive regs that are being eliminated, so no substantive change there.) Accordingly, those preparing CTR requests will need to update legends and other references in CTRs to delete citations to the soon-to-be-defunct 200.80(b)(4) (and review any other references to the FOIA rules) and consider instead whether another reference is appropriate, such as to the statute itself or to 200.80(c).