The drill is second nature to many attorneys who practice before the Securities and Exchange Commission’s Enforcement Division: client documents about to be shipped off to the SEC are diligently stamped by a legal assistant or document vendor with a “Confidential Treatment Requested Under FOIA” legend; the attorney cover letter enclosing the documents is marked with the same legend and includes the talismanic paragraph invoking confidential treatment under the Freedom of Information Act; and a copy of the cover letter is simultaneously sent to the SEC’s FOIA Officer to complete the process.
Most SEC practitioners, however, are only vaguely aware of the statutory protections available to their clients and to the SEC should third parties initiate a FOIA request for copies of the documents they have submitted to the SEC on behalf of their clients and the process the SEC must follow to withhold material pursuant to the FOIA’s exemptions from disclosure. The recent culmination of protracted litigation concerning the SEC’s response to FOIA requests submitted by one party reveals the increasing FOIA burdens on the SEC, and the scrutiny courts will apply to the agency’s response to FOIA requests.
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