Ahead of a Thursday hearing before the House Financial Services Committee, the Securities and Exchange Commission disclosed new guidelines for its staff for considering Freedom of Information Act requests amid a controversy over changes in FOIA in the new financial-regulatory reform law.
The agency said the new instructions will provide “clarity” on when to approve or deny the requests.
Critics say the FOIA provisions included in the Dodd-Frank legislation will allow the agency to deny more FOIA requests – and possibly help cover up mistakes made by the commission and its staff, as in agency’s failures to catch Bernie Madoff and other Ponzi-schemers as well as alleged investment fraudster Robert Allen Stanford.
Lawmakers have introduced four bills to revise or repeal the provisions.
In a FOIA court case filed by Fox Business Network in the Madoff affair, an SEC attorney in July cited the Dodd-Frank provisions as a reason to deny the network’s FOIA requests, said Steven Mintz, FBN’s outside FOIA counsel.
In August, Mintz said, the attorney backed away from that defense and instead cited a different exemption. The case is moving forward in a federal court in New York.
In the new SEC guidance, released by the committee on Wednesday, the agency said that the Dodd-Frank provisions “are designed to protect the confidentiality and proprietary information of regulated entities and foster and open examination process – not to protect the Commission or a Commission employee.”
In her testimony, also released by the committee, Schapiro says, "In my view, that guidance will provide the clarity we need for a more robust examination program in a manner consistent with principles of open government."
But Kurt Bardella, a spokesperson for Rep. Darryl Issa (R-Calif.), the top Republican on the House Oversight Committee and a sponsor of one of the bills, called the agency’s guidance release a “political maneuver” designed to placate concerned lawmakers.
“It doesn’t address the concerns that we have,” including that legislation is “too broad” and allows the SEC to deny FIOA request “at will,” Bardella said.
“It just doesn’t cut it,” Bardella said. “There’s nothing different.”
“These don’t solve the problem, they highlight the problem,” he said. The guidance “seems to back off the words of the statute, but it doesn’t eliminate the statute,” he added, warning that the commission could change it at any time.
An SEC spokesperson declined to comment. But in her testimony, Schapiro cautions lawmakers against changes in the Dodd-Frank provisions that could hinder SEC investigations.
In his prepared testimony, also released by the committee, Mintz calls on Congress to repeal the provisions.
In an interview, Mintz said he said will testify before the committee as a FOIA lawyer, not as an attorney for FBN.