Biggest FOIA Story 2010
Drum roll please....
The biggest FOIA story of 2010, as determined by the FOIA blog is . . .
The SEC FOIA Fiasco.
For those of you who don't recall, or have the time to review all of this blog's posts on the matter, here is a summary of what happened.
The Financial Reform bill passed during the Summer of 2010 had a number of different drafts circulating in the Congress. Many, if not all of them, had provisions broadening FOIA protections for documents the SEC would receive as part of its oversight responsibilities in the bill. The final bill created an Exemption 3 statute that allowed the SEC to withhold information derived from "surveillance, risk assessments, or other regulatory and oversight activities."
The media actually took notice of this new provision -- and it this attention was generally negative. The SEC tried to downplay their new powers, even going so far as to issue guidance on the issue.
Congress took notice -- and in a bipartisan manner. A number of bills repealing the matter were introduced in both the Senate and the House of Representative. The Senate then repealed the provision, and the House then followed. President Obama then signed the bill.
As it applies to FOIA, it is a big story because it demonstrates how agency seek to gain larger withholding powers to block disclosure of records. In this case, the SEC probably already had the power pursuant to FOIA Exemption 8 and case law to block the release of the type of records it would receive in its new regulatory duties given to it in the financial reform legislation. The language of the new Exemption 3 statute, however, would have been much broader than just redacting material from the SEC regulatory duties -- it is possible the SEC would attempt to withhold records it receives as part of its law enforcement actions, which is different than regulatory. Thus, the wording of legislation becomes a very big issue when it comes to FOIA -- a lesson learned in 2010.
As it applies to government overall, it demonstrates how important it is to read legislation before it is voted on. I think blame can go to both sides of the aisle on this one -- the Democrats allowed a vote on a bill that had language in it that most of them either didn't understand or didn't agree with. And the Republicans, by not participating in the process didn't bother to actively take part, which includes reading the bill before it was passed.
With three cases before the Supreme Court in 2011, I project the biggest story in the upcoming year will be the decisions and fall out from the Supreme Court on the issues before it.
Posts
