Tag: FOIA exemption 4

SEC eliminates “competitive harm” requirement in streamlined process for confidential treatment

So here’s a nugget that is buried in the SEC’s new adopting release on harmonization of the private offering exemptions (see this PubCo post): amendments to Reg S-K Item 601 to “adjust” the exhibit filing requirements related to confidential treatment by removing the competitive harm requirement in light of the SCOTUS decision in Food Marketing Institute v. Argus Leader Media. (See this PubCo post.) What in the world does that have to do with harmonizing private offering exemptions, you ask?

Will a new SCOTUS decision affect the SEC’s new confidentiality process?

If you thought a case, just decided last week by SCOTUS, involving a claim against the VA by a veteran who had been denied benefits (Kisor v. Wilkie) seemed far afield from the securities laws (but really could have a significant impact—see this PubCo post), a case decided last Monday might trigger a similar reaction.  Food Marketing Institute v. Argus Leader Media involved an effort by a South Dakota newspaper to obtain from the Department of Agriculture, under the Freedom of Information Act, the names and addresses of retail stores participating in SNAP, the national food-stamp program. The result in the case, which broadened the definition of “confidentiality” under FOIA Exemption 4, will make it substantially easier for parties to claim “confidentiality” under FOIA, preventing disclosure of their information.

Now the question arises as to what, if any, its impact will be on the confidentiality process in connection with filings with the SEC.  Had the case been decided on, say, March 19, it could, theoretically, at least, have had a fairly substantial effect: in seeking confidential treatment at that point, companies were required to submit a confidential treatment request (CTR) that stated the grounds for objection to disclosure, analyzing the applicable exemption under FOIA.  But, in an interesting turn of events, on March 20, the SEC adopted new rules for confidentiality that streamlined the process, but no longer required submission of a CTR and no longer directly adverted to FOIA Exemption 4.  Instead of referring to Exemption 4, ironically, the new rules expressly recite certain requirements for claims of confidentiality drawn from Exemption 4, including one that was tossed out by SCOTUS in the decision.  (See this PubCo post.) Accordingly, whether the decision will have any significant impact on the SEC’s process for seeking confidentiality will  really depend on whether the SEC elects to take up the issue.